Effective: March 1, 2021
View our previous Pro App Service Terms
These terms constitute a legally binding agreement (the “Agreement”) between you ("You," "your," or "Home Service Provider"), an independent provider of home maintenance and repair or home improvement services and Homee, Inc. ("HOMEE," the "Company," or "Us") governing your use of the HOMEE Pro mobile application, website, and technology platform (collectively, the “HOMEE Platform”) You and HOMEE sometimes are referred to herein individually as a “Party” or collectively as “Parties.”
These Terms of Service facilitate the business relationship between Us and You and establish standard terms and conditions applicable to all Jobs (defined below) covered by this Agreement. The Parties hereby enter into this Agreement, which shall be applicable to all Jobs performed by You and your employees, agents, assistants, helpers, and any other entity or individual for whom You are legally liable or responsible, including without limitation, its agents, authorized representatives and employees.
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND HOMEE HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 15 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST HOMEE TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A HOME SERVICE PROVIDER OR HOME SERVICE PROVIDER APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 15.9.
By entering into this Agreement, and/or by using or accessing the mobile application HOMEE Pro App (the “Pro App”) You expressly acknowledge that: (i) You are at least 18 years old, are at least of the legally required age in the jurisdiction in which You reside, and are otherwise capable of entering into binding contracts; and (ii) You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that You will so abide. Where You enter into this Agreement on behalf of a company or other organization, You represent and warrant that You have the authority to act on behalf of that entity and to bind that entity to this Agreement. You understand this Agreement (including the dispute resolution and arbitration provisions in Section 15) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE HOMEE PLATFORM.
Modification of these Terms
HOMEE reserves the right to modify these terms at any time in accordance with this provision. If we make changes to these terms, we will post the revised terms on the Pro App and update the “Last Updated” date at the top of these terms. Further, if we make material modifications to these terms, we will provide you with notice by email at least thirty (30) days before the material modifications become effective. If you disagree with the revised terms, you may terminate this Agreement with immediate effect and any User Account created will be deactivated. We will inform you about your right to terminate the Agreement and in the notification email. If you do not terminate your Agreement before the date the revised terms become effective, your continued access to or use of the Pro App will constitute acceptance of the revised terms.
TABLE OF CONTENTS
Section 1. The Homee Platform
Section 2. Service Arrangement.
Section 3. Performance of Accepted Jobs.
Section 4. General Obligations of Home Service Providers.
Section 5. Service Fees, Payments and Chargebacks.
Section 6. Confidentiality; Publicity; Ownership of Works.
Section 7. Intellectual Property.
Section 8. Representations and Warranties.
Section 9. Indemnification.
Section 10. Insurance.
Section 11. Limitations of Liability.
Section 12. Events of Default.
Section 13. Remedies for Breach or Events of Default.
Section 14. Termination.
Section 15. Dispute Resolution and Arbitration.
Section 16. Miscellaneous.
1. The HOMEE Platform. The HOMEE Platform provides a marketplace where independent Home Service Providers, such as You, can acquire on-demand or scheduled work relating to home maintenance, repair, improvement and other tasks and projects involving appliance repair, plumbing, electrical, HVAC, handyman services, and such other residential services that may be added in the future, by HOMEE at its discretion (“Service Request(s)”) from homeowners, consumers, property managers, policyholders, insurance claim adjusters, tenants, individuals and other persons ("Customers") who seek such Service Requests. Home Service Providers who register on the Pro App are referred to herein as (“Users”), and each User shall create a User account (“User Account”) that enables access to the Pro App, the HOMEE Platform and inclusion within HOMEE’s Service Provider Network (“Network”). Each Home Service Provider person may only create one User Account, and HOMEE reserves the right to shut down any additional accounts. You consent to HOMEE auditing your User Account activity. As a User, you authorize HOMEE to match You with a Customer based on factors such as your location, the work experience You provide, the scope of the Service Request, the number of satisfactorily completed jobs, user preferences, and platform efficiency, and to cancel an existing match and rematch based on the same considerations. For purposes of this Agreement, the services accepted provided by You through the Pro App to (a) provide an estimate for service and/or (b) to fulfill a Customer’s Service Request that are matched through the HOMEE Platform shall be collectively referred to herein as “Job(s).” Any decision by You a User to accept and fulfill a Job is a decision made in your such User’s sole discretion.
1.2.1 You acknowledge and agree that (i) this Agreement is valid between you and HOMEE only, and, that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) HOMEE, not Apple, is solely responsible for the App Store Sourced Application and the HOMEE Platform Content.
1.2.2 You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application and any questions with respect to the App Store Sourced Application shall be directed to HOMEE.
1.2.3 To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application.
1.2.4 Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and HOMEE, HOMEE and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Application or your possession and/or use of the App Store Sourced Application.
1.2.5 Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
1.2.7 Without limiting any provisions of this Agreement, You must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
2. Service Arrangement. Subject to the terms and conditions contain herein, this Agreement shall allow You to view and accept a Customer’s on-demand or scheduled Service Request published via the Pro App, for which You shall be paid a Service Fee (as described more fully below) upon completion of the Job. Each Job that you accept through the Pro App shall constitute a separate contractual engagement.
2.1 Independent Use of the Pro App. To review Customers’ Service Requests in the Pro App You must indicate in the Pro App that you are online and available to accept Jobs. You shall have no obligation to use the Pro App at any specific time or for any specific duration. You shall have complete discretion to determine when you will be available to accept published Service Requests. If, however, you agree to be available to accept Service Requests, you shall be obligated to abide by the terms of this Agreement.
2.2 Acceptance of Service Requests. You shall be entitled to select among the Service Requests published through the Pro App and freely accept, reject or pass over any Job. You shall have no obligation to the Company to accept any Service Request. Following acceptance of a Service Request, however, you must perform the Job in accordance with the terms of this Agreement and the applicable Customer specifications as needed to complete the service requested. Failure to provide promised services on an accepted Job shall constitute a material breach of this Agreement and may subject you to damages.
2.3 Sole User of Pro App Account. Upon registering on the Pro App, the User will select their identification and password keys (each, a "Home Servicer ID ") to access the HOMEE Platform and to review Service Requests posted by Customers. You will ensure the security and confidentiality of each Home Servicer ID. ONLY YOU may use the Home Servicer ID and You shall not allow any other person, including any employee, agent, assistants, helpers and subcontractor, to use access the Pro App to accept Jobs for Service Requests using the Home Servicer ID selected by You upon registering on the Pro App. Sharing your Home Servicer ID with someone else constitutes a material breach of this Agreement. The Company will have the right, at all times and in the Company's sole discretion, to prohibit or otherwise restrict You or anyone else from accessing the HOMEE Platform for any reason.
The Company's approval and authorization of a User may be conditioned upon terms and conditions including, without limitation, a requirement that such User, at their own cost and expense, undergo the Company's screening process and attend the Company's informational session(s) regarding the use of the Pro App. The Company reserves the right to withhold or revoke its approval and authorization of any User at any time, in its sole and unreviewable discretion.
2.4 Telephone Calls, Text Messages and Email. By providing your mobile phone number and using the Pro App, You hereby affirmatively consent to HOMEE’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) perform and improve upon the HOMEE Platform, (b) facilitate the carrying out of Jobs through the HOMEE Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Jobs, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted Jobs or upcoming Service Requests and/or in follow up to any push notifications delivered through the Pro App. HOMEE will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by texting “STOP” in response to any texts, or by emailing email@example.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing firstname.lastname@example.org and specifying you want to opt-out of calls. You understand that we may send You a text confirming any opt-out by You.
2.5 No Assurance of Service Requests. Nothing in this Agreement shall be construed as a guarantee that You shall be offered any particular number of Service Requests during any particular time period. You acknowledge that HOMEE makes no assurance whatsoever that You will receive any or a minimum volume of business or revenue, estimates, Service Requests, Jobs, geographic territory rights or any other type of business opportunities whatsoever from HOMEE. In view of the foregoing, You acknowledge that any investments or expenditures that You have made or may make upon agreeing to these terms are made at your sole risk.
2.6 Independent Contractor. Your relationship to HOMEE is that of a free and independent contractor solely liable for his/her own taxes. HOMEE will issue You the appropriate tax forms for any fees paid throughout the previous year. In no event will HOMEE be considered an employer or joint employer of You, and your employees, agents, assistants, and helpers, if any (collectively, “Workers”). You acknowledge that you have sole responsibility to hire, discipline, terminate, supervise and/or direct the daily work of your Workers and are solely responsible for the payment of wages, salaries, and benefits to those individuals. None of the terms set forth in this Agreement will be construed as creating a partnership, joint venture, agency, master-servant, employment, trust, fiduciary relationship, or any other relationship between HOMEE and You and any of your Workers. You are expressly prohibited from incurring and have no right, directly or indirectly, to incur any debts or other obligations (expressed or implied) or make any representations on behalf of HOMEE except as expressly authorized.
The Company shall have no right to, and shall not, control the manner or prescribe the method you use to fulfill Jobs on accepted Service Requests, subject to the terms of this Agreement. You shall be solely responsible for determining the most effective, efficient and safe manner to perform the Job for the Service Request, subject to the terms of this Agreement and the applicable Customer specifications. The Parties acknowledge that any provisions of this Agreement reserving certain authority in the Company have been inserted solely to achieve compliance with federal, state, or local laws, rules, and interpretations thereof.
2.7 Workers. Any Workers You engage to assist on a Job shall also be registered on the Pro App and be an approved Home Service Provider on the HOMEE Platform pursuant to HOMEE policies as described herein. The utilization of non-registered, non-approved personnel to assist with a Job taken through the Pro App will result in the revocation of your access to the Pro App and removal from the HOMEE Platform and Network. You shall at all times have competent, experienced and skilled Workers engaged in the performance of the Job. HOMEE shall have the right to remove from any Job any Worker or Home Service Provider that does not demonstrate the requisite skill, experience, or competence to perform the Service Request, or that are otherwise unacceptable to HOMEE. You are responsible for complying with all state and local licensing requirements applicable to the use of Workers in the provision of any Job accepted by You.
3. Performance of Accepted Jobs.
3.1 Use of the Pro App. You agree to perform all accepted Jobs for Service Requests fully and in accordance with the parameters established by HOMEE and other specifications set forth by the Customer. Proper utilization of the Pro App when performing a Job shall typically include, but is not limited to:
Failure to comply with any portion of this paragraph may constitute an Event of Default as set forth in Section 12 of this Agreement and may result in the deactivation of your Pro App account and removal from the HOMEE Platform and Network.
3.2 Job Performance. Time is of the essence. You will, at a minimum, perform all Jobs accepted through the Pro App in a timely, workmanlike, and professional manner in accordance with this Agreement, the applicable Service Request and in accordance with all Applicable Laws (defined below).
3.3 No HOMEE Uniform Mandate, Professional Attire Required. The Company shall have no right to require You to wear a uniform or any other clothing displaying HOMEE’s name, logo or colors or require You to display HOMEE's name, logo or colors on your vehicle(s). However, at all times while performing a Job accepted through the Pro App You shall maintain a professional, neat appearance and avoid wearing clothing that is ripped, frayed, disheveled or otherwise inappropriate for the Job accepted.
4. General Obligations of Home Service Providers.
4.1 Background and Identity Checks. HOMEE requires all Home Service Providers, at any time while using the Pro App to accept Jobs from Customers, to maintain a satisfactory background which meets the Company’s safety standards. Background check service includes, but is not limited to, a sex offenders registry check, county, state, federal and national criminal records check, and domestic and international terrorist watchlist check. You will submit to a complete background check at the time of account registration and annually on the anniversary date of the registration. Further, all Home Service Providers who successfully complete the initial background check will also be enrolled into a continuous monitoring process where a monthly check is undertaken, and new reportable information is provided to HOMEE when made available by local authorities. You hereby give consent to HOMEE to conduct background checks as often as required in compliance with applicable law, including without limitation the Fair Credit Reporting Act.
HOMEE obtains background checks from a third-party background check service provider- Checkr, Inc. located at One Montgomery Street, Suite 2000, San Francisco, CA 94104, 844-824-3257, https://checkr.com/privacy-policy/
HOMEE individually assess each background check and considers multiple factors in determining what constitutes a satisfactory completion of the background check. All information obtained as a result of a background check will be used solely for purposes of evaluating your fitness for inclusion on the Network.
You must complete the background check authorization form presented to You in the Pro App at the time of registration. Failure to complete the background check authorization will result in the denial of entry into HOMEE’s Network of Home Service Providers and use of the Pro App. HOMEE also requires You to submit a government-issued photo ID and a profile picture at the time of registration on the Pro App. HOMEE uses your government-issued photo ID and profile picture to verify your identification. Falsification or omission of information submitted at registration and/or within the authorization will result in the denial of entry into HOMEE’s Network of Home Service Providers and use of the Pro App. All background check information will be kept confidential.
4.2 Compliance with Laws. You agree that You are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations as set forth in the jurisdiction(s) in which such Jobs for Service Requests are performed and in relation to the specific service being fulfilled. You agree to comply with all applicable federal, state, county, and local laws, statutes, orders, ordinances, regulations, rules, codes (including building codes), permits, any requirements of the governing authority with jurisdiction, and any court orders (the “Applicable Laws”) pertaining to any Service Request or the performance of any Job.
4.3 Safety. You will act at all times with the safety of HOMEE’s Customer, HOMEE and your Workers foremost in mind and will follow all applicable safety guidelines conforming to (i) those required or recommended by federal, state and local governmental or quasi-governmental authorities with jurisdiction over the Services performed under any Service Request or this Agreement, including all applicable guidelines and regulations issued by the federal Occupational Safety and Health Administration; and (ii) the requirements of this Agreement, and any other safety notices or communications sent to You by HOMEE. All waste that is generated at the Job or residual chemicals that are otherwise used by You must be properly managed, stored, transported, and disposed of in accordance with Applicable Laws.
4.4 Encumbrances. To the extent permissible under Applicable Laws, You agree to waive any and all rights to file or record a lien, claim of lien, stop payment notice, stop notice, security interest, and any other encumbrances against a HOMEE Customer, and the property of the HOMEE Customer (“Encumbrances”). You shall, at all times, keep the property of the HOMEE Customer free from Encumbrances filed or recorded by Workers, subcontractors or others claiming to be in the chain of privity with You in connection with the Job to fulfill a Service Request. You shall cause the release, dissolution, cancelation or removal of any Encumbrance relating in any way to the Job within five (5) business days of the date You were made aware of such Encumbrance, irrespective of the validity. Further, HOMEE shall have the right, but not the obligation, to take any and all steps necessary to promptly release such Encumbrances, and You shall pay to HOMEE or its Customer(s) by reason thereof, the expenses, including legal fees, plus interest at the maximum rate permitted by applicable law, incurred by HOMEE or its Customer(s) as a result of such Encumbrances. You agree that HOMEE is entitled to deduct such costs, expenses and legal fees from any sum then due or thereafter becoming due to You. This paragraph shall survive the termination of this Agreement.
4.5 Non-Exclusivity. This Agreement is non-exclusive, and HOMEE, without notice, may use other Home Service Providers to perform the same or similar Jobs described in this Agreement. Similarly, You may perform like Jobs for others, so long as the performance of such other services does not impair your ability to fulfill your obligations under this Agreement, cause the You to breach this Agreement, or result in an Event of Default as defined in Section 12 of this Agreement. However, during the time You are actively signed into the Pro App, you shall perform Jobs only for Service Requests accepted by You through the Pro App. You understand that you shall not during the term of this Agreement use your relationship with the Company (or the Confidential Information gained therefrom) to divert or attempt to divert any business from the Company to a company that provides services or lead generation services in competition with the Company.
4.6 No Customer Solicitation. You and any Workers used on any Job will not offer, solicit, or provide any services, or recommend a third-party for the performance of any Service Request, to a Customer, other than providing the services associated with the Job which fulfills the Customer’s Service Request. You and any Workers will not use Confidential Information, information about Customers obtained as a result of your activities under this Agreement, or any other information about Customers obtained as a consequence of your fulfillment of obligations under this Agreement, for any purpose other than as necessary to perform the Job pursuant to the Service Request. You and any Workers are expressly prohibited from using Confidential Information to solicit, directly or indirectly, any business from a Customer or prospective Customer. You and your Workers will not use Confidential Information for the purpose of providing products or services that are the same as, similar to, and/or competitive with, Service Requests that can be fulfilled by HOMEE. You acknowledge and agree that the restrictions contained in this Section are fair, reasonable, and necessary to protect HOMEE’s legitimate business interests, and that You accept a duty to know and remain aware of the Service Requests that are fulfilled by HOMEE. The non-solicitation restrictions set forth in this Section will survive for two (2) years upon termination of this Agreement or your deactivation from the Network. You agree that immediate, irreparable harm could result to HOMEE and its business if You or your Workers breach their obligations in this Section. Therefore, You agree that HOMEE will be entitled to a restraining order, injunctive or other equitable relief if You or your Workers breach their obligations under this Section, in addition to any other remedies available at law or equity.
4.7 Licenses and Permits. You must have and maintain all required licenses and obtain all required building and construction permits and inspections necessary to perform and/or complete any Job as required by Applicable Laws. You shall not request or require Customers to obtain permits unless permissible under Applicable Laws and authorized to do so in writing by HOMEE
You represent that, as of the date of execution of this Agreement, you currently possess a valid professional license and any other required licenses ("Service Licenses") to provide the services that are the subject of any Service Request which you accept. It is your responsibility to know the license and permit requirements for each state and locality in which you accept a Service Request, and by accepting a Service Request you represent that you are properly licensed to perform the Services related to the Service Request by each applicable state and locality. You further acknowledge and represent that your participation as a Home Service Provider and use of the Pro App is in compliance with any requirements or restrictions of any Service License you possess, and You agree that the Company shall have no liability to you, and you shall have no claim against the Company, in the event that any aspect of your participation as a Home Service Provider results in any discipline, sanction, penalty, fine or forfeiture of any such Service Licenses. You shall provide the Company with a current list of all Service Licenses held by You as well as all other relevant work licenses, registrations and permits, including proof of the minimum insurance requirements set forth herein.
The Company shall, upon request, be entitled to review such Licenses and other work licenses, registrations and permits and all insurance certificates (along with all endorsements) from time to time; provided, however, receipt and review by the Company of any copies of Service Licenses, insurance policies, insurance certificates, endorsements or other relevant work licenses, registrations and permits, or failure to request evidence of the same, shall not relieve you of your obligations to comply with these requirements. Failure to maintain current Service Licenses, other work licenses, registrations and permits, or other legal prerequisites, or failure to comply with any other provision of this paragraph, shall constitute a material breach of this Agreement.
You shall maintain records documenting your compliance with the requirements of this Section for at least one (1) year following the conclusion of this Agreement or deactivation from the Network, or the amount of time required by the applicable statutes of limitations and repose for claims relating to this Section that arise following conclusion of this Agreement, whichever is greater.
4.8 Property Losses. You are solely responsible for the care of, and for all losses that may occur with respect to any actual or alleged physical damage to or loss of, the Customer’s real and/or personal property arising from or relating to Services rendered pursuant to Service Requests you accept through the Pro App. Any Customer property will not be removed or replaced by You unless such is provided in the Customer’s Service Request or by HOMEE. You are further responsible for the care of, and for all losses that may occur with respect to any actual or alleged physical damage or loss of, merchandise, monies, funds, negotiable instruments (including, without limitations, checks) valuables, or other property of HOMEE or any Customer while in your custody or control.
4.9 Quality of Job Performed. You shall at all times provide new materials (unless otherwise specified in a Service Request). Subject to Sections 8.1 and 8.2, after receiving notice (written or verbal) from HOMEE, You shall, within the reasonable time period specified by HOMEE in its sole discretion, proceed to take down or otherwise remove all portions of the Job which HOMEE shall have determined is unsound, improper, or in any way failing to comply with the Service Request or this Agreement and shall replace with new, conforming and quality services in a manner deemed satisfactory by Customer and HOMEE.
4.10 Equipment. You will, at your own expense, provide all transportation and provide and maintain all equipment, supplies, tools (including appropriate personal protective equipment “PPE”) and other resources (collectively, “Equipment”) necessary to fulfill your obligations under the specific Job for the accepted Service Request and/or this Agreement. You will keep Equipment in good repair and safe operating condition, maintain Equipment according to manufacturers’ recommendations, and use Equipment fit for its intended purpose.
4.11 Clean Up. You shall, at your own expense: (a) keep the Customer’s premises free from waste, materials, packaging and other debris accumulated in connection with the Services rendered on any Job by collecting and removing such debris on a daily basis or other basis requested by HOMEE; (b) at the completion of the Job, sweep and otherwise make the Job area and its immediate vicinity “broom clean”; and (c) remove all tools, equipment, surplus materials as directed by the Customer or HOMEE at the completion of your Services. You agree to provide all cleaning and cleanup required under a Service Request pertaining to the Services to the extent such requirements are in excess of this Section. If You fail to commence clean-up duties within twenty-four (24) hours after receipt from HOMEE or the Customer of notice of noncompliance, HOMEE may implement cleanup measures as necessary or prudent without further notice to You, the cost of which shall be reimbursed to HOMEE by You.
4.12 Environmental Protection. You shall be responsible for compliance with all applicable federal, state, and local natural resource and environmental protection requirements, codes and regulations, including without limitation, all Applicable Laws pertaining to hazardous wastes and substances (hereinafter “Hazardous Materials”). In addition, You shall not provide or allow any of your Workers to supply or deliver any Hazardous Materials to a Customer’s property, and in the event such occurs, You shall remove such Hazardous Materials at your sole expense. Further, You shall immediately notify HOMEE if You or your Workers encounter any Hazardous Materials during the performance of the Services at any time.
5. Service Fees, Payments and Chargebacks
5.1 Service Fees. For all Service Requests accepted and Jobs completed through the Pro App, You will earn a fee for the labor performed ("Labor Fee"). There will be no fixed schedule for calculating the Labor Fee. Instead, the Labor Fee will be calculated on an individual Job by Job basis in accordance with our proprietary formula which takes into account, among other things, the type and scope of the Service Request, the market location where the Job is to be performed, the years of experience of the Home Service Provider, the licensure requirements to provide the requested services, the time of day and day of the week that such services are requested to be provided, and other factors relevant to the pricing of the requested services. The Job shall be deemed unacceptable and payment shall not become due if HOMEE or the Customer rejects the work performed for any reasonable reason or if your workmanship does not conform to industry standards or the requirements of the Service Request or this Agreement (“Unacceptable Services”). Further, depending upon the nature of the Service Request, an additional fee may be assigned to an accepted Service Request designed to compensate you for time and travel to the Job location (a “Dispatch Fee”)(collectively Labor Fee and Dispatch Fee are referred to herein as “Service Fees”). Not all accepted Service Requests will include a Dispatch Fee and HOMEE, at its sole discretion, decides which Service Requests also include a Dispatch Fee. At the time that we offer you an opportunity to accept a Service Request, we also will provide you with the Dispatch Fee payable for your time and travel to the Job location.
5.2 HOMEE’s Fee. In exchange for facilitating Jobs You fulfill for Customers through the HOMEE Platform, you permit HOMEE to retain a fee based on each transaction in which you provide labor and services that fulfill a Customer’s Service Request ("the HOMEE Platform Fee"). The HOMEE Platform Fee shall be a variable amount equaling the total amount charged to the Customer minus: (i) the Labor Fee, (ii) any Dispatch Fee, (iii) any Third-Party Fees that HOMEE collects, and (iv) any tips or gratuities You receive from Customers. In addition, HOMEE may charge You other fees on a one-time, recurring or periodic basis. The amount of such fees may vary by market or other factors and shall be communicated to you in advance of incurring the fee.
5.3 Payments. Upon your completion of the Job, the correction of any Unacceptable Services to the satisfaction of HOMEE and the Customer, if any, and the closure of the Job through the Pro App, HOMEE will process and make full payment to You for the undisputed portions of the amount due under the accepted Service Request. You must contest in a written notice to HOMEE any alleged payment shortages, miscalculation or error within thirty (30) days of receipt of payment for a Job. The failure to contest in a written notice any such alleged errors within such time period shall constitute a full and final release and waiver of all claims related to the applicable Job. HOMEE shall have thirty (30) days in which to respond to such contest, if one is asserted. All decisions of HOMEE are final. HOMEE reserves the right to reject any payment claim that is not submitted for review within the stated thirty (30) day period. You acknowledge and agree that receipt of payment constitutes valuable consideration and a full and unconditional waiver and release of any and all legal claims, demands, and Encumbrances that have or could have been asserted as of the date of payment by HOMEE.
5.4 Payment Processing. Payment processing services are provided by Stripe and subject to the Stripe Recipient Agreement (available at https://stripe.com/connect-account/legal/recipient), which includes the Stripe Services Agreement (available at https://stripe.com/us/legal) (collectively, the "Stripe Terms"). By using the HOMEE Platform to receive payment proceeds, you agree to be bound by the Stripe Terms, which may be modified from time to time. As a condition of HOMEE enabling payment processing services through Stripe, You authorize HOMEE to obtain all necessary access and perform all necessary activity on your Stripe Connected Account to facilitate your provision of Fees as contemplated by the Agreement and your relationship with HOMEE. You further agree to provide accurate and complete information about You and your business, and authorize HOMEE to share it and transaction information with Stripe for the purposes of facilitating the payment processing services provided by Stripe. HOMEE reserves the right to switch payment processing vendors or use alternate or backup vendors in its discretion.
By listing your bank account to receive deposits for payment of Fees, you also authorize Stripe to make Automated Clearing House (“ACH”) withdrawals from your bank account. You authorize HOMEE or its provider to initiate one or more ACH debit entries (withdrawals) or the creation of an equivalent bank draft for the specified amount(s) from your bank account, and you authorize the financial institutions that hold your bank account to deduct such payments. Further, You agree to pay any ACH fees or fines You or We incur associated with transactions You authorize. Return fees will vary based on which state You are located in. The return fee may be added to the withdrawal amount and debited from your bank account if we resubmit an ACH debit due to insufficient funds. We may initiate a collection process or legal action to collect any money owed to us. You agree to pay all our costs for such action, including any reasonable attorneys' fees. Federal law limits your liability for any fraudulent, erroneous, or unauthorized transactions from your bank account based on how quickly you report it to your financial institution. You must report any fraudulent, erroneous or unauthorized transactions to your bank no more than 60 days after the disputed transaction appeared on your bank account statement. Please contact your bank for more information about the policies and procedures that apply unauthorized transactions and the limits on your liability.
5.5 Chargebacks and Payment Reversals. If HOMEE incurs costs or expenses (i) to satisfy a Customer who is not completely satisfied because of actual or alleged substandard or faulty workmanship resulting in Unacceptable Services, (ii) to repair damages actually or allegedly arising from or relating to Jobs You fulfilled on a Customer’s Service Request, (iii) to pay any costs or expenses, including without limitation reasonable attorney’s fees, arising from or relating to You or any your Workers, (iv) if You violate any of the requirements set forth herein that are, or may be deemed in the future, violations that provide a penalty to be imposed against You, such expenses, regardless of the manner incurred, will be deducted as a “chargeback” from payments otherwise due to You from HOMEE.
Further, if HOMEE incurs any costs or expenses or processes any payment refund to a Customer under any scenario set forth in the preceding paragraph and You have previously received payment from HOMEE for the Job(s) associated with the incurred cost, expense or Customer refund, You authorize HOMEE to initiate one or more ACH debit entries (withdrawals) or the creation of an equivalent bank draft for the specified amount(s) from your bank account to make HOMEE whole, and you authorize the financial institutions that hold your bank account to deduct such payments.
5.6 Setoffs. HOMEE shall have the right at any time to set-off any amounts due to You against any amounts owed by You with respect to other Service Requests fulfilled by You or any other contractual agreement between the Parties hereto, unless such set-off violates the Applicable Laws.
6. Confidentiality; Publicity; Ownership of Works
6.1 Confidentiality. Home Service Provider acknowledges that performance under this Agreement will give the Home Service Provider and its Workers access to confidential, proprietary, and trade secret information of HOMEE and/or its service providers, employees, agents, business and contractual relationships, as well as, Customer information (collectively, “Confidential Information”). Home Service Provider agrees that it will maintain all Confidential Information in strict confidence and not disclose or use Confidential Information other than as necessary to fulfill its obligations under this Agreement. Home Service Provider will inform its Workers about the confidential and proprietary nature of the Confidential Information to which they may be exposed and will ensure that Workers (i) keep Confidential Information strictly confidential, (ii) are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein, and (iii) comply with all terms of this Section 6. “Confidential Information” shall include, without limitation, information disclosed to, made available to, or obtained by the Home Service Provider in connection with this Agreement, and all material and reports prepared for HOMEE hereunder, including all information (whether or not specifically labeled or identified as confidential), in any form or medium, that is disclosed or learned by Home Service Provider in the performance of Jobs related to this Agreement and that relates to the business, services, research or development of HOMEE or its service providers, suppliers, agents, representatives, or Customers. Confidential Information further includes without limitation the following:
(a) internal business information (including information relating to the strategic and staffing plans and practices, marketing, promotional sales plans, practices and programs, training practices and programs, costs, rate and pricing structures, and accounting and business methods);
(b) identities of, individual requirements of, specific contractual arrangements with, and information about, HOMEE’s service providers, suppliers, and Customers and their confidential, proprietary, or personal information;
(c) compilations of data and analyses, processes, methods, techniques, systems, formulae, research, records, reports, Customer lists, manuals, documentation, models, data, and data bases relating thereto:
(d) computer software and technology (including operating systems, application software, interfaces, utilities, modifications, updates, and their overall organization and interaction), documentation, data and databases, and any User Home Service ID and passwords HOMEE provides You for access to the HOMEE Platform and Pro App; and,
(e) trade secrets, trade dress, ideas, inventions, designs, developments, devices, methods, processes, and systems (whether patentable or copyrighted, and whether reduced to practice or fixed in a tangible medium).
6.2 Required Disclosures. If Home Service Provider receives a subpoena or other validly issued administrative or judicial process demanding information about this Agreement and/or Confidential Information, Home Service Provider must immediately notify in writing and tender the process for defense to HOMEE. Unless it has been timely limited, quashed, or extended, Home Service Provider will thereafter be entitled to comply with such process to the extent required by law. If requested, Home Service Provider will cooperate in the response to such process or any demand related thereto.
6.3 Publicity. Home Service Provider will not issue any press release or other statement or otherwise disclose (in whole or in part) the contents or substance of this Agreement or the Parties’ activities under this Agreement without first obtaining the express prior written consent of HOMEE. Any such consent must be requested at least thirty (30) calendar days before the intended date of the release or communication. Home Service Provider will immediately inform HOMEE if it believes that the issuance of any press or other media release is required by operation of Applicable Laws.
6.4 Ownership of Works. Except as otherwise agreed by the Parties in writing, HOMEE or its assignee own and have all right, title, and interest in all ideas, concepts, plans, processes (including, without limitation, sales and marketing processes), creations, trademarks, logos, intellectual property, and other work product (collectively, the “Works”) produced by HOMEE, at HOMEE’s request, or by Home Service Provider or any Worker for HOMEE in furtherance of the Parties’ obligations under this Agreement. Home Service Provider will cooperate fully with HOMEE and execute documentation as HOMEE may request in order to establish, secure, maintain, or protect HOMEE’s rights with respect to the Works.
6.5 Third-Party Beneficiaries. Except as provided in this Section 6.5, this Agreement is for the sole benefit of the Parties and their permitted successors and assigns, and nothing in this Agreement expressed or implied shall give or be construed to give to any person, other than the Parties and their permitted successors and assigns, any legal or equitable rights hereunder, whether as third-party beneficiaries or otherwise, except for NW Next, LLC and other business partners of HOMEE in which HOMEE has agreed to designate as a third-party beneficiary in a written and executed contract (collectively “Designated Business Partners”). You acknowledge and agree Designated Business Partners are third-party beneficiaries of this Agreement for those Jobs You accept which originate from the Designated Business Partner, and that, upon acceptance of these terms and conditions of this Agreement, Designated Business Partners will have the right (and will deemed to have accepted the right) to enforce this Agreement and be entitled to assert any claims in law or in equity the same as if they were party hereto.
All intellectual property rights in the Homee Platform shall be owned by HOMEE absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the HOMEE Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by You to us are non-confidential and shall become the sole property of HOMEE. HOMEE shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You.
HOMEE and other HOMEE logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of HOMEE in the United States and/or other countries (collectively, the “HOMEE Marks”). If you provide services as a Home Service Provider, HOMEE grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Works, the HOMEE Marks solely on the HOMEE stickers/decals and any other HOMEE-branded items provided by HOMEE directly to you in connection with fulfilling Jobs on accepted Service Requests (“IP License”). The IP License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without HOMEE’s prior written permission, which it may withhold in its sole discretion. The HOMEE logo (or any HOMEE Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a HOMEE Mark in a domain name or HOMEE referral code, or use of a HOMEE Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. You may identify yourself as a Home Service Provider on the HOMEE Platform, but may not misidentify yourself as HOMEE, an employee of HOMEE, or a representative of HOMEE.
You acknowledge that HOMEE is the owner and licensor of the Works, the HOMEE Marks, including all goodwill associated therewith, and that your use of the Works, HOMEE logo (or any HOMEE Marks) will confer no interest in or ownership of the Works or HOMEE Marks in you but rather inures to the benefit of HOMEE. You agree to use the HOMEE logo strictly in accordance with HOMEE’s Brand Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that HOMEE determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the HOMEE Marks or any derivatives of the HOMEE Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by HOMEE in writing; (2) use the HOMEE Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the HOMEE Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair HOMEE’s rights as owner of the HOMEE Marks or the legality and/or enforceability of the HOMEE Marks, including, challenging or opposing HOMEE’s ownership in the HOMEE Marks; (4) apply for trademark registration or renewal of trademark registration of any of the HOMEE Marks, any derivative of the HOMEE Marks, any combination of the HOMEE Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the HOMEE Marks; (5) use the HOMEE Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this IP License may result in immediate termination of the IP License, in HOMEE’s sole discretion, a takedown request sent to the appropriate ISP, or social media platform, and/or a Uniform Domain-Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the HOMEE Marks (in violation of this Agreement or otherwise), You agree that upon their creation HOMEE exclusively owns all right, title and interest in and to such materials, including any modifications to the HOMEE Marks or derivative works based on the HOMEE Marks or HOMEE copyrights. You further agree to assign any interest or right you may have in such materials to HOMEE, and to provide information and execute any documents as reasonably requested by HOMEE to enable HOMEE to formalize such assignment.
8. Representations and Warranties
8.1 Warranty. HOMEE will warrant to the Customer the workmanship of the Jobs pursuant to a Customer contract. Home Service Provider will warrant its workmanship to HOMEE in accordance with this Section 8.1. Home Service Provider warrants to HOMEE that Jobs will be completed in a timely, good and workmanlike manner by an adequate number of qualified Workers with suitable training, experience, and skill, and all materials supplied in connection with the Jobs will be of good quality and new unless otherwise required or permitted by a Service Request, that the Job will be free from defects not inherent in the quality required or permitted, and that the Job will conform to the requirements of the Service Request and this Agreement. Jobs not conforming to these requirements, including substitutions not properly approved and authorized, shall be considered defective (“Defect”) and a breach of Home Service Provider’s warranty obligations.
8.2 Correction Period. In addition to Home Service Provider’s obligations under Section 8.1, if any of Home Service Provider’s Jobs are found to contain a Defect, meaning Jobs fulfilled not in accordance with the requirements of a Service Request, this Agreement, standards of good workmanship, inferior materials, equipment or goods or unsatisfactory work, services or materials as determined by HOMEE in its sole and absolute discretion, Home Service Provider shall correct such Jobs promptly after receipt of notice from HOMEE. Notice under this Section may be provided by HOMEE to Home Service Provider via email or pursuant to Section 16.5. Home Service Provider’s correction period shall extend to the longer of: (a) one (1) year (five (5) years for roofing) from the date of the completion of the Job or the Customer approval, whichever is later; (b) the applicable period specified in the Customer contract or any warranty supplemental to such Customer contract; or (c) such period as may be required under Applicable Laws (the “Correction Period”). Home Service Provider shall correct the Defect without cost to HOMEE or Customer. If Home Service Provider fails to remedy said Defect within the time period specified by HOMEE in its sole discretion or if Customer refuses to allow Home Service Provider to correct the Defect, HOMEE shall have the right to correct the Defect at Home Service Provider’s expense. In the event that the Defect arises after termination of this Agreement, HOMEE may elect in its sole discretion to remedy the Defect instead of allowing Home Service Provider to do so, and Home Service Provider agrees to reimburse HOMEE for all associated costs and expenses. HOMEE shall further have the right to withhold payment to Home Service Provider and set off any costs or expenses incurred by HOMEE arising from or related to any Defect. To the extent no further payments are due Home Service Provider, HOMEE will invoice Service Provider for such expenses, and Home Service Provider agrees to pay such invoice within thirty (30) days of the invoice date. The Correction Period established by this Section relates only to the specific obligation of Home Service Provider to correct the Jobs, and has no relationship to the time within which the obligation to comply with this Agreement or an accepted Service Request may be sought to be enforced, nor the time within which proceedings may be commenced to establish Home Service Provider’s liability with respect to the Home Service Provider’s obligations other than specifically to correct the Job.
8.3 Home Service Provider Representations and Warranties. You represent and warrant to HOMEE the following:
8.3.1 You are duly licensed, authorized, and qualified to do business in each jurisdiction in which a license, authorization, or qualification is required for the transaction of business in fulfillment of your obligations under this Agreement;
8.3.2 You are not a party to any outstanding litigation, arbitration, claim, or other dispute that, if decided unfavorably to it, would reasonably be expected to have a material adverse effect on your ability to fulfill your obligations under this Agreement;
8.3.3 You are not a party to any contract, agreement, mortgage, note, deed, lease or similar understanding with any third party that would have an adverse effect on your ability to fulfill your obligations under this Agreement;
8.3.4 To your knowledge, no non-public fact or circumstance exists that could result in an adverse effect on yours or HOMEE’s public image, the public’s perception of You or HOMEE, or HOMEE’s brands or marks;
8.3.5 You are financially solvent, have the ability to perform your obligations hereunder, and will perform the obligations in a manner that complies with Applicable Laws and the provision of services hereunder, including laws of any county or jurisdiction from which or through which You provide the services to accepted Service Requests or obtain resources or personnel to do so; and,
8.3.6 You and your Workers shall comply with all Applicable Laws regarding the security and protection of the privacy and personal information of Customers.
Home Service Provider’s warranties contained in this Section 8 are in addition to any other warranties provided separately by Home Service Provider or required by Applicable Laws or this Agreement. Home Service Provider’s warranty obligations shall survive termination of this Agreement.
9.1 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, HOME SERVICE PROVIDER SHALL DEFEND, INDEMNIFY, AND HOLD HOMEE AND THE CUSTOMER, AND ANY OF THEIR RESPECTIVE PAST AND PRESENT OWNERS, OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY “INDEMNITEES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ALLEGATIONS, LOSSES, LIABILITIES, CAUSES OF ACTION, LAWSUITS, PROCEEDINGS, JUDGMENTS, FINES, PENALTIES, DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEY, EXPERT, AND CONSULTANT FEES AND LEGAL EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE RELATING TO OR ARISING OUT OF ANY SERVICES PROVIDED BY HOME SERVICE PROVIDER OR ANY OF ITS WORKERS, SUBCONTRACTORS, EMPLOYEES, OFFICERS, AGENTS, OR REPRESENTATIVES (THE “INDEMNITORS”); PROVIDED, HOWEVER, THE INDEMNITORS SHALL HAVE NO OBLIGATION TO INDEMNIFY, DEFEND OR HOLD HARMLESS THE INDEMNITEES IN THE EVENT THAT SUCH CLAIMS, DAMAGES, LOSSES, AND EXPENSES ARE CAUSED BY THE SOLE, ACTIVE NEGLIGENCE OF AN INDEMNITEE.
9.2 BY WAY OF EXAMPLE AND NOT LIMITATION, HOME SERVICE PROVIDER SHALL DEFEND, INDEMNIFY, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ALLEGATIONS, LOSSES, LIABILITIES, CAUSES OF ACTION, LAWSUITS, PROCEEDINGS, JUDGMENTS, CIVIL PENALTIES, FINES, PENALTIES, DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEY, EXPERT, AND CONSULTANT FEES AND LEGAL EXPENSES, TO THE EXTENT ARISING OUT OF OR RELATING TO THE FOLLOWING:
9.2.1 THE INACCURACY, UNTRUTHFULNESS, OR BREACH OF ANY REPRESENTATION, COVENANT, WARRANTY, OR ANY OTHER AGREEMENT SET FORTH IN THIS AGREEMENT BY HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND/OR ANY OF ITS SUBCONTRACTORS;
9.2.2 PERSONAL INJURY (INCLUDING WITHOUT LIMITATION, DEATH AND EMOTIONAL DISTRESS OR INJURY) ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS OF HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND/OR ANY OF ITS SUBCONTRACTORS;
9.2.3 PROPERTY LOSS OR DAMAGE ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS OF HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND/OR ANY OF ITS SUBCONTRACTORS;
9.2.4 NONCOMPLIANCE BY HOME SERVICE PROVIDER, OR ANY OWNER, OFFICER, SHAREHOLDER, PARENT, AFFILIATE, SUBSIDIARY, ASSOCIATE, DIRECTOR, EMPLOYEE, SUBCONTRACTOR, AGENT, REPRESENTATIVE, WORKER AND/OR EMPLOYEES THEREOF, WITH ANY APPLICABLE LAWS;
9.2.5 ANY HAZARDOUS MATERIAL (AS THAT TERM IS DEFINED BY APPLICABLE LAWS) BROUGHT TO THE CUSTOMER’S PROPERTY OR RELEASED BY THE NEGLIGENCE OF HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES OR ITS SUBCONTRACTORS;
9.2.6 INFRINGEMENT OF THE INTELLECTUAL PROPERTY, PROPRIETARY, OR OTHER RIGHTS OF ANY THIRD PARTY BY HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND/OR ANY OF ITS SUBCONTRACTORS;
9.2.7 THE FAILURE OF HOME SERVICE PROVIDER TO PERFORM INSPECTIONS OR OBTAIN AND MAINTAIN LICENSES OR PERMITS REQUIRED BY APPLICABLE LAWS;
9.2.8 THE SUPPLY OF FALSE OR INACCURATE BACKGROUND INFORMATION OR THE GATHERING AND/OR USE OF BACKGROUND INVESTIGATION INFORMATION;
9.2.9 TAXES ASSERTED OR LEVIED AGAINST HOMEE RESULTING FROM SERVICES THAT ARE THE RESPONSIBILITY OF THE HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES OR ITS SUBCONTRACTORS;
9.2.10 THE FAILURE OF HOME SERVICE PROVIDER TO COMPLY WITH APPLICABLE LAWS RELATING TO IMMIGRATION;
9.2.11 THE UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION BY HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND/OR ANY OF ITS SUBCONTRACTORS;
9.2.12 ANY PROPERTY ENCUMBRANCE RESULTING FROM ANY ALLEGED FAILURE OF HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES OR ANY OF ITS SUBCONTRACTORS, TO PAY FOR ANY PORTION OF THE SERVICES, WHETHER VALID OR NOT;
9.2.13 ANY MATERIAL BREACH OF THIS AGREEMENT OR AN ACCEPTED SERVICE REQUEST; OR
9.2.14 COMPENSATION OR BENEFITS OF ANY KIND, INCLUDING BASE WAGES, BONUSES, HEALTH AND WELFARE BENEFITS (BY AGREEMENT, PLAN, STATUTE OR OTHERWISE), PENSION BENEFITS, OR SEVERANCE OR TERMINATION PAY, BY OR ON BEHALF OF HOME SERVICE PROVIDER OR ANY OWNER, OFFICER, SHAREHOLDER, PARTNER, MEMBER, PARENT, EMPLOYEE OR SUBCONTRACTOR, CLAIMING AN EMPLOYMENT OR OTHER RELATIONSHIP WITH HOME SERVICE PROVIDER, ITS WORKERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND/OR HOMEE.
It is agreed that with respect to any legal limitations resulting from Applicable Laws now or hereafter in effect and affecting the validity and enforceability of the indemnification obligation under Section 9.1 and/or Section 9.2, such legal limitations are made a part of the indemnification obligation to the minimum extent necessary to bring Section 9.1 and/or Section 9.2 into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect.
The Home Service Provider’s obligations under Sections 9.1 and 9.2 shall not be limited, waived, or excused by the payment of any damages, benefits, expenses, or compensation under any employee death or disability statute, including worker’s compensation, employer’s liability, employee benefit, or other such act.
9.3 Right to Assume Defense. With respect to any third party claims for which Indemnitees are entitled to indemnification from Home Service Provider, Indemnitees reserve the absolute right to assume the defense of any such third party claim, and Indemnitors shall reimburse any and all costs and expenses (including attorney, expert, and consultant fees and legal expenses) incurred thereafter by the Indemnitees. Indemnitees shall have the right to use any funds due Home Service Provider to pay for the obligations of Home Service Provider under Section 9.
9.4 Defense of Claims. Home Service Provider’s duty to defend arises immediately upon the presentation of a third party claim to Home Service Provider. With respect to any third party claim for which indemnification is sought under this Section 9, Indemnitees shall provide prompt written notice of the third party claim to Home Service Provider; and Home Service Provider shall provide control of the defense of such third party claim if demanded by Indemnitees and cooperate with the Indemnitees in the defense of such third party claim. Indemnitees have the right, but not the obligation, to participate as they deem necessary in the handling, adjustment, or defense of any third party claim. Home Service Provider expressly agrees to do the following in connection with the conduct of the defense of any third party claim:
9.4.1 Inform the Indemnitees in writing about all material information pertaining to a third party claim;
9.4.2 Inform the Indemnitees in writing of the date of any mediation, arbitration, trial, or settlement conference relating to a third party claim as soon as possible after it receives such information;
9.4.3 Choose defense counsel that is reasonably satisfactory to the Indemnitees;
9.4.4 Provide Indemnitees with copies of all discovery requests within five (5) days of Home Service Provider’s receipt of same;
9.4.5 Provide the Indemnitees with copies of all pleadings, discovery responses, settlement proposals and/or any other material documents relating to the third party claim before finalizing or filing to allow the Indemnitees the opportunity to provide comments; and
9.4.6 Inform the Indemnitees of the outcome of any mediation, arbitration, motion, trial, settlement, or any other matter from which appeal rights could arise.
9.4 No Settlement Without Consent. Home Service Provider will not enter into any settlement or compromise of a claim without first obtaining the Indemnitees’ prior written consent.
9.5 Indemnification in Addition to Insurance. The presence or absence and/or applicability or non- applicability of Home Service Provider’s insurance coverage does not in any way limit Home Service Provider’s obligation to indemnify, defend, and hold the Indemnitees harmless pursuant to the terms of this Section 9.
9.6 Conflicts of Interest. If counsel retained by the Home Service Provider has a conflict of interest or such conflict of interest arises in connection with a third party claim, Indemnitees shall be entitled to retain separate counsel, at Home Service Provider’s expense, to defend Indemnitees. Home Service Provider shall not seek to disqualify counsel due to an alleged conflict of interest where a single counsel represents multiple Indemnitees in connection with a third party claim, and Home Service Provider hereby waives any alleged conflict of interest allegations relating to same
10.1 Requirement. Before commencing work under this Agreement, Home Service Providers will procure and maintain the following minimum insurance of the types listed below, licensed to do business in the State where the Job is fulfilled, and shall furnish to HOMEE prior to commencing any work under this Agreement, Certificates of Insurance evidencing current coverage listed below. Company shall ensure that Home Service Providers procure insurance from carriers having an A.M. Best Rating of A-/VII or better for all insurance required below.
10.2 Commercial General Liability Policy. You shall obtain a general liability policy including products and combined operations coverage written on an occurrence basis, in the amount of $1,000,000 combined single limit, per occurrence, and $2,000,000 general annual aggregate for bodily injury, death and property damage, including comprehensive form, premises and operations, independent contractors, products and completed operations, personal injury, contractual, and broad form property damage liability coverage.
10.3 Automobile Liability Insurance. You shall maintain automobile liability insurance for all owned, non-owned, and hired autos, with minimum statutory limits of in the State in which the Home Service Provider resides per occurrence combined single limit, for bodily injury and property damage.
10.4 Worker’s Compensation Insurance. You shall maintain Worker’s Compensation Insurance in the state in which operations are being performed, including coverage for proprietors and partners where permitted by law, with statutory limits.
10.5 Additional Insured. HOMEE shall be included as an additional insured on your Commercial General Liability and Automobile Liability coverage for the amount of coverage referenced above. It is understood that said policies shall provide primary insurance to HOMEE, with no special restrictions or reservations that are inconsistent with this Agreement. A signed copy of the endorsement adding HOMEE as an additional insured shall be attached to the certificate of insurance providing general liability coverage. It is expressly agreed and understood that your insurance requirements hereunder do not limit indemnity obligations. The Commercial General Liability and Automobile Liability insurance policies shall also provide a waiver of subrogation in favor of HOMEE.
10.6 Lapse of Coverage. In the event of cancellation or lapse of or prohibited change in any policy for which a certificate is required to be furnished under this Agreement, HOMEE shall have the right to suspend your User Account and you will be unable to accept new Service Requests until the policy and certificate in evidence thereof are reinstated or arrangements acceptable to HOMEE are made pending issuance of new policies and certificates. If any such insurance shall be about to lapse or be canceled, You shall, at least thirty (30) days before coverage ceases, obtain a new policy with like coverage, and if You fail to do so, HOMEE may require you to opt into a short duration general liability policy protecting it from the hazards covered by such lapsed or cancelled policy, and all premiums and expenses of such insurance policy shall be communicated to You in advance of incurring the policy premium and the premium amount charged shall vary by market or other factors.
10.7 Opt-in Short Duration Insurance. In the event You do not maintain insurance policies as set forth in this Section 10, You will be prompted in the Pro App to opt into a short duration insurance product offered by a third party which provides coverage on a job-by-job basis. You are not obligated to opt into the short duration product, however, failing to maintain any insurance as provided in this Section will result in an Event of Default as set forth in Section 12 below.
11. Limitations of Liability.
11.1 LIABILITY FOR ACTUAL DAMAGES ONLY. EXCEPT IN CONNECTION WITH HOME SERVICE PROVIDER’S BREACH OF CONFIDENTIALITY, FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY INDEMNIFICATION OBLIGATION OWED HEREIN BY HOME SERVICE PROVIDER, EACH PARTY HEREBY WAIVES ANY RIGHT TO CLAIM AGAINST THE OTHER PARTY FOR INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST OPPORTUNITIES, LOST PROFITS FROM THIS TRANSACTION OR ANY OTHER TRANSACTION NOT DIRECTLY RELATED TO THIS AGREEMENT, OR LOST SAVINGS, ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, AND EVEN IF REASONABLY FORESEEABLE OR IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 HOMEE’S MAXIMUM LIABILITY. HOMEE’S MAXIMUM LIABILITY TO HOME SERVICE PROVIDER UNDER THIS AGREEMENT (REGARDLESS OF CAUSE OR FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL BE LIMITED TO THE TOTAL UNDISPUTED AMOUNT OWED HOME SERVICE PROVIDER BY HOMEE FOR HOME SERVICE PROVIDER'S FULFILLMENT OF ITS OBLIGATIONS UNDER THIS AGREEMENT. HOMEE’S LIABILITY UNDER THIS AGREEMENT SHALL TERMINATE ONE (1) YEAR FROM THE OCCURRENCE OF THE EVENT GIVING RISE TO A CLAIM, AND HOME SERVICE PROVIDER AGREES TO BRING ANY TYPE OF CLAIM AGAINST HOMEE WITHIN THAT ONE (1) YEAR TIME PERIOD. THE HOME SERVICE PROVIDER HEREBY WAIVES ANY RIGHT UNDER ANY STATUTE OF LIMITATIONS TO BRING ANY CLAIM AFTER SUCH ONE (1) YEAR TIME PERIOD.
11.3 CLAIMS AGAINST HOMEE ONLY. HOME SERVICE PROVIDER AGREES THAT ITS SOLE RECOURSE FOR CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT AND/OR ANY JOBS OR SERVICE REQUESTS WILL BE AGAINST ONLY HOMEE OR HOMEE’S SUCCESSORS AND ASSIGNS. IN NO EVENT WILL THE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CUSTOMERS OF HOMEE AND ITS AFFILIATES BE PERSONALLY LIABLE OR BE NAMED AS PARTIES IN ANY ACTION BY HOME SERVICE PROVIDER. HOME SERVICE PROVIDER FURTHER AGREES THAT IT WILL STIPULATE TO A DISMISSAL WITH PREJUDICE OF ANY CLAIMS BROUGHT CONTRARY TO THIS SECTION.
11.4 Third Party Liabilities. Nothing in this Section 11 will be construed to limit a Party’s right to recover any damages that such Party is obligated to pay to any third party.
12. Events of Default. The occurrence of any of the following will be deemed an “Event of Default”:
12.1 Compliance. The failure of Home Service Provider to: (i) comply with any material term or condition of this Agreement; (ii) make payment or reimbursement of funds owed HOMEE; (iii) cease conduct that HOMEE deems harmful to its general business interests or public image, even if unrelated to Home Service Provider’s obligations under this Agreement; (iv) seek payment of Service Fees (or any portion thereof) directly from a Customer and outside the HOMEE Platform; or, (v) complete a Job for a Service Request, which failure continues in effect or has otherwise not been remedied to HOMEE’s satisfaction within a reasonable time period specified by HOMEE in its sole discretion.
12.2 Corrections. The failure of Home Service Provider to (i) correct rejected, defective, or nonconforming workmanship, or (ii) repair or replace defective or nonconforming products or materials sourced, furnished, manufactured, or fabricated by Home Service Provider, within the time period specified by HOMEE in its sole discretion.
12.3 Loss of Applicable License. Failure by You to maintain all service Licenses and/or other business licenses and permits required by law and/or this Agreement necessary for You to legally perform Jobs on accepted Service Requests.
12.4 Payment to Others. The failure of Home Service Provider to pay any of its Workers which failure results in the actual or threatened placement of an Encumbrance on or against any property or account of HOMEE or any Customer.
12.5 Insurance. The failure of Home Service Provider to procure or maintain insurance coverages as provided in Section 10 of this Agreement.
12.6 Liens. The failure of Home Service Provider to satisfy, discharge, or release any Encumbrance filed and/or recorded in connection with Jobs performed by Home Service Provider or its Workers, employees, agents, or subcontractors, on or against any property of any Customer within five (5) business days of the date that Home Service Provider was first made aware of such.
12.7 Creditors and Bankruptcy. (i) The making by Home Service Provider of an assignment for the benefit of creditors; (ii) the institution of a judicial proceeding for the reorganization, liquidation, or involuntary dissolution of Home Service Provider or for its adjudication as bankrupt or insolvent; (iii) the appointment of a receiver, trustee, or liquidator of or for the property of Home Service Provider whereupon the receiver, trustee, or liquidator is not removed within thirty (30) calendar days of HOMEE's written request; or (iv) the taking advantage by Home Service Provider of any debtor relief proceedings, whereby the liabilities or obligations of Home Service Provider are or are proposed to be reduced or payment thereof deferred.
13. Remedies for Breach or Events of Default.
13.1 Opportunity to Cure. If Home Service Provider commits an Event of Default, HOMEE will provide written notice of such and an opportunity to cure. Notice under Sections 13 and 14 may be provided by HOMEE via email or pursuant to Section 16.5 below. The time period for cure of an Event of Default under any provision of Section 12 shall be the time period specified by HOMEE in its sole discretion. In the event that HOMEE does not specify a time period for cure of a breach or Event of Default, Home Service Provider must cure the breach or Event of Default within thirty (30) calendar days of the date of receipt of written notice from HOMEE. In the event that a Customer refuses to allow Home Service Provider an opportunity to cure a Job, including without limitation, (a) rejected, defective, or nonconforming workmanship, or (b) defective or nonconforming products or materials, Home Service Provider waives any opportunity to cure, and HOMEE may proceed with remedies under Section 13.2.
13.2 Failure to Cure. If Home Service Provider fails to cure within the applicable cure time period, HOMEE may exercise one or more of the following remedies without any liability to Home Service Provider:
(a) Reject, in whole or in part, Home Service Provider’s submission for payment with respect to a Job or Service Request under this Agreement, or nullify in whole or in part a previously approved submission for payment and receive reimbursement of payments relating to any Job that was not cured;
(b) Withhold from any sums due or that thereafter become due Home Service Provider the amount deemed necessary by HOMEE to protect HOMEE from actual or reasonably foreseeable damages resulting from the breach or Event of Default;
(c) Suspend Home Service Provider from the Homee Platform and deactivate User Account on the Pro App until Home Service Provider is no longer in breach of this Agreement or the Event of Default is cured;
(d) Retain a third party to cure the breach or end the Event of Default at Home Service Provider’s sole expense, which expense HOMEE may offset against any sums due or that thereafter become due Home Service Provider or otherwise recover from Home Service Provider; or
(e) Terminate this Agreement immediately upon written notice to Home Service Provider.
13.3 Cure of Remedies. Home Service Provider’s cure of any breach or Event of Default under this Agreement must be done in a manner satisfactory to both HOMEE and the impacted Customer(s).
13.4 Event of Default after Termination. If an Event of Default occurs after termination, HOMEE is under no obligation to provide an opportunity to cure to Home Service Provider, and HOMEE may proceed immediately with one or more of the applicable remedies in Section 13.2 and/or pursue any remedies available at law or equity.
14.1 Breach or Default. This Agreement may be terminated for cause (i.e., for breach or for the occurrence of an Event of Default) by HOMEE immediately upon expiration of the applicable cure time period, if any. If Home Service Provider commits the same or a substantially similar breach of this Agreement, or if there is an occurrence of the same or a substantially similar Event of Default within three (3) months following the date that Home Service Provider’s cures a previous breach or Event of Default, HOMEE will have the right to immediately terminate this Agreement.
14.2 For Convenience. HOMEE may terminate this Agreement at any time for its own convenience and without cause upon giving written notice to Home Service Provider. HOMEE’s provision of notice shall state the time period after which the termination becomes effective, and Home Service Provider agrees to effect termination in accordance with the terms of such notice.
14.3 For Platform Inactivity. HOMEE may terminate this Agreement in the event Home Service Provider has been inactive on the HOMEE Platform for a period of six (6) months. HOMEE considers platform inactivity to occur when a Home Service Provider fails to accept any Service Requests and perform any Job for which the Home Service Provider previously indicated they were qualified to fulfill.
14.4 Home Service Provider’s Obligations upon Termination. Upon receipt of HOMEE’s written notice to terminate for convenience, Home Service Provider must:
(a) Complete all or any portion of Jobs in accordance with the time frame provided in the notice given by HOMEE, unless HOMEE, in its sole discretion, directs the Home Service Provider to stop all services associated with Jobs in progress on accepted Service Requests and remove from the Customer’s property all Home Service Provider employees, Workers, tools, and equipment;
(b) Immediately cancel or terminate all applicable Worker or subcontractor agreements at Home Service Provider’s cost, unless HOMEE, in its sole discretion, provides for additional time to complete Jobs on accepted Service Request, in which case all such agreements shall be canceled at Home Service Provider’s cost upon completion of the applicable Jobs.
(c) Return to HOMEE any and all property of HOMEE, including without limitation any Confidential Information, issued badges, and/or Customer information in Home Service Provider’s possession, control or custody within five (5) calendar days after termination of the Agreement;
(d) Stop making any representations of any nature that Home Service Provider is, or at any time was, in a business relationship with HOMEE, except as reasonably necessary to fulfill any surviving obligations under this Agreement;
(e) Retain business records pertaining to Home Service Provider’s compliance with Applicable Laws for a period of at least one (1) year following the conclusion of this Agreement, or the amount of time required by the applicable statutes of limitations and repose for claims relating to compliance with Applicable Laws that arise following the conclusion this Agreement;
(f) Timely satisfy all obligations under this Agreement still in effect.
14.5 HOMEE’s Obligations upon Termination. Upon termination or expiration of this Agreement for any reason, HOMEE must:
(a) Pay all undisputed sums due Home Service Provider that are not otherwise subject to any offset rights provided in this Agreement;
(b) Return to Home Service Provider any and all property of Home Service Provider in HOMEE’s possession or control within thirty (30) calendar days after termination or expiration of the Agreement.
14.6 Retainage. Notwithstanding the obligations set forth herein, HOMEE may withhold any payments due Home Service Provider for forty-five (45) calendar days after termination to offset any amounts which are due or may become due from Home Service Provider to HOMEE.
15. Dispute Resolution and Arbitration.
15.1 Agreement to Binding Arbitration Between You and HOMEE. YOU AND HOMEE MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This provision to arbitrate (“Arbitration Provision”) is governed by the Federal Arbitration Act (“FAA”); but if the FAA is inapplicable for any reason, then this Arbitration Provision is governed by the laws of the State of Delaware, including Del. Code tit. 10, § 5701 et seq., without regard to choice of law principles. This Arbitration Provision survives after the Agreement terminates or your relationship with HOMEE ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Provision applies to all Claims (defined below) between you and HOMEE, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Provision also applies to claims between you and HOMEE’s service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third-party beneficiaries of this Arbitration Provision.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND HOMEE. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Jobs fulfilled under Service Requests accepted through the Pro App, the HOMEE Platform, HOMEE promotions, gift card, referrals or loyalty programs, any other goods or services made available through the HOMEE Platform, your relationship with HOMEE, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on HOMEE’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by HOMEE, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act of 1974 (except for individual claims for employee benefits under any benefit plan sponsored by HOMEE and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of this Arbitration Provision) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND HOMEE ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION PROVISION. This Arbitration Provision is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Provision are expressly excluded from the requirement to arbitrate.
15.2 Prohibition of Class Actions and Non-Individualized Relief. YOU UNDERSTAND AND AGREE THAT YOU AND HOMEE MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND HOMEE BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (15.2) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST HOMEE, WHICH ARE ADDRESSED SEPARATELY IN SECTION 15.3.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Provision or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.
15.3 Representative PAGA Waiver. Notwithstanding any other aspect of this Agreement or the Arbitration Provision, to the fullest extent permitted by law: (1) You and HOMEE agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both You and HOMEE agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other aspect of this Agreement, the Arbitration Provision or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
15.4 Rules Governing the Arbitration. Any arbitration conducted pursuant to this Arbitration Provision shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”). Notwithstanding the foregoing, if requested by You and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. The Parties may select a different arbitration administrator upon mutual written agreement.
As part of the arbitration, both You and HOMEE will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with Applicable Law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Home Service Providers or Customers, but is bound by rulings in prior arbitrations involving the same Home Service Provider or Customer to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
15.5 Arbitration Fees and Awards. The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
15.5.1 If HOMEE initiates arbitration under this Arbitration Provision, HOMEE will pay all AAA filing and arbitration fees.
15.5.2 With respect to any Claims brought by HOMEE against a Home Service Provider, or for Claims brought by a Home Service Provider against HOMEE that: (A) are based on an alleged employment relationship between HOMEE and a Home Service Provider; (B) arise out of, or relate to, HOMEE’s actual deactivation of a Home Service Provider’s User Account or a threat by HOMEE to deactivate a Home Service Provider’s User Account; (C) arise out of, or relate to, HOMEE’s actual termination of a Home Service Provider’s Agreement with HOMEE under the termination provisions of this Agreement, or a threat by HOMEE to terminate a Home Service Provider’s Agreement; (D) arise out of, or relate to, Service Fees (as defined in this Agreement, including HOMEE’s fees on the Jobs) owed by HOMEE to Home Service Providers for Jobs, other than disputes relating to HOMEE promotions, or consumer-type disputes, or (E) arise out of or relate to background checks performed in connection with a User seeking to become a Home Service Provider (the subset of Claims in subsections (A)-(E) shall be collectively referred to as “Provider Claims”), HOMEE shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by HOMEE pursuant to the fee provisions above). However, if you are the party initiating the Provider Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Service Request services to Customers, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 15.5.2, the term “Home Service Provider” shall be deemed to include both Home Service Providers and those applicants who have not been approved to be included in the Network.
15.5.3 Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
15.5.4 At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
15.5.5 Although under some laws HOMEE may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, HOMEE agrees that it will not seek such an award unless you are represented by an attorney or the arbitrator has determined that the claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).
15.5.6 If the arbitrator issues You an award that is greater than the value of HOMEE’s last written settlement offer made after You participated in good faith in the optional Negotiation process described in subsection 15. below, then HOMEE will pay you the amount of the award or U.S. $1,000, whichever is greater.
15.6 Location and Manner of Arbitration. Unless You and HOMEE agree otherwise, any arbitration hearings between HOMEE and a Customer will take place in the county of the Customer’s billing address, and any arbitration hearings between HOMEE and a Home Service Provider will take place in the county in which the Home Service Provider fulfills Jobs on accepted Service Requests. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. Your right to a hearing will be determined by the AAA Rules.
15.7 Exceptions to Arbitration. This Arbitration Provision shall not require arbitration of the following types of claims: (a) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (b) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 15.3 of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (c) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; (d) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA; and (e) individual claims of sexual assault or sexual harassment in connection with the use of the HOMEE Platform or fulfillment of Service Requests. Where these claims are brought in a court of competent jurisdiction, HOMEE will not require arbitration of those claims. HOMEE's agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Provision (including without limitation the waivers provided in Section 15.2), or of the enforceability of this Arbitration Provision as to any other dispute, claim, or controversy.
Nothing in this Arbitration Provision prevents You from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration However, should You bring an administrative claim, You may only seek or recover money damages of any type pursuant to this Arbitration Provision, and You knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, You may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by You. Similarly, You may not recover money damages under this Arbitration Provision if You have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Provision prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
15.8 Severability. Except as otherwise provided in the severability provisions in subsections 15.2 -Prohibition of Class Action and Non-individualized Relief and 15.3- PAGA WAIVER above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
15.9 Opting Out of Arbitration for Provider Claims. As a Home Service Provider or Home Service Provider applicant, You may opt out of the requirement to arbitrate Provider Claims defined in Section 15.5.2 pursuant to the terms of this subsection if You have not previously agreed to an arbitration provision in HOMEE’s Terms of Service where You had the opportunity to opt out of the requirement to arbitrate. If You have previously agreed to such an arbitration provision, You may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that You may have with HOMEE. If You have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Provision with respect to Provider Claims, you may opt out of arbitration with respect to such Provider Claims by notifying HOMEE in writing of your desire to opt out of arbitration for such Provider Claims, which writing must be dated, signed and delivered by electronic mail to email@example.com.
In order to be effective, (A) the writing must clearly indicate your intent to opt out of this Arbitration Provision with respect to Provider Claims, (B) the writing must include the name, phone number, and email address associated with your User Account, and (C) the email containing the signed writing must be sent within 30 days of the date this Agreement is executed by You. Should You not opt out within the 30-day period, You and HOMEE shall be bound by the terms of this Arbitration Provision in full.
You should assume that there may be in the future, lawsuits against HOMEE alleging class, collective, and/or representative Provider Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Provider Claims with HOMEE under this Arbitration Provision, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against HOMEE in an individual arbitration. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Provision and You will not be subject to retaliation if You exercise your right to assert claims or opt-out of any Provider Claims under this Arbitration Provision.
15.10 Optional Pre-Arbitration Negotiation Process. Before initiating any arbitration or proceeding, You and HOMEE may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by You and HOMEE. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Dispute Notice”). The Dispute Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
16.1 Assignment; Change of Ownership or Control. Home Service Provider may not assign, subcontract, transfer, pledge, sublicense, or encumber this Agreement or any interest under this Agreement without HOMEE’s prior written consent, which shall be provided at HOMEE’s sole discretion. Any assignment by Home Service Provider without the prior written consent of HOMEE will be null and void. HOMEE may assign or transfer this Agreement to a parent, subsidiary, or affiliate of HOMEE upon ten (10) business days’ notice to Home Service Provider. Any permitted assignment will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
16.2 Waiver. No provision of this Agreement may be waived unless in writing, signed by the waiving Party. The failure of a Party to exercise any of its rights, remedies, or options under this Agreement, or the failure of a Party to insist upon another Party’s compliance with any provision of this Agreement, will not constitute a waiver of any Party’s right to demand compliance. No action or course of dealing of the Parties at variance with the terms and conditions of this Agreement will constitute any waiver of a Party’s right to demand exact compliance with the terms of this Agreement.
16.3 Severability. The invalidity or unenforceability of any provision or any portion of any provision of this Agreement does not impair the validity or enforceability of any other provision or the remaining portions of any such provision. Section headings are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.
16.4 Cumulative Remedies. Except as otherwise expressly limited or provided herein, all rights, privileges, and remedies conferred under this Agreement upon the Parties will be cumulative and are in addition to any rights, powers, privileges, and remedies available to the Parties by statute or otherwise at law or in equity.
16.5 Notices. Unless specified otherwise herein, any notices or other communication required to be in writing under this Agreement must be (1) personally delivered; (2) sent by certified mail, postage prepaid; (3) delivered by overnight courier, to the other Party unless otherwise provided herein; or, (4) delivered via electronic mail. Notices are deemed to be served and given upon receipt. Notice to Home Service Provider shall be provided via the email address associated with the Home Service Provider’s Pro App User Account. Notice to HOMEE shall be provided as follows:
1413 S. Howard Ave., STE 220
Tampa, FL 33606
16.6 Survival. Upon termination or expiration of this Agreement, all provisions continue in effect as to disputed matters until fully resolved, as well as all provisions that by their nature continue and survive termination or expiration of this Agreement, including without limitation, Home Service Provider’s indemnity and warranty obligations under this Agreement and the following Sections: 2.6, 2.7, 4.2, 4.4, 4.6, 4.7, 4.8, 4.12, 5.2, 5.3, 5.4, 5.5, 5.6, 6.1, 6.2, 6.4, 6.5, 7, 8.1, 8.2, 9, 11, 14.4, 15, 16.2, 16.3, 16.5, 16.6, and 16.8.
16.7 Force Majeure. Neither Party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Events"): (i) acts of God; (ii) flood, fire, earthquake, epidemics, or pandemics; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (iv) government order, law, actions or quarantines; (v) national or regional emergency; (vi) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (vii) any other similar events or circumstances beyond the reasonable control of the Impacted Party. The Impacted Party shall promptly provide written notice to the other Party indicating the nature, cause, date of commencement thereof, the anticipated extent of such delay and whether it is anticipated that any completion or delivery dates will be affected thereby, and shall exercise due diligence to mitigate the effect of the delay.
16.8 Choice of Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Florida, which shall govern any disputes arising out of or relating to the Agreement. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Thus, notwithstanding the foregoing choice of law provision, the Parties agree that Section 15.1 will govern the interpretation and enforcement of the Arbitration Provision of this Agreement and any forum selection clauses relating thereto.