Service Provider Agreement
This Service Provider Agreement (this “Agreement”) is a legally binding agreement between GetHomePro, Inc., a Delaware corporation (“we”, “us,” or “our”) and you, a provider of home or yard services. If you perform these services through a limited liability company, corporation or another form of legal entity, (i) you represent and warrant to us that you are duly authorized to accept this Agreement on behalf of that entity and that the entity accepts this Agreement, and (ii) as used in the remainder of this Agreement, “you” and “your” refer to the entity.
IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND US CAN BE BROUGHT, INCLUDING THE ARBITRATION AGREEMENT (SEE THE “ARBITRATION AGREEMENT” HEADING BELOW). PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO WAIVE YOUR CONSTITUTIONAL RIGHT TO A JURY TRIAL AND INSTEAD TO RESOLVE ALL DISPUTES WITH US ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED UNDER THE “ARBITRATION AGREEMENT” HEADING BELOW). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Our business is to assist our customers (“Customers”) in the engagement of service professionals. Our facilitation may include, but is not limited to, ordering, scheduling and paying for services from professional providers like you. The services you agree to provide to Customers (the “Services”) will be more specifically described in an order form or similar transaction document that you enter directly with the Customer (an “Order”). This Agreement governs the ordering, scheduling, payment and similar administrative processes we carry out with respect to your Services, and your provision of Services to Customers.
To use the GetHomePro website, mobile application and/or portal, you may also be required to accept the terms of our Terms of Service linked at homr.io/terms provided, however, that in the case of any conflict between the Terms of Service and this Agreement, the terms of this Agreement will control as they pertain to your role as a Service provider.
Orders will include information regarding pricing of your Services and, where applicable, the recurring schedule for such Services (e.g., weekly, biweekly, monthly, quarterly, etc.). Once an Order is in place, you will work with us in good faith to schedule service appointments at a time and date that is suitable to the Customer.
WE ARE NOT RESPONSIBLE FOR ANY CUSTOMER’S ACTS OR OMISSIONS. WE HAVE NO CONTROL OVER, AND ARE NOT RESPONSIBLE FOR, YOUR INTERACTIONS (ONLINE, IN PERSON OR OTHERWISE) WITH ANY THIRD PARTIES, INCLUDING CUSTOMERS (EVEN IF INTRODUCED OR ENGAGED THROUGH OUR SERVICES). YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH ANY THIRD PARTIES OR CUSTOMERS. IF YOU HAVE ANY DISPUTES WITH A CUSTOMER, YOUR SOLE RECOURSE IS AGAINST THE APPLICABLE CUSTOMER AND YOU HEREBY WAIVE ANY CLAIMS AGAINST US AS RELATES TO SUCH DISPUTE. If you notify us of such a dispute, we may (in our sole discretion) assist in facilitating a resolution between you and the Customer but we are under no obligation whatsoever to do so.
Unless authorized in writing by us in advance, you will not directly solicit new business from any Customer to whom we introduce you other than through our platform in each case for so long as a business relationship is in place between you and us, and for a period of 12 months thereafter. Should you solicit new business from a Customer in breach of this restriction, without limiting any other rights and remedies we have under this Agreement or at law, we reserve the right to remove you from our platform and cancel any current or pending business with us.PAYMENTTo become and remain active on our platform, you must pay any required subscription fees to us on time. If you fail to pay these fees when due, then without limiting our other remedies, we may suspend your listings on our platform.
The Order will set out the applicable pricing and payment terms, and you are responsible for selecting the pricing you offer for your Services. The fees set forth in the Order are your only compensation for providing the Services, and you are responsible for, and bear all costs of, any other expenses (including the cost of any equipment, tools and other materials that you deem necessary or advisable).We may offer multiple methods to pay you your balance of the fees we collect from Customers from your Orders. We will pay out your balance of fees using an agreed method.
If either you or a Customer cancels an Order and we have paid (or agreed to pay) any amounts for Services you have not yet performed at the time of cancellation, you will promptly refund (or cancel) the amounts corresponding to such unperformed Services. Unless you and we agree otherwise in writing, you will pay any refunds to us rather than to the Customer directly; if you pay any refund to a Customer, you will confirm to us in writing that you have done so. You are responsible for any sales, use or other taxes imposed by applicable law on the amounts you receive under this Agreement. You are also responsible for any self-employment taxes, and any withholding required for amounts you pay your employees, agents, contractors, subcontractors, and other personnel (collectively, “Personnel”).
You are responsible for ensuring you provide complete and accurate information to us and to Customers, and that you keep such information up to date, and you are responsible for any liability or damages arising from false, fraudulent, inaccurate, or incomplete information.You are responsible for keeping your own records and making appropriate backups – we will not be responsible for any loss of data in our possession or control.You are responsible for ensuring you comply with any local, state, national, or other rules and regulations.
You hold, and will maintain, all authorizations, consents, permits, and licenses required to be held by you under any applicable laws and regulations, and (if you are an entity rather than a natural person) you are duly organized and validly existing under the laws of your jurisdiction of incorporation or formation.You will maintain (with a reputable company) commercial general liability insurance, commercial automobile insurance, workers’ compensation, insurance coverage that is reasonable for the scale and variety of services you perform, with commercially reasonable limits (including any coverages and limits required by applicable law). If your coverage includes an exclusion for contractual liability, it must nevertheless cover this Agreement as an insured contract. You will provide us with a certificate of insurance upon request. You will conduct yourself, and ensure that your Personnel conduct themselves, in a professional manner.You are responsible for the acts and omissions of your subcontractors (if any), and your and their respective Personnel, including ensuring they comply with the terms of this Agreement.
You acknowledge and agree that in connection with this Agreement you may have access to or may be exposed to, directly or indirectly, our confidential information or confidential information of third parties (“Confidential Information”). “Confidential Information” includes Customers’ information, marketing and business plans, business, financial, technical, operational and such other, non-public information (whether disclosed in writing or verbally) that we designate as being proprietary or confidential, or that is of a character that you should reasonably know it should be treated as confidential. “Confidential Information” does not include any information that: (a) was in your lawful possession, without an obligation of confidentiality, prior to our initial disclosure; (b) is lawfully disclosed to you without an obligation of confidentiality by a third party entitled to do so, or (c) you independently develop without the use of or access to our information.You acknowledge and agree that: (a) as between you and us, all Confidential Information shall remain our exclusive property; (b) you shall not use Confidential Information for any purpose except in furtherance of this Agreement; (c) you shall not disclose Confidential Information of the other party to any third party, except to your Personnel who need to know the Confidential Information to perform their obligations under this Agreement, and in this case provided that such Personnel are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) you shall return or destroy all Confidential Information upon the termination of this Agreement or at our request; subject to applicable law and your good-faith internal record-keeping requirements.
The unauthorized use or disclosure of any Confidential Information would cause irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, we have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of Confidential Information that you disclose, or threaten to disclose, in addition to any other rights or remedies available to us.
You and we operate independent business enterprises, each of whom operates a separate and distinct business enterprise that provides a service outside the usual course of business of the other. As such, you and we are independent contractors to one another, and nothing in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship between you and us. You will have no authority to act as agent for, or on behalf of, us, or to represent us, or bind us in any manner. Neither you nor your Personnel will be entitled to worker’s compensation, retirement, insurance, or other benefits afforded to our employees.
We may use and display your name, logo, and trademarks (your “Marks”) to identify you as a service provider to our Customers, potential Customers and other parties in connection with the operation of our business, and you hereby grant us a nonexclusive, royalty-free, worldwide license during the term of this Agreement to make such displays and uses. We will comply with any reasonable trademark guidelines you provide regarding such usage, and all goodwill arising from our use and display of your Marks will accrue to you. Except as set forth above, neither party will, without the prior written consent of the other party in each instance: (i) publicly use the other party’s Marks, or refer to the relationship between the parties in any media release or other public announcement; or (ii) represent, directly or indirectly, that any product or service provided by such party has been approved or endorsed by the other party.FEEDBACKIf you provide feedback, suggestions, improvements, or requests for additional functionality related to our platform or business (collectively, “Feedback”), you hereby grant us a nonexclusive, unrestricted, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, display, perform, modify, transmit, distribute and create derivative works of such Feedback in any way we deem reasonable, without any attribution or accounting to you. This paragraph will survive any termination or expiration of this Agreement.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO OUR PLATFORM AND OUR SERVICES, WHETHER EXPRESS OR IMPLIED. WE DO NOT REPRESENT AND CANNOT GUARANTEE ANY SPECIFIC RESULTS FROM YOUR ENTRY INTO THIS AGREEMENT INCLUDING AS RELATES TO ANY AMOUNT OF BUSINESS, SALES, OR PROFIT THAT MAY BE GENERATED HEREUNDER. NEITHER THIS AGREEMENT NOR THE ORDER CONSTITUTE A BINDING COMMITMENT TO PURCHASE ANY SERVICES FROM YOU. WE ARE NOT AN AGENT OR FIDUCIARY OF YOU OR ANY CUSTOMER. WE ARE NOT RESPONSIBLE FOR YOUR INTERACTIONS WITH CUSTOMERS, THE ACTS OR OMISSIONS OF ANY CUSTOMERS, OR THE CONDITIONS OF ANY CUSTOMER’S PROPERTY.LIMITATIONS OF LIABILITY TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR PERSONAL INJURY, DEATH, OR LOSS OR DAMAGE OF PROPERTY, UNDER ANY LEGAL THEORY WHATSOEVER (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO FEES WE OWE YOU FOR SERVICES YOU PERFORM FOR CUSTOMERS, WE WILL NOT BE LIABLE TO YOU FOR ANY AGGREGATE AMOUNT EXCEEDING THE GREATER OF (A) $100 USD, OR (B) THE AMOUNTS WE HAVE PAID TO YOU ON BEHALF OF CUSTOMERS IN THE PAST SIX MONTHS.
RELEASE AND INDEMNITY
YOU WILL RELEASE, DEFEND, INDEMNIFY, AND HOLD US, OUR PAST, PRESENT, AND FUTURE AFFILIATES, LICENSORS, LICENSEES, MARKETING PARTNERS, AND SUPPLIERS, TOGETHER WITH OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, HARMLESS FROM AND AGAINST ANY DAMAGES, LOSSES, CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING WITHOUT LIMITATION REASONABLE LEGAL AND ACCOUNTING FEES), RESULTING FROM CLAIMS BROUGHT BY A CUSTOMER OR ANOTHER THIRD PARTY ALLEGING FACTS THAT, IF TRUE, WOULD CONSTITUTE (A) YOUR FAILURE TO COMPLY WITH ANY TERM OF THIS AGREEMENT (INCLUDING BY MAKING ANY FALSE REPRESENTATION OR WARRANTY), (B) ANY INJURIES TO PERSONS (INCLUDING DEATH) OR LOSS OF, OR DAMAGE TO, PROPERTY, OCCASIONED BY YOUR NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW, (C) ANY CLAIMS ARISING FROM ANY INTERACTIONS BETWEEN YOU AND ANY CUSTOMER OR OTHER THIRD PARTY (FOR THE AVOIDANCE OF DOUBT, INCLUDING THE CLAIMANT); (D) LOSSES OR LIABILITIES ARISING FROM YOUR PROVISION OR NON-PROVISION OF SERVICES; OR (E) YOUR FAILURE TO PAY ANY TAXES IMPOSED ON YOU WHEN DUE. WE MAY OPT TO DEFEND SUCH CLAIMS AT OUR SOLE DISCRETION, IN WHICH CASE YOU WILL INDEMNIFY US FOR THE COSTS OF SUCH DEFENSE.
IF YOU WOULD OTHERWISE BE ENTITLED TO THE APPLICATION OF CALIFORNIA CIVIL CODE SECTION 1542, YOU HEREBY WAIVE IT. CALIFORNIA CIVIL CODE SECTION 1542 STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” IF YOU WOULD OTHERWISE BE ENTITLED TO THE APPLICATION OF ANY SIMILAR PROTECTION IN ANY OTHER APPLICABLE JURISDICTION, YOU HEREBY WAIVE IT.
This Agreement is effective as of the earliest date you accept its terms. Either party may terminate this Agreement if the other party materially breaches any provision hereof and fails to cure such breach within 10 days from receipt of written notice thereof. We may also terminate this Agreement with respect to you if we have good-faith concerns about your or Customers’ safety, security or legal compliance.In addition, we may modify or cease offering our platform and any other products and services, at any time for any reason, and without prior notice. If we cease to offer the products and services to which this Agreement applies, we may terminate this Agreement upon notice. Termination will not relieve either party from any obligations incurred or arising prior to such termination, and those sections of this Agreement which are by their nature intended to survive termination (including, without limitation, the terms under the headings “Non-Solicitation,” “Payment,” “Confidentiality,” “Ratings,” “Relationship,” “Feedback,” “Disclaimers,” “Limitations of Liability,” “Release and Indemnity,” “Governing Law,” “Arbitration Agreement,” and “General”) shall so survive.
SUBJECT TO THE ARBITRATION AGREEMENT BELOW, (A) THIS AGREEMENT IS GOVERNED BY AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF; AND (B) THE EXCLUSIVE VENUE FOR RESOLVING ANY DISPUTE BETWEEN US AND YOU SHALL BE THE APPLICABLE STATE OR FEDERAL COURTS LOCATED IN DALLAS COUNTY, TEXAS, AND YOU AND WE EACH CONSENT TO THE JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION THERETO. ARBITRATION AGREEMENT
By agreeing to this Agreement, you agree that you are required to resolve any claim that you may have against us on an individual basis in arbitration as set forth in this Arbitration Agreement, and not as a class, collective, coordinated, consolidated, mass and/or representative action. This Arbitration Agreement will preclude you from bringing any class, collective, coordinated, consolidated, mass and/or representative action against us, and it will preclude you from participating in or recovering relief in any current or future class, collective, coordinated, consolidated, mass and/or representative action brought against us by someone else—except as provided below under the “Batching” heading. Thus, the parties agree that the Arbitrator shall not conduct any form of class, collective, coordinated, consolidated, mass and/or representative arbitration, nor join, coordinate, or consolidate claims of multiple individuals against us in a single proceeding— except as provided below under the “Batching” heading. For the avoidance of doubt, except as provided below under the “Batching” heading, this Arbitration Agreement precludes you from bringing or participating in any kind of class, collective, coordinated, consolidated, mass and/or representative or other kind of group, multi-plaintiff or joint action against us, other than participating in a classwide, collective, coordinated, consolidated, mass and/or representative settlement of claims.
Agreement to Binding Arbitration Between You and Us.
Covered Disputes: Except as expressly provided below under the “Exceptions to Arbitration” heading, you and we agree that any dispute, claim, or controversy in any way arising out of or relating to (i) this Agreement (or a prior version of this Agreement), or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof; (ii) your access to or use of our platform, products or services at any time; (iii) incidents or accidents resulting in personal injury to you or anyone else that you allege occurred in connection with your use of our platform, products or services, regardless of whether the dispute, claim, or controversy occurred or accrued before or after the date you agreed to this Agreement, and regardless whether you allege that the personal injury was experienced by you or anyone else; and (iv) your relationship with us, will be settled by binding individual arbitration between you and us, and not in a court of law. This Arbitration Agreement survives after your relationship with us ends.
Class Action Waiver: You acknowledge and agree that any and all disputes, claims, or controversies between the parties shall be resolved only in individual arbitration. The parties expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a class, collective, coordinated, consolidated, and/or representative action, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any class, collective, coordinated, consolidated, and/or representative action, or to award relief to anyone but the individual in arbitration. The parties also expressly waive the right to seek, recover, or obtain any non-individual relief. Notwithstanding anything else in this Agreement, this Class Action Waiver does not prevent you or us from participating in a classwide, collective, and/or representative settlement of claims. The parties further agree that if for any reason a claim does not proceed in arbitration, this Class Action Waiver shall remain in effect, and a court may not preside over any action joining, coordinating, or consolidating the claims of multiple individuals against us in a single proceeding, except that this Class Action Waiver shall not prevent you or us from participating in a classwide, collective, and/or representative settlement of claims. If there is a final judicial determination that any portion of this Class Action Waiver is unenforceable or unlawful for any reason, (i) any class, collective, coordinated, consolidated, and/or representative claims subject to the unenforceable or unlawful portion(s) shall proceed in a court of competent jurisdiction; (ii) the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration; (iii) the unenforceable or unlawful portion(s) shall be severed from this Arbitration Agreement; and (iv) severance of the unenforceable or unlawful portion(s) shall have no impact whatsoever on the enforceability, applicability, or validity of the Arbitration Agreement or the arbitrability of any remaining claims asserted by you or us.
Mass Action Waiver: You acknowledge and agree that any and all disputes, claims, or controversies between the parties shall be resolved only in individual arbitration. The parties expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a mass action, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any mass action or to award relief to anyone but the individual in arbitration— except as provided below under the “Batching” heading. The parties also expressly waive the right to seek, recover, or obtain any non-individual relief. The parties agree that the definition of a “Mass Action” includes, but is not limited to, instances in which you or we are represented by a law firm or collection of law firms that has filed 50 or more arbitration demands of a substantially similar nature against the other party within 180 days of the arbitration demand filed on your or our behalf, and the law firm or collection of law firms seeks to simultaneously or collectively administer and/or arbitrate all the arbitration demands in the aggregate. Notwithstanding anything else in this Agreement, this Mass Action Waiver does not prevent you or us from participating in a mass settlement of claims.
Dispute Procedure: Notwithstanding any provision to the contrary in the applicable arbitration provider’s rules, the arbitrator shall be empowered to determine whether the party bringing any claim has filed a Mass Action in violation of the Mass Action Waiver. Either party shall raise with the arbitrator or arbitration provider such a dispute within 15 days of its arising. If such a dispute arises before an arbitrator has been appointed, the parties agree that (i) a panel of three arbitrators shall be appointed to resolve only disputes concerning whether the party bringing any claim has filed a Mass Action in violation of the Mass Action Waiver. Each party shall select one arbitrator from the arbitration provider’s roster to serve as a neutral arbitrator, and these arbitrators shall appoint a third neutral arbitrator. If the parties’ arbitrators cannot agree on a third arbitrator, the arbitration provider will select the third arbitrator; (ii) we shall pay any administrative fees or costs incidental to the appointment of Arbitrators under this provision, as well as any fees or costs that would not be incurred in a court proceeding, such as payment of the fees of the arbitrators, as well as room rental; (iii) the arbitrators shall issue a written decision with findings of fact and conclusions of law; and (iv) any further arbitration proceedings or assessment of arbitration-related fees shall be stayed pending the arbitrators’ resolution of the parties’ dispute. If the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver, the parties shall have the opportunity to opt out of arbitration within 30 days of the arbitrator’s or panel of arbitrator’s decision. You may opt out of arbitration by providing written notice of your intention to opt out to the arbitration provider and to GetHomePro, Inc., Attn: Legal Department, 6510 Abrams Rd Ste. 508, Dallas, TX 75231 via USPS Priority Mail or hand delivery. This written notice must be signed by you individually (or your authorized executive officer, if you are a legal entity), and not any attorney, agent, or other representative of yours. We may opt out of arbitration by sending written notice of its intention to opt out to the arbitration provider and to you or your attorney, agent, or representative if you are represented. For the avoidance of doubt, the ability to opt out of arbitration described in this paragraph only applies if the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver. If the parties proceed with arbitration, the parties agree that arbitrations will be batched as provided under the “Batching” heading below.
i. To increase efficiency of resolution in the event a Mass Action is filed and neither party exercises its right to opt out of arbitration as provided under the “Dispute Procedure” heading above, the following procedure shall apply. At the request of either party, an arbitrator shall be selected according to the applicable arbitration provider’s rules to act as a special master (“Special Master”) to resolve threshold disputes regarding the propriety of some or all the arbitration demands submitted in the Mass Action (“Mass Arbitration Demands”). Any such request shall be made within 15 days following the expiration of the opt-out period described under the “Dispute Procedure” heading above, and may be made by providing written notice to the arbitration provider. Upon the request of either party to appoint a Special Master to resolve the foregoing issues, the applicable arbitration provider shall refrain from further processing any of the Mass Arbitration Demands to which a dispute has been raised. No further payment for filing fees, administrative costs, or arbitrator fees shall be deemed due with respect to any of the Mass Arbitration Demands as to which a dispute has been raised until after the dispute(s) has/have been resolved by the Special Master. We shall be responsible for the applicable arbitration provider’s and Special Master’s fees and costs related to the proceedings before the Special Master. A Special Master appointed pursuant to this procedure shall have no authority to consolidate cases.
ii. After proceedings before the Special Master have concluded, to the extent any of the Mass Arbitration Demands are permitted to proceed, the parties shall group the Mass Arbitration Demands into batches of no more than 100 demands per batch by state of residence, and then alphabetically by last name (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands), and shall inform the arbitration provider of the batches and their compositions within 14 days of the conclusion of proceedings before the Special Master. The arbitration provider shall treat each batch of claims as one case, with each case having one demand for arbitration, one appointed arbitrator, and one set of administrative documents and administrative and filing fees per batch. The parties shall randomly assign sequential numbers to each batch, and only one batch shall proceed to arbitration at a time in the order of the random sequential numbers. A separate arbitrator will be appointed to, and administrative and filing fees assessed for, each batch as the batch proceeds to arbitration. You agree to cooperate in good faith with us and the arbitration provider to implement such a batch approach to resolution and fees. Nothing in this provision shall be construed as limiting the right to object that the filing or presentation of multiple arbitration demands by or with the assistance of the same law firm or organization violates any term of this Agreement.
iii. If any Mass Arbitration Demands were originally processed as individual arbitration demands before this batching procedure was commenced, further proceedings, including the assessment of further arbitration filing or administration fees to either party shall be governed by the procedures set forth in this “Batching” section.
Delegation Clause: Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether this Agreement is applicable, unconscionable, or illusory and any defense to arbitration, including without limitation waiver, delay, laches, or estoppel. However, only a court of competent jurisdiction, and not an arbitrator, shall have the exclusive authority to resolve any and all disputes arising out of or relating to the Class Action Waiver and Mass Action Waiver, including, but not limited to, any claim that all or part of the Class Action Waiver and/or Mass Action Waiver is unenforceable, unconscionable, illegal, void, or voidable—except that, as stated and pursuant to the procedures provided in Section 2(a)(3)(b), an arbitrator or panel of arbitrators shall have authority to determine whether the party bringing any claim has violated the Mass Action Waiver.
Application to Third Parties: This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against any third parties, including but not limited to your spouses, heirs, third-party beneficiaries and assigns, where their underlying claims arise out of or relate to your use of our platform, products or services. To the extent that any third-party beneficiary to this Agreement brings claims against the Parties, those claims shall also be subject to this Arbitration Agreement.Exceptions to Arbitration.Notwithstanding the foregoing, this Arbitration Agreement shall not require arbitration of the following claims: (i) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual basis; (ii) individual claims of sexual assault or sexual harassment occurring in connection with your use of our platform, products or services; and/or (iii) injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened misuse or disclosure of Confidential Information, or the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
Such claims may be brought and litigated in a court of competent jurisdiction by you on an individual basis only. “On an individual basis” means that you cannot bring such claims as a class, collective, coordinated, consolidated, mass and/or representative action against us. For the avoidance of doubt, this precludes you from bringing claims as or participating in any kind of any class, collective, coordinated, consolidated, mass and/or representative or other kind of group, multi-plaintiff or joint action against us and no action brought by you may be consolidated or joined in any fashion with any other proceeding. Where your claims are brought and litigated to completion on such an individual basis in a court of competent jurisdiction, we agree to honor your election.
The parties’ agreement not to require arbitration in these limited instances does not waive the enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the class action and mass action waivers provided for above, which will continue to apply in court as well as in arbitration), or the enforceability of this Arbitration Agreement as to any other controversy, claim, or dispute.Rules and Governing Law.For disputes arising in California, the arbitration will be administered by ADR Services, Inc. (“ADR”) in accordance with ADR’s Arbitration Rules (the “ADR Rules”) in effect at the time that the claim is brought, unless the parties agree otherwise in writing. The ADR Rules are available at www.adrservices.com or by searching for “ADR Arbitration Rules” using a service such as www.google.com or www.bing.com. The arbitration shall be heard by one arbitrator (the “Arbitrator”) selected in accordance with the ADR Rules.
For disputes arising outside of California (or for disputes arising in California only if ADR cannot or will not administer the arbitration), the parties shall be required to meet and confer to select a neutral arbitration provider. Such an arbitration provider shall have operations in the state in which the dispute arises. If the parties are unable to mutually agree upon an arbitration provider, then either party may invoke 9 U.S.C. § 5 to request that a court of competent jurisdiction appoint an arbitration provider with operations in the state in which the dispute arises. Any arbitration provider appointed by a court under 9 U.S.C. § 5 shall conduct arbitration solely on an individualized basis as set forth in this Section 2. Once the parties mutually agree upon a neutral arbitration provider, or an arbitrator provider is appointed under 9 U.S.C. § 5, the ensuing arbitration shall commence pursuant to the rules of the designated arbitration provider, except as designated herein. Once an arbitration provider is agreed upon or appointed, an Arbitrator shall be appointed. The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in the state where the arbitration is conducted with experience in the law underlying the dispute. The Arbitrator will be selected by the parties from the applicable arbitration provider’s roster of arbitrators. If the parties are unable to agree upon an Arbitrator after a good faith meet and confer effort, then the applicable arbitration provider will appoint the Arbitrator in accordance with its rules.
Notwithstanding the choice of law or any other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties to be bound by the provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation, enforcement, and administration of this Arbitration Agreement, and that the FAA and the applicable arbitration provider’s rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and applicable arbitration provider’s rules are found to not apply to any issue regarding the interpretation or enforcement of this Arbitration Agreement, then that issue shall be resolved under the laws of the state where you reside when you accept this Agreement.
Any dispute, claim, or controversy arising out of or relating to incidents or accidents resulting in personal injury (including but not limited to sexual assault or harassment claims) that you allege occurred in connection with your use of our platform, products or services, whether before or after the date you agreed to this Agreement, shall be governed by and construed in accordance with the laws of the state in which the incident or accident occurred.Process.Pre-Arbitration Dispute Resolution and Notification. The parties agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. The parties therefore agree that, before either party demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this Arbitration Agreement. Multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify us that you intend to initiate an informal dispute resolution conference, write to GetHomePro, Inc., Attn: Legal Department, 6510 Abrams Rd Ste. 508, Dallas, TX 75231, providing your name, the telephone number(s) associated with your account (if any), the email address(es) associated with your account, and a description of your claim. Engaging in an informal dispute resolution conference is a condition precedent that must be fulfilled before commencing arbitration, and the Arbitrator shall dismiss any arbitration demand filed before completion of an informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
In order to initiate arbitration following the conclusion of the informal dispute resolution process required by this Section, a party must provide the other party with a written demand for arbitration and file the demand with the applicable arbitration provider, as determined by Section 2(c). A party initiating an arbitration against us must send the written demand for arbitration to GetHomePro, Inc., Attn: Legal Department, 6510 Abrams Rd Ste. 508, Dallas, TX 75231. Additionally, a party initiating arbitration against us must send an electronic version of the demand for arbitration to the Arbitration Provider, and must send an electronic version of the as-filed demand to email@example.com.
By signing the demand for arbitration, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that (i) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The Arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either party’s violation of this requirement.Location.Unless you and we otherwise agree, the arbitration will be conducted in the county where you reside. Your right to a hearing will be determined by the applicable arbitration provider’s rules. Subject to the applicable arbitration provider’s rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Offers of Judgment.
At least 10 days before the date set for the arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitrator, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs from the time of the offer.Arbitrator’s Decision.
The Arbitrator will render an award within the time frame specified in the applicable arbitration provider’s rules. Judgment on the arbitration award may be entered in any court of competent jurisdiction. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties.The Arbitrator is not bound by decisions reached in separate arbitrations, and the Arbitrator’s decision shall be binding only upon the parties to the arbitration that are the subject of the decision.The Arbitrator shall award reasonable costs incurred in the arbitration to the prevailing party in accordance with the law(s) of the state in which arbitration is held.
With the exception of the provisions governing payment of arbitration costs set forth above, your responsibility to pay any filing, administrative, and arbitrator fees will be solely as set forth in the applicable arbitration provider’s rules and shall be up to the amount you would be required to pay if you filed a claim in court.If you have a gross monthly income of less than 300% of the federal poverty guidelines, you are entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees. If you believe that you meet the requirements to obtain a fee waiver, and your demand for arbitration arises outside of California, then you may request a fee waiver only by submitting to the arbitration provider AO 240, Application to Proceed in District Court Without Prepaying Fees or Costs (found here), or a declaration under oath containing all the information required by AO 240; if your demand for arbitration arises in California, then you must submit a declaration under oath providing your monthly income and the number of persons in your household.
Any and all disputes regarding a party’s obligation to pay any arbitration fees or costs that arise after an arbitrator is appointed shall be determined solely by the arbitrator. If such a dispute arises before an arbitrator has been appointed, and if no Special Master has been requested by either party pursuant to the “Batching” section above, the parties agree that (i) the due date for any disputed fees shall be stayed pending resolution of the parties’ dispute, (ii) a panel of three arbitrators shall be appointed to resolve the parties’ dispute concerning a party’s obligation to pay fees or costs of arbitration, (iii) the panel of arbitrators shall be appointed by each party selecting one arbitrator from the arbitration provider’s roster to serve as neutral arbitrators, and these arbitrators shall appoint a third neutral arbitrator. If the parties’ arbitrators cannot agree on a third arbitrator, the arbitration administrator will select the third arbitrator, (iv) we shall pay any administrative fees or costs incidental to the appointment of a panel of arbitrators under this provision, as well as any fees or costs that would not be incurred in a court proceeding, such as payment of the fees of the arbitrator(s), as well as room rental, and (v) the arbitrator(s) shall issue a written decision with findings of fact and conclusions of law. If two or more fee disputes between a claimant and us arise at or around the same time, the disputes may be consolidated for resolution by a single arbitrator or panel of arbitrators either at the agreement of the parties or the election of the party common to all such disputes.
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
We will not be responsible or liable for any delays or failures to perform due to causes beyond our reasonable control, which may include acts or omissions of Customers or other third parties, natural disasters, terrorist attacks, criminal activity, failure of internet or communications networks, health emergencies including pandemics or similar serious outbreaks of disease, or other force majeure events.
You may not assign this Agreement or these rights and obligations without our prior written consent; any purported assignment in violation of this Agreement will be null and void. If any provision of this Agreement is determined to be void or unenforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall remain in force and effect. This Agreement and any policies referenced herein constitute the entire agreement between the parties regarding the subject matter thereof and supersede any prior or contemporaneous agreements with regards to such subject matter. A party's failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. You may provide notice to us by contacting us as set forth below. We may provide notice to you by email or regular mail at the address you have submitted when you registered for an account, or any other email or physical address you provide to us or list in an Order.
For more information or for help in answering any questions, please contact us at firstname.lastname@example.org. To provide us notice as required under this Agreement, please contact us at email@example.com (unless a different process is specified above).