Last Updated: 8/2/2023
Welcome to Collective! Your use of Collective services, including the services Collective makes available through this website and all related web sites, mobile sites, data files, visualizations and applications that link to these terms of service (the “Site”) and all software or services offered by Collective in connection with any of those (the “Services”) are governed by these terms of service (the “Terms”), so please carefully read them before using the Services. For the purposes of these Terms, “we,” “our,” “us,” and “Collective” refer to Collective Hub, Inc.
By accessing or using the Services or any materials included in or with the Services, you hereby agree to be bound by these Terms. If you are registering for or using the Services on behalf of an entity, you are agreeing to these Terms for that entity and “you” and “your” will also refer to that entity, wherever possible. IF YOU DO NOT ACCEPT THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE SERVICES. YOU REPRESENT AND WARRANT THAT: (I) BY USING OR REGISTERING FOR THE SERVICES YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT, (II) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER AND TO BIND THAT ENTITY TO THESE TERMS, AND (III) YOU ARE NOT BARRED FROM USING THE SERVICES AND HAVE ALL RIGHTS, LICENSES AND AUTHORITY TO USE THE SERVICES.
You agree your purchases and/or use of the Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Collective or any of its affiliates regarding future functionality or features.
IF YOU PURCHASE ANY SUBSCRIPTIONS THROUGH COLLECTIVE, THEN SUCH SUBSCRIPTIONS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL SUBSCRIPTION PERIOD AT COLLECTIVE’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTOMATIC RENEWAL IN ACCORDANCE WITH SECTION 7 BELOW. SOME SERVICES ENABLED THROUGH THE SITE, SUCH AS THE REGISTERED AGENT SERVICES, AND ANY ADDITIONAL SERVICE PROVIDERS YOU CONTRACTED DIRECTLY WITH, ARE SUBJECT TO AUTOMATIC RENEWALS PURSUANT TO A SEPARATE AGREEMENT YOU MAY HAVE IN PLACE WITH THE APPLICABLE SERVICE PROVIDER. PLEASE READ SUCH AGREEMENTS CAREFULLY, AS SUCH SERVICES WILL AUTOMATICALLY RENEW UNLESS YOU OPT OUT OR TERMINATE SUCH SERVICES IN ACCORDANCE WITH THE APPLICABLE AGREEMENT.
ARBITRATION NOTICE: PLEASE BE AWARE THAT SECTION 16 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
CERTAIN FEATURES OF THE SERVICES OR SITE MAY BE SUBJECT TO ADDITIONAL GUIDELINES, TERMS, OR SEPARATE AGREEMENTS, WHICH WILL BE POSTED ON THE SERVICE OR SITE IN CONNECTION WITH SUCH FEATURES. TO THE EXTENT SUCH TERMS, GUIDELINES, AND RULES CONFLICT WITH THESE TERMS, SUCH TERMS SHALL GOVERN SOLELY WITH RESPECT TO SUCH FEATURES. IN ALL OTHER SITUATIONS, THESE TERMS SHALL GOVERN.
2. Description of Services
(a) Formation Service: As part of our Services, we provide you with online self-help tools and materials to facilitate the formation of a U.S. business entity, along with the preparation, execution, filing and storage of your own legal documents and related information in connection therewith (“Formation Service”).
(i) Name Searches. As part of the Formation Service, we can help you search for the availability of an LLC or corporate name (“Name Search”). You understand and agree that we cannot guarantee the availability of your desired LLC or corporate name, that our Name Search is limited to publicly available sources, and that you are ultimately responsible in all respects for determining the availability, non-infringement, and appropriateness of your desired LLC or corporate name. You understand and agree that acceptance of your desired LLC or corporate name by the relevant Secretary of State in connection with a filing does not necessarily mean that such LLC or corporate name does not infringe on an existing trademark or copyright. Consult with a trademark attorney to determine the availability and suitability of your desired LLC or corporate name for trademark purposes.
(ii) Selecting A Corporate Entity. Currently, our Formation Service enables users to form a limited liability company (LLC). Unless otherwise specified by you, all new LLCs formed via Collective shall be treated as “disregarded entities” and follow the default status provided under the applicable state of formation. You are solely responsible for obtaining any advisors and advice, including tax advice and how much to initially contribute to your LLC, and performing all research and diligence necessary or advisable with respect to the formation of the LLC. You acknowledge and agree that the Formation Service is merely designed to assist you in preparing and filing those documents necessary to form an LLC, and you authorize Collective and its third-party service providers to perform such services.
(iii) S-Corp Election. Our Formation Services also enable users to elect S corporation tax treatment by helping to facilitate the filing of necessary documents and forms. You acknowledge and agree that our Formation Services merely facilitate S corporation tax treatment elections, and do not include any analysis or advice whether any such S corporation tax treatment is available or advisable. You are solely responsible for any decision to elect S corporation treatment and for ensuring that you are eligible for S corporation treatment. You acknowledge and agree that Collective has no responsibility or liability for your S corporation election. COLLECTIVE DOES NOT GUARANTEE THAT AN S CORPORATION ELECTION WILL REDUCE OR MINIMIZE YOUR PERSONAL OR BUSINESS TAX LIABILITY, AND EXPRESSLY DISCLAIMS ANY PARTICULAR RESULTS. Further, you are solely responsible for all tax obligations related to any S corporation election, and will indemnify, defend, and hold harmless Collective, its officers, directors, employees, and contractors against any damages, judgments, liabilities, losses, penalties, settlements, costs, and expenses (including reasonable attorneys’ fees) incurred by Collective, its officers, directors, employees and contractors in connection with your S corporation election, including your acts and omissions related thereto.
(1) State S Corporation Pass Through Entity Tax Election. Our Formation Services do not support the filing of any state election for your S corporation to be taxed at the entity level. If a member of your LLC has made a state election to be taxed at the entity level, you must promptly disclose to Collective that your existing S corporation has made this state election. Collective reserves the right to deny or terminate your subscription to our Services as a result of such election.
(iv) Prior Formations and Elections. Collective is not responsible or liable for any prior corporate entities, partnerships, joint ventures or sole proprietorships you may have formed previously, any elections previously made or taken, or any other act or omission made by you prior to, or independent of, your use of the Formation Services. If your company was formed as an LLC, partnership, joint venture or sole proprietorship, or elected S-Corp status, prior to using the Formation Services, you represent and warrant that such entity, as applicable, is in good standing with relevant government entities, have filed all documents, applications and forms necessary to legally form and maintain such corporate entity, and have at all times complied with all applicable laws. We may, as a courtesy, provide notifications and suggestions related to any entity you may have previously formed. The Formation Services are currently limited to assistance with LLC formation, and S corporation election for existing LLCs or C-corporations. You understand and agree that S corporation election services are only available on a state-by-state basis and may not be available in every state.
(v) Annual Compliance Forms. Collective’s Formation Service does not include facilitating the preparation and filing of annual compliance forms that may be required by local jurisdictions in order to remain in good standing with such jurisdiction. While we may provide periodic notifications reminding you to file such forms as well as the amounts of any applicable fees, such notifications are made solely as a courtesy, and Collective undertakes no obligation to provide any such notifications or at any particular frequency. You agree that you are solely responsible for filing such forms in a timely manner as may be required by relevant jurisdictions, along with any applicable fees due.
(vi) Subsequent Establishments. Our Formation Service includes the establishment and registration of an initial single-member LLC entity during the onboarding process in one State only. Any additional and/or subsequent entity formations, registrations, re-domestications, employer registrations, etc. may incur additional fees that will be passed on to you.
(b) Document Materials: As part of the Services, you may receive access to guides, information and documentation related to starting and running a business. Such materials may include a standard set of legal forms prepared by our partners. All documents and other materials available through the Services, including any descriptions, information, legal forms and other help resources (collectively, the “Document Materials”) are for informational and educational purposes only; they are not guaranteed to be correct, complete or up-to-date. We do not review the Document Materials or any information you input for accuracy or legal sufficiency. You understand that the Document Materials are not customized to your particular needs and you should consult with a licensed attorney or financial advisor or accountant for additional guidance.
(c) Bookkeeping Services: Collective offers bookkeeping services, which includes categorization of transactions and reconciling bank accounts. Collective makes no commitment, and has no obligation, to provide any Bookkeeping Services to you, except as set forth in these Terms or a statement of work issued by Collective. IN NO EVENT WILL THE BOOKKEEPING SERVICES INCLUDE, WITHOUT LIMITATION, FINANCIAL ADVISORY SERVICES, SENDING OR PAYING YOUR BUSINESS’ INVOICES, CALCULATING SALES TAXES, PROCESSING PAYROLL PAYMENTS OR FULFILLING ORDERS. You agree that if you engage Collective to provide Bookkeeping Services, that you will indemnify, defend and hold harmless Collective from any and all damages, judgments, liabilities, losses, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) incurred by Collective, its officers, directors, employees, contractors and bookkeepers, in connection with any action, claim or suit arising from your use of the Bookkeeping Services, except to the extent caused by the gross negligence or willful misconduct of Collective and its bookkeepers.
(i) Client Obligations.
(1) Do Not Commingle Funds. You will ensure that any of your business accounts or expenses shall not be commingled with any of your (or your spouse’s or any other third party’s) accounts or expenses. In the event your business accounts are commingled with your or your spouse’s personal accounts and expenses, that Collective cannot accurately perform the Tax or Bookkeeping Services.
(2) Cooperation and Access to Information. Client acknowledges and agrees that Collective’s performance hereunder is conditioned upon Client’s performance of its obligations herein and reasonable cooperation. Client agrees to provide Collective with any information and permissions reasonably requested by Collective in order to perform the Bookkeeping Services. Without limitation, Client will: (i) provide Collective with monthly statements related to its bank accounts and credit cards. Collective acknowledges such information is the confidential information of Client, and will use such information and/or access solely for the purpose of performing its obligations herein; (ii) provide information on certain transactions. Since we are not part of the client’s day-to-day operations, we are not as familiar as you are with certain transactions. Your Accounting Advisor will reach out to you for additional information, and we need your timely response to keep your books updated; (iii) let us know of any changes in Your finances such as opening a new business bank or credit card, taking out a business loan, or selling a business asset during the year. Additionally, you agree to let us know if your health insurance premiums increased/decreased, or your state unemployment insurance rates increased.
(3) Review of Financial Reports. You are responsible for timely review of the general ledger and the financial reports we issue monthly. If you have any questions on the transactions or disagree with the categorizations, you must promptly notify us to make corrections.
(ii) BOOKKEEPING SERVICES DISCLAIMER. ALL ADVICE AND INFORMATION MADE AVAILABLE BY COLLECTIVE IN CONNECTION WITH THE BOOKKEEPING SERVICES IS BASED ON THE INFORMATION YOU PROVIDE TO COLLECTIVE OR AUTHORIZE COLLECTIVE TO OBTAIN FROM YOUR BANKS AND OTHER THIRD PARTY SOFTWARE PLATFORMS THAT SYNC DATA INTO OUR BOOKKEEPING SERVICES, AND THE BOOKKEEPING SERVICES CANNOT BE RELIED UPON TO DISCOVER ERRORS, FRAUD, DEFALCATIONS OR OTHER IRREGULARITIES, SHOULD ANY EXIST. WE WILL NOT AUDIT OR OTHERWISE VERIFY THE INFORMATION YOU SUBMIT, ALTHOUGH WE MAY ASK YOU FOR CLARIFICATION OF SOME OF THE INFORMATION. COLLECTIVE IS NOT RESPONSIBLE FOR ANY INFORMATION OR ADVICE GIVEN BASED ON ANY INACCURATE, UNTRUE, INCOMPLETE OR OUT-OF-DATE INFORMATION PROVIDED BY YOU. YOU ARE SOLELY RESPONSIBLE FOR YOUR ACTS AND OMISSIONS RELATED TO THE BOOKKEEPING SERVICES. SHOULD YOU NOT PROVIDE TIMELY AND ACCURATE INFORMATION, INCLUDING, BUT NOT LIMITED TO, KEEPING YOUR BOOKKEEPING IN ORDER, THEN WE MAY DISENGAGE SERVICES.
(iii) No Guaranteed Results or Responses. Collective does not make any representation or warranty that the Bookkeeping Services will be appropriate for your needs or suitable for your business. Collective does not guarantee and expressly disclaims any particular results. Since the Bookkeeping Services are based on the information you provide, Collective does not warrant that the Bookkeeping Services will be timely, accurate, current or complete. Collective may make available third party communication tools, to enable you to communicate with our bookkeepers, but Collective makes no representation or warranty that such tools are secure or that our bookkeepers will be able to respond to you in a timely manner.
(d) Tax Services: As part of our Services, Collective’s tax professionals may assist you with your business tax preparation and filing, and provide year round tax advice. Collective makes no commitment, and has no obligation, to provide any Tax Services to you, except as set forth in these Terms or a statement of work issued by Collective. In addition, your participation in certain Tax Services, or engagement of certain tax professionals, may be subject to additional terms and conditions, and such terms and conditions will be made available to you in connection with such services. Unless otherwise set forth in a statement of work, our Tax Services are limited to the preparation of state and federal income tax returns for your business. IN NO EVENT WILL THE TAX SERVICES INCLUDE CONSULTATION ON ANY OTHER TAXATION ISSUES. COLLECTIVE MAKES NO COMMITMENT, AND HAS NO OBLIGATION, TO PROVIDE ANY ADVICE, INFORMATION OR CONSULTATION REGARDING TAX MATTERS OUTSIDE OF THE SCOPE OF THE SERVICES SET FORTH IN THESE TERMS OR ANY STATEMENT OF WORK ISSUED BY COLLECTIVE. OUT OF SCOPE MATTERS INCLUDE BUT ARE NOT LIMITED TO LOCAL, SALES, USE, FRANCHISE, EXCISE OR GROSS RECEIPTS (B&O) TAXES. You agree that if you engage Collective to provide Tax Services, that you will indemnify, defend and hold harmless Collective from any and all damages, judgments, liabilities, losses, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) incurred by Collective, its officers, directors, employees, contractors and tax professionals, in connection with any action, claim or suit arising from your use of the Tax Services, except to the extent caused by the gross negligence or willful misconduct of Collective and its tax professionals.
(i) Pre-Engagement. You may schedule a complimentary consultation with one of our advisors to learn about our services in order for you to determine whether our Services and tax professionals are appropriate for your business. You have full control over whether to proceed with any Services, and we encourage you to seek the advice of additional financial advisors and tax professionals before engaging Collective’s Services. In addition, Collective retains sole discretion as to whether it is willing to provide Tax Services to any particular user.
(ii) Recordkeeping & Reliance on Information. You acknowledge and agree that you are solely responsible for disclosing all income and other reportable tax transactions, and that the failure to do so may result in penalties and additional liabilities. Collective shall have no liability for any failure by you to appropriately disclose such income and transactions. Collective agents and employees will use their judgment in resolving questions where the tax law is unclear, or where there may be conflicts between the taxing authorities’ interpretations of the law and other supportable positions. Collective will rely on our best professional judgment and is not liable for any penalties that might be assessed against it as return preparers. You agree to honor Collective’s decisions regarding disclosure of tax return positions to avoid or mitigate penalties. You are solely responsible for all final decisions concerning financial management, reporting, tax returns, and financial reporting. You agree to review all tax returns, reports, and other documents carefully before signing and/or relying upon them. You acknowledge and agree that Collective shall not be responsible or liable for any decisions made by you, or for any tax returns, reports or other documents executed or submitted by, or on behalf of you. You further acknowledge and agree that you understand state and federal recordkeeping requirements, including those of the Internal Revenue Service (IRS), and you agree to comply with those requirements, and that as between you and Collective, Collective has no responsibility in this regard.
(iii) State Income Tax Filing Nexus. Businesses and individuals may be subject to non-resident income tax filings in more than one state based on activity, sales, property, or payroll in that state. You acknowledge and agree that Collective has no responsibility or liability for notifying you of any such filing requirements for a state other than the state for which we provided the Formation Service; nor is Collective responsible for performing any analysis to determine whether nexus is established for any particular state. However, if your business generates more than $10,000 in gross income or if 25% of your business’s total gross income is derived from sources within a state in which you do not reside or in a state for which we did not provide the Formation Service, Collective may, at our sole discretion, assist with preparing additional state returns at an additional cost to you. You are solely responsible for timely notification of Collective if your business income meets either of these thresholds. Further, you are solely responsible for any tax liability or associated penalties and interest resulting from not filing any required state tax returns.
(iv) State and Local Franchise, Excise and/or Gross Receipts Taxes. Businesses may be subject to state franchise, excise, and/or gross receipts taxes which are separate from income tax filings. Collective will not file any franchise, excise, and/or gross receipts returns on your behalf. While we may, as a courtesy, help remind you about filing your annual state fees and/or taxes, such as an annual minimum franchise tax, such notifications are made solely as a courtesy and Collective has no obligation to provide such notification or notify you at any particular frequency. You are solely responsible for all franchise, excise, or gross receipts tax filings, third party fees and taxes related to your franchise, excise, and/or gross receipts tax liability.
(v) TAX SERVICES DISCLAIMER. OUR WORK IN THE PREPARATION OF TAX RETURNS CANNOT BE RELIED UPON TO DISCOVER ERRORS, FRAUD, DEFALCATIONS OR OTHER IRREGULARITIES, SHOULD ANY EXIST. WE ASSUME YOU ARE PROPERLY AND TIMELY DISCHARGING ANY AND ALL OTHER TAX REPORTING OBLIGATIONS FOR WHICH YOU ARE RESPONSIBLE. IN THE EVENT YOU TERMINATE THE SERVICES PRIOR TO THE COMPLETION AND/OR FILING OF YOUR TAX RETURNS, COLLECTIVE SHALL NOT HAVE ANY RESPONSIBILITY, OR LIABILITY WITH RESPECT TO COMPLETING OR FILING YOUR TAX RETURNS. ALL ADVICE AND INFORMATION MADE AVAILABLE BY COLLECTIVE IN CONNECTION WITH THE TAX SERVICES IS BASED ON THE INFORMATION YOU PROVIDE TO COLLECTIVE. YOU UNDERSTAND THAT WE WILL NOT AUDIT OR OTHERWISE VERIFY THE INFORMATION YOU SUBMIT, ALTHOUGH WE MAY ASK YOU FOR CLARIFICATION OF SOME OF THE INFORMATION. COLLECTIVE IS NOT RESPONSIBLE FOR ANY INFORMATION OR ADVICE GIVEN BASED ON ANY INACCURATE, UNTRUE, INCOMPLETE OR OUT-OF-DATE INFORMATION PROVIDED BY YOU. YOU ARE SOLELY RESPONSIBLE FOR YOUR ACTS AND OMISSIONS RELATED TO THE TAX SERVICES.
(vi) No Guaranteed Results or Responses. Collective does not make any representation or warranty that the Tax Services will be appropriate or suitable for your needs. Collective does not guarantee and expressly disclaims any particular results. Since Collective’s performance of the tax services is based on the information you provide, Collective does not warrant that the Tax Services will be timely, accurate, current or complete. Collective may make available third party communication tools to enable you to communicate with our tax professionals, but Collective makes no representation or warranty that such tools are secure or that our tax professionals will be able to respond to you in a timely manner.
(e) Gusto Payroll Service. Our Services include access to Gusto, Inc.’s (“Gusto”) payroll calculation, payment, and related tax reporting services (collectively, the “Gusto Payroll Service”) that is provided directly to you by Gusto. Collective does not provide or perform any of the Gusto Payroll Service made available to you by Gusto. Gusto provides to you (i) onboarding and managing human resources; (ii) calculating payroll and associated liabilities on behalf of your company; (iii) processing payments, on behalf of your company to Individual Users; (iv) withholding, filing, and remitting payroll tax payments and filings; and (v) remitting certain wage garnishments on behalf of your company to local, state, or federal agencies (see the Gusto Terms linked below for a full description of the Gusto Payroll Service). “Individual User(s)” means your company’s eligible employees and independent contractors as that term is used in the Gusto Terms.
(i) Use of the Gusto Payroll Service is subject to (A) your enablement of the Gusto Payroll Services, in accordance with Gusto’s Embedded Payroll Terms of Service, currently located at https://flows.gusto.com/terms (the “Gusto Terms”); (B) Gusto’s agreement to provide you with the Gusto Payroll Service; and (C) your acceptance of the Gusto Terms, as may be updated by Gusto from time to time. As Gusto is a separate entity from Collective, Collective cannot control and is not responsible for the actions, errors, or omissions of Gusto in connection with the Gusto Payroll Service, and Gusto’s liability for any such actions, errors, or omissions are governed by the Gusto Terms. In accordance with the Gusto Terms, you understand and agree that Collective may share information about you with Gusto to enable the provision of Gusto Payroll Service. You understand and agree that if termination of your account or the Services with Collective is not a termination of your account on the Gusto Payroll Service. Should you wish to terminate the Gusto Payroll Service, it is your sole responsibility to terminate such account or subscriptions in accordance with any agreement you have with Gusto. You understand and agree that by providing access to the Gusto Payroll Service, Collective is not acting in a fiduciary capacity in providing your company and/or Individual Users with the Gusto Payroll Service. You also acknowledge and agree that Gusto, not Collective, will be receiving, holding, and disbursing funds from you and on your behalf in connection with the Gusto Payroll Service.
(ii) From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Gusto Payroll Service may be inaccessible and unavailable, with or without notice.
(iii) It is your responsibility to comply with any requirement of Gusto in its provision of the Gusto Payroll Service, including submitting complete, timely, and accurate information either directly to Gusto or to Collective acting as a service provider to Gusto. You agree to respond timely and accurately to requests for additional information, as may be requested from time to time by Gusto or Collective, and agree to maintain appropriate funds in your payment accounts as necessary for Gusto to provide the Gusto Payroll Service. You represent and warrant that for any information you share with us in connection with the Gusto Payroll Service, you have the authority to share such information.
(iv) You acknowledge that if a payroll payment made via the Gusto Payroll Services has to be reversed due to insufficient bank funds and Gusto is unable to recoup the funds already paid via their Collections process, Gusto will bill this cost to Collective. In the event of the foregoing, Collective may (a) charge you via the payment method you provided to Collective pursuant to Section 7(a); (b) invoice you for such cost and, if so, you shall promptly pay Collective the applicable amount due; and/or (c) suspend or terminate the Services to you.
(f) Additional Services: We may also provide you with additional services for your business outside of the services described in Sections 2(a) – 2(e) and/or introduce you to our third-party service providers (“Service Providers”) to facilitate such additional services (“Additional Services”). These Additional Services include, but are not limited to, (i) designation of a registered agent for your business (“Registered Agent Service”), (ii) application for a Federal Tax Identification Number / Employer Identification Number (“EIN Service”), (iii) selecting, establishing and funding of a bank account (“Bank Account Service”), (iv) preparation, execution, and/or filing and storage of applications for certain licenses for your business, and (v) the preparation, execution, filing and/or storage of certain corporate documents (e.g. operating agreements, meeting minutes, statement of information, etc.) in connection with the operation of your business (“Corporate Documents Service”). You acknowledge and agree that we may subcontract out such Additional Services.
(i) Registered Agent Service: Collective does not provide registered agent services. However, we may make referrals to Service Providers who provide Registered Agent Services. Should you choose to designate one of our Service Providers to act as your registered agent (“Registered Agent”), you authorize the Service Provider to receive service of process, including any notices of legal proceedings, other legal notices, or official government communication, and any items covered by the respective statute, rule, or regulation on your behalf. You further authorize your Registered Agent to scan, upload and transmit any such communications received on your behalf to your email address and into your account. When appropriate, the Service Provider may also forward physical mail received on your behalf to the business address we have on record. It is your responsibility to keep your business address and contact information up to date. Any communications received by your Registered Agent will be directed towards the business address and business owner we have on file. To ensure uninterrupted service, the Registered Agent Service will automatically renew for successive 1 year terms upon each anniversary of your subscription to the Services. Should you wish to terminate services with your Registered Agent, it is your sole responsibility to provide at least 30 days written notice to your Registered Agent regarding your intent to terminate the Registered Agent Service. Should you terminate the Registered Agent Service, or in the event it is terminated due to your non-payment of fees for the Services, you are solely responsible for submitting any necessary change of agent paperwork with the applicable state agencies to comply with your state’s regulations. By canceling the Registered Agent Service, you acknowledge and understand that the applicable Service Provider will cease to act as your Registered Agent. Upon such resignation, Collective and any of its affiliates, directors, agents, employees, or other Service Providers will stop all Registered Agent related services. Any fees associated with completing such a change of agent are your sole responsibility. Specific information regarding the change of registered agent process and any related government fee information can be found on your state’s website. In the event that your business entity is dissolved, either voluntarily or involuntarily, it is your responsibility to notify Collective of this dissolution so that we may facilitate termination of the Registered Agent Services that are no longer needed. Until we are notified otherwise, your Registered Agent subscription will continue to renew.
(ii) Bank Account Service. You are solely responsible for selecting any bank you desire to use in connection with our Bank Account Service, and your use and participation in such Bank Account Service may be subject to additional terms and conditions depending on the bank you choose.
(iii) Business Licenses. Collective does not provide business license services. However, we may provide Document Materials on the topic and may introduce you to Service Providers who may be able to assist in obtaining a business license. Collective has no responsibility with respect to your business license(s), including determining any required license(s), the payment of applicable fees or maintenance or cancellations thereof.
(g) Service Providers: Collective may introduce you to Service Providers for certain Additional Services not available through Collective directly. If Collective introduces you to a Service Provider for the provision of such Additional Services, you understand and agree that you may be required to accept and comply with additional agreements or terms for such services. You are not required or obliged to work with any of our Service Providers, and none of our Service Providers are required or obliged to work with any particular user. We do not guarantee the availability or willingness of any Service Provider to assist you. Additionally, you understand and agree that should you wish to terminate an Additional Service with a Service Provider, it is your sole responsibility to do so in accordance with your agreement or any applicable terms with such Service Provider. Termination of your account or the Services with Collective does not automatically terminate any Additional Service you may have with a Service Provider. Such Additional Services may be subject to automatic renewals if you do not cancel such services.
(i) No Responsibility for Advice and Information Provided. You acknowledge and agree that (i) in the case of Additional Services provided by a Service Provider that Collective introduces you to, Collective is merely a facilitator of introductions between you and that Service Provider and is not a party to any transactions; (ii) Collective is not responsible for any advice or information provided by any Service Provider; (iii) Collective does not control any Service Provider and is not responsible for the timeliness or responsiveness of any Service Provider. You agree that Collective will not be liable for any losses or damages arising out of, either directly or indirectly, you or any Service Provider involved in the provision of such Additional Services.
(h) Limitations on Services: You acknowledge, understand, and agree that: (i) Collective is not a law firm, accounting firm or accountant, a financial advisor, or registered security broker or dealer, and as such, Collective provides no legal, financial, or accounting advice of any kind whatsoever; (ii) no information provided through the Services is intended to constitute, nor shall it be interpreted as, any such sale or offer to sell; (iii) you alone are responsible for all corporate, tax, securities and other legal and financial reporting, payment and compliance aspects of your personal and business activities; (iii) all information, forms, tools, and materials provided through the Services are provided to you for informational and educational purposes only and you are solely responsible for conducting your own due diligence or consulting with the appropriate subject matter expert (i.e., a licensed attorney for legal advice or a financial advisor for financial advice); and (iv) none of the Services is intended to create an attorney-client relationship, and if you communicate with Collective then your communication will not be subject to any attorney-client privilege. No information provided through the Services is intended to constitute, nor shall it be interpreted as, any such sale or offer to sell. Collective is not a registered security broker or dealer and is not regulated under the securities laws. Any company, investor or other user who uses the Services in connection with a potential transaction does so at its own risk and is solely responsible for conducting its own legal, accounting and due diligence review. Collective recommends that all companies and investors who use the Services seek legal counsel to review compliance with applicable federal, state and/or foreign securities laws and regulations, as well as the counsel of regulatory, tax and accounting advisors as applicable. In connection with any transaction involving securities, each user is required to assure compliance with all applicable securities laws and regulations. Any investor who intends to utilize the Services must be an accredited investor under United States securities laws, and it is your responsibility to verify such. A general solicitation or advertising may result in the loss of an applicable securities law exemption. All materials on this Site are strictly for informational purposes only. Collective has not investigated, and is not responsible for, the accuracy or completeness of any information or User Content provided through the Services. In connection with any transaction involving securities, each user is required to assure compliance with all applicable securities laws and regulations. Any investor who intends to utilize the Services must be an accredited investor under United States securities laws, and it is your responsibility to verify such.
(i) Obligations and Responsibilities.
(1) If you elect to receive any Services, including Additional Services, you (i) explicitly authorize Collective and/or its Service Providers to prepare, sign, and file forms and applications (“Forms”) on your behalf, to the extent necessary to provide you with the Additional Services; (ii) acknowledge and agree that you are solely responsible for determining whether any Service, including Additional Service, is appropriate for your business and whether Collective or the Service Provider holds the qualifications, training, and skills necessary for your business and assume all risk arising from your election to receive and your receipt of any Services, including Additional Services (including those through our Service Providers); (iii) agree to take full responsibility for providing Collective and/or its Service Providers with all necessary information to provide the Additional Services and communicate and cooperate with Collective and/or its Service Providers in all regards and in a timely manner with regards to the Services, including the Additional Services. You are responsible for the accuracy and completeness of all information provided. You represent and warrant that you have all the rights in and to any information necessary to provide the Services, including Additional Services, to you, and that our or our Service Providers’ use or our disclosure of information to our Service Providers as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. You agree that by electing to receive Services, including Additional Services, and by consenting and authorizing us to submit your information to Service Providers for the provision of any Additional Services, you have waived and released any claims against us and our directors, officers, and employees arising out of our use of that information and the applicable Service Provider’s use of such information, even if that use is not authorized by any applicable agreements between you and the Service Provider.
(2) You are solely and exclusively responsible for (i) managing your business, including communicating with any government authorities or Service Providers, (ii) keeping all contact information, including contact information provided to Service Providers and government entities, up to date, (iii) observing filing deadlines and filing requirements, (iv) paying any applicable fees and taxes, (v) verifying the availability and appropriateness of the desired business name, (vi) dissolving your business, if desired, (vii) entering information accurately and providing all necessary information for the provision of any Services, including Additional Services, and (ix) complying with any applicable laws and regulations. Failure to do any of the foregoing may result in delays in the Services or termination of your account.
(i) Electronic Communications. The Services may enable you to send and receive valid e-signatures in the United States under the 2000 U.S. Electronic Signature in Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA) as adopted by individual states. Collective does not authenticate users’ signatures or identities. By using the Services, you hereby consent to using electronic signatures on Collective. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature and that the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature or any resulting contract signed using Collective’s electronic signature service and technology.
3. Your Account
In the course of registering for and using the Services, you may be required to provide Collective with certain information, including your name, contact information, social security number, bank account information, business information, username and password (“Credentials”). Collective handles such information with the utmost attention, care and security. Nonetheless, you, not Collective, shall be responsible for maintaining and protecting your Credentials in connection with the Services. If your contact information or other information relating to your account changes, you must notify Collective promptly and keep such information current. You are solely responsible for any activity using your Credentials, whether or not you authorized that activity. You should immediately notify Collective of any unauthorized use of your Credentials or if your email or password has been hacked or stolen. If you discover that someone is using your Credentials without your consent, or you discover any other breach of security, you agree to notify Collective immediately.
A variety of information, messages, text, graphics, software, photographs, videos, data, and other materials (“Content”) may be made available through the Services by Collective or its suppliers (“Collective-Supplied Content”). While Collective strives to keep the Content that it provides through the Services accurate, complete, and up-to-date, Collective cannot guarantee, and is not responsible for the accuracy, completeness, or timeliness of any Collective-Supplied Content.
Any tax advice included in any communication may not contain a full description of all relevant facts or a complete analysis of all relevant tax issues or authorities. Such communication may not be used for the purposes of avoiding tax and/or penalties. Such communication is solely for the intended recipient’s benefit and may not be relied upon by any other person or entity.
Any communication (including messages and any attachments) may contain confidential information intended for a specific individual and purpose and is protected by law. If you are not the intended recipient, you should delete such message and any disclosure, copying, or distribution of this message, or the taking of any action based on it, by you is strictly prohibited.
ALL CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” ANY OPINIONS, ADVICE, STATEMENTS, SERVICES, OFFERS, OR OTHER INFORMATION THAT CONSTITUTE PART OF THE CONTENT EXPRESSED OR MADE AVAILABLE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION, SERVICE PROVIDERS, ARE THOSE OF THE AUTHORS OR DISTRIBUTORS AND NOT OF COLLECTIVE OR ITS AFFILIATES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS. YOU ASSUME THE RISK OF USING ANY CONTENT OR INFORMATION PROVIDED THROUGH THE SERVICES. UNDER NO CIRCUMSTANCES WILL COLLECTIVE, OR ITS AFFILIATES, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON ANY CONTENT OR OTHER INFORMATION OBTAINED THROUGH THE SERVICES.
You acknowledge that you may also be able to create, transmit, publish or display information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) through use of the Services. All such information is referred to below as “User Content.”
You agree that you are solely responsible for and that Collective has no responsibility to you or to any third party for any User Content, and for the consequences of your actions (including any loss or damage which Collective may suffer) in connection with such User Content. If you are registering for these Services on behalf of an organization, you also agree that you are responsible for the actions of anyone else you permit to use your account and for any User Content that such individuals might upload, record, publish, post, link to, or otherwise transmit or distribute through use of the Services.
Collective may refuse to store, provide, or otherwise maintain your User Content for any or no reason. Collective may remove your User Content from the Services at any time if you violate these Terms or if the Services are canceled or suspended. If User Content is stored using the Services with an expiration date, Collective may also delete the User Content as of that date. User Content that is deleted may be irretrievable. You agree that Collective has no responsibility or liability for the deletion or failure to store any User Content or other communications maintained or transmitted through use of the Services.
5. Proprietary Rights
You acknowledge and agree that Collective (or Collectives licensors) own all legal right, title and interest in and to the Services, Document Materials, and Collective-Supplied Content and that the Services, Document Materials, and Collective-Supplied Content are protected by copyrights, trademarks, patents, or other proprietary rights and laws (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
Except as provided in this Agreement, Collective acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you create, upload, submit, post, transmit, share or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Collective, you agree that you are responsible for protecting and enforcing those rights and that Collective has no obligation to do so on your behalf.
Notwithstanding anything to the contrary, you agree to permit Collective to identify your business as a customer and to use your name and/or logo in Collective’s website and marketing materials.
6. License from Collective and Restrictions on Use
Collective gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Services solely for your internal business use, in the manner permitted by these Terms.
You may not (and you may not permit anyone else to): (i) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Collective, in writing (e.g., through an open source software license); (ii) attempt to disable or circumvent any security mechanisms used by the Services or any applications running on the Services; (iii) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services, or any part of the Services; (iv) use any metatags or other “hidden text” using Collective’s name or trademarks; or (v) use the Services in any way outside of the expressly permitted uses stated here.
You may not publicly share, redistribute, or sell Document Materials without Collective’s express written consent.
You may not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
You may not access the Services in a manner intended to avoid incurring fees or exceeding usage limits or quotas.
You may not access the Services for the purpose of bringing an intellectual property infringement claim against Collective or for the purpose of creating a product or service competitive with the Services. You may not use any robot, spider, site search/retrieval application or other manual or automatic program or device to retrieve, index, “scrape,” “data mine” or in any way gather Content from the Services.
You agree that you will not upload, record, publish, post, link to, transmit or distribute User Content, or otherwise utilize the Services in a manner that: (i) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Collective, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents your affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) utilizes or contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
You may not use the Services if you are a person barred from receiving the Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Services.
7. Pricing Terms; Automatic Renewal
(a) Generally. We provide the Services to you at the rates and for the fees (“Fees”) described in our Pricing Terms, which will be communicated to you in the course of your registration for, and/or use of the Services, and are incorporated into this Agreement. These may include one-time Fees for formation and related filing services and costs; and may include ongoing fees for maintaining your business status or for providing the Services. Generally, we charge our Fees prior to the performance of any Services, and charge for any expenses in arrears. Unless otherwise stated, all Fees are non-refundable, including if you terminate your subscription prior to the end of your subscription term. In the event you fail to make any payment, Collective will provide you with seven (7) days to cure such failure, otherwise Collective may terminate these Terms with or without notice. Collective may charge the payment method (e.g., credit card, debit card, or PayPal) you provided to Collective (or to its Service Provider) in connection with such ongoing fees. If Collective collects fees for services provided by Service Providers that Collective introduces you to, Collective’s sole role outside of the introduction is to collect and remit fees to these Service Providers. Collective may also facilitate direct payments to Service Providers, cities, states and other governmental agencies. If Collective facilitates such direct payments, Collective takes no role or responsibility in the collection or remittance of fees. To the extent the Fees you provide Collective include amounts associated with the filing fees for Forms, you authorize Collective to pay such filing fees on your behalf. For the sake of clarity, Collective does not remit income or payroll taxes, or hold money on behalf of the client.
(b) Subscription Fees; Automatic Renewal. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you select your subscription package (each, a “Service Commencement Date”). Except as set forth in these Terms, all fees for the Services are non-refundable. Your subscription will continue indefinitely until terminated in accordance with these Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following such period (each, a “Renewal Commencement Date”) and continue for an additional equivalent period, at Collective’s then-current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days’ prior to the Renewal Commencement Date. If you cancel your subscription in accordance with this Section, your subscription will terminate at the end of the month for which Service Subscription Fees have been paid.
(c) Discounts and Other Promotions. Any discount or other promotion must be used within the specified time of the trial. At the end of the trial period, your discount or other promotion will expire, and no further discounts or promotional benefits will be provided.
(d) Taxes. The payments required under this section do not include any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
(e) Referral Programs. Collective may, from time to time, offer certain referral incentive programs, subject to our Referral Program Terms, and any additional terms that may accompany such programs.
8. Privacy Policies
9. Modification and Termination of Services
This Agreement starts on the earlier of (i) you clicking “I ACCEPT”; or (ii) you using any of the Services and will continue in full force and effect until terminated in accordance with this Agreement. You may terminate these Terms at any time by canceling your subscription to our Services.
You agree that Collective, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Services may be without prior notice, and you agree that Collective will not be liable to you or any third party for such termination.
You are solely responsible for exporting your User Content from the Services prior to termination of your account for any reason, provided that if we terminate your account, we will endeavor to provide you a reasonable opportunity to retrieve your User Content.
Upon any termination of the Services or your account, these Terms will also terminate, but all provisions of these Terms which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Following cancellation of your account, you will have a reasonable period of time to download all data and information you have saved with our Services, and to transition/close any accounts with any Service Providers and/or tools you may have created via the Services. You are solely responsible for any and all matters related to your business following termination of your account, including the preparation and filing of your personal and business tax returns, unless Collective otherwise agrees in writing. Collective will not have any further liability or any obligations with respect to your business or any Service Providers you may have engaged via the Services.
10. Changes to the Terms
These Terms may be amended or updated from time to time. When changes are made, we will make a new copy of the Terms on the Site and update the “Last Updated” date at the top of the Terms. If we make any material changes, we will also send an email to you at the last email addresses provided to us. Any changes to the Terms will be effective immediately for new users of the Site and Services and will be effective thirty (30) days after posting notice of such changes on the Site for existing users, provided that any material changes shall be effective for registered users who have an account with us upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an email notice of such changes to registered users. We may require you to provide consent to the updated Terms in a specified manner before further use of the Site or the Services is permitted. It is your responsibility to review these Terms for any changes. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new Terms, please stop using the Services. Please visit this page regularly to review these Terms for any changes.
11. Disclaimer of Warranty
(a) Generally. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COLLECTIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICES (INCLUDING BUT NOT LIMITED TO THE GUSTO PAYROLL SERVICES), INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COLLECTIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE.
(b) Service Providers. COLLECTIVE SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO THE ACTS OR OMISSIONS OF ANY SERVICE PROVIDER, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, OPINIONS OR ADVICE PROVIDED THEREBY.
(c) Your Actions. COLLECTIVE SHALL HAVE NO RESPONSIBILITY FOR YOUR ACTS OR OMISSIONS IN CONNECTION WITH THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE SERVICES ARE APPROPRIATE FOR YOU, AND FOR ANY RELIANCE THEREON. YOU ACKNOWLEDGE AND UNDERSTAND THAT SOME OF THE SERVICES, INCLUDING THE ADDITIONAL SERVICES ARE DEPENDENT ON THE INFORMATION YOU PROVIDE AND THAT YOU, NOT COLLECTIVE, ARE RESPONSIBLE FOR ENSURING SUCH INFORMATION IS ACCURATE AND COMPLETE. YOU ARE ALSO RESPONSIBLE FOR ANY ACTS OR OMISSIONS TAKEN WITH RESPECT TO ANY INFORMATION OR ADVICE PROVIDED BY OR ON BEHALF OF COLLECTIVE.
(d) Interactions with Other Users. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. YOU ACKNOWLEDGE AND AGREE THAT COLLECTIVE DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER.
(e) Limited Exclusions. NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT COLLECTIVE’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
(f) Release. You hereby release Collective Parties (as defined in Section 13 below) and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Collective Party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder.
12. Limitation of Liability
SUBJECT TO SECTION 11 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT COLLECTIVE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE LIMITATIONS ON COLLECTIVE’S LIABILITY TO YOU IN THIS SECTION SHALL APPLY WHETHER OR NOT COLLECTIVE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
SOME STATES AND JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL COLLECTIVE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT THAT YOU HAVE ACTUALLY PAID FOR THE SERVICES IN THE PAST TWELVE MONTHS, OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER.
You agree to hold harmless and indemnify Collective, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or Service Providers (collectively “Collective Parties”) from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Services, (c) your violation of applicable laws, rules or regulations in connection with the Services, (d) Collective Parties’ use of or reliance on information provided to Collective by your company or an Individual User, or (e) your User Content or use thereof, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.
14. Third-Party Resources
The Services may include references or hyperlinks to third-party sites, content, or tools (“Third-Party Resources”). You acknowledge and agree that (i) Collective makes no representations and warranties regarding such Third-Party Resources, including the accuracy or completeness of any information provided; (ii) such Third-Party Resources may be subject to additional terms and conditions, which will be made available to you, and you are solely responsible for reading and understanding such terms and conditions prior to any use of applicable tools; and (iii) Collective is not liable for any loss or damage which may be incurred by you or other users as a result of the availability of these Third-Party Resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any Third-Party Resources or information provided through such Third-Party Resources. You understand and agree you use all Third-Party Resources at your own risk.
You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products. By submitting any such feedback, you hereby grant to Collective a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all feedback, and to sublicense the foregoing rights, to operate, maintain, and improve the Services.
Please read this section (the “Arbitration Terms”) carefully. It is part of your contract with Collective and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Terms. Subject to the terms of this Arbitration Terms, you and Collective agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or these Terms and prior versions of these Terms, including claims and disputes that arose between you and us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Collective may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Collective may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Terms, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of these Terms as well as claims that may arise after the termination of these Terms.
(b) Informal Dispute Resolution. There might be instances when a Dispute arises between you and Collective. If that occurs, Collective is committed to working with you to reach a reasonable resolution. You and Collective agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Collective therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Terms (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Collective that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices located at 660 4th Street #136, San Francisco, California 94107. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Terms shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
(c) Waiver of Jury Trial. YOU AND COLLECTIVE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Collective are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Terms, except as specified in Section 16(a) (Applicability of Arbitration Terms). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(d) Waiver of Class and Other Non-Individualized Relief. YOU AND COLLECTIVE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 16(i) (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Terms, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 16(i) (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Terms, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Collective agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Collective from participating in a class-wide settlement of claims.
(e) Rules and Forum. This Terms evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Terms and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Collective agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Terms. The AAA Rules are currently available at https://www.adr.org/
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Collective otherwise agree, or the Batch Arbitration process discussed in Section 16(i) (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Collective agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, who shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
(f) Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 16(i) (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
(g) Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Terms, including the enforceability, revocability, scope, or validity of the Arbitration Terms or any portion of the Arbitration Terms, except for the following: (1) all Disputes arising out of or relating to Section 16(d) (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 16(d) (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 16(d) (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 16(i) (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Terms applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 16(i) (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
(h) Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Collective need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
(i) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Collective agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Collective by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Collective.
You and Collective agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
(j) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Terms by sending written notice of your decision to opt out to [email protected], within thirty (30) days after first becoming subject to this Arbitration Terms. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Terms. If you opt out of this Arbitration Terms, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Terms has no effect on any other arbitration Terms that you may currently have, or may enter in the future, with us.
(k) Invalidity, Expiration. Except as provided in Section 16(d) (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Terms are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Terms shall continue in full force and effect. You further agree that any Dispute that you have with Collective as detailed in this Arbitration Terms must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
(l) Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Collective makes any future material change to this Arbitration Terms, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Collective at 660 4th Street #136, San Francisco, California 94107, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Terms constitutes your acceptance of any such changes. Changes to this Arbitration Terms do not provide you with a new opportunity to opt out of the Arbitration Terms if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Terms, and you were bound by an existing Terms to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or these Terms, the provisions of this Arbitration Terms as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Collective will continue to honor any valid opt outs of the Arbitration Terms that you made to a prior version of these Terms.
18. Contact Us
If you have any questions about these Terms or if you wish to make any complaint or claim with respect to the Services, please contact us at collective.com/contact.
When submitting a complaint, please provide a brief description of the nature of your complaint and the specific services to which your complaint relates.