Updated: January 19, 2024
Upkid, Inc. (“Upkid,” “we,” “us,” or the “Company”) is a software company that created and maintains an online marketplace for jobs. Customers with access to the marketplace (“Customers”) can use the Upkid Platform (defined below) to connect with geographically distributed independent contractors (“Upkid Teachers” or “you”) seeking short-term jobs. Upkid Teachers with access to the marketplace can use Upkid’s App (the “Upkid App”, “Upkid Mobile Application”, “Upkid Web Application” or the “Application”) to find, review, and, if they so choose, select among requests for services from Customers at their discretion.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION THAT REQUIRES YOU AND UPKID TO RESOLVE COVERED DISPUTES THROUGH ARBITRATION ON AN INDIVIDUAL BASIS, RATHER THAN THROUGH JUDGE OR JURY TRIALS.
Acknowledgment and Acceptance of Independent Contractor Services Agreement (Terms of Use)
This Independent Contractor Services Agreement (the “Terms of Use” or the “Agreement”) constitutes an electronic contract that sets forth the legally binding terms of the contractual relationship between Upkid and you, and governs both your use of the Application and the services you perform or provide in connection with your use of the Application. By registering to become an Upkid Teacher, you accept and agree to be bound by the terms of this Agreement. Please read this Agreement carefully. By accessing the Application, accepting a Request, or becoming an Upkid Teacher, you accept this Agreement and agree to the terms, conditions, and notices contained and/or referenced herein.
Except as otherwise set forth below, Upkid reserves the right to change this Agreement, and to add additional terms at any time, effective upon making the modified provisions available on the Application or by notifying you directly. You are responsible for regularly reviewing the Agreement for modifications and updates to its terms. Continued use of the Application after any such changes are made to this Agreement shall constitute your consent to such changes. Other than making the changes available on the Application, Upkid does not assume any obligation to notify you of any changes to this Agreement, or the creation or modification of any additional terms.
Notwithstanding the previous paragraph or any contrary language in this Agreement, in the event that Upkid modifies the Arbitration Provision in Section 9 of this Agreement, such modifications shall be binding on you only upon your acceptance (electronically or otherwise) of the modified Agreement.
You acknowledge that you are able to electronically receive, download, and print this Agreement, any related terms, notices, and forms (including IRS Form 1099-NEC or Form 1099-MISC), any other notices or documents incorporated into this Agreement by reference, any amendments to this Agreement, and any other items or documents required by regulation or law. Further, you agree to keep the contact information in your Upkid account, including, without limitation, your email address, physical mailing address, and phone number, current at all times.
Only individuals who can form legally binding contracts under applicable law are permitted to use the Application. Without limiting the foregoing, you must be at least 18 years old [or the age of legal majority in the jurisdiction in which you work] and legally authorized to work in the United States to become an Upkid Teacher. If you do not meet these criteria, you may not register to become an Upkid Teacher.
1. Definitions
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Services” means the services described in a Request for services to be performed or provided by an Upkid Teacher to or for a Customer.
1.2 “Request” means information that is provided by or on behalf of a Customer that is made available, through the Application, to one or more Upkid Teachers, which includes a description of the services to be performed or provided by the Upkid Teacher(s), the times at which the Request begins and is to be completed (unless the Customer does not establish any set times), and the fee associated with the Request (the “Payment”). An open request is a Request for services that has not yet been accepted by an Upkid Teacher (“Open Request”). Upkid Teachers can use the Application to find, review, and, if they so choose, select among Open Requests at their discretion. Once an Upkid Teacher has accepted a Request pursuant to Section 2, the Request will become an “Engagement.” You acknowledge and agree that in limited instances where a Request has been posted with an erroneous fee amount (i.e., an amount in which the job is posted at a rate of pay that is more than double the average rate of pay posted by the Customer for similar jobs), the Customer may adjust the fee to the lesser of (i) no less than one hundred twenty percent (120%) of the average rate of pay for similar jobs the Customer has posted within the last sixty (60) days, or (ii) thirty dollars ($30) dollars per hour.
1.3 “Upkid App” or “Application” means the software application owned and operated by Upkid in connection with the Upkid marketplace.
2. Upkid Teachers
2.1 Customer Conditional Offer Specifications and Privacy Information. Some customers may require that you complete certain steps or meet certain specifications after you accept, but before you perform, a Request (“Conditional Offer Specifications”). You will receive notice of any Conditional Offer Specifications after you accept the Request. Failure to complete or meet such Conditional Offer Specifications to the satisfaction of the Customer will result in your inability to perform the accepted Request. Please note that some of the Conditional Offer Specifications will require Upkid or a designated third-party provider to ask for your social security number and share it with entities who require the information to facilitate the Conditional Offer Specifications. Upkid may also share your social security number with a third-party payment processor, such as Stripe, in order to verify your payment account and to ensure the safety of your account.
Washington Users: Upkid complies with state and local laws limiting pre-employment inquiries related to criminal arrests or convictions, including Washington’s Fair Chance Act, RCW 49.94.010. Upkid does not permit Customers to use criminal background checks to automatically or categorically exclude Upkid Teachers just because they have a record of citation, arrest, or conviction for criminal conduct.
2.2 Best Efforts. By registering to use the Application as an Upkid Teacher, and by accepting an Open Request, you agree to use your best efforts to perform the Engagement such that the Services meet the specifications of the Customer that created the Open Request. Once an Upkid Teacher has accepted a Request, the Open Request will no longer be available for performance by other Upkid Teachers who accessed the Open Request. By accepting an Open Request, you are entering into a binding legal agreement to provide the Services for the Payment specified in the Open Request. Accordingly, you agree not to accept an Open Request unless: (1) you understand what the Customer has asked you to deliver; (2) you possess the skills and expertise needed to perform the Services identified in the Open Request; (3) you are able to deliver the Services in the time period requested by the Customer; and (4) you are able to travel to and from the Customer’s location, as needed. You further acknowledge and agree that if you fail to arrive at the Customer location by the specified start time as noted in the Request, the Customer may cancel the Request without any penalty. Failure to timely deliver the Services consistent with the Customer’s specifications will constitute a breach, resulting in non-payment. Further, in the event of such a breach, you will be responsible for payment of any additional fees (e.g., rush fees) or costs incurred as a result of your failure to timely complete the Open Request in accordance with the Customer specifications. You agree to not possess, sell, receive, or operate under the influence of any drugs or alcohol while performing any Engagement.
3. Independent Contractor Relationship
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Upkid and you, or between any Customers and you. You acknowledge and agree that you are, and that you specifically desire and intend to operate as, an independent contractor, and not an employee. Accordingly, you agree not to take any position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Upkid or Customers in connection with your use of the Application, that is inconsistent with your independent contractor status. You acknowledge and agree that you are not the agent of Upkid nor any Customer, and that you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of Upkid nor any Customer.
As an independent contractor, you have complete discretion to determine whether, when, where, and how often you make yourself available to accept Requests to perform or provide Services for Customers, and you are solely responsible for determining which Open Requests you will choose to accept (if any), and how you will perform or provide Services for Customers under this Agreement.
Except as you otherwise agree in connection with your acceptance of a Request, you shall have no obligation to be available to accept Requests or to perform or provide Services on any specific day, at any specific time, for any specific duration, for any specific Customer, or with any specific frequency.
Upkid does not and shall not restrict your right to provide services for, through, or arranged by other parties, including Upkid’s competitors. Indeed, as an independent contractor / business enterprise, Upkid expects that you will provide services for, through, or arranged by other parties.
You acknowledge and represent that you have the unfettered right to earn income and generate fees from other sources, and that Upkid does not guarantee you any minimum amount of Engagements.
Upkid does not and shall not direct, control, or supervise you in connection with your use of the Application and the Upkid Platform (defined below), including during your consideration and acceptance of any Requests, and during your performance or provision of Services for Customers.
Upkid does not and shall not limit or restrict your ability to hire or engage others in connection with your business operations.
Upkid does not and shall not provide a performance assessment for you, and does not and shall not oversee your work or instruct you as to how you are to perform or provide Services, or the method or process you use to perform Services.
Upkid does not pay a salary or hourly rate, but rather facilitates Customers’ payment of the rate they offer for the Services.
Upkid does not and shall not provide tools, equipment, or benefits to you, and Upkid will not reimburse any expenses you incur in performing or providing Services.
Upkid does not and shall not dictate the time of performance for any Request or Engagement.
Upkid does not and shall not combine its business operations in any way with your business, but instead shall maintain such operations as separate and distinct. You agree that you have no legal authority to enter into contracts on Upkid’s behalf or otherwise bind Upkid in any way.
You are responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the Services you render to Customers.
Without limiting the generality of the foregoing:
3.1 Benefits and Contributions. You acknowledge and agree that you are not entitled to or eligible for any benefits that Upkid, its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Upkid will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance, on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Upkid, or any affiliate of Upkid (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either any Customer and its parents, subsidiaries, affiliates or related entities or by Upkid, its parents, subsidiaries, affiliates or other related entities.
3.2 Taxes. You acknowledge and agree that you are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from Payments you receive in connection with Services you perform under this Agreement, and you agree to do so in a timely manner. You agree to comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS, Upkid will report Payments made to you for services you rendered during Engagements by filing Form 1099-NEC with the IRS. You consent to electronic delivery of Form 1099-NEC, if such form is required or filed. You agree to indemnify Upkid for the cost of any tax liabilities incurred by Upkid as a result of your failure to pay all applicable taxes in a timely manner.
3.3 Third Party Payment Processing Services. Payment processing services for Upkid Teachers are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). These documents can be found at the provided links or by using a search engine (such as Google or Bing) to seek the terms “Stripe Connected Account Agreement” or “Stripe Terms of Service,” respectively. By agreeing to these Terms of Use or continuing to operate as an Upkid Teacher, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Upkid enabling payment processing services through Stripe, you agree to provide Upkid accurate, truthful, and complete information about you and your business, and to regularly update your contact information (e.g., physical mailing and electronic mailing addresses), and you authorize Upkid to share that information and transaction information related to your use of the payment processing services provided by Stripe. You further authorize Upkid to electronically debit your Stripe account and, if necessary, electronically credit your account to correct erroneous debits.
4. Confidentiality, Privacy & Equality
4.1 Use and Disclosure. From time to time, you may be given access to confidential information in the course of performing Engagements. During the term of this Agreement and at all times thereafter, you agree to: (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Upkid’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Upkid’s or any Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Customers) that Upkid and/or the Customer considers to be confidential or proprietary or that Upkid has a duty to treat as confidential.
4.2 Standard of Care. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own and your business’s confidential or proprietary information of a similar nature, and with no less than reasonable care. You further agree to comply with the terms of the Upkid Acceptable Use Policy with respect to your use of Upkid’s networks, systems, application, and related services (collectively, the “Upkid Platform”), which can be found at https://upkid.com/legal/acceptable-use-policy. Further, you agree that you will comply with the terms of the Upkid Privacy Policy and Upkid Equality Policy, with respect to your use of the Upkid Platform, which can be found at https://upkid.com/legal/privacy-policy, and https://upkid.com/legal/equality, respectively. In addition, to the extent you agree to participate in any Upkid promotional offers, incentives, surveys, or related offerings, you acknowledge and agree that you are bound by (a) the general terms and conditions relating to Upkid promotions, incentives, surveys, and related offerings, which can be found at https://upkid.com/legal/upkid-standard-terms-and-conditions-for-incentives/ and https://upkid.com/legal/upkid-survey-giveaway-official-rules/, and (b) any supplemental terms and conditions relating to the specific offering(s) that Upkid provided or otherwise made available to you.
4.3 Exceptions. Your confidentiality obligations under Sections 4.1 and 4.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Upkid or a Customer’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. You may also disclose Confidential Information to the extent such disclosure is expressly approved in writing by Upkid, or is required by law or court order, provided that you immediately notify Upkid in writing of such required disclosure and cooperate with Upkid, at Upkid’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
4.4 Removal; Return. Upon Upkid’s request and upon any termination or expiration of this Agreement, you agree to promptly (a) return all Confidential Information to Upkid, or at Upkid’s request, destroy all Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Upkid in writing that you have fully complied with these obligations.
5. No Conflicts
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Engagement, or that is otherwise inconsistent with this Agreement or any Engagement.
6. Representations And Warranties
6.1 General. You represent, warrant, and covenant that:
(a) You have full right, power, and authority to enter into and perform under this Agreement without the consent of any third party;
(b) You will comply with all of the terms of this Agreement;
(c) You will meet the Customer specifications and other terms of any Request that you accept, and the Services you deliver to Customers will be of a professional and workmanlike quality;
(d) You will comply with all applicable laws, rules, and regulations in connection with your performance or provision of Services for Customers;
(e) Any workers that you may employ, engage, or otherwise retain to assist with the performance or provision of Services under this Agreement are properly classified and treated under any applicable laws and will assist with the performance of Services in a safe, lawful and workmanlike manner;
(f) You are not providing and will not provide labor or services to Upkid for remuneration, but rather, you can use the Application to find, review, and, if you wish, accept Requests posted by Customers, at your discretion;
(g) You will at all points remain free from the control and direction of Upkid in connection with your use of the Application and the Upkid Platform, including during your consideration and acceptance of any Requests, and during the performance of any Engagements;
(h) You recognize that Upkid is an online job marketplace and agree that Requests posted by Customers are for work that is outside the usual course of Upkid’s business;
(i) You are independently engaged in the business of providing the Services set forth in any Request you accept in connection with this Agreement;
(j) You acknowledge and agree that by virtue of using the Upkid App to connect with Customers with access to the Upkid Platform, you are holding yourself out to Customers and the general public as an independent contractor / business enterprise engaged in an independently established trade, occupation, business, and/or profession of the same nature as that involved in the Services you agree to perform or provide for Customers;
(k) You acknowledge and agree that Upkid does not and cannot control the worksite(s) at or in which you perform or provide any Services to Customers. You acknowledge that you should alert on-site personnel of any safety concerns or issues you might have;
(l) You acknowledge and agree that requests for Services are posted by Customers without review by Upkid and that Upkid cannot and does not verify the accuracy of any requests for Services posted by its Customers;
(m) You acknowledge that time is of the essence for the completion of Requests for Services. Thus, if a Request specifies a start time and you are not present and available at the start time, the Customer may immediately cancel the Request;
(n) You will only accept Requests for which you have the necessary skills, qualifications, expertise, licensure, and authority, and will perform Engagements safely and in accordance with all applicable laws and regulations;
(o) You specifically desire and intend to operate as an independent contractor. You further acknowledge that all Requests posted on the Upkid Platform are intended for independent contractors and that you will not accept or complete a Request if you believe you will not be providing Services as an independent contractor;
(p) You will immediately notify Upkid in writing if you ever have reason to believe that you have not received any fees or payments to which you believe you are entitled under this Agreement, any Request, or applicable law;
(q) Upkid has no obligation to facilitate any compensation for Services arising outside of Engagements; and
(r) You are obliged to accurately record all of your ‘start’ and ‘end’ times for Engagements through the Application.
6.2. Indemnification.You agree to indemnify and hold harmless Upkid and its parents, affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) arising from or relating to a breach by you of any representation, warranty, covenant, or obligation in this Agreement, or arising from or relating to any negligent or intentional act or omission committed by you, in connection with the performance of any Engagement, which act or omission gives rise to any claim for damages against you, Upkid and/or its parents, affiliates, employees or agents. Upkid specifically denies any obligation to defend and/or indemnify you from and against any third-party claims made against you arising from any negligent or intentional act or omission committed by you in connection with the performance of any Engagement.
6.3 Insurance. You acknowledge that you are an independent contractor, not an employee of Upkid. As such, you acknowledge and understand that you are not covered by any insurance that may be provided by Upkid to its employees, including, without limitation, health insurance, workers’ compensation insurance, general liability insurance, and automobile liability insurance. As an independent contractor, you are obligated under this Agreement to maintain workers’ compensation or occupational accident insurance for which you are solely and exclusively responsible. Specifically, in the event that you are injured while working in the course and scope of an Engagement, you acknowledge and understand that you will not be covered by any workers’ compensation insurance coverage that Upkid may provide to its employees. Further, in the event that your actions cause an injury to a third party while you are working in the course and scope of performing an Engagement or the Services, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that Upkid may have, and that Upkid is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation. If you do not provide adequate proof of valid workers’ compensation or occupational accident insurance (where permitted by law), you will be charged a Trust and Safety Fee that will pay for supplemental occupational accident insurance and offset costs associated with Upkid Teacher Support. By agreeing to these Terms of Use, you are agreeing to pay the Trust and Safety Fee.
6.4 Warranty Disclaimer. The Application is provided “as is,” as available and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). Upkid disclaims all and makes no representations or warranties, of any kind, either express or implied, as to the quality, identity or reliability of any third party, or as to the accuracy of the postings made on the Application by any third party. Some states and jurisdictions do not allow for all the foregoing limitations on implied warranties, so to that extent, if any, some or all of the above limitations may not apply to you.
7. Limitation Of Liability
IN NO EVENT WILL UPKID BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UPKID’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS DUE TO YOU FOR ENGAGEMENTS YOU PERFORMED FOR CUSTOMERS UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS OF CERTAIN TYPES OF DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8. Term & Termination
8.1 Term; Termination by Upkid. This Agreement is for a term of 60 days, and is automatically and continuously renewed for additional 60-day terms with continued use. In the event more than 60 days pass without you using the Upkid App, your next use shall constitute a renewal of this Agreement. Upkid reserves the right to terminate or limit your access to the Application and the Upkid Platform if you materially breach the Agreement or any Engagement, including if you violate the law in connection with your use of the Application (or in connection with your provision or performance of Services for Customers), or if you otherwise engage in conduct in connection with your use of the Application that Upkid, in its sole discretion, believes in good faith to be harmful or damaging to the operation of the Upkid Platform.
8.2 Survival. Sections 3 (“Independent Contractor Relationship”), 4 (“Confidentiality”), 5 (“No Conflicts”), 6 (“Representations and Warranties”), 7 (“Limitation of Liability”), 8.2 (“Survival”), and 9 (“General Provisions; Arbitration”) will survive any termination or expiration of this Agreement and/or any modification or termination of the Application. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.
9. General Provisions; Arbitration
9.1 Law. Except for the “Mandatory Binding Individual Arbitration and Class Action Waiver” below, which is governed by the Federal Arbitration Act, this Agreement or any claim, controversy, cause of action, or dispute arising out of or related to this Agreement shall be governed by the laws of the U.S. state in which you reside or, if you reside outside the United States, the last U.S. state in which you resided, regardless of your country of origin or where you access the Upkid App, and notwithstanding any conflicts of law principles.
9.2 Mandatory Binding Individual Arbitration and Class Action Waiver (the “Arbitration Provision”). You and Upkid mutually agree to resolve any justiciable disputes between you exclusively through final and binding arbitration instead of filing a lawsuit in court. This Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in this Arbitration Provision, shall apply to any and all claims arising out of or relating to this Agreement, your actual, attempted, or prospective use of the Upkid Platform (including any access or use of any website maintained by Upkid), your classification as an independent contractor, your alleged or actual performance or provision of services to or for the Company or Customers, the payments you receive or to which you claim you are entitled in exchange for actually or allegedly performing or providing services to or for the Company or Customers, the termination of this Agreement, and all other aspects of your relationship with the Company and Customers, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, claims based on a joint employment or misclassification theory, and all other federal, state, or local legal claims arising out of or relating to your relationship with the Company or Customers, or the termination of that relationship. The agreement between you and Upkid to mutually arbitrate disputes provides consideration for this Arbitration Provision. This Arbitration Provision applies to claims and disputes that the Company may have against you and/or that you may have against the Company, and (1) its affiliates and partners (including parent companies and subsidiaries), (2) its officers, directors, employees, or agents in their capacity as such or otherwise, (3) all successors and assigns of any of them, (4) Customers (to the extent any such claims or disputes with Customers relate to the Company or to the Upkid Platform), and/or (5) its vendors, including, without limitation, Amazon Web Services, Inc., Checkr, Inc., Evident ID Inc., Sovos Compliance, LLC, and Stripe, Inc. (to the extent any such claims or disputes with the Company’s vendors relate to the Company or to the Upkid Platform). Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of claims and disputes that otherwise would be resolved in a court of law or before any forum other than arbitration.
THIS ARBITRATION PROVISION REQUIRES ALL SUCH CLAIMS AND DISPUTES TO BE RESOLVED ONLY BY AN ARBITRATOR THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT BY WAY OF COURT OR JURY TRIAL, OR BY WAY OF CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ACTION.
This Arbitration Provision does not apply to any claim that may not be arbitrated as provided by governing law. Accordingly, if governing law provides that Private Attorneys General Action (“PAGA”) Claims under California law cannot be arbitrated, this Arbitration Provision shall not apply to such PAGA claims. In addition, this Arbitration Provision (and the Class Action Waiver contained herein) shall not apply to sexual harassment claims and sexual assault claims (“Sexual Assault and Harassment Claims”) to the extent the Sexual Assault and Harassment Claims: (i) are covered by the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”); (ii) arose or accrued on or after the date of the enactment of the Act; and (iii) had not yet arisen at the time of the making of this Arbitration Provision. Notwithstanding any other provision of this Agreement, the Arbitration Provision, or the AAA Rules (discussed below), the applicability of the Act to the Arbitration Provision, and the validity and enforceability of this Arbitration Provision under the Act if the Act is deemed to apply, shall be determined by a court of competent jurisdiction, not an arbitrator.
Delegation Clause. Except as otherwise set forth herein, to the fullest extent permitted by law, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the formation, interpretation, applicability, enforceability, validity, conscionability, scope, breach, or alleged waiver of this Arbitration Provision, including, but not limited to, any claim that all or any part of this Arbitration Provision is void or voidable.
(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. You may deliver any demand for arbitration to Upkid at legal@upkid.com, so long as the details set forth in the previous sentence are presented in the demand for arbitration.
(b) Class Action Waiver. You and Upkid mutually agree that by entering into this Arbitration Provision, both parties waive their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action, and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective, and/or representative action (“Class Action Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Provision, or the AAA Rules (discussed below), any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be resolved only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, and/or representative action, and (2) there is a final determination that all or part of the Class Action Waiver is unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction (if at all), but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
(c) You agree and acknowledge that entering into this Arbitration Provision does not change your status as an independent contractor in fact and in law, that you are not an employee of the Company or Customers, and that any disputes in this regard shall be subject to arbitration as provided in this Arbitration Provision. You further acknowledge and agree that Upkid is a technology services provider that does not provide transportation services.
(d) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), although the parties may stipulate that the arbitration shall be governed by the American Arbitration Association Employment Arbitration Rules, depending on the claims at issue. In addition to and to the extent inconsistent with the foregoing AAA Rules, the following rules shall apply to any arbitration conducted pursuant to this Arbitration Provision, unless the parties stipulate otherwise:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which you performed the majority of Engagements or, if there is no such county, either the county in which you resided as of the date you first agreed to these Terms of Use.
(3) Unless applicable law provides otherwise, as determined by the arbitrator, the parties agree that the Company shall pay all of the arbitrator’s fees and costs; however, if you initiate arbitration, then you must bear the extent of such costs (if any) as you would have been required to bear in bringing and maintaining a comparable legal proceeding in a court of competent jurisdiction.
(4) The arbitrator shall be empowered to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, the arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(6) The arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(7) The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. The award issued by the arbitrator may be entered in any court of competent jurisdiction.
(8) Either you or Upkid may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual; provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the temporary or preliminary injunctive relief shall not constitute a waiver of rights under this agreement to arbitrate.
(e) Regardless of any other terms of this Arbitration Provision, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Occupational Safety and Health Administration, Equal Employment Opportunity Commission, the U.S. Department of Labor, or similar state or local administrative agencies) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.
(f) The AAA Rules may be found at https://www.adr.org/Rules or by searching for “AAA Commercial Arbitration Rules” (or if applicable, “AAA Employment Arbitration Rules”) using a service such as www.Google.com or www.Bing.com or by asking legal@upkid.com to provide a copy.
(g) This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. Therefore, terms of this Arbitration Provision shall be severed, to the smallest extent possible, if required to uphold the enforceability of this Arbitration Provision.
9.3 Modifications to Application. Upkid reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Upkid Platform (or any part thereof) with or without notice. However, as stated above in Section 8.2 above, Section 9 (“General Provisions; Arbitration”), which contains the Arbitration Provision, will survive any termination or expiration of this Agreement and/or any modification or termination of the Application or the Upkid Platform. You agree that Upkid shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Upkid Platform.
Upkid may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. Where permitted by applicable law, we will make reasonable efforts to provide you notice of such Legal Process by sending a copy to the email address we have on file for you. Upkid is not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process.
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