Customer Terms and Conditions
By using Tethys Engineering’s website (located at http://www.mytethys.com/) and related software and services (collectively, the “Tethys Platform”), Student agrees with and accepts all terms and conditions contained in this Agreement. Tethys Engineering LLC (“Tethys”) may amend this Agreement at any time with a thirty (30) days online notice made available to registered users. Student’s continued use of the Tethys Platform after the effective date of a revised version of this Agreement constitutes acceptance of its terms.
1. THE TETHYS PLATFORM
The Tethys Platform is a web-based platform that has been created to offer engineering services to users requesting services to be performed (each a “Customer”, and such services, the “Services”) and students or individuals having obtained the conditions required by the site (each a “Provider”). Under this Agreement, Tethys provides services to Customer in its capacity as a Customer. Tethys’ services include curating Customers and Providers, facilitating the connection between Customers and Providers and the posting of internships, and providing Providers with access to a defined list of commercial software licenses, some of which needed to complete posted internships. Customers post internships on the Tethys Platform. Providers, in turn, post profiles and apply for internships. If a Provider and Customer agree on the terms of a potential collaboration, a contract is formed directly between such Provider and Customer. Tethys collects payment from Customers upon the completion and approval of certain task and activities performed by Providers and then pays Providers on behalf of Customers in connection with their delivery of Services through the Tethys Platform. A fixed fee for the use of the Tethys Platform and the consumption of some of the commercial software licenses provided is collected from the Customer payment and before the remaining amount is payed to the Provider.
2. TETHYS GENERAL POLICIES
2.1 User Vetting
Tethys cannot confirm that each Provider or Customer is who they claim to be and therefore, Tethys cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Tethys platform. Tethys is not responsible for the conduct, whether online or offline, of any provider or customer of the Tethys platform and Provider hereby releases Tethys from any liability related thereto. Tethys will not be liable for any claim, injury or damage arising in connection with Provider’s use of the Tethys Platform.
2.2 User Content Transmitted Through the Tethys Platform
With respect to the content or other materials (including without limitation code, video, images, information, data, text, software, music, sound, photographs, graphics or messages) Customers and Providers uploads, posts, publishes or displays through the Tethys Platform or shares with or emails, communicates or otherwise distributes to other users or recipients in connection with its use of the Tethys Platform or otherwise provides to Tethys (collectively, such actions, “transmit”), including without limitation the Work Product (collectively, such content and materials, “User Content”), Provider acknowledge that it does not own right, title and interest in and to such User Content, including, without limitation, all copyright and rights of publicity contained therein. By transmitting and/or storing any User Content Provider hereby grants and will grant Tethys and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use User Content in connection with the operation of the Tethys Platform or, with the exception of work product, the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
Unauthorized Actions. Provider will not access (or attempt to access) the Tethys Platform by any means other than the interface provided, and will not use information from the Tethys Platform for any purpose other than the purpose for which it was made available. Provider is solely responsible for all User Content. Tethys reserves the right to investigate and take appropriate legal action against anyone who, in Tethys’s sole discretion, violates this provision. The following are examples of the kind of User Content and/or use that is illegal or prohibited by Tethys; Customer will not use the Tethys Platform to:
(i) transmit any User Content that (A) infringes any intellectual property or other proprietary or privacy rights of any party; (B) Provider does not have a right to transmit under any law or under contractual or fiduciary relationships; (C) constitutes material, non-public information about any company and/or constitutes information the disclosure of which would be in violation of securities laws; (D) contains software viruses or any other computer code, files or programs designed to interrupt, (E) that constitutes Personal Health Information (PHI) that is subject to HIPAA; or (F) in the sole judgment of Tethys, is objectionable or which restricts or inhibits any other person from using or enjoying the Tethys Platform, or which may expose Tethys or its users to any harm or liability of any type; (E) involves transactions dealing with (1) narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety, (2) drug paraphernalia, (3) cigarettes, (4) items that encourage, promote, facilitate or instruct others to engage in illegal activity, (5) stolen goods including digital and virtual goods, (6) the promotion of hate, violence, racial or other forms of intolerance that is discriminatory or the financial exploitation of a crime, (7) items that are considered obscene, (8) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction, (F) certain sexually oriented materials or services, (G) ammunition, firearms, or certain firearm parts or accessories, or (H) certain weapons or knives regulated under applicable law.
(ii) interfere with or disrupt the Tethys Platform or servers or networks connected to the Tethys Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Tethys Platform; or
(iii) violate any applicable local, state, national or international law, or any regulations having the force of law.
(iv) relate to transactions that (a) show the personal information of third parties in violation of applicable law, (b) support pyramid or ponzi schemes, matrix programs, other “get rich quick” schemes or certain multi-level marketing programs, (c) are associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (d) are for the sale of certain items before the seller has control or possession of the item, (e) are by payment processors to collect payments on behalf of merchants, (f) are associated with the sale of traveler’s checks or money orders, (g) involve currency exchanges or check cashing businesses, (h) involve certain credit repair, debt settlement services, credit transactions or insurance activities, or (i) involve offering or receiving payments for the purpose of bribery or corruption.
(v) involve the sales of products or services identified by government agencies to have a high likelihood of being fraudulent.
(vi) relate to transactions involving any activity that requires pre-approval without having obtained said approval.
3. PAYMENT TERMS, INVOICES AND PAYMENT METHODS
3.1 Tethys Fees
Tethys charges both Providers and Customers a fee for the Services of connecting the two parties and for collecting the fees agreed between a Customer and a Provider for work performed during the internship (“Provider Fee”). When a Customer releases funds to a Provider, Tethys credits the Provider account and deducts a service fee that Tethys earns for creating, hosting, maintaining and providing the Tethys Platform (such fee, the “Service Fee”). All Tethys Fees are non-refundable, whether or not internships were satisfactorily completed.
3.2 Disbursements to Providers
Tethys will disburse funds to Providers via PayPal and requires all Providers to maintain an active account with Paypal and ensure that their Paypal account address is properly provided as part of the the Provider record on file with Tethys. Disbursements twill be completed within one (1) month after funds become payable. Funds become payable to Providers after Customers accept work submitted by a Provider and transfer the said Funds to Tethys via Paypal or other Paypal compatible bank transfer. Providers may ask Tethys to expedite payments. Tethys reserves the right to refuse any such request and may assess a processing fee in connection with such a request.
If a Customer fails to approve work performed by a Provider or fails to pay the amount for certain services as approved between Customer and Provider, Tethys will not intervene in the process and will not disburse any funds to Provider until the Customer has done so to Tethys. It is the Provider’s responsibility to address independently of Tethys any payment disputes arising with Customers. Provider may report to Tethys the issue but it is in Tethys sole discretion to decide to act on any reported issue.
Provider will not accept direct payments relating to, or in any way connected with, an internship through the Tethys Platform. Any action that encourages or solicits complete or partial payment outside of the Tethys Platform is a violation of this Agreement. Should a Provider be found in violation of this Section 3.4, it will owe Tethys an amount with respect to each internship equal to the greater of (a) US $500; or (b) the applicable fees had the payments been processed through the Tethys Platform, plus 18%.
For clarity, Provider agrees to not circumvent the payment methods offered by the Tethys Platform. By way of illustration and not in limitation of the foregoing, Provider must not:
(a) Accept proposals from, contact, deliver services to, invoice or receive payments from parties identified through the Tethys Platform other than through the Tethys Platform.
(b) Invoice or report on the Tethys Platform an invoice or payment amount lower than that actually agreed between Customer and Provider through the Tethys Platform.
PROVIDER WILL NOTIFY TETHYS IMMEDIATELY IF ANOTHER PERSON IMPROPERLY CONTACTS OR SUGGESTS MAKING OR RECEIVING PAYMENTS OUTSIDE OF THE TETHYS PLATFORM.
3.5 Tax Reporting
Tethys is a third party processor, and pursuant to Section 6050W of the Internal Revenue Code, Tethys will provide a 1099-K form to the Internal Revenue Service for any Provider based in the United States who is paid over $20,000 through the Tethys Platform and participates in over 200 separate Service Contracts in a single calendar year.
Except as provided for above, Tethys will have no responsibility for determining the necessity of or for issuing any tax forms, or for determining, remitting, or withholding any taxes applicable to Provider Fees and Provider will be solely responsible for: (a) determining whether Provider is required by applicable law to file any tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the Provider Fees, and filing any such tax forms and remitting any such taxes or charges to the appropriate authorities. Tethys will have the right, but not the obligation, to audit and monitor Providerʼs compliance with applicable tax laws as required by this Section 3.5. Further, in the event of an audit of Tethys, Provider agrees to promptly cooperate with Tethys and provide copies of Providerʼs tax returns, and other documents as may be reasonably requested for purposes of such audit.
3.6 Payment Methods
Provider hereby authorizes Tethys to store Paypal account details as Provider’s method of receiving payment for services, and to charge Provider’s Paypal account, credit card (or any other form of payment authorized by Tethys or mutually agreed to between Provider and Tethys) for Provider Tethys, commercial software usage, and subscription fees.
4. ACKNOWLEDGMENT OF TETHYS’ ROLE
Provider expressly acknowledges, agrees and understands that: (i) the Tethys Platform is merely a venue where users may act as either Customers or Providers; (ii) Tethys is not a party to any contracts between Customers and Providers; (iii) Providers are not employees of Tethys and that Tethys does not, in any way, supervise, direct, or control Providers’ work or Services; (iv) Tethys will not have any liability or obligations under or related to internships or any acts or omissions by Providers or other users; (v) Tethys has no control over Providers or over the Services promised or rendered by Providers; and, (vi) Tethys makes no representations as to the reliability, capability, or qualifications of any Provider or the quality, security or legality of any services, and Tethys disclaims any and all liability relating thereto.
Customer and Provider may not agree to any other terms and conditions that affect the rights or responsibilities of Tethys as described herein and therein. This Agreement anticipates that Providers will be classified as independent contractors of Customer and Customer agrees (a) that Customer does not in any way supervise, direct, or control Providerʼs work, (b) that Customer does not, in any way, supervise, direct, or control Providerʼs work hours and location of work, and (c) Customer does not provide Provider with training or equipment needed for any Contract. Notwithstanding anything to the contrary in this Agreement, Customer assumes all liability for proper classification of Providers as independent contractors or employees based on applicable legal guidelines.
This Agreement and any registration for or use of this Tethys Platform will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between Customer and Tethys, except and solely to the extent expressly stated in this Agreement.
5. WARRANTY DISCLAIMER
The Tethys Platform is provided on an “as is” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement. Tethys makes no warranties or representations about the accuracy or completeness of the content provided through the Tethys Platform or the content of any sites linked to the Tethys platform and assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content, (ii) personal injury or property damage, of any nature whatsoever, resulting from access to and use of the Tethys platform, (iii) any unauthorized access to or use of our secure servers and/or any and all personal, corporate/business and/or financial information stored therein.
Without limiting the foregoing, neither company nor its affiliates or licensors warrant that access to the Tethys platform will be uninterrupted or that the Tethys platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Tethys platform, or as to the timeliness, accuracy, reliability, completeness or content of any task or service, information or materials provided through or in connection with the use of the Tethys platform.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL TETHYS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF TETHYS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (A) US500; AND (B) ANY TETHYS FEES RETAINED BY TETHYS WITH RESPECT TO SUBSCRIPTION TO WHICH PROVIDER IS A PARTY DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
Customer will indemnify, defend and hold harmless Tethys and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneysʼ fees and all related costs and expenses) arising from or relating to Customer’s use of the Tethys Platform (including without limitation claims that Provider was misclassified as an independent contractor or that Tethys was an employer or joint employer of Provider, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, workerʼs compensation benefits, unemployment benefits, or any other employee benefits), any User Content, Customer’s violation of these Terms of Service, or Customer’s violation of any rights of another.
8. TERM AND TERMINATION
The term of this Agreement commences on the date of acceptance of this Agreement and continues in effect until terminated in accordance with Section 8.2 below.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending Provider’s account), provided, that any such termination for convenience will not affect the validity of any contracts between Providers and Customers that have been executed prior to termination and this Agreement will continue to apply with respect to such contracts.
8.3 Consequences of Termination
Termination will not relieve Provider of the requirement to pay for Tethys fees for Services provided and paid by Customer prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, will be charged to deducted from amount paid by Customer for such services, pursuant to Section 3.1 above (Tethys Fees).
Sections 2, 3, 4, 5, 6, 7, 8.4, and 9 of this Agreement will survive any termination thereof.
9.1 Entire Agreement
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
9.2 Side Agreements
Section 9.1 above notwithstanding, Customers and Providers may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand Tethysʼs obligations or restrict Tethysʼs rights under this Agreement.
Customer will not violate any laws or third party rights on or related to the Tethys Platform. Without limiting the generality of the foregoing, Provider agrees to comply with all applicable import and export control laws and third partiesʼ Proprietary Rights. The Software and the transmission of applicable data, if any, is subject to United States export controls. No Software may be exported or re-exported in violation of U.S. export laws. Using the Software is at Provider’s sole risk. Recognizing the global nature of the Internet, Provider agrees to comply with all local rules and laws regarding its use of the Tethys Platform, including as it concerns online conduct and acceptable content.
No modification or amendment to this Agreement will be binding upon Tethys unless in a written instrument signed by a duly authorized representative of Tethys.
9.5 No Waiver
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that partyʼs right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
Provider may not assign this Agreement, or any of its rights or obligations hereunder, without Tethysʼs prior written consent in the form of a written instrument signed by a duly authorized representative of Tethys. Tethys may freely assign this Agreement without Provider’s consent. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
9.8 Choice of Law
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of law provisions