Last update: January 23, 2020
This 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 provider (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.
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 clause and class action waiver that applies to you. If your Territory (as defined below) is in the United States, this provision applies to all disputes with Shiftsmart. If your Territory is outside of the United States, this provision applies to any action you bring against Shiftsmart in the United States. It affects how disputes with Shiftsmart are resolved. By accepting this Agreement, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
1.1 "Affiliate" means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 "Provider App" means the mobile application provided by Shiftsmart that enables providers 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 Provider ID.
1.5 "Shiftsmart Platform" mean Shiftsmart's on-demand lead generation and related services that enable providers to seek, receive and fulfill on-demand requests for services by Users; such Shiftsmart Platform includes access to the Provider 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 the United States in which you are enabled by the Provider 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 providers 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.
1.10 "Vehicle" means your vehicle that: (a) meets the then-current Shiftsmart requirements for vehicles used to provide the Services; and (b) Shiftsmart authorizes for your use in providing Transportation Services.
Use of the Shiftsmart Platform
2.1 Account Registration; Provider IDs. When you create an account in the Shiftsmart Platform, you guarantee that you are above the age of 18, and that the information you provide is accurate, complete, and current at all times. 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 ("Provider ID") to enable you to access and use the Shiftsmart Platform, including the Provider App on your mobile device and Shiftsmart's online portal. Shiftsmart reserves the right to deactivate your Provider ID if you do not fulfill a request for Services using the Provider App at least once a month. You agree that you will maintain your Provider ID in confidence and not share your Provider ID with any third party. You will immediately notify Shiftsmart of any actual or suspected breach or improper use or disclosure of your Provider ID or the Provider App.
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 Provider 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, qualifications, and your Vehicle's make and license plate number, if applicable. You shall not contact any Users or use any User's personal 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; and (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.
NOTICE REGARDING TRANSPORTATION SERVICES: With the exception of any signage required by local law or permit/license requirements, Shiftsmart shall have no right to require you to display Shiftsmart's or any of its Affiliates' names, logos or colors on your Vehicle. You understand and agree that you have a legal obligation under the Americans with Disabilities Act and similar state laws to transport Users with Service Animals (as defined by applicable state and federal law), including guide dogs for the blind and visually impaired Users, and there is no exception to this obligation for allergies or religious objections. You acknowledge and agree that all Users should be transported directly to their specified destination, as directed by the User, without unauthorized interruptions or stops and, unless specifically consented to by a User, you may not transport or allow inside your Vehicle individuals other than a User and any individuals authorized by such User, during the performance of Transportation Services for such User.
2.3 Your Relationship with Users. You acknowledge and agree that your provision of the Services to Users creates a direct business relationship between you and the User. For example, 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, your activities, or your Vehicle. 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 including motor vehicle financial responsibility 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 Provider App and access to the Shiftsmart Platform creates an independent-contractor relationship between Shiftsmart and you. 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, including, where applicable, your Vehicle. 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 Provider 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 to: (i) use other software applications to seek, receive, and fulfill requests for services in addition to the Shiftsmart Platform; and (ii) engage in any other occupation or business. Shiftsmart retains the right to deactivate or otherwise restrict you from accessing or using the Provider App or the Shiftsmart Platform in the event of a violation or alleged violation of this Agreement.
2.5 Ratings. You acknowledge and agree that after providing the Services, (1) you may be prompted to provide a rating of the User and to provide comments or feedback about the User; and (2) 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. You shall provide your ratings and feedback 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.
2.6 Devices. If you choose to use the Provider 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: (i) use of the Provider 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 (ii) use of the Provider 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.
2.7 Location Based Services. Some Services require that your geo-location information be provided to the Shiftsmart Platform either by you or via the Provider 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 Provider 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 Provider App and Device for safety and security purposes.
3.1 Your Requirements. 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. You acknowledge and agree that at all times, you shall: (a) hold and maintain all licenses (including a valid driver's license with the appropriate level of certification to operate your Vehicle), 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 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 Provider App or the Shiftsmart Platform if you fail to meet the requirements set forth in this Agreement.
3.2 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 the 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.
3.3 Documentation. To ensure your compliance with all requirements in Sections 3.1 and 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.
4.1 Payment from Shiftsmart. Except as set forth in Section 4.2, the following provisions shall govern your payment for providing Services. Shiftsmart shall send you a request for Services (each a "Request"), which shall include a deadline for accepting the Request; a description of the task being requested ("Task"); the criteria for completing the Task; compensation you will earn for completing the Task ("Provider Fee"); and any authorized expenses ("Approved Costs"). 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 in order to accept the Request. You will be paid the Provider Fee and reimbursed for any Approved Costs within seven (7) 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 or on an hourly or salary basis. You acknowledge and agree that the Provider Fee (and reimbursement of Approved Costs) is the only payment you will receive in connection with the provision of the Services.
4.2 Payment Directly From Users. Shiftsmart has made arrangements with some Users (e.g., a company needing an independent contractor for an extended period) 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 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 Provider Fee, and other relevant details about the Services, the information provided by Shiftsmart does not control. Rather, the terms and conditions contained in the Direct Contract shall control. In the event there is any inconsistency between this Agreement and the Direct Contract, the Direct Contract shall control. 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.
4.3 Provider Fee Adjustment. Shiftsmart reserves the right to: (i) adjust the Provider Fee for a particular instance of the Services (e.g., you failed to properly track a particular instance of the Services in the Provider App, technical error in the Shiftsmart Platform, etc.); or (ii) cancel the Provider 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 Provider Fee in any such manner shall be exercised in a reasonable manner.
4.4 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 Provider Fee for the cancelled Task for the purpose of remittance to you hereunder ("Cancellation Fee").
4.5 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 (3) 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 Provider Fee.
4.6 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 taxes on your own income arising from the performance of the Services. 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/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.6 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-sublicensable license, during the term of this Agreement, to use the Shiftsmart Platform (including installing and using the Provider App on your Device) solely for the purpose of providing the Services to Users and tracking resulting Provider 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 Provider App from the Device in the event that you cease to provide the Services using your Device.
5.2 Restrictions. 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 Provider App in any way; (b) modify or make derivative works based upon the Shiftsmart Platform or Provider App; (c) improperly use the Shiftsmart Platform or Provider App, including creating Internet "links" to any part of the Shiftsmart Platform or Provider App, "framing" or "mirroring" any part of the Shiftsmart Platform or Provider App on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Shiftsmart Platform or Provider App; (d) reverse engineer, decompile, modify, or disassemble the Shiftsmart Platform or Provider 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 Provider 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, Provider 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, Provider App, or Shiftsmart Data conveys or grants to you any rights in or related to the Shiftsmart Platform, Provider 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.
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, Provider 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 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.
7.1 Disclosure of Your Information. Subject to applicable law, Shiftsmart and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company, and/or relevant authorities and regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Shiftsmart Data) about you or any Services provided hereunder if, in Shiftsmart's or any Affiliate's sole discretion: (a) there is a complaint, dispute or conflict, including an accident, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required by applicable law or regulatory requirements (e.g., Shiftsmart receives a subpoena for information); (d) it is necessary to (1) protect the safety, rights, property or security of Shiftsmart or its Affiliates, the Shiftsmart Platform, or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Shiftsmart Platform; (3) to detect, prevent, or otherwise address fraud, security, or technical issues; (4) to prevent or stop activity which Shiftsmart considers to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity; or (e) it is required or necessary for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Shiftsmart Platform. You understand that Shiftsmart may retain your personal data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated.
7.2 Shiftsmart and its Affiliates may collect your personal data during the course of your registration for an account and use of the Shiftsmart Platform, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Shiftsmart and its Affiliates, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Shiftsmart's and its Affiliates' legitimate business needs. You expressly consent to such use of personal data.
7.3 Media Release. It is the practice of Shiftsmart to use the name, voice, and likeness of its Providers (each a "likeness") and certain audio and/or visual works, photographs, and quotations created by the Providers (each a "work") involved in providing Services in its publications and in other selected media for the purpose of promoting Shiftsmart's services and for use by Users of the Services. Unless a written denial of permission to reproduce and use such personal, photographic, and quoted material is received from you, your agreeing to provide the Services constitutes you permission for Shiftsmart to use, royalty-free, each likeness and work in Shiftsmart's publications and media and for Shiftsmart to provide each likeness and work to the Users for whom you provided Services. Neither Shiftsmart nor the Users are responsible for third party use of digital material that is copied or used without their permission.
8.1 As a condition of providing 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 8.1 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 8.1 at all times.
8.2 You agree to maintain during the term of this Agreement workers' compensation insurance as required by all applicable laws in the Territory. 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.
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 to you or your Vehicle. 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 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; and (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: (i) the Services to third parties pursuant to this Agreement; (ii) Transportation Services using your Vehicle; and (iii) passenger transportation services to third parties in the Territory generally.
9.2 Disclaimer of Warranties. SHIFTSMART AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE SHIFTSMART PLATFORM AND PROVIDER 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 PROVIDER 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 PROVIDER APP. YOU ACKNOWLEDGE AND AGREE THAT THE SHIFTSMART PLATFORM OR PROVIDER APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON. FURTHER, THE SHIFTSMART PLATFORM OR PROVIDER 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.
- 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.
- 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 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 PROVIDER FEES ACTUALLY PAID TO OR DUE TO BE PAID TO YOU HEREUNDER IN THE SIX (6) MONTH 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 seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party's material 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. In addition, Shiftsmart may terminate this Agreement or deactivate your Provider ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Shiftsmart, to provide the Services, or as otherwise set forth in this Agreement.
12.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Provider 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. 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 federal, state and local taxes and that, as an independent contractor, you are not eligible to participate in any benefit program offered by Shiftsmart 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 worker’s compensation insurance or state unemployment 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.
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 Provider 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 Severability. 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 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
14.7 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.
- Governing Law; Arbitration.
15.1 Law. This Agreement or any claim, cause of action, dispute or proceeding ("Claim") arising out of or related to 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.
15.2 Arbitration. You agree that THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SHIFTSMART PLATFORM AND/OR THE SERVICES PROVIDED (INCLUDING YOUR USE OF AND ACCESS TO THE SHIFTSMART APP AND WEBSITES) SHALL BE FINAL AND BINDING ARBITRATION, except that to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's intellectual property rights, or you have otherwise violated any of your obligations under Section 5 above, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought. You acknowledge and agree that you and Shiftsmart are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding.
Unless both you and Shiftsmart otherwise agree in writing, to the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any Claim by you related in any way to the Services or the Shiftsmart Platform (including the Shiftsmart App and websites) be instituted more than two (2) years after the cause of action arose.
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you and Shiftsmart agree to first inform the other party of the complaint and seek resolution. This notice of dispute must include: name, relevant account information, a brief description of the dispute, and contact information, so that the other party may evaluate the dispute and the parties can attempt to informally resolve the dispute. The other party will have sixty (60) days from the date of the original complaint to informally resolve the dispute, which, if successful, will avoid the need for further action.
15.3 Arbitration Procedures. In the unlikely event that you and Shiftsmart end up in a legal dispute and have not been able to resolve it within sixty (60) days of your original notice of dispute, you and Shiftsmart agree to the following:
- All Claims (excluding claims for injunctive or other equitable relief) must be resolved through binding arbitration before a JAMS, Inc. ("JAMS") arbitrator located in or closest to the City and County of Dallas, Texas under the Comprehensive Arbitration Rules and Procedures then in effect for JAMS ("JAMS Rules"), except as provided herein. Any disputes as to the applicable rules and procedures shall be resolved by the JAMS arbitrator.
- The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a Claim, you will submit the demand by certified mail to Shiftsmart at 16479 North Dallas Parkway, Suite 315, Addison, TX 75001, ATTN: Legal. If Shiftsmart initiates a claim, Shiftsmart will serve a demand for arbitration upon you by email to the email address on file with Shiftsmart, and may send a copy by certified mail to your last known address (or to another address specified by you in your notice of dispute of your informal claim). You agree to service of process via email to your email address on file with Shiftsmart. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought.
- You agree that the JAMS arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, and motions to dismiss and demurrers, prior to any arbitration hearing. However, the arbitrator shall not have the authority to decide issues of arbitrability or enforceability of the arbitration provisions in this Agreement (Sections 15.2 and 15.3). Notwithstanding any contrary terms in the JAMS Rules, the arbitrator will not have the authority to determine whether this arbitration agreement or any portion of it is enforceable, revocable or valid, the arbitrability of disputes, or whether claims may be arbitrated on a class, collective, or representative basis. You also agree that the arbitrator shall have the power to award any remedies available under applicable law, and that the arbitrator shall award attorneys' fees and costs to the prevailing party, except as prohibited by law. You agree that the arbitrator shall administer and conduct any arbitration in accordance with Texas law, including the Texas Code of Civil Procedure, and that the arbitrator shall apply substantive and procedural Texas law to any dispute or claim, without reference to rules of conflict of law.
- You agree that this Agreement and its validity, construction, and performance shall be governed by the Federal Arbitration Act (the "FAA") and cases decided thereunder and, to the extent relevant, the laws of the State of Texas. Further, the terms and procedures governing the enforcement of this agreement shall be governed by and construed and enforced in accordance with the FAA, and not individual state laws regarding enforcement of arbitration agreements. You agree that the decision of the arbitrator shall be in writing. The arbitrator's decision regarding the claims shall be final and binding upon the parties and shall be enforceable in any court having jurisdiction thereof.