EXPERT SERVICES AGREEMENT
Effective: June 30, 2014
Last updated: October 8, 2015
1. Compensation. Expert or Network Sponsor will set a rate for Expert’s participation in a Discussion and that rate will be posted on Network Sponsor’s ECN and / or on a profile page created by Expert (“ECN Profile”). Consumers will pay for Expert participation in a Discussion through Network Sponsor’s ECN (“Expert Fee”) and Brainsy, or its designated service providers, will collect Consumer payments and disburse funds, less a Brainsy service fee and Network Sponsor service fee (together “Service Fees” or individually “Service Fee”) to Expert (“Expert Payout” or “Payout”). Brainsy or the Network Sponsor may set a minimum rate for Discussions in any ECN. Brainsy or the Network Sponsor may assess a one-time or annual fee for an Expert to participate in an ECN as an Expert (“Listing Fee”). Service Fees and Expert Payouts will be posted in the Expert’s control panel or ECN account settings. Upon termination of this Agreement, Expert will be paid any undisputed Expert Payouts that are earned prior to the date of termination. Expert may direct payments to a designated third party such as an employer or charitable cause. Expert agrees to accept all fees imposed by Expert’s financing or banking institution (if any) when receiving Payouts. Brainsy reserves the right to reverse disbursement and to receive reimbursement for any mistakes in billings.
1.1 Payout Processing. Brainsy uses Braintree Payment Solutions LLC (“Braintree”) for payment and Payout processing. In order for Expert to use Braintree’s payment processing services, Expert must enter into the Merchant Services Agreement (MSA) with Braintree and its sponsoring bank. The MSA is available here. By accepting this Agreement, Expert agrees: (a) that you have downloaded or printed the MSA, and (b) that you have reviewed and agree to the MSA. Please note that Brainsy is not a party to the MSA and that Expert, Braintree and Braintree’s sponsoring bank are the three parties to the MSA and that Brainsy has no obligations or liability to you under the MSA. If Expert has questions regarding the MSA, please contact Braintree at 877.434.2894. Brainsy may utilize other payment processing or Payout providers.
1.2 Payouts and Taxes. Expert will be responsible for complying with all tax obligations for receipt of Expert Payouts through any ECN. Brainsy may withhold Payouts until Expert provides data necessary for tax reporting purposes. As a service for Experts, Brainsy or Brainsy’s designated service provider will prepare IRS Form 1099 for Experts when required by law. It is the responsibility of the Expert to keep Payout details up to date and confidential. Expert agrees to accept all fees imposed by Expert’s financing or banking institution (if any) when receiving Payouts
2.1 Brainsy. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, Brainsy grants Expert a limited, non-exclusive, non-transferable, license, exercisable solely during the term of this Agreement, for Expert to participate in a Discussion on the applicable Network Sponsor ECN in accordance with the terms of this Agreement. All other rights, title and interests remain solely with Brainsy. Expert shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any ECN. Expert acknowledges and agrees that Brainsy’s and Network Sponsor's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Brainsy or Network Sponsor, as applicable. Expert is not authorized to and shall not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior express written consent of Brainsy, or as applicable, of Network Sponsor.
2.2 Expert. Expert designates itself an “Expert” for the purpose of participation in the Network Sponsor ECN. Expert is the owner of Expert generated information posted to an ECN including Expert’s ECN Profile, Discussions, Profile Content, and Promotional Content (collectively “Expert Content”) provided through Network Sponsor ECN. For non-recorded Discussions, Brainsy devotes considerable effort to ensure that a Consumer and Expert have the opportunity to conduct a private Discussion. However, Brainsy merely provides a venue for connecting the parties, is not a party to any Discussion, and therefore cannot ensure that either Consumer or Expert will maintain the confidentiality of any Discussion. EXPERT ACKNOWLEDGES AND SUBMITS ALL EXPERT CONTENT AT THE RISK OF LOSS OR PUBLIC EXPOSURE. EXPERT CONTENT, INCLUDING DISCUSSIONS, MAY NOT BE CONFIDENTIAL AND THEREFORE ARE NOT PROTECTED BY DOCTOR-PATIENT, ATTORNEY-CLIENT OR ANY OTHER PRIVILEGE. Expert grants to Brainsy a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licenseable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize Expert’s ECN Profile and Profile Content, as necessary for the limited purpose of development, operation, maintenance, support, promotion, marketing and publicity of the Expert or the Network Sponsor ECN and without any further consent, notice and/or compensation.
2.3 Promotional Content: Certain ECNs may be configured to provide Experts with access to Brainsy tools (“Brainsy Tools”) to create ECN Badges, Widgets, or display ads that may be embedded in Expert’s other websites or social media profiles (“Promotional Content”). We grant you a limited, non-exclusive, non-assignable, non-transferable license under Brainsy’s intellectual property to use Brainsy Tools to embed Promotional Content, which may contain Brainsy marks as well as portions of your Profile Content, into your other media properties and you will do so in accordance with any terms and conditions governing your use of the other properties.
3. Independent Expert Relationship. Expert is an independent contractor in relation to Brainsy and Network Sponsor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship. Expert will not be entitled to any of the benefits that Brainsy or Network Sponsor may make available to its employees, including, but not limited to, group health or life insurance, profit sharing or retirement benefits. Expert is not authorized to make any representation, contract or commitment on behalf of Brainsy or Network Sponsor unless specifically requested or authorized in writing to do so by Brainsy, or as applicable, Network Sponsor. Expert is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. No part of Expert’s compensation will be subject to withholding by Brainsy for the payment of any social security, federal, state or any other employee payroll taxes. Brainsy, or its designated service provider(s), will report amounts paid to Expert by filing Form 1099 MISC with the Internal Revenue Service as required by law. Expert will be responsible for complying with all tax obligations for earnings in relation to this Agreement. Brainsy may withhold payments until Expert provides data necessary for tax reporting purposes. Brainsy, or its designated service provider(s), reserves the right to store Expert’s Payout information including personal information such as social security numbers, mailing address, and other personal data required to process Payouts or comply with IRS 1099 reporting requirements.
4. ECN Profile.
4.1 Profile Content. Brainsy shall provide Expert with access to a password protected control panel (“Control Panel”) for the Network Sponsor ECN in which Expert has been authorized such that Expert may create a biographical profile and post content (“Profile Content”) to Expert’s ECN Profile. Expert shall be solely responsible for all aspects of the Profile Content added to the ECN and will ensure that all Profile Content is Expert’s own intellectual property or that Expert has obtained licenses or permission to use the content. Expert will not post content that is unlawful, deceptive, misleading, defamatory, or threatening or that otherwise violates any applicable law or this Agreement. Expert acknowledges that the selection of certain configuration options will affect the Consumer experience when interacting with the Expert’s ECN Profile. Expert’s Profile Content will be available to other ECN users and in an Open ECN, generally available to members of the public. Neither Brainsy nor Expert’s Network Sponsor is responsible for another party’s misuse of any information Expert provides on any ECN Profile or to Brainsy. Brainsy does not endorse Expert and Expert may not suggest it does.
4.2 Discount Coupons, Referral Codes, and Third Party Agents. Certain ECNs may be configured to provide Experts with access to Brainsy tools to create discount coupons or referral codes issued to third party agents. Using these tools, third party agents authorized by you through the ECN platform may be eligible for commissions or discounts. Commissions to third party agents may reduce your Payout but will be made to agent from Brainsy. You authorize Brainsy to settle all transactions with third party agents including commission payouts to agents and preparation of IRS Form 1099 when required by law.
5. Other Terms. Brainsy reserves the right to record a Discussion between Consumer and Expert and by default, an ECN is typically configured to not record Discussions. Prior to recording any Discussion, Brainsy will disclose to both Expert and Consumer that a Discussion will be recorded and thus provide each party with the opportunity to opt-out of the Discussion. If a Discussion is recorded, Brainsy reserves the right to access the recording for training, quality, or regulatory compliance purposes. Brainsy may or may not share recordings with Expert, Network Sponsor or Consumer. Brainsy would never make any recordings public without both Expert and Consumer’s express prior consent. Expert must register a direct telephone number (no extensions) from which Expert will participate in a Discussion. This number will never be shared with Consumer. Expert may access their control settings to edit information in their Profile Content or personal registration profile. Some ECNs may allow Expert to create a PIN number for added security. Expert is responsible for keeping this PIN private. Expert may participate in more than one (1) ECN, however, data is not co-mingled between Accounts and ECNs. Expert may set account in “Vacation” mode and during such time, Consumers cannot Request a Call from Expert. Expert is responsible for maintaining current status and availability in Account profile. Brainsy welcomes feedback, which Expert may submit via email (email@example.com Subject: “Feedback”), and by submitting suggestions or service tickets to Brainsy (“Feedback”) or any ECN, Expert agrees that such Feedback does not contain confidential or proprietary information, that Brainsy shall be entitled to use or disclose such Feedback for any purpose, and that Expert irrevocably and non-exclusively assign to Brainsy rights to exploit such Feedback, and that Expert is not entitled to any compensation or reimbursement. Expert may not provide any direct contact information to Consumer prior to an initial call transaction and doing so will result in closure of Expert’s account. At all times, Expert will observe Brainsy’s and the applicable Network Sponsor’s rules and regulations. In the event you are subject to a separate agreement with Network Sponsor or any other party related to your participation in the Network Sponsor ECN (“Third Party Terms”) and there is a conflict between Third Party Terms and this Agreement, then this Agreement shall control.
6. Third Party Applications. Expert may Login to Network Sponsor ECN through a third party application (“TPA”) such as LinkedIn, Google, Twitter, or Microsoft. Expert may link an ECN Login Account with a TPA Account by providing the appropriate credentials and represents that Expert has permission to provide such credentials in accordance with any terms and conditions governing Expert’s use of the TPA. Expert further agrees that Brainsy may store TPA Content or other Expert TPA information which Expert has consented to provide to Brainsy for use on the Network Sponsor ECN to which Expert is authorized to participate. Brainsy provides integration with TPA for the convenience of the Expert but has no obligation to offer such integration. Expert may disable TPA links in the Expert’s ECN account control settings.
7. Required Activity. Expert shall:
(a) Comply with all applicable laws and other governmental rules and regulations.
(b) Use real name and biographical information when creating any profiles.
(c) Keep all passwords and information to Expert’s Account confidential.
(e) Act in a professional, courteous, and respectful manner when interacting with any party in relation to any ECN.
8. Restricted Activity. Expert shall not:
(a) Transmit or submit any content or information that infringes on the rights of others, is fraudulent or deceptive, is obscene, vulgar, pornographic, defamatory, or that contains bigotry, racism, that harasses or threatens others, or that promotes any illegal activity.
(b) Reverse engineer, attempt to derive any source code, circumvent Brainsy’s intellectual property, or use knowledge gained from participation in an ECN to develop any products or services that compete with Brainsy.
(c) Provide any material non-public information on a publicly traded company.
9.1 Definition of Confidential Information. “Confidential Information” means any non-public information received by Expert hereunder or through performing under this Agreement, including participation in any Discussion and Confidential Information as defined in any NDA (as defined below). Some Network Sponsor ECNs may be configured by a Network Sponsor to allow for a supplemental confidentiality and non-disclose agreement (“NDA”) to be executed between a Consumer and an Expert at the time a call request is made. If Expert does not agree to be bound by the supplemental NDA with a Consumer for a Discussion, then you must reject any such call request.
9.2 Nondisclosure and Nonuse Obligations. Except as permitted in this Section, Expert shall not use, disseminate or in any way disclose the Confidential Information. Expert may use the Confidential Information solely to perform its obligations hereunder. Expert may use the Confidential Information received from a Consumer solely to participate in a Discussion with the particular Consumer that provided such Confidential Information to Expert. Expert shall treat all Confidential Information with the same degree of care as Expert accords to Expert’s own confidential information, but in no case shall Expert use less than reasonable care. Expert shall immediately give notice to Brainsy of any unauthorized use or disclosure of the Confidential Information. Expert shall assist Brainsy in remedying any such unauthorized use or disclosure of the Confidential Information.
9.3 Exclusions from Nondisclosure and Nonuse Obligations. Expert’s obligations under Section 9.2 shall not apply to any Confidential Information that Expert can demonstrate (a) was in the public domain at or subsequent to the time such Confidential Information was communicated to Expert through no fault of Expert; (b) was rightfully in Expert’s possession free of any obligation of confidence at or subsequent to the time such Confidential Information was communicated to Expert; or (c) was developed by Expert independently of and without reference to any Confidential Information communicated to Expert. A disclosure of any Confidential Information by Expert (a) in response to a valid order by a court or other governmental body or (b) as otherwise required by law shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Expert shall provide prompt prior written notice thereof to Brainsy to enable Brainsy to seek a protective order or otherwise prevent such disclosure.
10. Warranties by Expert. Expert represents and warrants that: (i) the Discussion rendered pursuant to this Agreement and all of its performance hereunder shall be undertaken in a professional and workmanlike manner in accordance with accepted standard practice by members of the same profession and will be materially free of defects, and (ii) it shall perform under this Agreement in a manner that does not violate or infringe any patent, copyright, trademark or other proprietary rights of any third party or violate any applicable law. Expert further represents and warrants that: (i) Expert has registered on the Network Sponsor ECN under its true identity and will provide current and accurate information on the Network Sponsor ECN at all times; (ii) it is fully able to perform hereunder; (iii) this Agreement has been duly authorized for execution; and (iv) it has and will have all rights, titles, licenses, permission and approvals necessary to enter into and engage in the transactions and the performance of the Services contemplated herein.
11. Indemnification by Expert.
11.1 Indemnification. Expert shall indemnify, defend and hold harmless Network Sponsor, Brainsy and their subsidiaries, parent, affiliates, and their respective directors, officers, employees and agents, licensors, and representatives from and against any and all loss, costs (including reasonable attorney’s fees), damages, injury, or liability arising out of, incident to, or relating to any act or omission of Expert or its officers, agents, or employees in the performance of this Agreement including, without limitation claims arising from or related to an Expert’s Discussion hereunder.
11.2 Indemnification Procedure. The indemnitor shall pay all costs and damages finally awarded in any such claim, action, or proceeding, provided that the indemnitee gives the indemnitor prompt written notice of such claim, action, or proceeding, gives indemnitor the information and reasonable assistance required by the indemnitor to defend or settle the matter, and allows the indemnitor sole control of defense of the matter. The indemnitor shall not settle or compromise any matter asserted against the indemnitee without the indemnitee’s prior written consent. No delay in notice to the indemnitor of a claim under this Section shall limit the indemnitor’s obligations to the indemnitee under this Section, unless the delay materially prejudiced the indemnitor’s ability to defend the claim successfully.
12. Term and Termination. The term of this agreement will commence on the date upon which Expert agrees to this Agreement and will continue until: Network Sponsor discontinues Network Sponsor ECN or discontinues Expert’s Account, Network Sponsor terminates its agreement with Brainsy, or Brainsy terminates Network Sponsor’s ECN. Expert may terminate this agreement for any reason or no reason, at any time, by deactivating Expert’s profile and deactivating Expert’s account in the Expert’s ECN Account control settings. Brainsy may suspend or terminate this Agreement or suspend or terminate Expert’s account for any reason or no reason, at any time, with or without notice. Cancellation shall be effective immediately or as may be specified in the notice. Any Payout accrued as of the effective date of termination will be payable according to the terms of the Agreement. If Expert is removed from an ECN or if Expert deactivates Expert’s account, Expert’s ECN Profile will be removed from public access but Brainsy has no obligation to return any content Expert may have submitted or posted to the ECN including but not limited to Feedback, discussions, and reviews. The sections that by their nature should survive the term of this Agreement shall so survive.
13. General Provisions.
13.1 Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement or breach hereof, or otherwise relating to the Discussion (with the exception of injunctive relief sought by Brainsy), shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its then-current rules. The arbitration shall be decided by one (1) arbitrator, who shall be an attorney having experience and familiarity with cloud-based services disputes. The language of the arbitration shall be English. The location of arbitration shall be Baltimore, Maryland, USA. The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, its costs and expenses, including reasonable attorneys' fees. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of both parties. To the fullest extent permitted by applicable law, no such arbitration shall be joined to an arbitration involving any other party subject to this Agreement or operating as an expert on any ECN, whether through class arbitration proceedings or otherwise. Each party hereby waives its right to a trial by jury for any disputes between the parties.
13.2 Applicable Laws; Exclusive Jurisdiction. Brainsy offers access to Experts in the USA. Brainsy makes no representation that ECN or any content on or accessed through an ECN is appropriate or available for use in other jurisdictions. You are responsible for compliance with all local laws and regulations, as applicable. This Agreement, participation in a Discussion and any other dispute arising from or related to the relationship among Brainsy, Expert and Network Sponsor shall be governed by the laws of the State of Maryland, USA, without regard to principles of conflict of laws that would apply the substantive laws of another jurisdiction and excluding any application of the Uniform Computer Information Transactions Act. SUBJECT TO THE DISPUTE RESOLUTION PROCEDURES SET FORTH ABOVE, ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF AN ECN SHALL BE INSTITUTED EXCLUSIVELY IN A STATE OR FEDERAL COURT LOCATED IN THE CITY OF BALTIMORE, MARYLAND, AND YOU EXPRESSLY CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.
13.4 Consent to Electronic Delivery of Notices and Service Messages. Expert consents to receive communications from Brainsy electronically, including without limitation by e-mail, telephone, or by posted notices on the Brainsy website or Network Sponsor ECN in which Expert is authorized to participate. Expert agrees that all agreements, notices, disclosures and other communications that Brainsy provides to Expert electronically satisfy any legal requirement that such communications be in writing. In order for Expert to withdraw its consent to receive notices electronically, Expert must notify Brainsy in writing of its withdrawal of such consent and discontinue use of the services and participation in any Discussions. If you invite an ECN non-user to “Follow” your profile, then we may send electronic invitations to the non-user. Expert is responsible for reviewing the ECN Notifications settings and controlling and/or limiting what kind of messages to receive from Brainsy.
13.5 Waiver; Judicial Modification; Assignment; Third Party Beneficiary. If there is a determination that any provision of this Agreement is invalid or unenforceable under applicable law, that determination will not affect the rest of this Agreement, and this Agreement shall be deemed amended to the minimum extent necessary to make it valid and enforceable. The failure of Brainsy or Network Sponsor to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Expert may not assign this Agreement without the prior written approval of Brainsy. Brainsy may assign or transfer any of its rights or obligations under this Agreement, without restriction. Any assignment in violation of these provisions shall be null and void. Network Sponsor is an express third party beneficiary under this Agreement with the right to enforce the applicable provisions against Expert hereunder following written notice to Brainsy.
13.6 Know Your Customer (KYC) and Identity Verification. Know Your Customer or “KYC” is a term used by bank regulators in relation to identity verification and is utilized to help prevent fraud, money laundering, and the financing of terrorism. Our service providers, such as our payment gateway provider, may perform or require us to perform certain checks on customer identity before approving an Expert’s payout account. Therefore, you authorize us, directly or through third parties, to make any inquiries we consider necessary to validate your identity and to verify your information against third party databases or through other sources. During the registration process, we will request (but not store) your date of birth and other information that will allow us to reasonably identify you. If our third party service providers and databases cannot automatically verify your identity, then you must also provide, at our request, copies of identifying documents (such as a driver’s license or other government issued photo ID) and proof of residence (such as a utility bill). Falsifying your identity is a crime. Brainsy or its service providers may report a user that has provided false documents. If you paid a subscription fee for your ECN Account but are unable to complete your registration process due to failing KYC verification checks, you may request a refund of any prepaid subscription fees at firstname.lastname@example.org Subject: KYC Refund Request.
Brainsy: Brainsy, Inc., owner and provider of the Expert Calling Network (ECN) platform.
Brainsy Tools: Tools to create discount coupons and referral codes or ECN Badges, Widgets, or display ads that may be embedded in Expert’s other websites or social media profiles.
Braintree: Braintree Payment Solutions LLC.
Consumer: Seeker of information or knowledge.
Control Panel: Password protected control panel for ECN where Expert has been authorized and can manage Expert’s ECN Profile.
Discussion: A telephone or multimedia communication between an Expert and Consumer conducted through the ECN platform and for a specified duration.
ECN: Abbreviation for “Expert Calling Network” and a registered service mark of Brainsy.
ECN Profile: A profile page created by Expert.
Expert: Individual self designated as an “Expert” and selected and / or authorized by Network Sponsor to participate in an ECN.
Expert Content: Information posted to or derived from an ECN including Expert’s ECN Profile, Discussions, Profile Content, and Promotional Content.
Expert Fee: Posted rate a Consumer will pay for a Discussion with an Expert.
Expert Payout / Payout: Sums paid to Expert for participating in a Discussion calculated as the Expert Fee minus service provider fees.
Feedback: Suggestions or service tickets submitted to Brainsy or any to ECN.
Knowledge Board: An online forum where Experts and / or Consumers may create postings.
KYC: Acronym for for “Know Your Customer” and a term associated with identity verification.
Listing Fee: One-time or annual fee assessed by Brainsy or the Network Sponsor for participating in an ECN as an Expert.
MSA: Merchant Services Agreement with Braintree and its sponsoring bank.
Network Sponsor: ECN operator.
Network Sponsor’s ECN: ECN being operated by an individual Network Sponsor.
Profile Content: Biographical information and other content posted to Expert’s ECN Profile and / or other ECN pages (such as an ECN Knowledge Board).
Promotional Content: ECN Badges, Widgets, or display ads that may be embedded in Expert’s other websites or social media profiles.
Service Fee(s): Fees collected by Brainsy on behalf of itself and / or other service providers for supporting operation of an ECN including any Discussions.
TPA: Third Party Applications such as LinkedIn, Google, Twitter, or Microsoft that Expert can link to Expert’s ECN Profile.
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