Last update: 16 October 2023This Services Agreement ("Agreement") constitutes a legal agreement between you, an individual ("you"), and Shiftsmart, Inc. ("Shiftsmart"). Shiftsmart is a technology services provider. The Shiftsmart Platform (as defined below) enables an authorized partner (i.e., you) to seek, receive, and fulfill requests for services from an authorized user of the Shiftsmart Platform. You desire to enter into this Agreement for the purpose of accessing and using the Shiftsmart Platform. With the sole exception of Section 15, Shiftsmart may update these Terms from time to time in its sole discretion.
IMPORTANT: BEFORE USING THE SHIFTSMART PLATFORM, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY CLICKING "I ACCEPT" OR OTHERWISE ELECTRONICALLY ACCEPTING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
Please note: Section 15 of this Agreement contains an Arbitration Provision and Class Action Waiver that applies to you. This provision applies to any action you bring that arises out of this Agreement, including actions against Shiftsmart or any Affiliate or User in the United States. It affects how disputes with Shiftsmart or any Affiliate or User are resolved. By accepting this Agreement, you agree to be bound by this Arbitration Provision and Class Action Waiver.
Please read it carefully.
Definitions
1.1 "Affiliate" means Shiftsmart’s customers, Users of the platform, and any entity that, directly or indirectly, controls, is under the control of, or is under common control with Shiftsmart, where control means having more than 50% of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 "Partner App" means the mobile application provided by Shiftsmart that enables you to access the Shiftsmart Platform for the purpose of seeking, receiving, and fulfilling on-demand requests for services by Users, as may be updated or modified from time to time.
1.3 "Services" means your provision of services which have been requested by Users via the Shiftsmart Platform.
1.4 "Shiftsmart Data" means all data related to the access and use of the Shiftsmart Platform hereunder, including all data related to Users (including User Information), all data related to the provision of Services, and the Partner ID.
1.5 "Shiftsmart Platform" mean Shiftsmart's on-demand lead generation and related services that enable you to seek, receive and fulfill on-demand requests for services by Users; such Shiftsmart Platform includes access to the Partner App and Shiftsmart's software, websites, payment services, and related support services systems, as may be updated or modified from time to time.
1.6 "Territory" means the city or metro areas in which you are enabled by the Partner App to receive requests for Services.
1.7 "Transportation Services" means your provision of passenger transportation services to Users in the Territory using your vehicle.
1.8 "User" means an end user authorized by Shiftsmart to request Services offered by Shiftsmart's independent contractor partners (i.e., you) via the Shiftsmart Platform.
1.9 "User Information" means information about a User made available to you in connection with such User's request for and receipt of Services, which may include the User's name, location, and contact information.
Use of the Shiftsmart Platform
2.1 Account Registration; Partner IDs. You may only create an account on your own behalf and not for any other person. When you create an account in the Shiftsmart Platform, you guarantee that you are at least 18 years old and legally authorized to work in the Territory, and that the information you provide is accurate, complete, and current at all times. If you do not meet these criteria, you may not register for an account in the Shiftsmart Platform. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account. Shiftsmart will associate your account with a user ID and password ("Partner ID") to enable you to access and use the Shiftsmart Platform, including the Partner App on your mobile device and Shiftsmart's online portal. You agree that you will maintain your Partner ID in confidence and not share your Partner ID with any third party. You will immediately notify Shiftsmart of any actual or suspected breach or improper use or disclosure of your Partner ID or the Partner App. Shiftsmart reserves the right to deactivate accounts it believes to be inactive or associated with a shared Partner ID.
2.2 Provision of Services. Requests for Services may be made available to you via the online portal, sent to you via SMS message, or may appear to you via the Partner App if you are available and capable of fulfilling the Services for the applicable User. If you accept a request for Services, the Shiftsmart Platform will provide you with certain User Information, including the User's name and details about the Services. You acknowledge and agree that once you have accepted a request for Services, the Shiftsmart Platform may provide certain information about you to the User, including your name, contact information, photo, location, and qualifications. You shall not contact any Users or use any User data for any reason other than to fulfill the Services. As between Shiftsmart and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Services; (b) except for the Shiftsmart Platform or any resources provided by Shiftsmart (if applicable) or the User (if applicable), you shall provide all necessary equipment, tools, and other materials, at your own expense, necessary to perform the Services; and (c) you will provide the Services under your own name or business name, not under Shiftsmart’s name.
2.3 Your Relationship with Users. You acknowledge and agree that if the Services call for you to sign a contract directly with the User, you are a contractor of that User. Shiftsmart is not responsible or liable for the actions or inactions of a User in relation to you or your activities. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of the Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a User or third party. You acknowledge and agree that Shiftsmart may release your contact and/or other information to a User upon such User's reasonable request.
2.4 Your Relationship with Shiftsmart. You acknowledge and agree that Shiftsmart's provision to you of the Partner App and access to the Shiftsmart Platform creates an independent-contractor relationship between Shiftsmart and you. You will not be treated as an employee pursuant to these terms and will only be treated as an employee if you agree to do so and are engaged separately for that purpose. Shiftsmart does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of the Services and your acts or omissions, or your operation and maintenance of any tools, materials, and equipment necessary to provide the Services. Shiftsmart shall have no right to require you to wear a uniform or any other clothing displaying Shiftsmart's or any of its Affiliates' names, logos, or colors. You retain the sole right to determine when, where, and for how long you will utilize the Partner App or the Shiftsmart Platform. You retain the option to accept or decline a request for Services via the Shiftsmart Platform or to cancel an accepted request for the Services. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right, and are encouraged to: (a) use other software applications to seek, receive, and fulfill requests for services in addition to the Shiftsmart Platform; and (b) engage in any other occupation or business. Shiftsmart retains the right to deactivate or otherwise restrict you from accessing or using the Partner App or the Shiftsmart Platform in the event of a violation or alleged violation of this Agreement.
2.5 Employee Services. Notwithstanding Section 2.4, you acknowledge there are certain Services that require work performed by an employee and not an independent contractor (“Employee Services”). Any request for Employee Services will be identified as such through an additional request for information in the acceptance process for these Services. You acknowledge and agree that upon accepting a request for Employee Services, Shiftsmart may provide your contact and other information to an employer of record to process payroll and handle other administrative matters. Employee Services will be handled and paid through the employer of record may require additional agreements and information.
2.6 Ratings. You acknowledge and agree that after providing the Services, (a) you may be asked to provide a rating of the User and to provide comments or feedback about the User; and (b) a User may be prompted to provide a rating of you and your provision of the Services and to provide comments or feedback about you. If you provide ratings and feedback, you agree to do so in good faith. You acknowledge and agree not to include comments that contain obscenities or other objectionable content or violate any privacy or other applicable laws. Shiftsmart and its Affiliates reserve the right to use, share, and display your ratings and comments and User ratings and comments about you in any manner in connection with the business of Shiftsmart, its Affiliates, or the applicable User without attribution to you or your approval.
2.7 Devices. If you choose to use the Partner App, you will need to install it on a mobile device owned or controlled by you ("Device"). You acknowledge that you are responsible for the acquisition, cost, and maintenance of your Device as well as any necessary wireless data plan. You agree that: (a) use of the Partner App on your Device requires an active data plan with a wireless carrier associated with your Device, which data plan will be provided by you at your own expense; and (b) use of the Partner App on your Device as an interface with the Shiftsmart Platform may consume very large amounts of data through the data plan. Consequently, consideration should be given to the data plan you have selected for your Device. SHIFTSMART SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH THE USE OF YOUR DEVICE IN CONNECTION WITH THE SERVICES, OR FOR ANY OTHER REASON.
2.8 Location Based Services. Some Services require that your geo-location information be provided to the Shiftsmart Platform either by you or via the Partner App installed on your Device in order to provide the Services. You acknowledge and agree that your geo-location information may be obtained by the Shiftsmart Platform while the Partner App is running, and your geo-location may be provided to Users before and during the provision of the Services to such User. In addition, Shiftsmart and its Affiliates may monitor, track, and share with third parties your geo-location information obtained by the Partner App and Device for safety and security purposes.
Requirements
3.1 Text Messages. By creating an account, you agree that Shiftsmart may send you text (SMS) messages. Shiftsmart uses text messages to send you onboarding details as well as help you schedule and manage your work when you've been cleared to provide the Services. Shiftsmart will send you SMS messages about upcoming projects you might be interested in. If you are not interested in receiving messages about those projects, you can stop receiving SMS messages about those projects at any time by texting "STOP" to the short code. After you send the SMS message "STOP", Shiftsmart will send you an SMS message to confirm that you have been unsubscribed from notifications about that project. After this, you will no longer receive SMS messages from Shiftsmart about that project. You may still continue to receive SMS messages about other projects available through Shiftsmart.. If at any time you forget what keywords are supported, just text "HELP" for help. After you send the SMS message "HELP", Shiftsmart will respond with instructions on how to use the service as well as how to unsubscribe. Texts may be sent using an automatic telephone dialing system. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply. The frequency of the messages will vary depending on the work you’ve been cleared to provide. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to support@shiftsmart.com. If you have any questions regarding privacy, please read Shiftsmart’s Privacy Policy.
3.2 Your Requirements. By creating an account, You acknowledge and agree that at all times, you shall: (a) hold and maintain all licenses, permits, approvals, and authority applicable to you that are necessary to provide the Services to third parties in the Territory; (b) possess the appropriate and current level of training, expertise, and experience to provide the Services in a professional manner with due skill, care, and diligence; and (c) maintain high standards of professionalism, service, and courtesy. You acknowledge and agree that you may be subject to certain background checks and/or drug screenings from time to time in order to qualify to provide, and remain eligible to provide, the Services. You acknowledge and agree that Shiftsmart reserves the right, at any time in Shiftsmart's sole discretion, to deactivate or otherwise restrict you from accessing or using the Partner App or the Shiftsmart Platform if you fail to meet the requirements set forth in this Agreement..
3.3 Documentation. To ensure your compliance with all requirements in Section 3.2 above, you must provide Shiftsmart with written copies of all such licenses, permits, approvals, authority, registrations, and certifications prior to your provision of any Services. Thereafter, you must submit to Shiftsmart written evidence of all such licenses, permits, approvals, authority, registrations, and certifications as they are renewed. Shiftsmart shall be entitled to review such licenses, permits, approvals, authority, registrations, and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Shiftsmart reserves the right to independently verify your documentation from time to time in any way Shiftsmart deems appropriate.
3.4 Vehicle Requirements. If a vehicle is required to fulfill the Services, it is your responsibility to maintain your vehicle at your own expense, including insurance, gas, maintenance, and parts. You acknowledge and agree that your vehicle shall at all times be: (a) properly registered and licensed to operate as a passenger transportation vehicle in the Territory; (b) owned or leased by you, or otherwise in your lawful possession; (c) suitable for performing any Services, including Transportation Services, contemplated by this Agreement; and (d) maintained in good operating condition, consistent with industry safety and maintenance standards for a vehicle of its kind and any additional standards or requirements in the applicable Territory.
3.5 Drug Use. Shiftsmart prohibits the use or distribution of drugs or alcohol while you are performing Services of any kind through the Shiftsmart Platform. Partners may not be under the influence of alcohol or drugs while on the premises of Users and/or while performing any Services for Users. If a User reports reasonable suspicion that you are under the influence of drugs or alcohol while performing Services, it is grounds for removal from the Shiftsmart Platform.
Financial Terms
4.1 Third Party Payment Processing Services. Payment processing services for Shiftsmart Services are provided by Stripe, Inc. (“Stripe”) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). Shiftsmart may give information about you and your account with Shiftsmart to Stripe to create a Stripe Account for you. In order to receive payment from Shiftsmart, you must associate your bank account to your Stripe Account and agree to be bound by the Stripe Services Agreement, as may be modified by Stripe from time to time. As a condition of Shiftsmart enabling payment processing services through Stripe, you agree to provide Shiftsmart accurate and complete information about you, and you authorize Shiftsmart to share your information and transaction information related to your use of the payment processing services provided by Stripe. Your bank account may only be associated with one Stripe Account and your Stripe Account may only be associated with one Partner ID. You must notify Shiftsmart, in advance, if you share a bank account with another authorized partner. Failure to so notify Shiftsmart may delay or forfeit your ability to receive payments from Shiftsmart and may result in termination of your account and the accounts of any other authorized partners attempting to share a single Stripe Account or bank account.
4.2 Payment from Shiftsmart Except as set forth in Section 4.3, the following provisions shall govern your payment for providing Services. Shiftsmart shall send you a request for Services from a User (each a "Request"), which shall include a deadline for accepting the Request; a description of the task being requested by a User ("Task"); the criteria the User has created for completing the Task; compensation you will earn for completing the Task ("Partner Fee"). Each Task will have different completion criteria and those will need to be accepted before performing the Task. After evaluating the Request, you must submit an appropriate written response within the deadline to accept the Request. You will be paid the Partner Fee within seven days after the Task has been completed in accordance with the completion criteria. You acknowledge and agree that, unless the Request specifies otherwise (e.g., a Task having an hourly rate), you will only be compensated for completed Tasks and not for incomplete or partially completed Tasks. You acknowledge and agree that the Partner Fee is the only payment you will receive in connection with the provision of the Services.
4.3 Payment Directly from Users. Shiftsmart has made arrangements with some Users for those Users to pay you directly for any Services you provide to those Users (each a "Direct Payer"). If you provide Services to a Direct Payer, you will be required to sign a contract directly with the Direct Payer. Either Shiftsmart or the Direct Payer will send you the contract and you must sign and return it before beginning the Services. Your payment for providing those Services and any additional criteria regarding those Services will be covered by the contract ("Direct Contract") you sign with the Direct Payer. Shiftsmart will make Requests for such Services available via the Shiftsmart Platform, which will include an indication that the Services are being performed for a Direct Payer. Although such Requests posted in the Shiftsmart Platform may include a summary of the Task, an estimate of the Partner Fee, and other relevant details about the Services, the information provided by Shiftsmart does not govern. Rather, the terms and conditions contained in the Direct Contract shall govern. In the event there is any inconsistency between this Agreement and the Direct Contract, the Direct Contract shall govern. You acknowledge and agree that you will not be receiving any payment from Shiftsmart for Services performed for a Direct Payer and that the compensation set forth in the Direct Contract is the only payment you will receive in connection with the provision of such Services.
4.4 Partner Fee Adjustment. Shiftsmart reserves the right to: (a) adjust the Partner Fee for a particular instance of the Services (e.g., you failed to properly track a particular instance of the Services in the Partner App, technical error in the Shiftsmart Platform, etc.); or (b) cancel the Partner Fee for a particular instance of the Services (e.g., User is charged for Services that were not provided, in the event of a User complaint, fraud, etc.). Shiftsmart's decision to reduce or cancel the Partner Fee in any such manner shall be exercised in a reasonable manner.
4.5 Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Services that have been accepted by you at any time prior to your commencement of providing such Services. In the event that a User cancels an accepted Request for a Task, Shiftsmart may charge the User a cancellation fee. If charged, a portion of this cancellation fee may be deemed the Partner Fee for the cancelled Task for the purpose of remittance to you hereunder ("Cancellation Fee").
4.6 Receipts. As part of the Shiftsmart Platform, Shiftsmart provides you a system for the delivery of receipts for the Services rendered. Upon your completion of a Task for a User, Shiftsmart prepares an applicable receipt to you via email or the online portal available to you through the Shiftsmart Platform. Any corrections to a receipt must be submitted to Shiftsmart in writing within three business days after the completion of the Task. Absent such a notice, Shiftsmart shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Partner Fee.
4.7 Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of the Services as required by applicable law; and (b) provide Shiftsmart with all relevant tax information. You further acknowledge and agree that you are responsible for filing all federal and state tax returns and paying all federal and state taxes on your own income arising from the performance of the Services, and no tax withholdings from payments will be made by Shiftsmart or any User. Notwithstanding anything to the contrary in this Agreement, Shiftsmart may modify the foregoing in its reasonable discretion based on applicable tax and regulatory considerations and provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.7 directly to the applicable governmental tax authorities.
Proprietary Rights; License
5.1 License Grant. Subject to the terms and conditions of this Agreement, Shiftsmart hereby grants you a personal, non-exclusive, non-transferable, non-sub-licensable license, during the term of this Agreement, to use the Shiftsmart Platform (including installing and using the Partner App on your Device) solely for the purpose of providing the Services to Users and tracking resulting Partner Fees. All rights not expressly granted to you are reserved by Shiftsmart, its Affiliates, and their respective licensors. The foregoing license grant shall immediately terminate, and you will delete and fully remove the Partner App from the Device in the event that you cease to provide the Services using your Device.
5.2 Restrictions. You may not create an account for any third party or allow any third party to create an account on your behalf. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Shiftsmart Platform or Partner App in any way; (b) modify or make derivative works based upon the Shiftsmart Platform or Partner App; (c) improperly use the Shiftsmart Platform or Partner App, including creating Internet "links" to any part of the Shiftsmart Platform or Partner App, "framing" or "mirroring" any part of the Shiftsmart Platform or Partner App on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Shiftsmart Platform or Partner App; (d) reverse engineer, decompile, modify, or disassemble the Shiftsmart Platform or Partner App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Shiftsmart Platform or Partner App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Shiftsmart Platform an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Shiftsmart Platform; or (iv) attempt to gain unauthorized access to the Shiftsmart Platform or its related systems or networks.
5.3 Ownership. The Shiftsmart Platform, Partner App, and Shiftsmart Data, including all intellectual property rights therein, are and shall remain (as between you and Shiftsmart) the property of Shiftsmart, its Affiliates, or their respective licensors. Neither this Agreement nor your use of the Shiftsmart Platform, Partner App, or Shiftsmart Data conveys or grants to you any rights in or related to the Shiftsmart Platform, Partner App, or Shiftsmart Data, except for the limited license granted above. Other than as specifically permitted by Shiftsmart in connection with the Shiftsmart Platform, you are not permitted to use or reference in any manner Shiftsmart's, its Affiliates', or their respective licensors' company names, logos, products and service names, trademarks, service marks, trade dress, copyrights, or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "Shiftsmart Marks and Names") for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the Shiftsmart Marks and Names, alone or in combination with other letters, punctuation, words, symbols, and/or designs, or in any confusingly similar mark, name, or title, for any goods or services.
Confidentiality
6.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Shiftsmart Data, Partner IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Shiftsmart, its internal record-keeping requirements).
6.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure. Under U.S. Federal law, code section 18 U.S.C. 1833(b), an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order.
Privacy
7.1 Personal Information. Shiftsmart and its Affiliates collect personal information about you in relation to this Agreement. Our practices regarding the collection, use and disclosure of your personal information are described in the Shiftsmart Privacy Policy.
Insurance
8.1 You agree to maintain during the term of this Agreement workers' compensation or occupational accident insurance as required by all applicable laws in the Territory. You may also insure yourself against industrial injuries pursuant to applicable occupational accident or workers compensation insurance, if available. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers' compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all but do so at your own risk. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Shiftsmart, to resolve them with your insurer(s).
8.2 If the Services you provide include Transportation Services, you agree to maintain on all vehicles operated by you under this Agreement automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate a private passenger vehicle on the public roads within the Territory. This coverage must also include any no-fault coverage required by law in the Territory that may not be waived by an insured. You agree to provide Shiftsmart a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 8.2 upon request. Furthermore, you must provide Shiftsmart with written notice of cancellation of any insurance policy required by Shiftsmart. Shiftsmart shall have no right to control your selection or maintenance of your policy. You must be a named insured or individually rated driver, for which a premium is charged, on the insurance policy required in this Section 8.2 at all times.
8.3 You understand and acknowledge that your personal automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for the Services, including the Transportation Services, you provide pursuant to this Agreement. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Shiftsmart, to resolve them with your insurer(s).NOTICE REGARDING TRANSPORTATION SERVICES: Your personal automobile insurance policy may not provide coverage, depending on the policy's terms, while you are logged on to the Shiftsmart Platform and are available to receive transportation requests or are engaged in a prearranged ride. By accepting a request for Services, you are acknowledging that you have read and understand this Notice.
8.4 Shiftsmart is not required to provide you with any specific insurance coverage for any loss or injury to you or caused by you. However, Shiftsmart may maintain insurance related to your provision of the Services as determined by Shiftsmart in its reasonable discretion. While Shiftsmart may obtain insurance related to your provision of the Services, you are not a third-party beneficiary of any such policies. You are required to promptly notify Shiftsmart of any incidents that occur while providing the Services and to cooperate and provide all necessary information related thereto.
Representations and Warranties; Disclaimers
9.1 By You. You hereby represent and warrant that: (a) you are creating an account on your own behalf and you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; (c) you will not utilize any confidential information, trade secrets, or intellectual property belonging to any third party in performing the Services; (d) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations, and other governmental authorizations necessary to provide the Services to third parties pursuant to this Agreement; and (e) you are customarily engaged, or have previously been engaged, in an independently established business or trade of the same nature as, or related to, the Services.
9.2 Disclaimer of Warranties. SHIFTSMART AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE SHIFTSMART PLATFORM AND PARTNER APP ON AN "AS IS" AND "AS AVAILABLE" BASIS. SHIFTSMART AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE SHIFTSMART PLATFORM OR PARTNER APP WILL BE UNINTERRUPTED OR ERROR FREE OR WILL RESULT IN ANY REQUESTS FOR SERVICES. SHIFTSMART FUNCTIONS AS AN ON-DEMAND LEAD GENERATION SERVICE ONLY AND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE THE SERVICES FROM YOU. SHIFTSMART DOES NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE SHIFTSMART PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE SHIFTSMART PLATFORM AND PROVISION OF THE SERVICES. SHIFTSMART AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER, OR OTHER THIRD PARTY.
9.3 No Service Guarantee. SHIFTSMART AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE SHIFTSMART PLATFORM OR PARTNER APP. YOU ACKNOWLEDGE AND AGREE THAT THE SHIFTSMART PLATFORM OR PARTNER APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON. FURTHER, THE SHIFTSMART PLATFORM OR PARTNER APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND SHIFTSMART AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES, OR LOSSES RESULTING FROM SUCH PROBLEMS.
10. Indemnification. You shall indemnify, defend (at Shiftsmart's option) and hold harmless Shiftsmart and its Affiliates and their respective officers, directors, employees, agents, successors, and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators, and governmental authorities) directly or indirectly related to your provision of the Services or use of the Shiftsmart Platform.
11. Limits of Liability. SHIFTSMART AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY'S PERSONAL INJURY, PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR SHIFTSMART'S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF SHIFTSMART OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PARTNER FEES ACTUALLY PAID TO OR DUE TO BE PAID TO YOU HEREUNDER IN THE SIX MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
Term and Termination
12.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
12.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon fifteen days prior written notice to the other party; (b) immediately, without notice, for the other party's breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party's filing or submission of request for suspension of payment (or similar action or event) against the terminating party.
12.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Partner App from any of your Devices and return or destroy all Confidential Information of Shiftsmart. Outstanding payment obligations and Sections 1, 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 shall survive the termination of this Agreement.
Relationship of the Parties
13.1 The relationship between the parties under this Agreement is solely that of independent contracting parties as set forth in this Section
13.1. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Shiftsmart and you; and (b) no joint venture, partnership, or agency relationship exists between Shiftsmart and you. You acknowledge that you are an independent contractor and that you are fully responsible for your own taxes and that, as an independent contractor, you are not eligible to participate in any benefit program offered by Shiftsmart or a User to its employees, including, but not limited to, retirement, vacation and/or sick leave benefits. You further acknowledge and agree that you are not covered under Shiftsmart’s or a User’s worker’s compensation insurance or employment insurance coverages.
13.2 You have no authority to bind Shiftsmart or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Shiftsmart or its Affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Shiftsmart, you undertake and agree to indemnify, defend (at Shiftsmart's option) and hold Shiftsmart and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
Miscellaneous Terms
14.1 Modification. In the event Shiftsmart modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Continued use of the Shiftsmart Platform or Partner App after any such modifications shall constitute your acceptance of the modified Agreement.
14.2 Supplemental Terms. An addendum containing supplemental information or supplemental terms may apply to your use of the Shiftsmart Platform, such as use policies or terms related to certain features and functionality or additional terms specific to the Services you will be providing and/or location where you will be providing those Services, which may be modified from time to time ("Supplemental Terms"). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
14.3 Sever-ability. If any provision of this Agreement is deemed or held to be illegal, invalid, or unenforceable under present or future laws effective during the term hereof, this Agreement shall be considered divisible and inoperative as to such provision to the extent it is deemed to be illegal, invalid or unenforceable, and in all other respects this Agreement shall remain in full force and effect; provided, however, that if any provision of this Agreement is deemed or held to be illegal, invalid or unenforceable, there shall be added hereto automatically a provision as similar as possible to such illegal, invalid or unenforceable provision as shall be legal, valid or enforceable. Further, should any provision contained in this Agreement ever be reformed or rewritten by any court or arbitrator, such provision as so reformed or rewritten shall be binding upon you and Shiftsmart.
14.4 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Shiftsmart may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of Shiftsmart's business, equity or assets.
14.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words "including" and "include" mean "including, but not limited to." The recitals form a part of this Agreement.
14.6 Notices. Any notice delivered by Shiftsmart to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Shiftsmart Platform. Any notice delivered by you to Shiftsmart under this Agreement will be delivered by contacting Shiftsmart on the portal available to you on the Shiftsmart Platform.
14.7 Governing Law. With the exception of the Arbitration Provision set forth in Section 15 below, which shall be governed by the law set forth therein, the validity, performance and construction of this Agreement shall be governed by the laws of the State of Texas regardless of your country of origin or where you access the Shiftsmart Platform, and notwithstanding any conflicts of law principles..
15. Arbitration.PLEASE READ THIS SECTION 15 CAREFULLY—IT AFFECTS THE PARTIES’ LEGAL RIGHTS AND GOVERNS HOW YOU AND SHIFTSMART CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION 15 WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND SHIFTSMART TO SUBMIT CLAIMS ARISING UNDER THIS AGREEMENT, INCLUDING CLAIMS AGAINST EACH OTHER, TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, GROUP, OR REPRESENTATIVE ACTION IN COURT. THIS MUTUAL AGREEMENT TO ARBITRATE (“ARBITRATION PROVISION”) IS BETWEEN YOU AND SHIFTSMART. THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) APPLIES TO THIS ARBITRATION PROVISION, WHICH EVIDENCES COMMERCE. THE MUTUAL OBLIGATIONS BY SHIFTSMART AND YOU TO ARBITRATE DISPUTES PROVIDE ADEQUATE CONSIDERATION FOR THIS PROVISION. ALL DISPUTES COVERED BY THIS PROVISION WILL BE DECIDED BY A SINGLE ARBITRATOR THROUGH FINAL AND BINDING ARBITRATION AND NOT BY WAY OF COURT OR JURY TRIAL.CLAIMS COVERED BY THE ARBITRATION PROVISION: This Arbitration Provision is intended to be as broad as legally permissible, and, except as it otherwise provides, applies to all claims or controversies, past, present, or future, that otherwise would be resolved in a court of law or before a forum other than arbitration. Except as it otherwise provides, this Arbitration Provision applies to any dispute that Shiftsmart may have against you or that you may have against Shiftsmart, an Affiliate or User and/or any of its or their, past, present, or future: (i) officers, directors, shareholders, employees, members, or agents; (ii) Affiliates, parents, and subsidiaries; (iii) benefit plans or the plans’ sponsors, fiduciaries, administrators, affiliates or agents; and (iv) successors or assigns. Each and all of which the individuals and entities listed in (i) – (iv) above may enforce this Agreement as a direct or third-party beneficiary.Except as it otherwise provides, this Arbitration Provision applies, without limitation, to claims based upon or related to discrimination, harassment, retaliation, defamation (including post-engagement defamation or retaliation), whistleblowing, breach of a contract or covenant, stock disputes, fraud, negligence, seating, breach of fiduciary duty, trade secrets, unfair competition, wages, minimum wage and overtime or other compensation, including equity compensation, or any monies claimed to be owed, meal breaks and rest periods, termination, tort claims, common law claims, equitable claims, and claims arising under the Defend Trade Secrets Act, Fair Credit Reporting Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and any claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance. The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, scope, applicability, enforceability, or waiver of this Arbitration Provision including, but not limited to any claim that all or any part of this Arbitration Provision is void or voidable. However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and it does not apply to the Class Action Waiver or PAGA Individual Action Requirement. Notwithstanding any other clause or language in this Arbitration Provision and/or any rules or procedures that might otherwise apply because of this Arbitration Provision (including without limitation the AAA Rules discussed below) or any amendments and/or modifications to those rules, any claim that all or any part of the Class Action Waiver or PAGA Individual Action Requirement is unenforceable, inapplicable, unconscionable, or void or voidable, will be determined only by a court of competent jurisdiction and not by an arbitrator.
LIMITATIONS ON HOW THIS ARBITRATION PROVISION APPLIES AND CLAIMS NOT COVERED BY THIS ARBITRATION PROVISION: The following claims are not covered under this Arbitration Provision: (i) claims for workers’ compensation benefits, state disability insurance and unemployment insurance benefits; however, it applies to discrimination or retaliation claims based upon seeking such benefits; however, this Arbitration Provision does apply to any claims for breach of fiduciary duty, or for penalties, alleging that any of Shiftsmart’s benefit plans violate the requirements of ERISA, claims arising under sections 601-607 of ERISA (relating to continuation coverage under group health plans), or alleging any other violation of ERISA (including but not limited to claims under section 510 of ERISA), even if such claim is combined with a claim for benefits; (ii) claims for benefits under employee benefit plans covered by the Employee Retirement Income Security Act of 1974 (ERISA); (iii) disputes that an applicable federal statute expressly states cannot be arbitrated or subject to a pre-dispute arbitration agreement; and (iv) disputes that may not be subject to pre-dispute arbitration agreement under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (at your election). If any claim(s) not covered under this Arbitration Provision above are combined with claims that are covered under this Arbitration Provision, to the maximum extent permitted under applicable law, the covered claims will be arbitrated and continue to be covered under this Arbitration Provision.Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a governmental agency, including without limitation, the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities and Exchange Commission, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement agencies, and nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from exhausting administrative remedies by filing any charges or complaints required by any governmental agency (including without limitation the Equal Employment Opportunity Commission and/or similar state or local agency) before bringing a claim in arbitration. Shiftsmart will not retaliate against you for filing a claim with an administrative agency or for exercising rights under the National Labor Relations Act. This Arbitration Provision also does not prevent or prohibit you in any way from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse.Either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
ARBITRATION PROCEDURES: The arbitration will be administered by the American Arbitration Association (“AAA”), and except as provided in this Agreement, will be under the then current Commercial Arbitration Rules of the AAA (“AAA Rules”) (the AAA Rules are available via the internet at www.adr.org/commercial or by using a service such as Google to search for “AAA Commercial Arbitration Rules”); provided, however, if there is a conflict between the AAA Rules and this Arbitration Provision, this Arbitration Provision shall govern. Unless the parties jointly agree otherwise, the Arbitrator must be an attorney licensed to practice law in the state in which the arbitration is convened, or a retired judge from any jurisdiction. In the event, however, either party asserts a claim or claims that include a covered ERISA claim, the parties agree the Arbitrator must be a retired federal judge from any jurisdiction. Unless the parties jointly agree otherwise, the arbitration will take place in or near the city and in the state where you are engaged or were last engaged by Shiftsmart.The Arbitrator will be selected as follows: The AAA will give each party a list of 11 arbitrators (who are subject to the qualifications in the preceding paragraph) drawn from its panel of arbitrators. Each party will have ten (10) calendar days to strike all names on the list it deems unacceptable. If only one common name remains on the lists of all parties, that individual will be designated as the Arbitrator. If more than one common name remains on the lists of all parties, the parties will strike names alternately from the list of common names by telephone conference administered by AAA, with the party to strike first to be determined by a coin toss conducted by AAA, until only one remains. If no common name remains on the lists of all parties, the AAA will furnish an additional list of 11 arbitrators from which the parties will strike alternately by telephone conference administered by AAA, with the party to strike first to be determined by a coin toss conducted by AAA, until only one name remains. That person will be designated as the Arbitrator. If the individual selected cannot serve, AAA will issue another list of 11 arbitrators and repeat the alternate striking selection process. If the AAA will not administer the arbitration or is unwilling to administer the arbitration consistent with this Arbitration Provision, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted to appoint a neutral Arbitrator, who shall act under this Arbitration Provision with the same force and effect as if he or she had been specifically named herein.The Arbitrator may award any remedy to which a party is entitled under applicable law, but remedies will be limited to those that would be available to a party in their individual capacity for the claims presented to the Arbitrator, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. Unless otherwise agreed in writing by the parties, the Arbitrator shall apply the substantive federal, state, or local law applicable to the claims asserted. The Federal Rules of Evidence shall apply to the proceeding. Either party may file dispositive motions, including without limitation a motion to dismiss and/or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure. The Arbitrator will issue an award by written opinion within thirty days from the date the arbitration hearing concludes or the post-hearing briefs (if requested) are received, whichever is later. The opinion will be in writing and include the factual and legal basis for the award. Judgment on the award issued by the Arbitrator may be entered in any court of competent jurisdiction. Either party may seek correction, confirmation or vacatur in a court of competent jurisdiction as provided by the Federal Arbitration Act.
CLASS AND COLLECTIVE ACTION WAIVERS: Shiftsmart and you agree to bring any claim on an individual basis only. Accordingly, YOU AND SHIFTSMART WAIVE ANY RIGHT FOR ANY DISPUTE TO BE BROUGHT, HEARD, DECIDED, OR ARBITRATED AS A CLASS AND/OR COLLECTIVE ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO HEAR OR PRESIDE OVER ANY SUCH CLAIM (“Class Action Waiver”). Additionally, no arbitration proceeding under this Arbitration Provision may be consolidated or joined in any way with an arbitration proceeding involving different employees or contractors of Shiftsmart. If there is a final judicial determination that the Class Action Waiver is unenforceable and that a class or collective action may proceed notwithstanding the existence of this Arbitration Provision, the Arbitrator is nevertheless without authority to preside over a class or collective action and, in that event, any class or collective action must be brought in a court of competent jurisdiction—not in arbitration.
PRIVATE ATTORNEYS GENERAL ACT (“PAGA”) INDIVIDUAL ACTION REQUIREMENT. You and Shiftsmart agree to arbitrate PAGA claims on an individual basis only. Therefore, any claim by you under PAGA to recover unpaid wages, penalties, or other individual relief must be arbitrated under this Arbitration Provision. The Arbitrator is without authority to preside over any PAGA claim by you on behalf of any other person or joined by or consolidated with another person’s or entity’s PAGA claim. This PAGA Individual Action Requirement clause will be severable from this Arbitration Provision if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable. In such case, the PAGA action must be litigated in a civil court of competent jurisdiction—not in arbitration—but the portion of the PAGA Individual Action Requirement that is enforceable will be enforced in arbitration.
NOTICE OF ARBITRATION DEMAND: Shiftsmart and you agree that the party initiating the claim must make a written demand for arbitration of the claim to the other party no later than the expiration of the statute of limitations (deadline for filing) that the law prescribes for the claim. The demand for arbitration shall identify the claims asserted, the facts upon which such claims are based, and the relief or remedy sought. The demand for arbitration must be signed by the party making the demand for arbitration (you personally or authorized representative of Shiftsmart, as applicable). Written demand for arbitration to Shiftsmart must be sent to the attention of Legal Department, currently at legal@shiftsmart.com. You will be given notice of any demand for arbitration by Shiftsmart at the last home address contained in Shiftsmart’s records. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration and apply the statute of limitations that would have applied if the claim(s) had been brought in court.
DISCOVERY AND SUBPOENAS: Each party may take the deposition of 2 individual fact witnesses and any expert witness designated by another party. Each party also may propound 25 requests for production of documents and 5 interrogatory requests to the other party. And, each party shall have the right to subpoena witnesses and documents for discovery or the arbitration hearing, including testimony and documents relevant to the case from third parties, in accordance with any applicable state or federal law. Additional discovery may be conducted by mutual stipulation, and the Arbitrator will have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests, based on the Arbitrator’s determination whether additional discovery is warranted by the circumstances of a particular case.
ARBITRATION FEES AND COSTS: You and Shiftsmart shall follow the AAA Rules applicable to initial filing fees, but you will not be responsible for any portion of those fees in excess of the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. Shiftsmart shall pay any remaining portion of the initial fee and will pay all costs and expenses unique to arbitration, including without limitation the Arbitrator’s fees. Each party will pay for its own costs and attorneys’ fees, if any, except that the Arbitrator may award reasonable fees and costs to the prevailing party as provided by law or contract. The Arbitrator will resolve any disputes regarding costs/fees associated with arbitration.
SANCTIONS: To the extent allowed by applicable law and if the claim(s) or counterclaim(s) brought by either party in arbitration allow for imposition of sanctions, the Arbitrator may award either party its reasonable attorneys’ fees and costs, including reasonable expenses associated with production of witnesses or proof, upon a finding that the claim or counterclaim was frivolous or brought solely to harass you or Shiftsmart.
CONSTRUCTION, SURVIVAL, AND ENFORCEMENT OF THIS ARBITRATION PROVISION: This is the complete agreement of the parties about arbitration of covered disputes. Any contractual disclaimers Shiftsmart has in any handbooks, other agreements, or policies do not apply to this Arbitration Provision. If a court determines the Federal Arbitration Act does not apply to a particular dispute or to one or both parties, the parties agree that the laws of the State of Texas apply. This Arbitration Provision will survive the termination of your engagement by Shiftsmart and it will also continue to apply if you are separated and reengaged by Shiftsmart.You have the right to consult with counsel of your choice concerning this Arbitration Provision and to be represented by counsel at any stage during the arbitration process. Subject to the clauses entitled “Class and Collective Action Waivers” and “Private Attorneys General Act (“PAGA”) Individual Action Requirement” above, if any provision of this Arbitration Provision is found to be invalid, unenforceable, unconscionable, void or voidable, in whole or in part, that provision will be severed or modified and such adjudication will not affect the validity of the remainder of the Arbitration Provision. All remaining provisions will remain in full force and effect.
YOU AGREE THAT YOU HAVE CAREFULLY READ AND UNDERSTAND THIS MUTUAL AGREEMENT TO ARBITRATE AND AGREE TO ITS TERMS. BY SIGNING THE AGREEMENT PHYSICALLY, OR ELECTRONICALLY THROUGH DOCUSIGN OR OTHER ELECTRONIC MEANS, YOU ARE AGREEING TO AND ACCEPTING THIS ARBITRATION PROVISION, AND SHIFTSMART AND YOU ARE GIVING UP YOUR RIGHTS TO A COURT OR JURY TRIAL AND AGREEING TO ARBITRATE CLAIMS AND DISPUTES COVERED BY THE ARBITRATION PROVISION.
