This Online Contractor Services Agreement (“Agreement”) constitutes a legal agreement between Traba, Inc. (the “Company,” “Traba,” “we,” or “us”) and you (“User,” “you,” or “your”), and governs your use of and access to the Application (as defined below), that allows Traba’s customers to connect with its network of independent contractors to obtain service providers for various short term assignments.
PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY IF YOU WISH TO BECOME A CONTRACTOR AND BEFORE ACCESSING OR PROVIDING THE SERVICES.
PLEASE NOTE: SECTION 27 OF THIS AGREEMENT AFFECTS HOW DISPUTES BETWEEN YOU AND THE COMPANY ARE RESOLVED. THEY CONTAIN ARBITRATION PROVISIONS THAT REQUIRE DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS AND PROHIBIT CLASS ACTION CLAIMS. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THAT ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
This Agreement expressly supersedes any prior agreements with you. With the exception of the mutual obligation to arbitrate disputes, Traba reserves the right to modify or amend any other terms of this Agreement from time to time without notice; your continued use of the Application following the posting of changes to the terms shall constitute your acceptance of such changes.
ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
a. “Application” means the software application used by the Company in connection with the Services.
b. “Account” means the account created for you in connection with the Application upon registration with the Company through the Application. User must maintain an active Account in order to use the Application.
c. “Customer Engagement” means a Customer Request with which a Contractor has accepted and thus agreed to perform Services in accordance therewith.
c. “Customer Request” means a notice provided, through the Application, to one or more Contractors, which includes a description of the Services to be provided by the Contractors, the time by which the Services must be completed (the “Request Completion Date”) and the fees associated with the Services (the “Payment”).
d. “Contractor” means a person or entity using the Application, which may include you, who has accepted a Customer Request (thereby becoming a Customer Engagement) and thus agreed to perform Services for a Customer.
e. “Customer” means an independent third-party business that has contracted with Traba to use the Application in order to obtain Services from Contractors.
”Open Request” means a Customer Request that has not yet been accepted by a Contractor. Contractors can use the Application to review Open Requests and to indicate their availability for Open Requests. Once a Contractor has accepted a Customer Request pursuant to Sections 2 and 4 below, the Customer Request will become a Customer Engagement. For clarity, Contractors have no obligation to accept any Open Request).
f. “Services” means the services performed by a User for a Customer in connection with a Customer Engagement.
2. Traba’s Role. Traba offers the Application as a platform that connects Users and Customers, to permit Users (who become Contractors) to be engaged by Customers in order to perform Services for a Customer pursuant to a Customer Request, and to facilitate those dealings. Traba does not directly engage or employ Contractors, is not responsible for Customer Requests, and is otherwise not responsible for Customer Engagements.
3. Background Checks. As part of User’s initial registration with the Company, User agrees to execute a written consent for a background check. Subject to a satisfactory background check and agreement to the terms herein, User will be eligible to use the Application to view and accept Customer Requests. User further agrees to complete any ongoing background checks as may be required by the Company or a Customer. Failure to complete the initial or ongoing background check processes may result in inability to accept Customer Requests and/or removal from the Application.
4. Best Efforts. By registering to become a User and accepting an Open Request (such Open Request thereby becoming a Customer Engagement), User agrees to use best efforts to perform the Customer Engagement such that the Services meet the requirements and specifications of the Customer, for whom the Open Request was created. Once User has accepted a Customer Request, the Open Request will no longer be available for performance by other users of the Application who received the Open Request. By accepting a Customer Request, User is entering into a binding legal agreement to provide the Services for Customer (and thus becoming a Contractor, as defined above) in exchange for the Payment specified in the Customer Request. User may not accept a Customer Request unless certain that: (1) User understands what is requested for delivery; (2) User can perform the Services identified in the Customer Request; (3) User can deliver the Services in the requested time period; and, if required, User can get to and from the Customer’s location. Failure to timely deliver the Services consistent with the Customer’s requirements and specifications will constitute a breach, resulting in non-payment. Further, in the event of such a breach, User will be responsible for payment of any additional fees (e.g., rush fees) or costs incurred as a result of User’s failure to timely complete the Customer Engagement in accordance with the Customer requirements. Unless otherwise specifically agreed upon by Company in writing (and notwithstanding any other provision of this Agreement), all activity relating to the Services will be performed by and only by User or by employees of User. User agrees that User will not (and will not permit others to) violate any agreement with or rights of any third party (including any agreement between User and Customer, which, for clarity, as between Traba and User, is solely governed by and between User and the applicable Customer) or, except as expressly authorized by Company in writing hereafter, use or disclose at any time User’s own or any third party’s confidential information or intellectual property in connection with the Services or otherwise for or on behalf of Company.
5. Use of the Application. By registering to use the Application, subject to the terms, conditions, and restrictions of this Agreement, User is granted the right to use the Application solely for the internal, non-commercial purposes of seeking Customer Requests and performing Services in connection therewith, in accordance with this Agreement. User agrees to comply with all applicable laws when using the Application, and User may only use the Application for lawful purposes. User acknowledges and agrees that User is solely responsible for all activity that occurs under the Account. User may not (A) post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, forged, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances; (B) use, display, mirror or frame the Application or any individual element within the Application, Traba’s name, any Traba trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Traba’s express written consent; (C) access, tamper with, or use non-public areas of the Application, Traba’s computer systems, or the technical delivery systems of Traba’s providers; (D) attempt to probe, scan or test the vulnerability of any Traba system or network or breach any security or authentication measures; (E) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Traba or any of Traba’s providers or any other third party (including another user) to protect the Application; (F) attempt to access or search the Application or download content from the Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Traba or other generally available third-party web browsers; (G) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (H) use any meta tags or other hidden text or metadata utilizing a Traba trademark, logo URL or product name without Traba’s express written consent; (I) use the Application, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement; (J) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Application to send altered, deceptive or false source-identifying information; (K) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Application; (L) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Application; (M) collect or store any personally identifiable information from the Application from other users of the Application without their express permission; (N) impersonate or misrepresent your affiliation with any person or entity; (O) violate any applicable law or regulation; or (P) encourage or enable any other individual to do any of the foregoing.
6. Ownership Rights; Proprietary Information; Publicity.
a. Subject to the limited rights expressly granted hereunder, Traba reserves and, as between the parties will solely own, (A) the Application, the underlying software provided in conjunction with the Application, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Application, any documentation provided in connection with the Application, (B) Aggregated Data, and (C) all improvements, modifications or enhancements to, or derivative works of, the foregoing (A)-(B), regardless of inventorship or authorship, all patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world in and to any of the foregoing (A)-(B), and all rights, title and interest in and to the foregoing (A)-(B). No rights are granted to User hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
b. As additional protection for Proprietary Information, User agrees that during the period over which User is to be providing the Services, User will not encourage or solicit any employee or contractor of Company to leave Company for any reason.
7. Warranties and Other Obligations. User represents, warrants and covenants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services nor any part of this Agreement is or will be inconsistent with any obligation User may have to others; (ii) all work under this Agreement shall be User’s original work and none of the Services or any other work performed or use of the Application by User will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, User); (iii) User has the full right to allow User to provide Company with the assignments and rights provided for herein (and has written enforceable agreements with all persons necessary to give User the rights to do the foregoing and otherwise fully perform this Agreement); (iv) User shall comply with all applicable laws and regulations, and any Customer safety rules, policies, and procedures in the course of performing the Services; and (v) if User’s work requires a right, consent, permission, or license, User has obtained that right, consent, permission, and/or license and maintained the foregoing in full force and effect.
8. Avoidance of Conflict of Interest. User represents and warrants that there exist no actual or potential conflicts of interest concerning the Services to be performed under this Agreement. User has not brought and will not bring to Company or Customers, or use in the performance of the Services, any materials or documents of another party considered confidential unless User has first obtained written authorization from such party for the possession and use of such materials and has received Company’s prior written consent to use such materials. User further represents and warrants that it has full power and authority to enter into this Agreement and perform its obligations hereunder.
9. Other Business Activities. User may be engaged or employed in any other business, trade, profession or other activity while providing Services to Company and Customers, provided User continues to abide by the terms of this Agreement, including Sections 6-8.
10. Termination. This contract may be terminated immediately (A) by one party if the other party breaches a material provision of this Agreement, or (B) by Traba if User violates any law or regulation in connection with User’s performance of the Services or use of the Application, or if User engages in conduct that the Company, in its sole discretion, believes in good faith to be detrimental to its business interests. Either party may terminate this Agreement at any time, with or without cause, immediately upon notice. Provided the applicable Customer has remitted payment for such completed Services through the Application, Company shall ensure the Application remits such applicable Services Fees (as defined in Section 17(a) below) to Contractor for all unpaid, undisputed amounts due for the Services completed prior to notice of such termination. Sections 6 (subject to the limitations set forth in Section 6(b)), 7, 8, 9, 10, 13, 16, 17, 18, 19, and 21-30 of this Agreement and any remedies for breach of this Agreement shall survive any termination or expiration. Company may communicate the obligations contained in this Agreement to any other (or potential) client or employer of User.
11. User Content.
a. Posting Content. The Application may allow User to store or share content such as text (in posts or communications with others), files, documents, graphics, images, audio and video, including the ratings and review described in Section 12 below. Anything (other than Feedback (as defined in Section 13)) that you post or otherwise make available through the Application is referred to as “User Content”. Traba does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User has in such User Content.
b. Permissions to User Content. By making any User Content available through the Application, User hereby grants to Traba a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform User’s User Content in connection with operating and providing the Application.
c. User Responsibility for User Content. User is solely responsible for all its User Content. User represents and warrants that User has (and will have) all rights that are necessary to grant Traba the license rights in such User Content under this Agreement. User represents and warrants that neither its User Content, nor User’s use and provision of such User Content to be made available through the Application, nor any use of its User Content by Traba on or through the Application will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
12. Ratings. Upon performance of Services or completion thereof applicable to a Customer Engagement, Customers may submit a rating or review about you. Such rating or review reflects the opinion of the Customer and is not verifiable by Traba for accuracy. Customers may require access to ratings and reviews related to Services you perform. Notwithstanding anything to the contrary herein, Traba may suspend or terminate your Account and your access to the Application in the event of negative ratings or reviews of you by Customer(s), whereby this Agreement will automatically terminate for cause.
13. Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Application (“Feedback”). If User chooses to submit Feedback, User agrees that Traba is free to use such Feedback without any restriction or compensation to User.
14. DMCA/Copyright Policy. Traba respects copyright law and expects its users to do the same. It is Traba’s policy to, in appropriate circumstances (i) remove content that is infringing or believed to be infringing the rights of copyright holders, and/or (ii) terminate account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Application by sending us a notice (a “Copyright Notice”) complying with the following requirements: (1) Identify the copyrighted works that you claim have infringed; (2) identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown through the Application where such material may be found; (3) provide your mailing address, telephone number, and, if available, email address; (4) include the following statements in the body of the Copyright Notice: “I hereby declare that I have a good faith belief that the disputed use of the copyrighted material identified is not authorized by the copyright owner, its agent, or the law. I hereby state that the information in this Copyright Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed;” (5) provide your full legal name and your electronic or physical signature; and (6) Deliver this Copyright Notice, with all items completed, to our Copyright Agent: Copyright Manager, Traba Inc. 153 E Flagler Street, #214, Miami, FL 33131, 1-844-938-3445, email@example.com.
15. Email and Telephone Communications. You agree that Traba may contact you as permitted by applicable law, including via email, telephone, and text or electronic message. This includes communications to provide our products and services, to provide you with updates or alerts, and to market our products and services. If you would like to inquire about opting out of communications from us, please contact us at firstname.lastname@example.org. However, please note that you will not be able to opt-out of certain communications from us (e.g., communications regarding transactions you have entered into or updates to our agreements).
16. Relationships Between Company, Users And the Customers.
a. Company maintains a technology platform and marketplace and is not in the business of providing workers (whether independent contractors or employees) to Customers or other third parties. User understands and agrees that by creating and maintaining an Account on the Application, User receives only the ability to use the Application to access Customers interested in receiving and/or having Contractors perform Services for such Customers, as well as related tools such as the ability to message those Customers or schedule appointments.
b. User understands and agrees that, by using the Application, they are customers of Company, and are not Company employees, joint ventures, partners, or agents.
c. Notwithstanding any provision hereof, User is an independent contractor and is not an employee, agent, partner or joint venturer of Company or any Customer, and shall not bind nor attempt to bind Company or any Customer to any contract beyond the terms of this Agreement. Nothing in this Agreement shall be interpreted or construed as creating or establishing a relationship of employer and employee between Company or any Customer and User, or any employee or agent of User. As an independent contractor, User is solely responsible for determining which Open Requests User will choose to accept and how, when and where User will provide the Services under this Agreement. The Company will provide no supervision and will have no control over the manner in which User performs the Services. The Company will not set the User’s work hours and location of work, nor will Company be involved in determining the type or manner of compensation that will be paid for any Service Request. Traba reserves the right to publish to Customers information concerning rates and compensation amounts offered or paid by other Customers for work assignments either by industry, or location, or otherwise, and such information may or may not be used by Customers in setting compensation amounts. Traba has no input or involvement in setting the actual compensation or rate of pay for any service offered or accepted through its platform. Further, User must provide all equipment, tools, material and labor that may be necessary to perform the Services. The Company has no obligation to provide User with any equipment, tools, training, material or labor to perform the Services and, unless the Company elects otherwise in its sole discretion, will only (subject to the terms and condition stated herein) provide User with access to the Application/platform for purposes of enabling User to access and accept (if User so chooses) Customer Requests and engage in incidental, related activities (if User so chooses). User shall not be eligible to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs offered by Company. Company shall not provide disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit to User.
d. Compliance. User shall comply at User’s expense with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state and local income tax laws, and all other applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors. User will ensure that its employees, contractors and others involved in the Services, if any, are bound in writing to the foregoing, and to all of User’s obligations under any provision of this Agreement, for the benefit of the Company and Customers, and User will be responsible for any noncompliance by them. User shall be responsible for and shall indemnify Company against all such taxes or contributions including penalties and interest.
e. Insurance. As an independent contractor, User is solely and exclusively responsible for User’s own insurance. Specifically, in the event that User is injured while working in the course and scope of an engagement sourced through the Company, User acknowledges and understands that User will not be covered by any workers compensation insurance coverage that the Company may provide to its employees. Further, in the event that User’s actions cause an injury to a third party while User is working in the course and scope of performing an engagement sourced through the Company, User acknowledges and understands that User will not be covered by any general liability or automobile liability insurance coverage that the Company may have, and that the Company is not making any commitment to defend and/or indemnify User in such circumstances, and specifically denies such obligation. All Contractors must have insurance coverage in order to perform Services. Accordingly, a portion of the hourly proceeds ($0.53 per hour worked) from each Customer Engagement will be applied toward coverage under an occupational accident insurance policy (“OAI”) made available by the Company. Additionally, a portion of the hourly proceeds ($0.05 per hour worked) from each Customer Engagement will be applied towards membership in the Independent Contractors Benefits Association Inc. (ICBA). By accessing and using the Application, or by clicking to accept this Agreement, you hereby apply for the OAI and membership in the ICBA (both made available by the Company). You certify that you are an independent contractor and agree to support the purpose of the ICBA to educate and assist Association members on issues of importance to independent contractors. You authorize the Company to pay on your behalf fees for the OAI and ICBA membership dues.
f. Indemnification. User agrees to indemnify and hold the Company, its affiliates and their respective directors, officers, agents and employees harmless to the extent of any obligation imposed on the Company (i) to pay withholding taxes or similar items or (ii) resulting from User’s being determined not to be an independent contractor. User further agrees to indemnify and hold the Company, its affiliates and their respective directors, officers, agents and employees harmless from and against all claims, demands, losses, damages and judgments, including court costs and attorneys’ fees, arising out of or based upon any breach or alleged breach by User of any representation, warranty, certification, covenant, obligation or other agreement set forth in this Agreement.
17. Fees and Payment Terms.
a. Fees for Services. As between you and each Customer, the amounts due and payable by a Customer for your Services (“Services Fees”) are determined by the Customer. Traba will use its commercially reasonable efforts to remit any applicable Services Fees to you which are paid for by an applicable Customer; however, Traba shall not be responsible or liable for any such Services Fees, including the payment or non-payment of any Services Fees by any Customer or ensuring that any such Services Fees are paid to you. When a Customer pays you for a Customer Engagement using the Application, payment will be transferred by Traba to the bank account registered with your Account typically within 10 business days or less.
b. Costs and Taxes. You are solely responsible for all costs incurred by you in using the Application and performing Services and determining, collecting, reporting, and paying all applicable Taxes. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other governmental charges that a User may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
c. Trust and Safety Fees. We reserve the right to charge fees in connection with our insurance and related liability coverages and requirements (“Trust and Safety Fees”). We further reserve the right to make any changes to such Trust and Safety Fees at our sole discretion. Any institution and/or increase in Trust and Safety Fees will be communicated to you at least fourteen (14) days before it comes into effect.
d. Rewards and Incentives. We may offer you promotional rewards and incentives, including in the form of monetary compensation, gift cards, or other forms of rewards or incentives, in connection with your use of the Platform (“Rewards”). Rewards are not and will not be deemed compensation for Services or any Customer Engagement. Each offer of a Reward is a privilege granted to you by Traba and as such can be suspended, revoked, or terminated at any time by Traba for any reason or for no reason. In the event of termination of any offered Reward prior to remittance of such Reward to you, all such Rewards will automatically and immediately be forfeited.
d. Transaction Details. The Application allows you to view applicable fees associated with each Customer Engagement (e.g., those which are or may be owed to you) in your Traba Account through a dashboard interface (“Transaction Details”). You are responsible for monitoring your Transaction Details for accuracy. We may update the information in the Transaction Details at any time based on additional information we receive after the Services applicable to such Customer Engagement is complete.
e. Tax Records and Reporting. Traba reserves the right to report any activity occurring using the Application to relevant tax authorities including the Internal Revenue Service (“IRS”) as required under applicable law. You are solely responsible for maintaining all relevant Tax records and complying with any reporting requirements you may have as related to our Application. You are further solely responsible for independently maintaining the accuracy of any record submitted to any tax authority including any information derived from the Application.
f. Payments and Refunds. Subject to this Agreement, the Application may facilitate payments to, and refunds from, users, including you. In order to use such payment feature, you’ll have to register a bank account with your Account, and it is your responsibility to ensure that all information regarding your bank account is accurate, complete and up-to-date.
g. Currency. All payments will be in U.S. dollars.
h. Chargebacks and Payment Holdback. We reserve the right to offset future payments to you (“Payment Holdbacks”) in certain cases including without limitation: (A) where your Account is subject to excessive chargebacks resulting in additional costs or fees from the Payment Processor; (B) where the Payment Processor withholds a percentage of a payment as a reserve, for example, as a result of actual or suspected fraudulent activity; or (C) in certain cases where we decide, in our sole discretion, that it is prudent or necessary to reverse a transaction. We further reserve the right to implement Payment Holdbacks to you if payments are deemed suspicious or fraudulent, at our sole discretion. We will notify you that you are subject to a Payment Holdback and we may require that you provide supporting documentation or information related to the relevant payment(s) and corresponding Job(s). If you do not provide such supporting evidence within the requested timeframe, we reserve the right to refund the payment and transfer any available funds from your wallet to your identified bank account or otherwise take any action we feel is reasonably necessary to comply with our compliance standards, including those imposed by any relevant financial institution, our Payment Processor, or the credit card network rules, as well as any applicable law.
i. Failure to Process Payments, Refunds or Chargebacks. You are solely responsible for the information you provide in connection with payments and refunds processed via the Application. We will not be liable for failure to complete any payment or refund from or to your Account if you provide inaccurate or incomplete information regarding the payment or refund. Subject to applicable law, we reserve the right to send any delinquent, past due, or any other Account that is in default to collections agencies to recover such past due amount.
19. Relationship with Customers. You acknowledge and agree that your provision of Services to a Customer creates a direct business relationship between you and the Customer. The Company is not responsible or liable for the actions or inactions of any Customer in relation to you or your activities. You are responsible for any obligations or liabilities to Customers that may arise from your provision of Services, and you agree to indemnify the Company and/or any of their respective subsidiaries and affiliates and the directors, officers, employees, and agents thereof for any liability that they may incur, individually or collectively, as a result of any action or omission by you in the performance of Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper to mitigate such risks.
20. Rights and Terms for Application.
a. Subject to your compliance with this Agreement, Traba grants you a limited non-exclusive, non-transferable, non-sublicensable right to download and install a copy of the Application on a mobile device or computer that you own or control and to run such copy of the Application solely for User’s personal non-commercial purposes of seeking Customer Requests and performing Services in connection therewith. Except as expressly permitted in this Agreement, you may not: (A) copy, modify or create derivative works based on the Application; (B) distribute, transfer, sublicense, lease, lend or rent the Application to any third party; (C) reverse engineer, decompile or disassemble the Application (unless applicable law permits, despite this limitation); or (D) make the functionality of the Application available to multiple users through any means.
b. App Store. This Section 20(b) applies to any Application that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the Application purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. Apple is not responsible for addressing any claims by you or any third party relating to the Application or your possession and use of it, including, but not limited to: (A) product liability claims; (B) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the Application infringe that third party's intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. You represent and warrant that (X) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (Y) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the Application.
21. Indemnification. User agrees to defend, indemnify and hold harmless Company and its affiliates, and their officers, directors, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, attorneys’ fees or expenses of whatever kind (including reasonable attorneys' fees) arising out of or resulting from (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from User’s acts or omissions; (b) User’s breach of any representation, warranty or obligation under this Agreement, (c) your provision of Services, (d) your use of the Application, and any User Content, and (e) your negligence, willful misconduct, or violation of applicable laws or regulations. To the extent allowed by law, Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to User.
22. Limitations of Liability
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER TRABA NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APPLICATION WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE APPLICATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TRABA OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. TO THE MAXIMUM EXTENT PERMITTED BY LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL TRABA’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE APPLICATION EXCEED FIVE HUNDRED DOLLARS ($500).
c. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TRABA AND YOU.
23. Warranty Disclaimers.
a. THE APPLICATION IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TRABA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Traba makes no warranty that the Application will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Traba makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Application.
b. Your use of the Application and content on the Application, and your engagement with any Customer is at your sole risk and discretion and Traba hereby disclaims any and all liability to you, any other users of the Application, or any third party relating thereto.
c. TRABA UNDERTAKES NO OBLIGATION UNLESS EXPRESSLY SET FORTH IN THESE TERMS. TRABA DOES NOT MAKE ANY ASSURANCES OR GUARANTEES OF ANY REVENUE OR OTHER BENEFITS TO YOU OR ANY OTHRE USER OF THE APPLICATION.
24. Disputes with Customers. Traba is not a party to any relationship between you and any Customer, or in the delivery or completion of Services. In the event that you have a dispute with any Customer, you agree to address such dispute directly with the Customer. You release Traba (and Traba’s officers, directors, agents, investors, subsidiaries, and employees) (collectively “Releasees”) from, and covenant not to sue Releasees for any and all claims, demands, or damages (actual or consequential) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
25. Assignment. This Agreement and the Services contemplated hereunder are personal to User and User shall not have the right or ability to assign, transfer or subcontract any rights or delegate any obligations or duties under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully and freely assign and transfer this Agreement and/or delegate its obligations or duties hereunder, in whole or in part.
26. Notice. All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice.
27. Arbitration and Equitable Relief.
The Company and User mutually agree to resolve any legal disputes, past, present or future, between them, or between User and any of Company’s employees, agents, parents, subsidiaries, affiliates, successors, or assigns, exclusively through final and binding individual arbitration instead of a court or jury trial, and not in a class, representative, or consolidated action or proceeding. The parties agree that this arbitration agreement is governed by the U.S. Federal Arbitration Act (9 U.S.C. §§ 1-16) and the laws of the state of Florida without regard to its conflicts of laws provisions. Except as specifically provided below with respect to the Class and Representative Action waiver, this arbitration agreement shall apply to any and all claims arising out of or relating to this Agreement (including without limitation the scope, enforceability, validity, or conscionability of this arbitration agreement itself), the User’s classification as an independent contractor, User’s use of the Application, User’s provision of Services, the payments received by User for providing Services, the termination of this Agreement, and all other aspects of the User’s relationship with Company.
Disputes between the parties that may not be subject to pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as otherwise provided by an Act of Congress are excluded from the coverage of this Agreement.
Representative actions brought on behalf of a state, such as pursuant to private attorney general statute or similar legal theory are not arbitrable, but any claim you bring on your own behalf alleging to be an employee and/or seeking recovery of underpaid wages or penalties or other employment related benefits is arbitrable.
(a) If either party initiates arbitration, the initiating party must notify JAMS and the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period for the claim or claims asserted, and in accordance with JAMS Rules. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any Notice to Traba of a demand to arbitrate should be sent to, 153 E Flagler Street, #214, Miami, FL 33131 Attention: Legal (“Notice Address”). JAMS provides a form Demand for Arbitration at www.jamsadr.com.
(b) Class Action Waiver. Company and User mutually agree that by entering into this agreement to arbitrate, Company and User each waive their right to have any dispute or claim brought, heard or arbitrated as a class action or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class or collective action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the JAMS Rules, as defined below, any claim in court that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by the court and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class and/or collective action to that extent must be litigated in a court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
(c) In addition to the Class Action Waiver, neither the court nor arbitrator shall order any arbitration between Company and User to be arbitrated collectively, or to be consolidated or joined with any other arbitration, whether for convenience, judicial economy or any other reason, absent written agreement of both the Company and User.
(d) User agrees and acknowledges that entering into this arbitration agreement does not change User’s status as an independent contractor in fact and in law, and that User is not an employee of Company or Company’s Customers, and that any disputes in this regard shall be subject to arbitration as provided in this arbitration agreement.
(e) Any arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures (and in accordance with the Expedited Procedures in those Rules where agreed upon by both parties) (“JAMS Rules” ), except as follows:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the JAMS Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute or a retired judge.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in Miami, Florida.
(3) Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(4) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, and the prohibition of consolidation of proceedings set forth in section 27(c) above, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state, federal or local law, as may be applicable.
(6) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the applicable substantive law governing such motions.
(7) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
(8) A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
(f) This Agreement does not prevent a User from filing unfair labor practice charges with the National Labor Relations Board (www.nlrb.gov) for US-based Users. Nothing in this Agreement prevents a User from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Agreement prevents the investigation by a government agency of any such report, claim or charge.
(g) The JAMS Rules may be found at https://www.jamsadr.com/rules-comprehensive-arbitration/ or by searching for “JAMS Comprehensive Arbitration Rules” using a service such as www.Google.com.
(h) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. With the exception of the Class Action Waiver in Section 27(b), in the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable.
(i) This arbitration agreement may be acknowledged and agreed to electronically, and its validity shall not be affected thereby. A copy of this agreement may be used in lieu of an original for any purpose.
(j) Notwithstanding anything to the contrary herein, if Traba changes any of the terms of this Section 27 after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Traba’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and Traba in accordance with the terms of this Section 27 as of the date you most recently accepted this Agreement.
28. Miscellaneous. Any breach of Section 5 or 6 will cause irreparable harm to Company for which damages would not be an adequate remedy, and therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by the FAA and in accordance with the laws of the State of Florida without regard to the conflicts of laws provisions thereof. Paragraph titles are provided for reference purposes only, and do not affect the substantive provisions of this Agreement.
29. Defend Trade Secrets Act of 2016; Other Notices. User understands that pursuant to the federal Defend Trade Secrets Act of 2016, User shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. User further understands that nothing contained in this Agreement limits User’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company.