Effective: September 21, 2021
View our previous HOMEE Pro App Service Terms
These terms constitute a legally binding agreement (the “Agreement”) between you ("You," "your," or "HOMEE Pro"), an independent provider of residential maintenance, repair or restoration and improvement services and Homee, Inc. ("HOMEE," the "Company," or "Us") governing the business relationship between Us and You and establish standard terms and conditions applicable to all Jobs (defined below) covered by this Agreement. You and HOMEE sometimes are referred to herein individually as a “Party” or collectively as “Parties.”
The Parties hereby enter into this Agreement, which shall be applicable to all Jobs performed by You and your agents, employees, entities, owners, partners, principals, independent contractors, subcontractors, third party agents, representatives, workers, or other service providers for whom You are legally liable or responsible.
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND HOMEE HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 21 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 HOMEE PRO OR HOME PRO APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 21.8.
By entering into this Agreement, and/or by using or accessing the HOMEE Platform 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 21) 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.
TABLE OF CONTENTS
Section 1. Definitions.
Section 2. Incorporation of Ancillary Documents and Modifications.
Section 3. Job Performance.
Section 4. HOMEE Pro's Obligations, Representations, and Warranties.
Section 5. HOMEE's Obligations, Representations, and Warranties.
Section 6. Workmanship Warranty Issued to HOMEE.
Section 7. Payment and Fees.
Section 8. Independent Contractor/Subcontractor Relationship.
Section 9. Non-Exclusivity.
Section 10. Confidentiality; Publicity; Ownership of Works.
Section 11. Third-Party Beneficiaries.
Section 12. Indemnification.
Section 13. Intellectual Property.
Section 14. Credentialing.
Section 15. Insurance.
Section 16. Disclaimers and Limitations of Liability.
Section 17. Events of Default.
Section 18. Remedies for Breach or Events of Default.
Section 19. Term and Termination.
Section 20. Title and Risk of Loss.
Section 21. Dispute Resolution and Arbitration.
Section 22. General Provisions.
1. Definitions. For the purposes of this Agreement, the following terms have the meanings set forth below:
1.1 “Affiliated Individual(s)” means all agents, employees, entities, owners, partners, principals, independent contractors, subcontractors, third party agents, representatives, workers, or other service providers of the HOMEE Pro.
1.2 “Ancillary Documents” means the HOMEE Pro Guidelines, the HOMEE Privacy Statement, the Prime Agreement and any User Terms and Conditions of the HOMEE Platform published by HOMEE or its affiliates on its website or in its mobile applications, as amended from time to time during the Term hereof.
1.3 “Business Day” means Monday through Friday, exclusive of any federal or state holiday or observation thereof.
1.4. “Confidential Information” means this Agreement, the Ancillary Documents, the HOMEE Platform software, and all digital content contained in or used by HOMEE in the HOMEE Platform or any of its websites or mobile applications. Confidential Information shall also include any data or information submitted by or pertaining to any Participating Insurer or Participating Insured.
1.5. “Customer” means any individual, business, or other legal entity using HOMEE for appliance/equipment installation and repair services, low voltage electrical services, heating ventilation and air conditioning services, plumbing services, and residential property repair and/or restoration services.
1.6. “Estimate” means a document created by the HOMEE Pro after completing an inspection of the property recording the approximate cost calculations for the quantities of materials and labor hours anticipated to complete a Job.
1.7. “HOMEE Platform” means the HOMEE website, mobile applications, and software through which HOMEE (i) maintains a network of pre-credentialed service providers offering general residential repair and restoration services who seek to connect with Customers who require property repair and/or restoration services resulting from an insurance claim and (ii) administers and manages the performance of property repair and restoration services.
1.8. “Job(s)” means the work subcontracted to and performed by the HOMEE Pro as detailed within a Work Order and pertaining to the (i) inspection of damaged residential property; (ii) creation of Estimates of repairs and/or restoration to damaged property; and, (iii) repair and/or restoration of a Customers’ property.
1.9 “Minimum Eligibility Criteria” means the minimum standards of conduct and eligibility that a HOMEE Pro and its Affiliated Individuals must satisfy during the Term of this Agreement, as set forth in the HOMEE Pro Guidelines, which may be updated from time to time by HOMEE pursuant to Section 2.2.
1.10. “Participating Insurer” means any insurance company that maintains an active contract with HOMEE which provides the insurance company with access to the HOMEE Platform.
1.11 “Prime Agreement” is the agreement between a Customer and HOMEE detailing the scope of the Job and the services to be performed thereunder.
1.12. “Term” is defined in Section 19.
1.13. “User Account” enables the HOMEE Pro access to the HOMEE Platform.
1.14. “User” means the HOMEE Pro who registers with the HOMEE Platform to provide residential repair and/or restoration services to Customers.
1.15 “Work Order” is a record of a Job assignment from HOMEE to the HOMEE Pro authorizing the performance of the scope of work stated therein.
2. Incorporation of Ancillary Documents and Modifications.
2.1 Incorporation of Ancillary Documents. This Agreement incorporates by reference all Ancillary Documents. The HOMEE Pro Guidelines, the HOMEE Privacy Statement, and any User Terms and Conditions of the HOMEE Platform are posted on the Company’s website, presently https://www.homee.com. By executing this Agreement, the HOMEE Pro acknowledges that it has read each of the documents, that it and any Affiliated Individual understand and agree to conduct themselves in accordance with the terms and conditions of such documents and further agrees to be bound by all of the terms and conditions of this Agreement and the Ancillary Documents.
2.2 Modification of Ancillary Documents and Notice. HOMEE reserves the right, in its sole discretion to, at any time, modify the Ancillary Documents. The HOMEE Pro is responsible for monitoring the HOMEE Platform, reviewing all notifications posted thereto, and complying with current versions of the Ancillary Documents. The “Last Updated” date indicated on each of the Ancillary Documents will indicate when the latest modifications were made. Further, if HOMEE makes material modifications to the terms of any Ancillary Document, the HOMEE Pro will be provided notice by email at least thirty (30) days before the material modifications become effective. If the HOMEE Pro disagrees with the revised terms, this Agreement may be terminated with immediate effect and any User Account created will be deactivated. By continuing to participate in the HOMEE Platform after any of the Ancillary Documents have been modified, the HOMEE Pro agrees to be bound by such modifications.
3. Job Performance.
3.1 Time is of the Essence. The HOMEE Pro will, at a minimum, perform services set forth within all accepted Work Orders in a timely, workmanlike, and professional manner in accordance with this Agreement, the Ancillary Documents, and any Applicable Laws (defined below).
3.2 Quality of Job Performed. The HOMEE Pro shall at all times provide new materials (unless otherwise specified in the Work Order for a Job). Subject to Sections 3 and 6, after receiving notice (written or verbal) from HOMEE, the HOMEE Pro 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 Job or this Agreement and shall replace with new, conforming and quality services in a manner deemed satisfactory by Customer and HOMEE.
3.3 Equipment. The HOMEE Pro will, at its 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 its obligations under the specific Job accepted and/or this Agreement. The HOMEE Pro will keep Equipment in good repair and safe operating condition, maintain Equipment according to manufacturers’ recommendations, and use Equipment fit for its intended purpose.
3.4 Clean Up. The HOMEE Pro shall, at its 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 as 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 Equipment, tools, surplus materials as directed by the Customer or HOMEE at the Job’s completion. The HOMEE Pro agrees to provide all cleaning and cleanup required under a Job to the extent such requirements are not in excess of this Section. If the HOMEE Pro fails to commence clean-up duties within twenty-four (24) hours after receiving notice from HOMEE or the Customer, HOMEE may implement cleanup measures as necessary or prudent without further notice. The costs associated with the cleanup shall be reimbursed to HOMEE by the HOMEE Pro.
3.5 Environmental Protection. The HOMEE Pro 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, the HOMEE Pro shall not provide or allow any of your Affiliated Individuals to supply or deliver any Hazardous Materials to a Customer’s property, and in the event such occurs, the HOMEE Pro shall remove such Hazardous Materials at its sole expense. Further, the HOMEE Pro shall immediately notify HOMEE if it or its Affiliated Individuals encounter any Hazardous Materials during the performance of the services of the Job at any time.
3.6 Property Losses. The HOMEE Pro is 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 the accepted Job. Any Customer personal property will not be removed or replaced by the HOMEE Pro unless such is provided in the scope of work in the Work Order or requested by HOMEE. The HOMEE Pro is 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 any Customer while in your custody or control.
3.7 Encumbrances. To the extent permissible under Applicable Laws, the HOMEE Pro agrees 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 Customer, and the property of the HOMEE Customer (“Encumbrances”). The HOMEE Pro shall, at all times, keep the property of the Customer free from Encumbrances filed or recorded by Affiliated Individuals or others claiming to be in the chain of privity with the HOMEE Pro in connection with the Job. The HOMEE Pro shall cause the release, dissolution, cancelation or removal of any Encumbrance relating in any way to the Job within five (5) Business Days of being 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 the HOMEE Pro 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. The HOMEE Pro agrees that HOMEE is entitled to deduct such costs, expenses and legal fees from any sum then due or thereafter becoming due. This paragraph shall survive the termination of this Agreement.
3.8 No Customer Solicitation. The HOMEE Pro and any Affiliated Individuals used on a Job will not offer, solicit, or provide any services, or recommend a third-party for the performance of any Job for a Customer, other than providing the services set forth in the accepted Work Order. The HOMEE Pro and any Affiliated Individuals will not use Confidential Information (defined below), information about Customers obtained as a result of your activities under this Agreement, the applicable Work Order, 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. The HOMEE Pro and any Affiliated Individuals are expressly prohibited from using Confidential Information to solicit, directly or indirectly, any business from a Customer or prospective Customer. The HOMEE Pro and Affiliated Individuals will not use Confidential Information for the purpose of providing products or services that are the same as, similar to, and/or competitive with, services that can be fulfilled by HOMEE. The HOMEE Pro acknowledges and agrees that the restrictions contained in this Section are fair, reasonable, and necessary to protect HOMEE’s legitimate business interests, and that the HOMEE Pro accepts a duty to know and remain aware of the services that are fulfilled by HOMEE. The non-solicitation restrictions set forth in this Section will survive for one (1) year upon termination of this Agreement or your deactivation from the HOMEE Platform. The HOMEE Pro agrees that immediate, irreparable harm could result to HOMEE and its business if the HOMEE Pro or Affiliated Individuals breach their obligations in this Section. Therefore, the HOMEE Pro agrees that HOMEE will be entitled to a restraining order, injunctive or other equitable relief if the HOMEE Pro or its Affiliated Individuals breach their obligations under this Section, in addition to any other remedies available at law or equity.
3.9 No Assurance of Jobs. Nothing in this Agreement shall be construed as a guarantee that the HOMEE Pro shall be offered any particular number of Jobs during any particular time period. The HOMEE Pro acknowledges that HOMEE makes no assurance whatsoever that it will receive any or a minimum volume of business or revenue, Work Orders, Estimates, Jobs, geographic territory rights or any other type of business opportunities whatsoever from HOMEE. In view of the foregoing, the HOMEE Pro acknowledges that any investments or expenditures that it has made or may make upon agreeing to these terms are made at its sole risk.
4. HOMEE Pro’s Obligations, Representations, and Warranties.
4.1 Representations and Warranties. The HOMEE Pro represents and warrants to HOMEE the following:
4.1.1. all information provided by the HOMEE Pro to HOMEE as of the Effective Date, including, without limitation, the information on the HOMEE Pro Application submitted by the HOMEE Pro to HOMEE, is true, accurate, current, and complete;
4.1.2. the HOMEE Pro has satisfied each applicable component of the Minimum Eligibility Criteria and shall continue to satisfy all such Minimum Eligibility Criteria throughout the Term;
4.1.3. the HOMEE Pro is properly and fully qualified and experienced, licensed, certified, bonded, and insured, as required by applicable laws or regulations as set forth in the jurisdiction(s) in which Jobs are performed and in relation to the specific service being fulfilled;
4.1.4. the HOMEE Pro is 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 its ability to fulfill obligations under this Agreement;
4.1.5. the HOMEE Pro is 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 its ability to fulfill obligations under this Agreement;
4.1.6. the HOMEE Pro is financially solvent, has the ability to perform 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 the HOMEE Pro provides the services to accepted Jobs or obtains resources or personnel to do so; and
4.1.7. the HOMEE Pro shall comply with all Applicable Laws regarding the security and protection of the privacy and personal information of Customers.
HOMEE Pro’s warranties contained in this Section 4 are in addition to any other warranties provided separately by the HOMEE Pro or required by Applicable Laws or this Agreement. HOMEE Pro’s warranty obligations shall survive termination of this Agreement.
4.2 Obligations and Covenants. Throughout the Term, the HOMEE Pro shall:
4.2.1. comply with all applicable federal, state, county, and local laws, statutes, orders, ordinances, regulations, rules, codes (including building and safety codes), permits, and any requirements of the governing authority with jurisdiction over the Job, including court orders (the “Applicable Laws”) pertaining to the performance and safety of the Job;
4.2.2. maintain all necessary licenses, certifications, and permits to perform the repairs, restorations, and services as required by Applicable Laws for all Jobs in which the HOMEE Pro undertakes;
4.2.3. not request or require Customers to obtain permits unless permissible under Applicable Laws and authorized to do so in writing by HOMEE;
4.2.4. update HOMEE, pursuant to the notice provisions set forth in Section 22.2, if any information provided to HOMEE on the HOMEE Pro Application has changed or is expected to change;
4.2.5. provide all documents and information requested by HOMEE in accordance with the terms and conditions of the HOMEE Platform, this Agreement, and the Ancillary Documents;
4.2.6. ensure that all Affiliated Individuals comply with all rules and requirements of the HOMEE Platform, including, where applicable, the terms set forth in this Agreement, all Ancillary Documents and Applicable Laws;
4.2.7. cooperate with HOMEE or the Participating Insurer in investigating and resolving any complaint or complaints that HOMEE receives regarding the HOMEE Pro or any Affiliated Individual in connection with use of the HOMEE Platform or conduct in performance of any services on any Jobs; and
4.2.8. not make any statement or representation which is false, fraudulent, or in violation of any state or federal law, regulation, or duty.
5. HOMEE’s Obligations, Representations, and Warranties.
5.1. HOMEE’s Representations and Warranties. HOMEE represents and warrants to the HOMEE Pro the following:
5.1.1. all information provided by HOMEE to the HOMEE Pro is true and accurate as of the Effective Date; and
5.1.2. HOMEE has all requisite authority to enter into this Agreement and the present capability to satisfy its terms.
5.2 Obligations and Covenants. Throughout the Term, HOMEE shall:
5.2.1. make timely payments to the HOMEE Pro according to the procedures set forth in Section 7;
5.2.2. make all commercially reasonable efforts to maintain the HOMEE Platform and provide technical support to the HOMEE Pro. Such support shall include, but is not limited to, assisting in the creation of a User Account, the retrieval of login and password information, and the navigation of the User interface of the HOMEE Platform. Notwithstanding the provisions of this Section 5, HOMEE reserves the right to upgrade, alter, change, or provide functionally comparable substitutes to the HOMEE Platform;
5.2.3. retain all records, according to commercially reasonable standards, which pertain to the relationship of the Parties;
5.2.4. in connection with any obligation or activity set forth in this agreement: (a) comply with, or cause compliance with, all laws, rules, and regulations applicable to HOMEE’s performance hereunder; (b) cause all of its employees, agents, and representatives to comply with the aforementioned laws, rules, and regulations; and (c) not make any statement or representation which is false, fraudulent, or in violation of any state or federal law, regulation, or duty.
6.0 Workmanship Warranty Issued to HOMEE.
6.1. Terms. For every Job commenced and completed, the HOMEE Pro shall issue to HOMEE for whom the repair, restoration, or service was subcontracted, a workmanship warranty, the terms of which shall be consistent with, or provide more coverage than what is set forth in the HOMEE Pro Guidelines, the Prime Agreement, if applicable, or any other Ancillary Document. However, this warranty obligation shall not be required for emergency services performed to repair, restore, or stabilize a loss to property which, if not addressed immediately, will result in additional damage until measures are completed to prevent such damage. Such emergency services shall include, but shall not be limited to, the removal of water, mold remediation services, the temporary covering or patching of roofs, or the temporary repair of plumbing and infrastructure.
6.2. Obligation to HOMEE. The HOMEE Pro acknowledges that a failure to provide, honor, and satisfy the warranty required under this Section 6, will cause substantial harm to HOMEE’s marketplace reputation and goodwill. As such, failure to provide, honor, and satisfy the terms of the warranty required by this Section 6 shall be deemed a breach of this Agreement. Notwithstanding the foregoing, the HOMEE Pro hereby acknowledges and agrees that HOMEE shall have no liability for ensuring or guaranteeing performance by the HOMEE Pro for any work performed for a Job or the warranty issued pursuant to this Section 6.
7.0 Payment and Fees.
7.1. Payment Terms. All payments, fees, and charges owed to the HOMEE Pro on a completed Job and to be paid through the HOMEE Platform shall be subject to the payment terms and conditions set forth in the applicable Work Order and the HOMEE Pro Guidelines, which may be updated from time to time by HOMEE pursuant to Section 2 above.
7.2. Contingent Upon Job Completion. The HOMEE Pro shall not be owed, and HOMEE shall not deliver, any payment in connection with any Work Order until the Job set forth in the applicable Work Order is complete. HOMEE shall remit payment to the HOMEE Pro within 15 Business Days of a Job being completed.
7.3 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, the HOMEE Pro authorizes HOMEE to obtain all necessary access and perform all necessary activity on its Stripe Connected Account to facilitate the provision of fees as contemplated by the Agreement and the relationship with HOMEE. As required under Section 4 above, the HOMEE Pro further agrees to provide accurate and complete information about itself and its business and authorizes HOMEE to share the information 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.
7.4 Chargeback and Payment Reversals. If HOMEE incurs costs or expenses (i) to rectify actual or alleged substandard or faulty workmanship performed by the HOMEE Pro and/or its Affiliated Individuals to satisfy a Customer, (ii) to repair damages actually or allegedly arising from or relating to the Customer Job(s) fulfilled by the HOMEE Pro and/or its Affiliated Individuals, (iii) to pay any costs or expenses, including without limitation reasonable attorney’s fees, arising from or relating to the conduct or performance of the HOMEE Pro or any Affiliated Individuals, (iv) if the HOMEE Pro or Affiliated Individuals violates 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 the HOMEE Pro, such expenses, regardless of the manner incurred, will be deducted as a “chargeback” from payments otherwise due to the HOMEE Pro 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 the HOMEE Pro has previously received payment from HOMEE for the Work Order(s) associated with the incurred cost, expense or Customer refund, the HOMEE Pro authorizes HOMEE to initiate one or more ACH debit entries (withdrawals) or the creation of an equivalent bank draft for the specified amount(s) from its bank account to make HOMEE whole, and the HOMEE Pro authorizes the financial institutions that hold its bank account to deduct such payments.
7.5 Setoffs. HOMEE shall have the right at any time to set-off any amounts due to the HOMEE Pro against any amounts owed by the HOMEE Pro or its Affiliated Individuals with respect to other Work Orders fulfilled by the HOMEE Pro or any other contractual agreement between the Parties hereto, unless such set-off violates the Applicable Laws.
8. Independent Contractor/Subcontractor Relationship. This Agreement is not intended to create, and does not create any partnership, joint venture, agency, fiduciary, employment, or other relationship between the Parties, beyond the relationship of independent parties to a commercial contract. Neither Party is, nor will either Party hold itself out to be, vested with any authority to bind the other party contractually, or to act on behalf of the other Party as a broker, agent, or otherwise.
The subcontracted HOMEE Pro shall perform the services required by this Agreement under the general direction of HOMEE, subject to approval of the Customer or other specified representative of Customer, so HOMEE may fulfill obligations to the Customer. HOMEE shall have no right to, and shall not, control the manner or prescribe the method the HOMEE Pro uses to fulfill services on accepted Jobs, subject to the terms of this Agreement and Ancillary Documents. The HOMEE Pro shall be solely responsible for determining the most effective, efficient and safe manner to perform the Job, 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 HOMEE have been inserted solely to achieve compliance with federal, state, or local laws, rules, and interpretations thereof.
9. Non-Exclusivity. This Agreement is non-exclusive, and HOMEE, without notice, may use other service providers to perform the same or similar Jobs described in this Agreement. Similarly, the HOMEE Pro may perform like Jobs for others, so long as the performance of such other services does not impair the HOMEE Pro’s ability to fulfill its obligations under this Agreement or any Work Order accepted or otherwise cause the HOMEE Pro to breach this Agreement. The HOMEE Pro understands that it shall not during the term of this Agreement use its relationship with HOMEE (or the Confidential Information gained therefrom) to divert or attempt to divert any business from HOMEE to a company that provides services in competition with HOMEE.
10. Confidentiality; Publicity; Ownership of Works.
10.1 Confidentiality. HOMEE Pro acknowledges that performance under this Agreement will give the HOMEE Pro and its Affiliated Individuals 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”). HOMEE Pro 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. HOMEE Pro will inform its Affiliated Individuals about the confidential and proprietary nature of the Confidential Information to which they may be exposed and will ensure that Affiliated Individuals (i) keep Confidential Information strictly confidential, and safeguard and protect the Confidential Information from theft, piracy, or unauthorized access in a commercially reasonable manner, (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 10. “Confidential Information” shall include, without limitation, information disclosed to, made available to, or obtained by the HOMEE Pro 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 HOMEE Pro 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, Customers or Participating Insurer. 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, Customers and Participating Insurers 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 Account ID and passwords HOMEE provides You for access to the HOMEE Platform; 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).
10.2 Required Disclosures. If HOMEE Pro receives a subpoena or other validly issued administrative or judicial process demanding information about this Agreement and/or Confidential Information, HOMEE Pro must immediately notify in writing and tender the process for defense to HOMEE. Unless it has been timely limited, quashed, or extended, HOMEE Pro will thereafter be entitled to comply with such process to the extent required by law. If requested, HOMEE Pro will cooperate in the response to such process or any demand related thereto.
10.3 Injunctive Relief. The HOMEE Pro acknowledges and agrees that in the event of the HOMEE Pro or Affiliated Individual’s breach of the confidentiality provisions of this Section 10, HOMEE and the Participating Insurer will each suffer irreparable injuries not compensated by money damages and therefore shall not have an adequate remedy at law. Accordingly, HOMEE and the Participating Insurer shall each be entitled to a preliminary and final injunction, without the necessity of posting any bond or undertaking in connection therewith, to prevent any further breach of these confidentiality obligation or further unauthorized use of Confidential Information. This remedy is separate and apart from any other remedy that HOMEE or the Participating Insurer may have.
10.4 Publicity. HOMEE Pro 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. HOMEE Pro will immediately inform HOMEE if it believes that the issuance of any press or other media release is required by operation of Applicable Laws.
10.5 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 HOMEE Pro or any Affiliated Individual for HOMEE in furtherance of the Parties’ obligations under this Agreement. HOMEE Pro 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.
11. Third-Party Beneficiaries. Except as provided in this Section 11, 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 Participating Insurers in which HOMEE has agreed to designate as a third-party beneficiary in a written and executed contract (collectively “Designated Business Partners”). HOMEE Pro acknowledges and agrees Designated Business Partners are third-party beneficiaries of this Agreement for those Jobs accepted 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.
12.1 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS, HOMEE PRO SHALL DEFEND, INDEMNIFY, AND HOLD HOMEE, THE CUSTOMER, AND PARTICIPATING INSURER 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 JOB AND/OR ASSIGNED WORK ORDER PERFORMED BY HOMEE PRO OR ANY OF ITS AFFILIATED INDIVIDUALS (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.
12.2 BY WAY OF EXAMPLE AND NOT LIMITATION, THE HOMEE PRO 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:
12.2.1 THE INACCURACY, UNTRUTHFULNESS, OR BREACH OF ANY REPRESENTATION, COVENANT, WARRANTY, OR ANY OTHER AGREEMENT SET FORTH IN THIS AGREEMENT BY HOMEE PRO AND/OR ITS AFFILIATED INDIVIDUALS;
12.2.2 PERSONAL INJURY (INCLUDING WITHOUT LIMITATION, DEATH AND EMOTIONAL DISTRESS OR INJURY) ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS OF HOMEE PRO AND/OR ITS AFFILIATED INDIVIDUALS WHILE PERFORMING SERVICES PURSUANT TO ANY JOB SET FORTH IN THE APPLICABLE WORK ORDER;
12.2.3 PROPERTY LOSS OR DAMAGE ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS OF HOMEE PRO AND/OR IITS AFFILIATED INDIVIDUALS WHILE PERFORMING SERVICES PURSUANT TO ANY JOB SET FORTH IN THE APPLICABLE WORK ORDER;
12.2.4 NONCOMPLIANCE BY HOMEE PRO AND/OR ANY AFFILIATED INDIVIDUAL WITH ANY APPLICABLE LAWS;
12.2.5 ANY HAZARDOUS MATERIAL (AS THAT TERM IS DEFINED BY APPLICABLE LAWS) BROUGHT TO THE CUSTOMER’S PROPERTY OR RELEASED BY THE NEGLIGENCE OF HOMEE PRO AND/OR ITS AFFILIATED INDIVIDUALS;
12.2.6 INFRINGEMENT OF THE INTELLECTUAL PROPERTY, PROPRIETARY, OR OTHER RIGHTS OF ANY THIRD PARTY BY HOMEE PRO AND/OR ANY OF ITS AFFILIATED INDIVIDUALS;
12.2.7 THE FAILURE OF HOMEE PRO AND/OR AFFILIATED INDIVIDUALS TO PERFORM INSPECTIONS OR OBTAIN AND MAINTAIN LICENSES OR PERMITS REQUIRED BY APPLICABLE LAWS;
12.2.8 THE SUPPLY OF FALSE OR INACCURATE BACKGROUND INFORMATION OR THE GATHERING AND/OR USE OF BACKGROUND INVESTIGATION INFORMATION;
12.2.9 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;
12.2.10 THE FAILURE OF HOMEE PRO TO COMPLY WITH APPLICABLE LAWS RELATING TO IMMIGRATION;
12.2.11 THE UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION BY HOMEE PRO AND/OR ANY OF ITS AFFILIATED INDIVIDUALS;
12.2.12 ANY PROPERTY ENCUMBRANCE RESULTING FROM ANY ALLEGED FAILURE OF HOMEE PRO OR ANY OF ITS AFFILIATED INDIVIDUALS, TO PAY FOR ANY PORTION OF THE SERVICES, WHETHER VALID OR NOT;
12.2.13 ANY MATERIAL BREACH OF THIS AGREEMENT OR AN ACCEPTED WORK ORDER; OR
12.2.14 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 HOMEE PRO OR ANY AFFILIATED INDIVIDUAL, CLAIMING AN EMPLOYMENT OR OTHER RELATIONSHIP WITH HOMEE PRO 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 12.1 and/or Section 12.2, such legal limitations are made a part of the indemnification obligation to the minimum extent necessary to bring Section 12.1 and/or Section 12.2 into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect.
The HOMEE Pro’s obligations under Sections 12.1 and 12.2 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.
12.3 Right to Assume Defense. With respect to any third-party claims for which Indemnitees are entitled to indemnification from HOMEE Pro, 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 HOMEE Pro to pay for the obligations of HOMEE Pro under Section 12.
12.4 Defense of Claims. HOMEE Pro’s duty to defend arises immediately upon the presentation of a third-party claim to the HOMEE Pro. With respect to any third-party claim for which indemnification is sought under this Section 12, Indemnitees shall provide prompt written notice of the third-party claim to HOMEE Pro; and HOMEE Pro 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. HOMEE Pro expressly agrees to do the following in connection with the conduct of the defense of any third-party claim:
12.4.1 Inform the Indemnitees in writing about all material information pertaining to a third party claim;
12.4.2 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;
12.4.3 Choose defense counsel that is reasonably satisfactory to the Indemnitees;
12.4.4 Provide Indemnitees with copies of all discovery requests within five (5) days of HOMEE Pro’s receipt of same;
12.4.5 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
12.4.6 Inform the Indemnitees of the outcome of any mediation, arbitration, motion, trial, settlement, or any other matter from which appeal rights could arise.
12.5 No Settlement Without Consent. HOMEE Pro will not enter into any settlement or compromise of a claim without first obtaining the Indemnitees’ prior written consent.
12.6 Indemnification in Addition to Insurance. The presence or absence and/or applicability or non-applicability of HOMEE Pro’s insurance coverage does not in any way limit HOMEE Pro’s obligation to indemnify, defend, and hold the Indemnitees harmless pursuant to the terms of this Section 12.
12.7 Conflicts of Interest. If counsel retained by the HOMEE Pro 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 HOMEE Pro’s expense, to defend Indemnitees. HOMEE Pro 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 HOMEE Pro hereby waives any alleged conflict of interest allegations relating to same.
13. Intellectual Property. 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. HOMEE Pro acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided 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 the HOMEE Pro.
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 HOMEE Pro, HOMEE grants to you, during the Term of this Agreement, and subject to compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Works and the HOMEE Marks solely on the HOMEE stickers/decals, apparel, and any other HOMEE-branded items provided by HOMEE directly to you in connection with fulfilling Jobs (“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. The HOMEE Pro may identify itself 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.
The HOMEE Pro acknowledges that HOMEE is the owner and licensor of the Works and 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. HOMEE Pro agrees to use the HOMEE logo strictly in accordance with HOMEE’s Brand Guidelines, as may be provided in Ancillary Documents and revised from time to time, and to immediately cease any use that HOMEE determines to nonconforming or otherwise unacceptable.
HOMEE Pro agrees that it 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), the HOMEE Pro agrees 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. The HOMEE Pro further agrees to assign any interest or right it 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.
14. Credentialing. HOMEE contracts with a third-party that provides subcontractor credentialing services (a “Credentialing Contractor”). HOMEE Pro, its employees and agents shall cooperate with the credentialing process; provide all information and documentation requested by Credentialing Contractor to complete this process; and pay Credentialing Contractor’s fees for providing this service. The registration and approval should be completed prior to HOMEE Pro performing any services on any accepted Work Orders hereunder; no HOMEE Pro employee, agent or representative will be allowed access to the HOMEE Platform unless and until the credentialing process is complete. Failure of HOMEE Pro, its employees and/or agents to complete the credentialing process and to comply with the terms and requirements imposed pursuant to the credentialing process and program shall be a material breach of this Agreement. All employees, representatives and/or agents of HOMEE Pro, while on a Job site at any Customer’s property, shall comply with and abide by HOMEE’s policies and procedures, of which they are made aware. HOMEE reserves the right to immediately remove from a Customer’s property any HOMEE Pro employee, agent, authorized representative or permitted subcontractor if, in HOMEE’s sole discretion, that course of action is in the best interest of HOMEE, its employees, Customers, or Participating Insurer, or if any of the requirements in this Section 14 are not complied with.
15.1 Insurance Coverage Requirements. HOMEE Pro will procure and maintain at all times throughout the Term of this Agreement, (1) commercial general liability, (2) automobile liability, and (3) workers’ compensation insurance policies with coverage amounts on an occurrence basis containing limits no less than the amounts specified in the Insurance Requirements section of the applicable HOMEE Pro Guidelines. The insurance will not include any exceptions and/or exclusions that limit or minimize the coverages for the Job. Product-completed operations endorsements are required. Workers’ compensation insurance is required in every state in which the HOMEE Pro performs services on a Job. HOMEE Pro shall cause its applicable Affiliated Individuals to provide, pay for, and maintain at all times while performing services with HOMEE Pro, commercial general liability, automobile liability, and workers compensation insurance with commercially reasonable limits and coverages for their respective scope of the Job. To avoid all doubt, the insurance coverages set forth herein and further detailed in the HOMEE Pro Guidelines are considered aspects of the Minimum Eligibility Criteria enabling access to the HOMEE Platform and failure to maintain such coverages is a breach of this Agreement and an “Event of Default” as set forth in Section 17 below.
15.2 Risk of Loss. As of the Effective Date and continuing throughout the Term, each Party to this Agreement will be responsible for risk of physical or actual loss of and damage to any property, equipment, merchandise, or any other items or information in its possession or under its control. As between HOMEE Pro and Customer, the risk of loss shall not pass to Customer until the Job has been completed and accepted by the Customer. Risk of loss shall revert to HOMEE Pro upon Customer’s rejection of defective or non-conforming services, even if such equipment, merchandise or any other item is stored at property owned by Customer.
16. Disclaimers and Limitations of Liability.
16.1 LIABILITY FOR ACTUAL DAMAGES ONLY. EXCEPT IN CONNECTION WITH HOMEE PRO’S BREACH OF CONFIDENTIALITY, FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY INDEMNIFICATION OBLIGATION OWED HEREIN BY HOMEE PRO, 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 TRANSACTIONS PURSUANT 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.
16.2 HOMEE’S MAXIMUM LIABILITY. HOMEE’S MAXIMUM LIABILITY TO HOMEE PRO 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 HOMEE PRO BY HOMEE IN PAYMENT FOR HOMEE PRO’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 HOMEE PRO AGREES TO BRING ANY TYPE OF CLAIM AGAINST HOMEE WITHIN THAT ONE (1) YEAR TIME PERIOD. THE HOMEE PRO HEREBY WAIVES ANY RIGHT UNDER ANY STATUTE OF LIMITATIONS TO BRING ANY CLAIM ARTER SUCH ONE (1) YEAR TIME PERIOD.
16.3 CLAIMS AGAINST HOMEE ONLY. HOMEE PRO AGREES THAT ITS SOLE RECOURSE FOR CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT AND/OR ANY JOBS UNDERTKEN WILL BE AGAINST ONLY HOMEE OR HOMEE’S SUCCESSORS AND ASSIGNS. IN NO EVENT WILL THE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTICIPATING INSURERS, OR CUSTOMERS OF HOMEE BE PERSONALLY LIABLE OR NAMED AS PARTIES IN ANY ACTION BY HOMEE PRO. HOMEE PRO FURTHER AGREES THAT IT WILL STIPULATE TO A DISMISSAL WITH PREJUDICE OF ANY CLAIM BROUGHT CONTRARY TO THIS SECTION.
16.4 HOMEE PLATFORM PARTICIPATION.
16.4.1 THE HOMEE PRO’S PARTICIPATION IN THE HOMEE PLATFORM IS AT ITS SOLE RISK. THE HOMEE PRO IS RESPONSIBLE FOR DETERMINING WHETHER TO PARTICIPATE IN THE HOMEE PLATFORM.
16.4.2 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, HOMEE, ITS AFFILIATED COMPANIES, THE HOMEE PLATFORM, ANY PERSON PROVIDING SERVICES TO HOMEE, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, MANAGERS, EMPLOYEES AND OTHER REPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
16.4.3 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, HOMEE MAKES NO REPRESENTATION OR WARRANTY THAT (I) THE HOMEE PLATFORM WILL MEET THE HOMEE PRO’S REQUIREMENTS, (II) THE HOMEE PLATFORM WILL BE UNINTERRUPTED, (III) THE RESULTS THAT MAY BE OBTAINED FROM PARTICIPATION IN THE HOMEE PLATFORM WILL BE BENEFICIAL TO THE HOMEE PRO, OR THAT (IV) ANY ERRORS IN ANY OF THE SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY THE HOMEE PRO THROUGH THE HOMEE PLATFORM WILL BE CORRECTED.
16.4.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY THE HOMEE PRO THROUGH ITS PARTICIPATION IN THE HOMEE PLATFORM IS DONE AT THE HOMEE PRO’S DISCRETION AND RISK. THE HOMEE PRO WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE HOMEE PRO FROM ANY HOMEE PLATFORM USER OR THROUGH THE HOMEE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
16.4.5 HOMEE SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO, THE HOMEE PRO’S PARTICIPATION IN THE HOMEE PLATFORM OR THE HOMEE PRO’S DEALINGS WITH PARTICIPATING INSURERS OR CUSTOMERS IN CONNECTION WITH THE HOMEE PLATFORM, INCLUDING ANY LIABILITY (I) AS A PUBLISHER OF INFORMATION, (II) FOR ANY INCORRECT OR INACCURATE INFORMATION, (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF THE HOMEE PRO’S TRANSMISSIONS OR DATA, (IV) FOR STATEMENTS OR CONDUCT OF ANY PARTICIPATING INSURED OR ANY THIRD PARTY, OR (VII) FOR ANY OTHER MATTER RELATING TO THE HOMEE PLATFORM. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HOMEE AND THE HOMEE PRO. THE INFORMATION AND SERVICES OFFERED IN CONNECTION WITH THE HOMEE PLATFORM WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO THE HOMEE NETWORK SERVICE PROVIDER. IN SUCH JURISDICTIONS, THE DISCLAIMER AND THE LIMITATIONS AND EXCLUSIONS OF LIABILITY ARE APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
17. Events of Default. The occurrence of any of the following will be deemed an “Event of Default”:
17.1 Compliance. The failure of HOMEE Pro 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 HOMEE Pro’s obligations under this Agreement; (iv) seek payment of fees (or any portion thereof) directly from a Customer and outside the HOMEE Platform; or, (v) complete a Job as stated within a Work Order, 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.
17.2 Corrections. The failure of HOMEE Pro 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 the HOMEE Pro or its Affiliated Individuals, within the time period specified by HOMEE in its sole discretion.
17.3 Loss of Applicable License. Failure by the HOMEE Pro to maintain all service licenses and/or other business licenses and permits required by Applicable Law and/or this Agreement necessary for the HOMEE Pro to legally perform Jobs.
17.4 Payment to Others. The failure of HOMEE Pro to pay any of its Affiliated Individuals which failure results in the actual or threatened placement of an Encumbrance on or against any property or account of HOMEE or any Customer.
17.5 Insurance. The failure of HOMEE Pro to procure or maintain insurance coverages as provided in the Ancillary Document to this Agreement.
17.6 Liens. The failure of HOMEE Pro to satisfy, discharge, or release any Encumbrance filed and/or recorded against any property of any Customer in connection with Work Orders performed by HOMEE Pro or its Affiliated Individuals within five (5) business days of the date that HOMEE Pro is first made aware of such.
17.7 Creditors and Bankruptcy. (i) The making by HOMEE Pro of an assignment for the benefit of creditors; (ii) the institution of a judicial proceeding for the reorganization, liquidation, or involuntary dissolution of HOMEE Pro 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.
18. Remedies for Breach or Events of Default.
18.1 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 18 and 17 may be provided by HOMEE via email or pursuant to Section 22.2 below. The time period for cure of an Event of Default under any provision of Section 17 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, HOMEE Pro 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 the HOMEE Pro an opportunity to cure a Job, including without limitation, (a) rejected, defective, or nonconforming workmanship, or (b) defective or nonconforming products or materials, HOMEE Pro waives any opportunity to cure, and HOMEE may proceed with remedies under Section 18.2.
18.2 Failure to Cure. If the HOMEE Pro fails to cure within the applicable cure time period, HOMEE may exercise one or more of the following remedies without any liability to the HOMEE Pro:
18.2.1 Reject, in whole or in part, HOMEE Pro’s submission for payment with respect to a Job 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;
18.2.2 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;
18.2.3 Suspend HOMEE Pro from the HOMEE Platform and deactivate User Account on the HOMEE Platform until HOMEE Pro is no longer in breach of this Agreement or the Event of Default is cured;
18.2.4 Retain a third party to cure the breach or end the Event of Default at the HOMEE Pro’s sole expense, which expense HOMEE may offset against any sums due or that thereafter become due to the HOMEE Pro or otherwise recover from the HOMEE Pro; or
18.2.5 Terminate this Agreement immediately upon written notice to HOMEE Pro.
18.3 Cure of Remedies. HOMEE Pro’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).
18.4 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 HOMEE Pro, and HOMEE may proceed immediately with one or more of the applicable remedies in Section 18.2 and/or pursue any remedies available at law or equity.
19. Term and Termination.
19.1 Term. This Agreement will take effect on the Effective Date and remain in force until terminated by the HOMEE Pro or HOMEE in accordance with this Section 19 (“Term”). The Parties may not terminate this Agreement except as set forth in this Section 19.
19.2 Termination for Breach or Default.
19.2.1 Termination by HOMEE. 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 HOMEE reasonably concludes that: (i) the HOMEE Pro or any of its Affiliated Individuals have engaged in fraud; (ii) the HOMEE Pro has breached this Agreement; (iii) the HOMEE Pro has failed to satisfy the Minimum Eligibility Criteria; (iv) the HOMEE Pro has failed to purchase or maintain policies of insurance as required in the Minimum Eligibility Criteria; (v) the HOMEE Pro or any of its Affiliated Individuals has been disciplined or threatened with disciplinary action by any governmental authority or agency; (vi) the HOMEE Pro or any of its Affiliated Individuals commits professional misconduct or violates any principles of professional ethics; (vii) there are an excessive number of professional liability claims filed or resolved against the HOMEE Pro; (viii) the HOMEE Pro or any of its Affiliated Individuals are subject to an indictment or information for a felony.
19.2.2 Termination by HOMEE Pro. Except as specifically provided herein, the HOMEE Pro may terminate this Agreement for cause upon the breach of this Agreement by HOMEE not remedied within fifteen (15) days (or the specified cure period) after HOMEE’s receipt of written notice.
19.3 Termination For Convenience. Either Party may terminate this Agreement immediately by written notice to the other Party.
19.4 HOMEE Pro’s Obligations upon Termination. Upon receipt of HOMEE’s written notice to terminate for convenience, HOMEE Pro must:
19.4.1 Complete all or any portion of a Work Order in accordance with the time frame provided in the notice given by HOMEE, unless HOMEE, in its sole discretion, directs the HOMEE Pro to stop all services associated with Work Orders in progress and remove from the Customer’s property all HOMEE Pro’s Affiliated Individuals, tools, and equipment;
19.4.2 Immediately cancel or terminate all applicable Affiliated Individuals agreements at HOMEE Pro’s cost, unless HOMEE, in its sole discretion, provides for additional time to complete accepted Work Orders in progress, in which case all such agreements shall be canceled at HOMEE Pro’s cost upon completion of the applicable Work Orders.
19.4.3 Return to HOMEE any and all property of HOMEE, including without limitation any Confidential Information, issued badges, and/or Customer information in HOMEE Pro’s possession, control or custody within five (5) calendar days after termination of the Agreement;
19.4.4 Stop making any representations of any nature that the HOMEE Pro is, or at any time was, in a business relationship with HOMEE, except as reasonably necessary to fulfill any surviving obligations under this Agreement;
19.4.5 Retain business records pertaining to HOMEE Pro’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;
19.4.6 Timely satisfy all obligations under this Agreement still in effect.
19.5 HOMEE’s Obligations upon Termination. Upon termination or expiration of this Agreement for any reason, HOMEE must:
19.5.1 Pay all undisputed sums due HOMEE Pro that are not otherwise subject to any offset rights provided in this Agreement;
19.5.2 Return to HOMEE Pro any and all property of HOMEE Pro in HOMEE’s possession or control within thirty (30) calendar days after termination or expiration of the Agreement.
19.6 Retainage. Notwithstanding the obligations set forth herein, HOMEE may withhold any payments due HOMEE Pro for forty-five (45) calendar days after termination to offset any amounts which are due or may become due from HOMEE Pro to HOMEE.
20. Title and Risk of Loss. HOMEE Pro warrants that title to any materials, services, goods, equipment or other items that comprise part of the Job (the “Materials”) shall pass from HOMEE Pro to Customer free and clear of any lien, claim or encumbrance upon the earlier of (1) HOMEE’s partial or full payment to HOMEE Pro for such Materials; or (2) delivery of the Materials to Customer’s location. Notwithstanding the forgoing, risk of loss shall not pass from the HOMEE Pro to Customer until such Materials are delivered and accepted by Customer. Shipment shall be F.O.B. HOMEE Pro’s delivery location, unless otherwise noted. Risk of loss shall revert to HOMEE Pro upon Customer’s rejection of defective or non-conforming Materials, even if stored at Customer’s designated delivery location.
21. Dispute Resolution and Arbitration.
21.1 Agreement to Binding Arbitration. HOMEE PRO AND HOMEE MUTUALLY AGREE TO WAIVE THEIR 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 HOMEE Pro’s 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 the Parties, including HOMEE’s affiliates, subsidiaries, parents, successors and assigns, and each of its respective officers, directors, employees, agents, or shareholders. This Arbitration Provision also applies to claims between HOMEE Pro 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 THE PARTIES (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN THE HOMEE PRO 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 through the HOMEE Platform, HOMEE promotions, gift card, referrals or loyalty programs, any other goods or services made available through the HOMEE Platform, HOMEE Pro’s 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 the HOMEE Pro or any payments made or allegedly owed to the HOMEE Pro, 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, HOMEE PRO UNDERSTANDS THAT IT 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.
21.2 Prohibition of Class Actions and Non-Individualized Relief. HOMEE PRO UNDERSTANDS AND AGREES THAT IT 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”). THE PARTIES EACH UNDERSTAND AND AGREE THAT THEY 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 (20.2) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST HOMEE, WHICH ARE ADDRESSED SEPARATELY IN SECTION 21.3.
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.
21.3 Representative PAGA Waiver. Notwithstanding any other aspect of this Agreement or the Arbitration Provision, to the fullest extent permitted by law: (1) The Parties 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 Parties 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.
21.4 Arbitration Fees and Awards. The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
21.4.1 If HOMEE initiates arbitration under this Arbitration Provision, HOMEE will pay all AAA filing and arbitration fees.
21.4.2 With respect to any Claims brought by HOMEE against a HOMEE Pro, or for Claims brought by a HOMEE Pro against HOMEE that: (A) are based on an alleged employment relationship between HOMEE and a HOMEE Pro; (B) arise out of, or relate to, HOMEE’s actual deactivation of a HOMEE Pro’s User Account or a threat by HOMEE to deactivate a HOMEE Pro’s User Account; (C) arise out of, or relate to, HOMEE’s actual termination of a HOMEE Pro’s Agreement with HOMEE under the termination provisions of this Agreement, or a threat by HOMEE to terminate a HOMEE Pro’s Agreement; (D) arise out of, or relate to, any fees owed by HOMEE to HOMEE Pro 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 inclusion onto the HOMEE Platform to become a HOMEE Pro (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 the HOMEE Pro is the party initiating the Provider Claim, the HOMEE Pro 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 they provide services to Customers, unless a lower fee amount would be owed by the HOMEE Pro pursuant to the AAA Rules or applicable law. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this subsection 21.4.2, the term “HOMEE Pro” shall be deemed to include those applicants who have not been approved to be included in the HOMEE Platform.
21.4.3 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.).
21.4.4 At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the HOMEE Pro if they are the prevailing party, to the extent authorized by applicable law.
21.4.5 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 the HOMEE Pro is 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)).
21.4.6 If the arbitrator issues the HOMEE Pro an award that is greater than the value of HOMEE’s last written settlement offer made after the HOMEE Pro participated in good faith in the optional Negotiation process described in subsection 21.9 below, then HOMEE will pay the HOMEE Pro the amount of the award or U.S. $1,000, whichever is greater.
21.5 Location and Manner of Arbitration. Unless the Parties agree otherwise, any arbitration hearings between HOMEE and a HOMEE Pro will take place in the county in which the HOMEE Pro is registered to perform Jobs. If AAA arbitration is unavailable in the county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. The HOMEE Pro’s right to a hearing will be determined by the applicable AAA Rules.
21.6 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 21.3 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 Jobs. 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 21.2), or of the enforceability of this Arbitration Provision as to any other dispute, claim, or controversy.
Nothing in this Arbitration Provision prevents the HOMEE Pro 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 HOMEE Pro bring an administrative claim, they may only seek or recover money damages of any type pursuant to this Arbitration Provision, and HOMEE Pro knowingly and voluntarily waives 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 HOMEE Pro participate in an NLRB proceeding, they 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 HOMEE Pro. Similarly, HOMEE Pro may not recover money damages under this Arbitration Provision if they have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Provision prevents participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
21.7 Severability. Except as otherwise provided in the severability provisions in subsections 21.2 -Prohibition of Class Action and Non-individualized Relief and 20.3- 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.
21.8 Opting Out of Arbitration for Provider Claims. A HOMEE Pro or applicant to become a HOMEE Pro may opt out of the requirement to arbitrate Provider Claims defined in Section 21.4.2 pursuant to the terms of this subsection. In order to effectively opt out the HOMEE Pro must provide written notice to HOMEE and include the following: (A) the writing must clearly indicate HOMEE Pro’s 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 the HOMEE Pro’s User Account, and (C) the email containing the signed writing must be sent within 30 days of the date this Agreement is executed by the HOMEE Pro. Should HOMEE Pro not opt out within the 30-day period, the Parties shall be bound by the terms of this Arbitration Provision in full.
The HOMEE Pro 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 the HOMEE Pro’s behalf, and which, if successful, could result in some monetary recovery. But if the HOMEE Pro agrees to arbitration of Provider Claims with HOMEE under this Arbitration Provision, they are agreeing in advance to bring all such claims, and seek all monetary and other relief, against HOMEE in an individual arbitration. HOMEE Pro is also agreeing in advance that they 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. HOMEE Pro has the right to consult with counsel of its choice concerning this Arbitration Provision and HOMEE Pro will not be subject to retaliation if it exercises its right to assert claims or opt-out of any Provider Claims under this Arbitration Provision.
21.9 Optional Pre-Arbitration Negotiation Process. Before initiating any arbitration or proceeding, the Parties agree to first attempt to negotiate any dispute, claim or controversy informally for 30 days, unless this time period is mutually extended by the Parties. 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.
22. General Provisions.
22.1 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.
22.2 Notice. 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 HOMEE Pro shall be provided via the email address associated with the HOMEE Pro’s HOMEE Platform User Account. Notice to HOMEE shall be provided as follows:
1413 S. Howard Ave., STE 220
Tampa, FL 33606
22.3 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 21.1 will govern the interpretation and enforcement of the Arbitration Provision of this Agreement and any forum selection clauses relating thereto. The Parties agree that regardless of any statute or law to the contrary, any claim or cause of action the HOMEE Pro brings arising out of or related to the HOMEE Pro’s use of the HOMEE Platform, this Agreement, or the relationship of the Parties shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
22.4 Assignment; Change of Ownership or Control. HOMEE Pro 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 HOMEE Pro 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 HOMEE Pro. Any permitted assignment will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
22.5 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.
22.6 Waiver. Neither Party shall be deemed to have waived any of its rights, powers, or remedies hereunder, except in an express writing signed by an authorized agent or representative of the party to be charged.
22.7 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.
22.8 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, 3.4, 3.5, 3.6, 3.7, 3.8, 4, 6, 7, 8, 10, 11, 12, 13, 16, 21, 22.2, 22.3, 22.6, 22.7, and 22.8.