Service Professional Agreement
SERVICE PROFESSIONAL AGREEMENT U.S.
This Service Professional Agreement (the Agreement) sets forth the terms and conditions whereby you, an independent service provider fully-licensed (to the extent required by applicable law) and qualified to provide the services contemplated by this Agreement (the Service Professional), agree to provide certain services (as described on Schedule 1) to third parties that may, from time to time, be referred to you via the communications platform of UMBRELLA, INC. d/b/a Umbrella, a Delaware corporation, with a mailing address at 107 Prospect Park West, #1R, Brooklyn, NY 11215 (Umbrella). Service Professional’s designated contact person, mailing address, phone number and email address is located on Service Professional’s account profile page and is incorporated herein by reference as if fully set forth herein. Service Professional is obligated to maintain this information and ensure it is current.
Service Professional agrees to download a copy of this Agreement from: www.askumbrella.com/neighbor-terms
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION 12.2.
1. GENERAL PROVISIONS
1.1 Background Statement.
Umbrella is the creator of a technology platform that creates a marketplace to connect potential clients (Service Requesters) with fully-licensed (to the extent required by applicable law) and qualified professionals, such as Service Professional, in the business of providing home cleaning, miscellaneous home services, home and property maintenance services, meal services, errand services, driving services, handyperson services, plumbing services, electrical services, and / or painting services in addition to unnamed services. Umbrella provides a web-based, phone-based, and mobile application-based portal (the Umbrella Platform) through which Service Requesters may connect with a network of Service Professionals with whom they may arrange a variety of Services. Umbrella and Service Professional intend that Service Professional will provide the services to Service Requesters strictly as an independent contractor Service Professional, and not as an employee, worker, agent, joint venturer, partner or franchisee of Umbrella or any Service Requester for any purpose. Umbrella does not provide the Services described in this Agreement and does not employ individuals to perform said Services. Umbrella's role is limited to offering the technology platform as a referral tool for Service Requesters and Service Professionals and facilitating payments from Service Requesters to Service Professionals.
Umbrella and Service Professional acknowledge and agree that the Services are outside the usual course of Umbrella's business and that the Services will be performed outside all of the places of Umbrella's business.
1.3 Background Checks
Before receiving access to the Umbrella Platform, Service Professional must submit to and pass a background check through Umbrella's background check provider. After receiving access to the Umbrella Platform, Umbrella may conduct additional background checks on Service Professional through Umbrella's background check provider. Umbrella conducts background checks in accordance with applicable law.
1.4 Application Processing
In select markets as set forth on Schedule 2, Service Professional may be required to pay nonrefundable application processing (Application Processing Fee) in order to process Service Professional’s application. Payment of the Application Processing Fee does not guarantee a Service Professional access to or Jobs through the Umbrella Platform.
2. THE SERVICES
Service Professional shall be eligible to book Jobs through the Umbrella Platform requesting any Services that Service Professional is fully-licensed (to the extent required by applicable law) and qualified to provide as specified on Schedule 1 to this Agreement and as selected by the Service Professional during the sign-up process. In those jurisdictions where a license, permit, or certification is required to perform the Services, Service Professional shall, upon request, provide proof to Umbrella of all necessary licenses, permits and/or certifications before Service Professional provides any such Services under this Agreement.
2.1 Job Completion.
To ensure that the Umbrella platform remains a reliable source of referrals and to ensure all Service Professionals are able to have access to available Jobs, once Service Professional has been awarded a Job, Service Professional is contractually obligated to complete the Job within the Timeframe specified by, and to the satisfaction of, the Service Requester. Service Professional may not cancel the Job without advance notice of at least 24 hours to Service Requester and Umbrella, except in the case of an unavoidable emergency, in which case, Service Professional shall notify Service Requester and Umbrella as soon as practicable. In the event Service Professional, upon more than twenty-four (24) hours' notice, needs to reschedule a Job, Service Professional may contact the Service Requester and attempt to reschedule the Job. In the event that the Service Requester declines to reschedule, Umbrella shall have the right to make the Job available on the Umbrella Platform. Cancellation by Service Professional may result in termination of this Agreement in accordance with Section 9. Alternatively, at Umbrella's reasonable discretion, cancellation by Service Professional may result in liquidated damages being charged to Service Professional as described in Schedule 3, which may be modified from time to time by Umbrella. Service Professional and Service Requester may reschedule a Job without Service Professional incurring responsibility for payment of liquidated damages provided the Job is rescheduled outside of the timeframes set forth in the then-applicable Schedule 3. If Service Requester and Service Professional agree to reschedule, Service Professional agrees to notify Umbrella as promptly as possible so that Umbrella may update its Platform. In the event that the Service Requester declines to reschedule, Umbrella shall have the right to make the Job available on the Umbrella Platform.
Service Professional understands and agrees that Service Professional's failure to complete a Job in accordance with Service Requester's specifications constitutes a material breach of this Agreement and in termination of this Agreement in accordance with Section 9, unless Service Professional cures the breach either through a reduced Service Fee or completion of the Job, to the satisfaction of the Service Requestor. Service Professional may be entitled to a fee or liquidated damages in the event a Service Requester cancels or reschedules a Job as described in Schedule 3. Modifications to Schedule 3 will be effective upon written notification to Service Professional and will supersede any and all prior versions. By accepting this Agreement, Service Professional authorizes Umbrella to withhold the amounts listed in Schedule 3 (where applicable) as payment of liquidated damages from Service Professional's Service Fees.
By accepting this Agreement, Service Professional authorizes Umbrella to withhold the foregoing payment of liquidated damages, if any, as referenced in this Agreement, from Service Professional's Service Fees.
2.2 Service Requester Ratings.
Service Professional acknowledges that the Umbrella Platform is intended to refer Service Requesters only to those Service Professionals who maintain the highest standards of professionalism and quality of service. Service Professional acknowledges that Service Requester may rate and review a Service Professional at the end of every booking. Service Professional agrees to maintain high standards of professionalism and service, including but not limited to maintaining tools and materials consistent with industry standard and in good working condition, maintaining appearance and grooming standards consistent with industry standard, and maintaining a Service Requester rating at or above the minimum rating established by Umbrella for access to the platform, as modified from time to time. In the event a Service Professional's aggregate rating falls below the applicable minimum rating, Umbrella reserves the right to deactivate the Service Professional's access to the Umbrella Platform. Umbrella agrees to provide Service Professional written notice of the minimum rating and any changes thereto.
2.3 No Control.
Service Professional shall be, at all times while this Agreement is in effect, both under the terms of this Agreement and in fact, free from control and direction in the performance of the Services. Umbrella shall not control or have any right to control the manner or means by which Service Professional performs the Services, including but not limited to the time and place Service Professional performs the Services, the Jobs Service Professional selects, the tools and materials used by Service Professional to complete the Jobs, the helpers, assistants, subcontractors or other personnel (if any) used by Service Professional to assist in completing Jobs, or the manner in which Service Professional completes the Jobs. Umbrella will not and has no right to, under any circumstances, inspect Service Professional's work for quality purposes. Those provisions of the Agreement reserving ultimate authority in Umbrella have been inserted solely to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
Where approved in advance by the Service Requester, and except as otherwise provided in this Agreement, Service Professional is not obligated to personally perform the Services. Service Professional shall furnish at his/her own discretion, selection, and expense any and all assistants, helpers, subcontractors or other personnel the Service Professional deems necessary and appropriate to complete the Services. Service Professional shall be solely responsible for the direction and control of any such personnel and for all acts and omissions of same.
Before any Services are performed by any assistants, helpers, subcontractors or other personnel engaged by Service Professional, Service Professional shall require any such individuals to submit to a basic background check satisfactory to Umbrella. Service Professional agrees that any assistants, helpers, subcontractors or other personnel used shall maintain a professional appearance consistent with industry standards while performing Services.
Service Professional assumes full and sole responsibility for the payment of all compensation, benefits and expenses of helpers, assistants, subcontractors and/or other personnel, if any, and for all required state and federal income tax withholdings, unemployment insurance, and social security taxes as to Service Professional and all persons engaged by Service Professional in the performance of the Services. Service Professional agrees that he/she is fully and solely responsible for filing, and shall file, an appropriate schedule of expenses and all other appropriate tax documents with the Internal Revenue Service in compliance with required filing periods. Service Professional shall be responsible for, and shall indemnify and hold Umbrella harmless for any claims, suits, or actions related to this provision, including any such claims brought by Service Professional or his or her assistants, subcontractors and/or other personnel, or by any third party with respect to any claims for taxes or contributions, including penalties and interest.
To the extent required by applicable law, Service Professional agrees to maintain a separate set of books or records reflecting all items of income and expense associated with operating his or her business.
3. SERVICE FEES
3.1 Service Fees.
Service Requester shall pay for completed Jobs through the Umbrella Platform at the rates quoted by Umbrella at the time the Job is posted on the Umbrella Platform, which shall be based on the stated parameters of the Job (the Job Rate). Each Job made available to Service Professional on the Platform shall set forth the Timeframe, Estimated Work Time, details about the Service requested, the Job Rate, and the estimated Service Fee the Service Professional shall be entitled to upon completion of the Job, as modified from time to time. The difference between the Job Rate and Service Fee shall be the fee owed to Umbrella for referring the Job and facilitating the payment from Service Requester to Service Professional (Booking Fee).
Modifications to pricing and fees will be effective upon written notification to Service Professional and will supersede any and all prior versions. By accepting this Agreement, Service Professional authorizes Umbrella to withhold Umbrella's Booking Fee and any other applicable fees from the payment made to the Service Professional for each Job.
3.2 Service Fee Negotiation.
If a Job referred to and accepted by Service Professional requires more time to complete than the Estimated Work Time, Service Requester and Service Professional may, prior to Service Professional providing any Services above and beyond the Estimated Work Time, negotiate an increase in Service Fees based on the estimated additional time needed to complete the Job. Upon agreement to an increase in Service Fees, Service Professional and Service Requester shall notify Umbrella. Umbrella shall have no involvement in negotiating any increase in the Service Fees.
3.3 Service Fee Payment.
When a Job is complete, Service Professional will submit to the Service Requester and Umbrella confirmation that the Job is complete. Umbrella will transmit payment to Service Professional via direct deposit. So long as Service Professional has completed the steps necessary to set up a direct deposit account and provided those details to Umbrella, Umbrella shall then remit payment for each Job, less Umbrella's booking fee and any other applicable fees (see Schedule 3), within seven (7) business days following the day the Job was completed. Absent Service Professional's failure to complete the appropriate steps to arrange for payment by direct deposit, Umbrella's failure to remit payment within seven (7) business days following the day the Job was completed shall constitute a material breach of this Agreement. Service Professional may request payment for a booking to be remitted sooner than as set forth above for a fee as set forth in Schedule 3. Such fee will apply each time that the Service Professional requests a payment. When Service Professional requests this expedited payment, Umbrella will remit payment within (3) business days. If applicable, Umbrella will report the payments paid to Service Professional under this Agreement by filing the appropriate Form 1099 with the Internal Revenue Service as required by law. Payment processing services for Service Professionals are provided by Stripe and are subject to the Stripe Connected Account Agreement, located at https://stripe.com/us/connect-account/legal, which includes the Stripe Terms of Service, located at https://stripe.com/us/legal (collectively, the Stripe Services Agreement). By agreeing to this Agreement, Service Professional agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Umbrella enabling payment processing services through Stripe, Service Professional agrees to provide Umbrella accurate and complete information about Service Professional and Service Professional's business, and Service Professional authorizes Umbrella to share it and transaction information related to Service Professional's use of the payment processing services provided by Stripe.
4. EQUIPMENT AND OPERATIONS
4.1 Compatible Mobile Device.
In order to book Jobs, Service Professional must possess a smartphone equipped with access to the Umbrella Platform (the Compatible Mobile Device).
4.2 Pro Portal; Geo-Tracking.
In order to book Jobs, Service Professional must download Umbrella's Service Professional mobile application (the Pro Portal) onto the Compatible Mobile Device used by the Service Professional. Umbrella collects the latitude and longitude location (Location Coordinates) of the Compatible Mobile Device from the Pro Portal for a period of time starting (a) 4 hours prior to the scheduled start of a Job for the purpose of (i) providing support for the Service Professional and Service Requester to find each other and (ii) confirming that the Service Professional will perform the Job claimed by the Service Professional and ending (b) 2 hours following the scheduled end of a Job for the purpose of confirming that the Job is completed. In addition, at any point, Umbrella may collect the Location Coordinates of the Compatible Mobile Device on which the Pro Portal is installed for the purpose of referring jobs to a Service Professional that are posted on short notice by Service Requesters in the Service Professional's vicinity. Service Professional shall have no obligation to accept any Job offered in this manner. For up to a 4 hour period prior to the scheduled start of a Job, Umbrella may share the Service Professional's Location Coordinates with the Service Requester who requested the Job for the purpose of assisting the Service Requester and Service Professional to coordinate the Services and to confirm that the Service Professional will perform the Job claimed by the Service Professional. Umbrella may also disclose the Service Professional's location information and contact information as required by applicable law, to authorized service providers, or when Umbrella believes that such disclosure is necessary to protect the rights, property, or safety of Umbrella, Umbrella Platform users, Service Requesters, or others. Umbrella has no right to collect or use GPS data for the purpose of controlling or monitoring the manner and means by which the Service Professional provides the Services contemplated by this Agreement, or the frequency with which the Service Professional uses the Umbrella Platform to book Jobs. The Service Professional may stop Location Coordinates collection only by uninstalling the Pro Portal from the Compatible Mobile Device. Umbrella retains Location Coordinates information to confirm that the Job has been completed and retains de-identified Location Coordinates data indefinitely. By executing this Agreement, Service Professional agrees to the use and disclosure of Location Coordinates information as described above.
4.3 Costs of Operation.
Service Professional is solely responsible for any costs or expenses incurred by Service Professional in connection with the operation of Service Professional’s principal place of business and the performance of the Services, and in no event shall Umbrella reimburse, or be required to reimburse, Service Professional for any tools, materials, costs or expenses used in connection with the Services. Service Professional shall furnish and maintain, at Service Professional's own expense, the tools, equipment, supplies, and other materials used to perform the Services. Service Professional, at Service Professional's sole discretion, shall determine what equipment, supplies, and materials are necessary to perform the Services, and where, when, and at what cost, to purchase or maintain any necessary equipment, supplies, tools, and materials. At Service Professional's request, Umbrella may offer to Service Professional certain equipment, supplies, and materials for purchase. Service Professional is not required to purchase any equipment, tools, supplies, or materials from Umbrella at any time.
4.4 Umbrella Apparel or Identification.
Service Professional will have no obligation to wear or display the apparel, badge or other form of identification.
4.5 Use of Voice, Image and Likeness.
Service Professional gives Umbrella permission to use any and all of Service Professional's voice, image, likeness, and any ratings and reviews from Service Requesters about Service Professional, with or without using Service Professional's name, in connection with the products and/or services available through the Umbrella Platform, for the purposes of advertising and promoting such products and/or services and/or Umbrella, for the purposes of identifying Service Professional to Service Requester, and/or for other purposes deemed appropriate by the Umbrella in its reasonable discretion, except to the extent expressly prohibited by law. In addition to the foregoing, Service Professional may be required to submit an image for use by the Umbrella Platform to facilitate identifying Service Professional with Service Requestors. Service Professional also represents and warrants the Service Professional owns the copyright of any image or likeness that the Service Professional provides to Umbrella.
4.6 Call and SMS Data.
Service Professional agrees to Umbrella's use of a service provider to mask the Service Professional's phone number when the Service Professional calls or exchanges text (SMS) messages with the Service Requester. To facilitate this process, Umbrella and its service provider will receive in real time and store call data, including the date and time of the call or text (SMS) message, the parties' phone numbers, and the content of the text (SMS) messages. Service Professional consents to the masking process described above and to Umbrella's use and disclosure of this call data for its legitimate business purposes.
5. RELATIONSHIP OF THE PARTIES
Service Professional is an independent contractor and has not been engaged by Umbrella to perform services on Umbrella's behalf. Rather, Service Professional has entered into this Agreement for the purpose of having access to the Umbrella Platform and the exclusive marketplace for services thereby created by Umbrella, in exchange for which it pays Umbrella a fee, as described herein. Service Professional represents that he or she is customarily engaged in an independently established trade, occupation, profession and/or business offering the Services to the general public and/or Service Professional represents that he or she maintains a principal place of business in connection with Service Professional’s trade, occupation, profession and/or business that is eligible for a business deduction for federal income tax purposes. This Agreement shall not be construed to create any association, partnership, joint venture, employee, worker or agency relationship between Service Professional and Umbrella or any Service Requester for any purpose. Service Professional has no authority (and shall not hold himself or herself out as having authority) to bind Umbrella and Service Professional shall not make any agreements or representations on Umbrella's behalf without Umbrella's prior written consent. Service Professional understands that Service Professional will not be eligible to participate in any benefit plans offered to Umbrella's employees, including, but not limited to, vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by Umbrella to its employees. Umbrella will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including unemployment or disability, or obtaining workers' compensation insurance on Service Professional's behalf. Service Professional shall be responsible for, and shall indemnify and hold Umbrella harmless for any claims, suits, or actions related to this provision, including any such claims brought by Service Professional or by any third party with respect to any claims for taxes or contributions, including penalties and interest.
6. REPRESENTATIONS AND WARRANTIES
Service Professional represents and warrants to Umbrella that: (a) Service Professional has the legal right to provide the Services that are contemplated by this Agreement in the United States; (b) Service Professional is fully-licensed (to the extent required by applicable law) and authorized to provide the Services contemplated by this Agreement within the jurisdiction in which Service Professional intends to offer said Services, and has the required skill, experience, and qualifications to perform the Services; and (c) Service Professional shall perform the Services in a professional and diligent manner in accordance with best industry standards for similar services and shall ensure that all assistants, helpers, subcontractors and other personnel used by the Service Professional in relation to the delivery of Services shall do likewise, including the completion of all Jobs referred to Service Professional that he/she opts to accept through the Platform; and (d) Service Professional shall perform the Services in accordance with all applicable laws, rules and regulations. Service Professional acknowledges that his/her failure to comply with the foregoing shall constitute a material breach of this Agreement.
For Service Professionals performing the Services in Washington State, Service Professional shall, within a reasonable period of time after this Agreement is electronically signed, establish an account with the Department of Revenue and all other required state agencies, for the business Service Professional is conducting for the payment of all state taxes normally paid by employer and businesses. Service Professional further agrees, within a reasonable period of time after this Agreement is electronically signed, to register for and receive a unified business identifier number from Washington State.
Service Professional acknowledges that his/her failure to comply with the foregoing shall constitute a material breach of this Agreement.
Service Professional shall defend, indemnify and hold harmless Umbrella and its affiliates and their officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable legal fees) arising out of or resulting from: (a) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from Service Professional's acts or omissions; and (b) Service Professional's breach of any representation, warranty, or obligation under this Agreement.
The Services that Service Professional provides pursuant this Agreement are fully and entirely Service Professional's responsibility. Umbrella is not responsible or liable for the actions or inactions of a Service Requester or other third party in relation to the Services provided by Service Professional. Service Professional understands, therefore, that by using the Umbrella Platform, Service Professional will be introduced to third parties in relation to whom Umbrella has not conducted any background or reference checking, that may be potentially dangerous, and that Service Professional uses the Umbrella Platform at his/her own risk.
It is the sole responsibility of the Service Professional to maintain in full force and effect adequate workers' compensation (or, if permitted by law, occupational accident insurance), unemployment, liability, and other forms of insurance, in each case with insurers reasonably acceptable to Umbrella, with policy limits sufficient to protect and indemnify Umbrella and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from the conduct, acts, or omissions of Service Professional or Service Professional's assistants, agents, contractors, servants, or employees.
9. TERM; TERMINATION
This Agreement shall be effective as of the date it is executed by Service Professional and shall remain in effect unless and until terminated as set forth in this Section 9(the Term). Service Professional understands that Umbrella may temporarily deactivate Service Professional's profile on Umbrella Platform in the event that Service Professional is inactive on the Umbrella Platform for a period that exceeds the time period set forth on Schedule 2, as modified from time to time. In such circumstances, Umbrella shall reactivate Service Professional's profile upon request from Service Professional.
The parties acknowledge that the term of this Agreement does not reflect an uninterrupted service arrangement, as this Agreement guarantees Service Professional the right to choose when to make himself or herself available and each Job referred and accepted is treated as a separate service arrangement.
(a) Umbrella and Service Professional may terminate this Agreement, effective immediately upon written notice to the other party, in the event that other party materially breaches this Agreement. A material breach shall include, but not be limited to, the acts or omissions expressly defined as constituting a material breach herein, misconduct, Umbrella's failure to timely remit Service Fees as described herein, Service Professional's repeated failure to complete a Job he or she has booked on the platform to the Service Requester’s satisfaction, failure to meet the applicable minimum rating, or if a Service Professional cancels or reschedules two (2) or more Jobs he or she has booked on less than 2 hours' notice prior to the applicable Job start time within any twenty-eight (28) day period.
In the event there is a dispute whether Umbrella or Service Professional materially breached the agreement, and it cannot be resolved by informal negotiations, the parties agree to submit any such dispute to final and binding arbitration, unless Service Professional exercises his/her right to opt out of arbitration, as described in Section 12.2, below.
(b) In addition to the foregoing, Service Professional may terminate the Agreement for any reason upon fifteen (15) days' written notice.
9.3 Service Professional's Obligations Upon Termination.
Upon termination of this Agreement for any reason, Service Professional shall: (a) complete any outstanding Jobs Service Professional has booked (the Outstanding Jobs) and (b) certify in writing to Umbrella that Service Professional has complied with the requirements of this Section.
9.4 Umbrella's Obligations Upon Termination.
Upon termination of this Agreement: (a) if the termination is effected by Umbrella, Umbrella shall immediately pay to Service Professional any outstanding earned Service Fees; or (b) if the termination is effected by Service Professional, Umbrella shall pay to Service Professional any outstanding earned Service Fees within seven (7) business days. In either event, Umbrella shall pay Service Fees for any Outstanding Jobs as soon as practicable after Service Professional has completed the Outstanding Jobs.
9.5 Surviving Provisions.
The terms and conditions of this Section 9.5 and Sections 5, 6, 7, 9.3, 9.4, 10, 11, and 12 (including, but not limited to, Section 12.2) shall survive the expiration or termination of this Agreement.
10. OTHER BUSINESS ACTIVITIES
Service Professional may be engaged or employed in any other business, trade, profession, or other activity, including providing Services to customers booked through means other than the Umbrella Platform, including other web-based portals. However, Service Professional shall not affirmatively solicit Service Requesters originally referred through the Umbrella Platform to book jobs through any means other than the Umbrella Platform; provided, however, Umbrella may charge Service Professional a referral fee in the event the Service Professional affirmatively solicits Service Requesters originally referred through the Umbrella Platform to book jobs through any means other than the Umbrella Platform.
Service Professional may not assign this Agreement, absent written authorization by Umbrella. Umbrella may freely assign its rights and obligations under this Agreement at any time. This Agreement will inure to the benefit of, be binding on, and be enforceable against, each of the parties hereto and their respective successors and assigns.
12. DISPUTE RESOLUTION; GOVERNING LAW
12.1 Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement or otherwise arising from the relationship between Service Professional and Umbrella, Service Professional and Umbrella agree to first attempt to negotiate any dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Service Professional's address for such notices is the address provided by Service Professional to Umbrella. Umbrella's address for such notices is Umbrella, Inc., 107 Prospect Park West, #1R, Brooklyn, NY 11215.
12.2 Mutual Arbitration Provision.
Mandatory and Exclusive Arbitration. Umbrella and Service Professional mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This Mutual Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and shall apply, including, but not limited, to any and all claims arising out of or relating to this Agreement, the Service Professional's classification as an independent contractor, Service Professional’s provision of Services under this Agreement, the payments received by Service Professional for providing Services, Service Professional’s registration to use the Umbrella platform, the formation and/or termination of this Agreement, and all other aspects of the Service Professional's relationship with Umbrella, past or present, whether arising under federal, state or local statutory and/or common law.
Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, and/or formation of this Mutual Arbitration Provision. However, as stated in Section 12.2(d) below, the preceding clause of this paragraph shall not apply to the Class Action Waiver and Representative Action Waiver.
BY AGREEING TO ARBITRATE ALL SUCH DISPUTES, THE PARTIES TO THIS AGREEMENT AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED THROUGH BINDING ARBITRATION BEFORE AN ARBITRATOR AND NOT BY WAY OF A COURT OR JURY TRIAL.
(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. Any demand for arbitration by Service Professional must be delivered to: UMBRELLA, Inc. Attn: Legal Department, 107 Prospect Park West, #1R, Brooklyn, NY 11215.
(b) CLASS ACTION WAIVER-PLEASE READ. Umbrella and Service Professional mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (Class Action Waiver).
(c) REPRESENTATIVE ACTION WAIVER-PLEASE READ. Umbrella and Service Professional mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a private attorney general act representative action, and an arbitrator shall not have any authority to arbitrate a private attorney general action ("Representative Action Waiver"). This Representative Action Waiver does not apply to any representative claim brought pursuant to the California Private Attorneys General Act of 2004 (Labor Code section 2698, et seq.); all such claims must be brought in a Court of competent jurisdiction, not in arbitration.
(d) Notwithstanding any other clause contained in this Agreement, this Mutual Arbitration Provision, or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver and/or Representative Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. As stated above, all other disputes regarding interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision shall be determined exclusively by an arbitrator.
(e) Service Professional agrees and acknowledges that entering into this Mutual Arbitration Provision does not change Service Professional's status as an independent contractor in fact and in law, that Service Professional is not an employee of Umbrella or any Service Requester and that any disputes in this regard shall be subject to arbitration as provided in this Mutual Arbitration Provision.
(f) Unless Umbrella and Service Professional otherwise mutually agree, the arbitration will be conducted in the county where Service Professional resides. If Service Professional’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents Umbrella and Service Professional submit to the arbitrator, unless Service Professional requests a hearing or the arbitrator determines that a hearing is necessary. Unless Service Professional waives the right to a hearing in writing, a hearing shall always be conducted if Service Professional’s claim exceeds $10,000.
The Arbitrator shall be selected by mutual agreement of Umbrella and Service Professional. Unless Umbrella and Service Professional mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted, and who has experience in the underlying subject matter. If the parties cannot agree on the Arbitrator, the selection of the Arbitrator shall be governed by the American Arbitration Association Commercial Arbitration Rules (AAA Rules).
Regardless of whether the Arbitrator is affiliated with the American Arbitration Association, the parties agree that any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (AAA Rules), except as follows (unless and to the extent otherwise mutually agreed by Umbrella and Service Professional): (1) The arbitration shall be heard by one Arbitrator selected in accordance with the AAA Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute; (2) Umbrella shall pay the Arbitrator's fees and costs unless the relief sought in the Service Professional’s demand for arbitration was found to be frivolous or brought for an improper purpose (as determined by the standards set forth in Federal Rule of Civil Procedure 11(b)), unless applicable law requires otherwise; (3) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (4) Except as provided in the Class Action Waiver and Representative 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; (5) 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; (6) The Arbitrator's decision or award shall be in writing with findings of fact and conclusions of law; (7) Either Umbrella or Service Professional 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 Section 12.2 may be rendered ineffectual.
(g) Regardless of any other terms of this this Agreement or Mutual Arbitration Provision, nothing prevents Service Professional from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commissions, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this arbitration provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this Section 12.2, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Umbrella will not retaliate against Service Professional for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
(h) The AAA Rules may be found at www.adr.org or by searching for AAA Commercial Arbitration Rules using a service such as www.Google.com or www.Bing.com.
(i) Service Professional’s Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Service Professional’s contractual relationship with Umbrella, and therefore Service Professional may submit a statement notifying Umbrella that Service Professional wishes to opt out and not be subject to this Mutual Arbitration Provision. In order to opt out, Service Professional must notify Umbrella of Service Professional’s intention to opt out by submitting to Umbrella at UMBRELLA, Inc. Attn: Legal Department, 107 Prospect Park West, #1R, Brooklyn, NY 11215, a signed and dated written notice stating that Service Professional is opting out of this Mutual Arbitration Provision. Service Professional also may opt out by sending an email to firstname.lastname@example.org stating Service Professional’s intention to opt out. In order to be effective, Service Professional’s opt out notice must be provided within 30 days of the date this Agreement is electronically signed by Service Professional. If Service Professional opts out as provided in this paragraph, Service Professional will not be subject to any adverse action from Umbrella as a consequence of that decision and he/she may pursue available legal remedies without regard to this Mutual Arbitration Provision. If Service Professional does not opt out within 30 days of the effective date of this Agreement, Service Professional shall be deemed to have voluntarily agreed to this Mutual Arbitration Provision.
Service Professional acknowledges and agrees that if Umbrella modifies any provision of this Agreement other than any term of this Section 12.2, Service Professional will not have a renewed opportunity to opt out of arbitration. Service Professional further acknowledges and agrees that if Umbrella modifies the addresses for submission of opt-out notices identified in this Section 12.2, Service Professional will not have a renewed opportunity to opt of arbitration. If, however, Umbrella modifies any provision of this Section 12.2 other than the addresses for submission of opt-out notices, Service Professional will have a renewed opportunity to opt out of arbitration. In such circumstances, the 30-day opt out period will begin to run upon your electronically signing the modified Agreement. Changes to any information referenced at hyperlinks from the Agreement or Arbitration Provision shall not create a renewed opportunity to opt-out.
(j) Right To Consult With A Lawyer: Service Professional has the right to consult with private counsel of Service Professional's choice for independent legal advice with respect to any aspect of this Agreement or Mutual Arbitration Provision, or any claim that may be subject to this Mutual Arbitration Provision.
(k) In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. 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 all or part of the Class Action Waiver and/or Representative Action Waiver is invalid or unenforceable, the class, collective, or representative general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver and Representative Action Waiver that is valid and enforceable shall be enforced in arbitration.
12.3 Governing Law.
Except for the Mutual Arbitration Provision set forth in Section 12.2, which is governed by the Federal Arbitration Act, and except as may be prohibited by the law of the State in which Service Professional primarily works and resides, this Agreement shall be governed and interpreted pursuant to the laws of the state in which the Service Professional performs the majority of his or her services under the Agreement, notwithstanding any principles of conflicts of law.
13. SERVICE REQUESTER PRIVACY
Service Professional understands that in performing the Services, he or she will receive certain private and/or confidential information regarding the Service Requesters and will have access to their homes and personal belongings. Except upon order of government authority (e.g., Court, administrative agency) having jurisdiction, or upon written consent by the Service Requester, Service Professional agrees that he or she shall not publish, disseminate or disclose, for his or her own benefit or the benefit of any third party, any confidential information regarding the Service Requesters, including addresses, telephone numbers and/or financial information. Service Professional further agrees not to engage in any activity which violates the privacy of any Service Requester, including, but not limited to, taking unauthorized photographs or making unauthorized audio or video recordings of a Service Requester or his or her homes or personal belongings, or publishing, disseminating or disclosing any such photographs or recordings. Service Professional acknowledges that his/her failure to comply with the foregoing shall constitute a material breach of this Agreement.
Service Professional hereby expressly acknowledges and agrees that, by using or receiving access to the Umbrella Platform, Service Professional and Umbrella are bound by the then-current version of this Agreement, including any supplements to this Agreement or documents incorporated herein, including the Schedules below, except as stated in Section 12.2(i) with respect to a Service Professional’s right to opt-out of the arbitration. Service Professional shall be bound by modifications to this Agreement only upon Service Professional’s electronically signing any modifications or supplements.
15. DEFEND TRADE SECRETS ACT OF 2016.
Service Professional acknowledges receipt of the following notice under 18 U.S.C § 1833(b)(1): An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a Notice) shall be in writing and addressed to the parties at the addresses set forth on the first and last pages of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). This Agreement, together with any other documents incorporated herein by reference, and related exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance. Except as expressly provided otherwise in this Agreement, if any term or provision of this Agreement is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may be executed in multiple counterparts, including by facsimile or other electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument. Headings appear solely for convenience of reference. Such headings are not part of this Agreement and shall not be used to construe it.
This Agreement may not be amended, by implication or otherwise, by any marketing material contained on Umbrella's website or the Umbrella Platform. Nothing contained in this provision or this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
Service Professional acknowledges that he/she has read and understands this Agreement and also acknowledges that he/she had a reasonable and adequate opportunity to seek and receive independent legal advice, at the Service Professional's own expense, prior to signing this Agreement.