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Last update: October 22, 2026
This Services Agreement ("Agreement") constitutes a legal agreement between you, an individual ("you"), and Shiftsmart, Inc. ("Shiftsmart"). Shiftsmart is a technology services provider. The Shiftsmart Platform (as defined below) enables an authorized partner (i.e., you) to seek, receive, and fulfill requests for services from an authorized user of the Shiftsmart Platform. You desire to enter into this Agreement for the purpose of accessing and using the Shiftsmart Platform. You acknowledge that access to the Shiftsmart Platform is a revocable privilege and not a vested right, and that Shiftsmart may modify, suspend, restrict, or discontinue access to the Shiftsmart Platform consistent with this Agreement and applicable law.
IMPORTANT: BEFORE USING THE SHIFTSMART PLATFORM, YOU AND SHIFTSMART MUST MUTUALLY AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY CLICKING "I ACCEPT" OR OTHERWISE ELECTRONICALLY OR PHYSICALLY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT AND THAT YOU AND SHIFTSMART ARE MUTUALLY AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Please note: Sections 14 and 15 of this Agreement set forth mandatory Mediation, Arbitration, and Class Action Waiver provisions that govern how claims relating to this Agreement and your use of the Partner App are resolved. These provisions apply to any action either party brings that arises out of this Agreement, including actions Shiftsmart brings against you or you bring against Shiftsmart or any Affiliate or User. They affect how disputes with Shiftsmart or any Affiliate or User are resolved. Engagements in Canada are governed by Section 14 and engagements in the United States are governed by Section 15. By accepting this Agreement, you and Shiftsmart agree to be mutually bound by the Mediation Provision, the Arbitration Provision, and the Class Action Waiver.
1.1 "Affiliate" means Shiftsmart’s customers, Users of the platform, and any entity that, directly or indirectly, controls, is under the control of, or is under common control with Shiftsmart, where control means having more than 50% of the voting stock or other ownership interest or the majority of the voting rights of such entity, or the power to direct the management and policies of such entity.
1.2 "Marketplace Integrity" means the legitimate operational, compliance, fraud-prevention, security, safety, legal, and platform requirements of Shiftsmart, its Affiliates, Users, customers, and marketplace participants.
1.3 "Partner App" means the mobile application provided by Shiftsmart that enables you to access the Shiftsmart Platform for the purpose of seeking, receiving, and fulfilling on-demand requests for services by Users, as may be updated or modified from time to time.
1.4 "Prohibited Conduct" means any conduct that violates this Agreement, Supplemental Terms, applicable law, User requirements, platform policies, marketplace integrity requirements, or reasonable safety requirements, including but not limited to theft, attempted theft, fraud, attempted fraud, violence, threats, harassment, discrimination, falsification of records, identity misrepresentation, spoofing, phishing, account sharing, payment manipulation, collusion, unauthorized access, misuse of User information, unsafe conduct, dishonesty, or conduct creating legal, operational, financial, or safety risk, including any attempt to facilitate, encourage, aid, abet, conceal, or benefit from any of the foregoing.
1.5 "Services" means your provision of services which have been requested by Users via the Shiftsmart Platform.
1.6 "Shiftsmart Data" means all data related to the access and use of the Shiftsmart Platform hereunder, including all data related to Users (including User Information), all data related to the provision of Services, and the Partner ID.
1.7 "Shiftsmart Platform" means Shiftsmart's on-demand lead generation and related services that enable you to seek, receive and fulfill on-demand requests for services by Users; such Shiftsmart Platform includes access to the Partner App and Shiftsmart's software, websites, payment services, and related support services systems, as may be updated or modified from time to time.
1.8 "Territory" means the city or metro areas in which you are enabled by the Partner App to receive requests for Services.
1.9 "User" means an end user authorized by Shiftsmart to request Services offered by independent contractors (i.e., you) via the Shiftsmart Platform.
1.10 "User Information" means information about a User made available to you in connection with such User's request for and receipt of Services, which may include the User's name, location, and contact information.
2.1 Account Registration; Partner IDs. You may create an account on your own behalf or on behalf of your own business, but not for another person. When you create an account in the Shiftsmart Platform, you guarantee that you are at least 18 years old and legally authorized to work in the Territory, and that the information you provide is accurate, complete, and current at all times. You may not use or attempt to use another person’s account or impersonate any person or entity, and you may not share, transfer, lease, lend, sublicense, purchase, sell, acquire, or permit another person to use your account, Partner ID, credentials, payment credentials, identity information, or platform access rights. If you do not meet these criteria, you may not register for an account in the Shiftsmart Platform. Materially inaccurate or fraudulent information may result in suspension or termination of access to the Shiftsmart Platform. Shiftsmart will associate your account with a user ID and password ("Partner ID") to enable you to access and use the Shiftsmart Platform, including the Partner App on your mobile device and Shiftsmart's online portal. You should maintain your Partner ID in confidence. Shiftsmart may suspend access to the Shiftsmart Platform for fraud prevention, security, legal compliance, or material violation of this Agreement. Shiftsmart may deactivate accounts it believes to be inactive or associated with a shared Partner ID. Nothing in this Agreement shall be construed to grant Shiftsmart the right to supervise or control the manner or means by which you perform Services.
2.2 Provision of Services. Requests for Services may be made available to you via the online portal, sent to you via SMS message, or may appear to you via the Partner App. If you accept a request for Services, the Shiftsmart Platform will provide you with certain User Information, including the User's name and details about the Services. Once you have accepted a request for Services, the Shiftsmart Platform may provide certain information about you to the User, including your name, contact information, photo, location, and qualifications. You shall use User information solely for lawful business purposes related to Services requested through the Shiftsmart Platform and in compliance with applicable privacy laws. As a condition of access to a site, you agree to observe lawful site safety and security requirements. Other than obligations you voluntarily agree to for a particular engagement, you retain sole discretion regarding the manner, method, sequence, personnel, tools, and business practices used to perform Services. You may engage assistants, employees, subcontractors, or representatives to perform Services, provided anyone you engage uses their own approved credentials and you remain responsible for compliance with applicable law and completion of the requested Services. The foregoing does not authorize account or credential sharing. As between Shiftsmart and you: (a) you shall determine, in your independent business judgment, the manner and means of performing Services; (b) except for the Shiftsmart Platform or any resources provided by Shiftsmart (if applicable) or the User (if applicable), you shall provide all necessary equipment, tools, and other materials, at your own expense, necessary to perform the Services; and (c) you will provide the Services under your own name or business name, not under Shiftsmart’s name. If you choose to have an assistant help you perform the Services, you agree to notify Shiftsmart, and you recognize that you are responsible for the actions of any such assistant as if done by you and you are solely responsible for paying any such assistant and ensuring such assistant complies with all applicable laws, User requirements, platform requirements, confidentiality obligations, and safety requirements. Shiftsmart may require identity verification, credential verification, registration, documentation, lawful background screening, or other verification measures for any person assisting you where required by law, a User, an Affiliate, safety requirements, fraud prevention requirements, or Marketplace Integrity requirements. Shiftsmart does not guarantee that Services will be available in your area; thus, if you make any commitments to any such assistant or if you invest in purchasing any equipment, tools, or other materials, you are taking a risk that may result in you incurring financial losses. Any agreed time or location requirements for a particular Task will be disclosed before acceptance.
2.3 Your Relationship with Users. If the Services call for you to sign a contract directly with the User, you are a contractor of that User. Shiftsmart is not responsible or liable for the actions or inactions of a User in relation to you or your activities. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of the Services. You are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a User or third party. Shiftsmart may release your contact and/or other information to a User upon such User's reasonable request. You acknowledge that Users, Affiliates, and customers may establish eligibility requirements, access requirements, security requirements, credential requirements, and safety and professionalism requirements as a condition of access to particular marketplace opportunities. Failure to satisfy such requirements may result in loss of access to such opportunities.
2.4 Your Relationship with Shiftsmart. Shiftsmart's provision to you of the Partner App and access to the Shiftsmart Platform creates an independent-contractor relationship between Shiftsmart and you. Shiftsmart does not provide mandatory training regarding the details of how Services must be performed. Shiftsmart does not require you to accept any minimum number of opportunities, maintain minimum hours of platform availability, work exclusively through Shiftsmart, or maintain a minimum acceptance rate. A Proposal may specify an agreed service window, location, deliverables, and completion requirements for a Task you voluntarily accept. You are free to determine whether, when, where, and how often to offer services through the Shiftsmart Platform or any competing platform. You will not be treated as an employee pursuant to these terms. Shiftsmart does not, and shall not be deemed to, direct or control you generally or in your provision of services specifically, including in connection with your provision of the Services and your acts or omissions, or your operation and maintenance of any tools, materials, and equipment necessary to provide the Services. Shiftsmart shall have no right to require you to wear a uniform or any other clothing displaying Shiftsmart’s or any of its Affiliates’ names, logos, or colors. You retain the sole right to determine when, where, and for how long you will utilize the Partner App or the Shiftsmart Platform. You retain the option to accept or decline a request for Services via the Shiftsmart Platform or to cancel an accepted request for the Services, subject to cancellation terms disclosed before acceptance. You have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right, and are encouraged to: (a) use other software applications to seek, receive, and fulfill requests for services in addition to the Shiftsmart Platform; and (b) engage in any other occupation or business.
You represent and warrant that you operate an independently established business enterprise and agree that you are free to make your services available to the general public independently of Shiftsmart. You are free to advertise, market, subcontract, delegate, hire assistants, perform services for competitors of Shiftsmart or Users, and determine the manner and means of performing all Services. You acknowledge that Shiftsmart does not provide training regarding how Services are to be performed and does not supervise, direct, or evaluate the details of your work. You bear the risk of profit or loss arising from your business activities, including expenses incurred in connection with performing Services.
Shiftsmart may suspend, restrict, or terminate platform access where Shiftsmart reasonably determines or suspects: (a) fraud, theft, violence, harassment, safety concerns, or other Prohibited Conduct; (b) misuse of the platform or unauthorized account activity; (c) a violation of this Agreement or applicable law; or (d) legal, regulatory, operational, financial, compliance, or Marketplace Integrity concerns. Shiftsmart may rely on User, customer, or Affiliate reports, findings, transaction records, geolocation data, photographs, communications, platform records, third-party information, law-enforcement communications, and other information reasonably available to Shiftsmart when making enforcement, payment, eligibility, verification, compliance, or access decisions. If Shiftsmart receives a credible report that you committed or threatened violence, harassment, falsification of records, payment abuse, or that you have engaged in theft of any kind, Shiftsmart may immediately and permanently deactivate your access to the Shiftsmart Platform. Any suspension or deactivation shall comply with applicable notice, review, nonretaliation, and other mandatory legal requirements and shall not extinguish payment obligations for Services already completed. You may request that any suspension or deactivation decision be reviewed by a Shiftsmart team member who has the authority to change it, through Partner Support.
2.5 Ratings. After providing the Services, (a) you may be asked to provide a rating of the User and to provide comments or feedback about the User; and (b) a User may be prompted to provide a rating of you and your provision of the Services and to provide comments or feedback about you. If you provide ratings and feedback, you agree to do so in good faith and not to include comments that contain obscenities or other objectionable content or violate any privacy or other applicable laws. Shiftsmart and its Affiliates reserve the right to use, share, and display your ratings and comments and User ratings and comments about you in any manner in connection with the business of Shiftsmart, its Affiliates, or the applicable User without attribution to you or your approval. Ratings and feedback are provided solely for marketplace informational purposes and are not intended to supervise, direct, or evaluate the manner or means by which you perform Services. Ratings are considered for purposes of marketplace integrity and fraud prevention.
2.6 Devices. If you choose to use the Partner App, you will need to install it on a mobile device owned or controlled by you or your business ("Device"). You are responsible for the acquisition, cost, and maintenance of your Device as well as any necessary wireless data plan. Use of the Partner App on your Device requires an active data plan with a wireless carrier associated with your Device, which data plan will be provided by you at your own expense. Use of the Partner App on your Device as an interface with the Shiftsmart Platform may consume large amounts of data through the data plan. Consequently, consideration should be given to the data plan you have selected for your Device. SHIFTSMART SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH THE USE OF YOUR DEVICE IN CONNECTION WITH THE SERVICES, OR FOR ANY OTHER REASON.
2.7 Location Based Services. Some Services may ask that your geolocation information be provided to the Shiftsmart Platform either by you or via the Partner App installed on your Device. If you agree, then your geolocation information may be obtained by the Shiftsmart Platform while the Partner App is running. In addition, Shiftsmart may monitor and track your geolocation information obtained by the Partner App and Device for safety and security purposes, fraud prevention, verification, compliance, payment eligibility, dispute resolution, and enforcement of this Agreement. Collection, use, and disclosure of geolocation information are subject to applicable law, required permissions and consents, and the purposes and collection periods described in the Privacy Policy. This Section does not authorize collection outside those permissions or periods.
3.1 Text Messages. Shiftsmart may send you text (SMS) messages concerning your account and marketplace opportunities, subject to applicable law and any required consent. Where separate consent is required for promotional or automated messages, acceptance of this Agreement alone does not provide that consent. Shiftsmart uses text messages to send you account activation details as well as provide information regarding available marketplace opportunities. Shiftsmart will send you SMS messages about upcoming projects you might be interested in. You may opt out by replying “STOP” to a message from the sending number or short code. Shiftsmart will honor your request within the time and scope required by applicable law and may send a lawful confirmation of your request. You may also contact privacy@shiftsmart.com for assistance. A limited request to stop a particular category of messages will be honored according to its scope and applicable law. If at any time you forget what keywords are supported, just text "HELP" for help. Shiftsmart will respond with instructions on how to use the service as well as how to unsubscribe. Texts may be sent using an automatic telephone dialing system. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply. The frequency of the messages will vary depending on the types of tasks you are interested in providing. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to privacy@shiftsmart.com. If you have any questions regarding privacy, please read Shiftsmart’s Privacy Policy.
3.2 Platform Conditions. By creating an account, You acknowledge and agree that at all times, you shall: (a) hold and maintain all licenses, permits, approvals, and authority applicable to you that are necessary to provide the Services to third parties in the Territory; (b) possess the appropriate and current level of training, expertise, and experience to provide the Services in a professional manner with due skill, care, and diligence; and (c) comply with applicable law and commercially reasonable business practices. You may be required by certain Users or applicable law to satisfy lawful background screening or identification, or credential verification requirements, in order to access particular marketplace opportunities.
3.3 Documentation. To ensure your compliance with Section 3.2 above, you must provide copies of all such licenses, permits, approvals, authority, registrations, and certifications prior to your provision of any Services. Thereafter, you must submit evidence of all such licenses, permits, approvals, authority, registrations, and certifications as they are renewed. Shiftsmart may request reasonable verification of such licenses, permits, approvals, authority, registrations, and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Shiftsmart reserves the right to independently verify your documentation from time to time through commercially reasonable verification methods. Failure to provide requested documentation or cooperate with a reasonable verification request may result in suspension or deactivation, or a payment hold only as permitted by Section 4.2.
3.4 Impairment. You agree not to perform Services while impaired by drugs or alcohol in violation of applicable law or in a manner that creates an unreasonable safety risk to Users or third parties. Shiftsmart may suspend platform access where credible safety concerns exist or pending review of reported impairment, intoxication, or other safety-related misconduct.
3.5 Platform Safety. You agree to not engage in conduct that harms, attempts to harm, or threatens the safety of Shiftsmart, Affiliates, Users, employees or customers of any of the foregoing, or our community in any way whatsoever, and you will take all reasonable steps to prevent the foregoing. You agree to not engage in threatening, harassing, racist, or sexist behavior or any other behaviors that Shiftsmart reasonably deems inappropriate when using the Services or the Shiftsmart Platform. Violations of this Section may result in immediate suspension or deactivation.
4.1 Third Party Payment Processing Services. Payment processing services for the Services are provided by Stripe, Inc. (“Stripe”) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). Shiftsmart may give information about you and your account with Shiftsmart to Stripe to create a Stripe Account for you. In order to receive payment, you must associate your bank account to your Stripe Account and agree to be bound by the Stripe Services Agreement, as may be modified by Stripe from time to time. As a condition of enabling payment processing services through Stripe, you agree to provide accurate and complete information about you, and you authorize Shiftsmart to share your information and transaction information related to your use of the payment processing services provided by Stripe. Your bank account may only be associated with one Stripe Account and your Stripe Account may only be associated with one Partner ID. You must notify Shiftsmart, in advance, if you share a bank account with another authorized partner. Failure to do so may result in termination of your account and the accounts of any other authorized partners attempting to share a single Stripe Account or bank account and may result in additional verification requirements, suspension of payment processing, or restriction of platform access pending review.
4.2 Payment from Shiftsmart. Except as set forth in Section 4.3, the following provisions shall govern your payment for providing Services. Users determine the requested deliverables and desired outcomes for marketplace opportunities. Shiftsmart shall send you a request for Services from a User (each a "Proposal"), which shall include a deadline for accepting the Proposal; a description of the task being requested by a User ("Task"); the criteria the User has created for completing the Task; and suggested compensation for completing the Task ("Partner Fee"). Each Task will have different completion criteria and those will need to be accepted before performing the Task. You retain discretion regarding how to achieve requested deliverables, subject to applicable law and any agreed project specifications. The Proposal is only an offer. After evaluating the Proposal, including the suggested Partner Fee, you may choose whether to accept the opportunity before the stated expiration time. Alternatively, for certain opportunities, you may propose an alternative rate by submitting a counteroffer for a higher Partner Fee before accepting the Proposal. To do so, submit a counteroffer with the Partner Fee you would be willing to accept to complete the Tasks described in the Proposal. If the counteroffer is accepted, you will be notified that your counteroffer has been accepted. If the counteroffer is not accepted or if someone else accepts the Proposal while your counteroffer is pending, your counteroffer will be considered rejected. Shiftsmart will pay the Partner Fee agreed upon by the parties within seven days after the Task has been completed in accordance with the applicable completion criteria; provided that, a good-faith dispute concerning a particular amount, reasonably suspected fraud affecting that amount, or a restriction imposed by applicable law may support a hold only to the extent and for the period permitted by applicable law. Shiftsmart will promptly notify you of the basis for a hold, unless prohibited by law, investigate diligently, pay undisputed amounts when due, and release any amounts determined to be payable promptly upon resolution. Administrative or verification delays do not extend a mandatory statutory payment deadline. You acknowledge and agree that, unless the Proposal specifies otherwise (e.g., a Task having an hourly rate), you will only be compensated for completed Tasks and not for incomplete or partially completed Tasks or Tasks that do not satisfy applicable completion, verification, documentation, or compliance requirements. Any payment hold is subject to the limitations above. Payment and completion criteria may not be changed retroactively without your agreement, except as required by law. You acknowledge and agree that the Partner Fee agreed upon by the parties is the only payment you will receive in connection with the provision of the Services. For hourly Tasks, compensation is based on time spent performing the accepted Task at the accepted rate, subject to lawful corrections for inaccurate or fraudulent time records. These provisions do not waive any nonwaivable payment right.
4.3 Payment Directly from Users. Shiftsmart has made arrangements with some Users for those Users to pay you directly for any Services you provide to those Users (each a "Direct Payer"). If you provide Services to a Direct Payer, you will be asked to sign a contract directly with the Direct Payer. Your payment for providing those Services and any additional criteria regarding those Services will be covered by the contract ("Direct Contract") you sign with the Direct Payer. Shiftsmart will make requests for such Services available via the Shiftsmart Platform, which will include an indication that the Services are being performed for a Direct Payer. Although such requests posted in the Shiftsmart Platform may include a summary of the Task, an estimate of the Partner Fee, and other relevant details about the Services, the information provided by Shiftsmart does not govern. Rather, the terms and conditions contained in the Direct Contract shall govern. In the event there is any inconsistency between this Agreement and the Direct Contract, the Direct Contract shall govern. You acknowledge and agree that you will not be receiving any payment from Shiftsmart for Services performed for a Direct Payer and that the compensation set forth in the Direct Contract is the only payment you will receive in connection with the provision of such Services.
4.4 Partner Fee Adjustment. Shiftsmart may correct manifest billing or technical errors affecting payment processing. Any reduction or cancellation of a Partner Fee shall be limited to circumstances involving fraud, duplicate payment, task not performed, technical processing error, or falsification of records. You may dispute any payment adjustment through the platform dispute process or, if platform access is unavailable, through Shiftsmart customer support. Shiftsmart will explain the basis for the adjustment and provide a reasonable opportunity to dispute it. Any adjustment must relate to the affected payment and comply with applicable law.
4.5 Cancellation Charges. Users may elect to cancel requests for Services that have been accepted by you at any time prior to your commencement of providing such Services. In the event that a User cancels an accepted request for a Task, Shiftsmart may charge the User a cancellation fee. If charged, a portion of this cancellation fee may be deemed the Partner Fee for the cancelled Task for the purpose of remittance to you hereunder ("Cancellation Fee").
4.6 Receipts. As part of the Shiftsmart Platform, Shiftsmart provides you a system for the delivery of receipts for the Services rendered. Upon your completion of a Task for a User, the platform generates a transaction summary available to you through the Shiftsmart Platform. Any corrections to a receipt should be submitted to Shiftsmart in writing within 90 days after the completion of the Task. This 90-day period is an administrative reporting period and does not waive an otherwise valid claim for unpaid compensation or shorten any applicable statutory limitations period.
4.7 Taxes. You are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of the Services as required by applicable law; and (b) provide Shiftsmart with all relevant tax information. You are responsible for filing all federal and state tax returns and paying all federal and state taxes on your own income arising from the provision of the Services, and no tax withholdings from payments will be made by Shiftsmart or any User. Notwithstanding anything to the contrary in this Agreement, Shiftsmart will provide any of the relevant tax information you have provided directly to the applicable governmental tax authorities if required to do so based on applicable tax and regulatory considerations.
IMPORTANT INDEPENDENT-CONTRACTOR DISCLOSURE
You are not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by you or another entity. You are obligated to pay all applicable federal and state income taxes on amounts paid under this contractual relationship.
5.1 License Grant. Shiftsmart hereby grants you and your business a personal, non-exclusive, non-transferable, non-sublicensable license, during the term of this Agreement, to use the Shiftsmart Platform (including installing and using the Partner App on your Device) solely for the purpose of providing the Services to Users and tracking resulting Partner Fees. All rights not expressly granted to you are reserved by Shiftsmart, its Affiliates, and their respective licensors. The foregoing license grant shall immediately terminate, and you will delete and fully remove the Partner App from the Device in the event that you cease to provide the Services using your Device or your access to the Shiftsmart Platform is suspended or terminated. Notwithstanding the termination of this license, Shiftsmart will provide a reasonable means to obtain your payment records, tax documents, accepted agreements, and information needed to exercise dispute rights, subject to lawful security and verification requirements.
5.2 Restrictions. You may not create an account for any third party (other than your own business as permitted by Section 2.1) or allow any third party to create an account on your behalf or create, access, or use any account to evade a suspension, restriction, verification requirement, or other action. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Shiftsmart Platform or Partner App in any way; (b) modify or make derivative works based upon the Shiftsmart Platform or Partner App; (c) improperly use the Shiftsmart Platform or Partner App, including creating Internet "links" to any part of the Shiftsmart Platform or Partner App, "framing" or "mirroring" any part of the Shiftsmart Platform or Partner App on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Shiftsmart Platform or Partner App; (d) reverse engineer, decompile, modify, or disassemble the Shiftsmart Platform or Partner App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages; (f) use or attempt to use the Services or content accessible through the Services without Shiftsmart’s prior written consent in connection with the development of any software program, including, but not limited to, training a machine learning or artificial intelligence (AI) system or providing archived or cached data sets containing content accessible through Services to another person or entity. In addition, you shall not, and shall not allow any other party to, access or use the Shiftsmart Platform or Partner App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Shiftsmart Platform an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Shiftsmart Platform; or (iv) attempt to gain unauthorized access to the Shiftsmart Platform or its related systems or networks. (v) You will not abuse or attempt to abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time Users. Other than as specifically permitted by Shiftsmart in connection with the Shiftsmart Platform, you are not permitted to use or reference in any manner Shiftsmart's, its Affiliates', or their respective licensors' company names, logos, products and service names, trademarks, service marks, trade dress, copyrights, or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "Shiftsmart Marks and Names") for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the Shiftsmart Marks and Names, alone or in combination with other letters, punctuation, words, symbols, and/or designs, or in any confusingly similar mark, name, or title, for any goods or services.
5.3 Ownership. To the extent you create deliverables commissioned by a User or Shiftsmart pursuant to a separate written statement of work identifying such deliverables as ‘work made for hire,’ you assign any applicable intellectual property rights in those deliverables as set forth in such statement of work. To the extent a Task you accept involves collecting and submitting observations, photographs, or other data to a User or Shiftsmart, such submissions shall be considered ‘works made for hire’ only to the extent they qualify under applicable law. To the extent ownership does not vest as work made for hire, you hereby assign all of your right, title, and interest in those deliverables to the recipient identified as their owner in the accepted Proposal or separate written statement of work, or, if no owner is identified, to Shiftsmart. This assignment does not transfer ownership of your pre-existing tools, methods, or materials, but you grant the owner a perpetual, worldwide, royalty-free license to use any such materials incorporated into the deliverables as necessary to use those deliverables. The Shiftsmart Platform, Partner App, and Shiftsmart Data, including all intellectual property rights therein, are and shall remain (as between you and Shiftsmart) the property of Shiftsmart, its Affiliates, or their respective licensors. Neither this Agreement nor your use of the Shiftsmart Platform, Partner App, or Shiftsmart Data conveys or grants to you any rights in or related to the Shiftsmart Platform, Partner App, or Shiftsmart Data, except for the limited license granted above. Any suggestions, ideas, feedback, comments, or proposed improvements you provide regarding the Shiftsmart Platform, Partner App, or Services may be used by Shiftsmart without restriction or compensation to you.
6.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Shiftsmart Data, Partner IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Shiftsmart, its internal record-keeping requirements) and (e) it shall promptly notify the disclosing party of any unauthorized access to, use of, or disclosure of Confidential Information of which it becomes aware.
6.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided, where legally permitted and other than for protected reports described below, the receiving party notifies the disclosing party and provides a reasonable opportunity to contest or limit the disclosure. Under U.S. Federal law, code section 18 U.S.C. 1833(b), 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 is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. 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 is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order. Nothing in this Agreement prohibits a legally protected report or disclosure to a governmental authority or an attorney, lawful participation in an investigation or proceeding, or other protected activity. No prior authorization or notice to Shiftsmart or a User is required for such activity. A compelled disclosure does not otherwise remove the confidential status of the information.
6.4 Personal Information. Shiftsmart and its Affiliates collect personal information about you in relation to this Agreement. Our practices regarding the collection, use and disclosure of your personal information are described in the Shiftsmart Privacy Policy. Identity verification and background screening may be performed by third-party providers. These providers process your information to perform checks for Shiftsmart and may also process it under their own privacy notices, as described in the Privacy Policy. Any biometric identity verification conducted for Shiftsmart is currently limited to United States engagements and requires the separate pre-collection notices and consents required by applicable law; acceptance of this Agreement alone does not constitute biometric consent. Shiftsmart does not currently conduct biometric identity verification for Partners located in Canada (“Canadian Engagements”).
7.1 You acknowledge responsibility for operating an independently established business and for obtaining any insurance you deem appropriate for that business. You agree to maintain during the term of this Agreement workers' compensation or occupational accident insurance as required by all applicable laws in the Territory. You may also insure yourself against industrial injuries pursuant to applicable occupational accident or workers compensation insurance, if available. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers' compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all but do so at your own risk.
7.2 You understand and acknowledge that your personal automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for the Services you provide pursuant to this Agreement. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Shiftsmart, to resolve them with your insurer.
7.3 Except as required by applicable law, Shiftsmart is not required to provide you with any specific insurance coverage for any loss or injury to you or caused by you. However, Shiftsmart may maintain insurance related to your provision of the Services as determined by Shiftsmart in its reasonable discretion. While Shiftsmart may obtain insurance related to your provision of the Services, your coverage and rights, if any, are determined by the terms of the applicable policies and applicable law; this Agreement does not eliminate rights granted by such policies or law. You are required to promptly notify Shiftsmart of any incidents that occur while providing the Services and to cooperate and provide all necessary information related thereto including incidents involving theft, violence, threats, harassment, property damage, personal injury, law-enforcement involvement, suspected fraud, or safety concerns.
8.1 By You. You hereby represent and warrant that: (a) you are creating an account on your own behalf or on behalf of a business you own or are authorized to represent and you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you will not utilize any confidential information, trade secrets, or intellectual property belonging to any third party in performing the Services; (c) you will comply with all applicable laws, including holding and complying with all permits, licenses, registrations, and other governmental authorizations necessary to provide the Services to third parties pursuant to this Agreement; (d) you are customarily engaged in an independently established business or trade of the same nature as, or related to, the Services and (e) you will not create or access an account to evade any suspension, restriction, verification requirement, or other enforcement action.
8.2 Disclaimer of Warranties. SHIFTSMART AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE SHIFTSMART PLATFORM AND PARTNER APP ON AN "AS IS" AND "AS AVAILABLE" BASIS. SHIFTSMART AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE SHIFTSMART PLATFORM OR PARTNER APP WILL BE UNINTERRUPTED OR ERROR FREE OR WILL RESULT IN ANY REQUESTS FOR SERVICES. SHIFTSMART FUNCTIONS AS AN ON-DEMAND LEAD GENERATION SERVICE AND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE THE SERVICES FROM YOU. SHIFTSMART DOES NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE SHIFTSMART PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE SHIFTSMART PLATFORM AND PROVISION OF THE SERVICES. SHIFTSMART AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER, OR OTHER THIRD PARTY.
8.3 No Service Guarantee. SHIFTSMART AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE SHIFTSMART PLATFORM OR PARTNER APP. YOU ACKNOWLEDGE AND AGREE THAT THE SHIFTSMART PLATFORM OR PARTNER APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON. FURTHER, THE SHIFTSMART PLATFORM OR PARTNER APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND SHIFTSMART AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES, OR LOSSES RESULTING FROM SUCH PROBLEMS.
9. Indemnification. The parties acknowledge that you independently control the manner and means of performing Services and therefore bear responsibility for claims arising from your provision of Services. You shall indemnify, defend (at Shiftsmart's option) and hold harmless Shiftsmart and its Affiliates and their respective officers, directors, employees, agents, successors, and assigns from and against (a) any claim, suit, or demand arising out of or related to your breach of any representation or warranty under Section 8.1 of this Agreement, asserted by a third party; (b) any liabilities, expenses (including legal fees), damages, penalties, fines, or taxes to the extent caused by your breach of any representation, warranty, or obligation under this Agreement; and (c) any claim, suit, or demand by any third party (including, without limitation, Users, regulators, and governmental authorities) to the extent caused by your negligence, willful misconduct, or breach of this Agreement in providing Services or using the Shiftsmart Platform, including theft, violence, discrimination, privacy violations, personal injury, property damage, or violation of applicable law. This Section does not require you to indemnify any person for losses to the extent caused by that person's negligence, willful misconduct, or violation of law, for your good-faith assertion of statutory rights, or for any obligation or liability that applicable law prohibits transferring to you.
10. Limits of Liability. SHIFTSMART AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY'S PERSONAL INJURY, PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR SHIFTSMART'S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF SHIFTSMART OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PARTNER FEES ACTUALLY PAID TO OR DUE TO BE PAID TO YOU HEREUNDER IN THE SIX MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS LIABILITY, DAMAGES, STATUTORY PENALTIES, ATTORNEYS' FEES, OR OTHER REMEDIES TO THE EXTENT SUCH EXCLUSION OR LIMITATION IS PROHIBITED BY APPLICABLE LAW, INCLUDING LIABILITY FOR FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE TO THE EXTENT NONWAIVABLE. NO PROVISION OF THIS SECTION LIMITS SHIFTSMART'S OBLIGATION TO PAY COMPENSATION OTHERWISE LAWFULLY DUE UNDER SECTION 4.
11.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
11.2 Termination. Either party may discontinue participation in the marketplace upon written notice to the other party. Either party may terminate this Agreement immediately, without notice, for the other party's breach of this Agreement or in the event of the insolvency or bankruptcy of the other party, or upon the other party's filing or submission of request for suspension of payment (or similar action or event) against the terminating party. Shiftsmart may also suspend, restrict, or terminate access to the Shiftsmart Platform pending investigation of suspected fraud, misconduct, safety concerns, Prohibited Conduct, or Marketplace Integrity concerns.
11.3 Effect of Termination. Termination or suspension of platform access does not create or imply an employment relationship. Upon termination of the Agreement, you shall immediately delete and fully remove the Partner App from any of your Devices and return or destroy all Confidential Information of Shiftsmart. Outstanding payment obligations and Sections 1, 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive the termination of this Agreement. You may retain copies reasonably necessary for tax, legal-compliance, payment, or dispute purposes, subject to continuing confidentiality obligations. Shiftsmart will provide the post-termination records and dispute access described in Section 5.1.
12.1 The relationship between the parties under this Agreement is solely that of independent contracting parties as set forth in this Section 12.1 and the parties intend this Agreement to be interpreted consistently with all applicable independent contractor laws. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Shiftsmart and you; and (b) no joint venture, partnership, or agency relationship exists between Shiftsmart and you. You acknowledge that you are an independent contractor that operates an independently established business enterprise and makes services available to the general public independently of Shiftsmart. You are fully responsible for your own taxes and that, as an independent contractor, you are not eligible to participate in any benefit program offered by Shiftsmart or a User to its employees, including, but not limited to, retirement, vacation, or sick leave benefits. You further acknowledge and agree that except as required by applicable law or provided under an applicable policy, you are not covered under Shiftsmart’s or a User’s workers’ compensation or employment insurance coverage. Nothing in this Agreement waives any nonwaivable statutory right or determines classification contrary to applicable law.
12.2 Nothing in this Agreement restricts you from maintaining an independently established trade, occupation, or business and you retain sole discretion regarding whether to market services through competing platforms or directly to customers. You have no authority to bind Shiftsmart or its Affiliates and you undertake not to hold yourself out as an employee, agent, or authorized representative of Shiftsmart or its Affiliates or make representations on behalf of Shiftsmart, its Affiliates, or any User. Any indemnification obligation relating to your conduct as an alleged agent or representative is governed exclusively by, and subject to the limitations in, Section 9.
13.1 Modification. Your acceptance of these terms and conditions constitutes a written agreement with Shiftsmart. While Shiftsmart reserves the right to post modified terms and conditions, any modifications to these terms and conditions will be binding on you only upon acceptance of the modified terms.
13.2 Supplemental Terms. An addendum containing supplemental information or supplemental terms may apply to your use of the Shiftsmart Platform, such as use policies or terms related to certain features and functionality or additional terms specific to the Services you will be providing and/or location where you will be providing those Services, which may be modified from time to time ("Supplemental Terms"). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms shall be deemed a part of this Agreement upon your acceptance of such Supplemental Terms. Supplemental Terms shall prevail over this Agreement in the event of a conflict. Material modifications to Supplemental Terms require your acceptance in accordance with Section 13.1. A Proposal, User policy, or Supplemental Term does not modify Section 15 unless an agreement accepted by both you and Shiftsmart expressly identifies that modification.
13.3 Severability. If any provision of this Agreement is deemed or held to be illegal, invalid, or unenforceable under present or future laws effective during the term hereof, this Agreement shall be considered divisible and inoperative as to such provision to the extent it is deemed to be illegal, invalid or unenforceable, and in all other respects this Agreement shall remain in full force and effect; provided, however, that if any provision of this Agreement is deemed or held to be illegal, invalid or unenforceable, there shall be added hereto automatically a provision as similar as possible to such illegal, invalid or unenforceable provision as shall be legal, valid or enforceable. Further, should any provision contained in this Agreement ever be reformed or rewritten by any court or arbitrator, such provision as so reformed or rewritten shall be binding upon you and Shiftsmart.
13.4 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Shiftsmart may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of Shiftsmart's business, equity or assets.
13.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words "including" and "include" mean "including, but not limited to." The recitals form a part of this Agreement.
13.6 Notices. Any notice delivered by Shiftsmart to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Shiftsmart Platform. Dispute notices are governed by Section 15. Privacy requests, consent withdrawals, payment inquiries, and other requests for which applicable law or this Agreement provides an electronic channel may be submitted through that channel. Any other notice delivered by you to Shiftsmart under this Agreement must be mailed to Shiftsmart’s registered agent at:
Shiftsmart, Inc.
c/o Capitol Corporate Services, Inc.
108 Lakeland Avenue
Dover, DE 19901.
13.7 Governing Law. With the exception of Canadian Engagements and the Arbitration Provision set forth in Section 15 below, each of which shall be governed by the law set forth therein, the validity, performance and construction of this Agreement shall be governed by the laws of the State of Texas regardless of your country of origin or where you access the Shiftsmart Platform, and notwithstanding any conflicts of law principles. This choice of law does not deprive you of mandatory protections of otherwise applicable law that cannot lawfully be waived by agreement.
14.1 Notwithstanding anything to the contrary in this Agreement, to the extent you are located in Canada, you and Shiftsmart acknowledge and agree that the following modifications to this Agreement will apply to you and Shiftsmart: (i) all references in this Agreement to “state” will be construed to mean “province”; (ii) all references in this Agreement to “U.S. dollars” will be construed to mean “Canadian dollars”; and (iii) any United States Federal, state or local laws or regulations will be construed to mean and include their Canadian equivalent (if applicable) and all other applicable Canadian laws and regulations.
14.2 Governing Law. This Agreement and disputes relating to Canadian Engagements are governed by the laws of the province or territory in which you principally perform, or last principally performed, Services in Canada and the federal laws of Canada applicable therein. If you have not performed Services in Canada, the applicable province or territory is where you reside in Canada. This choice does not displace any mandatory law or protection that otherwise applies.
14.3 Mutual Agreement to Arbitrate. Subject to the exceptions below, you and Shiftsmart agree that every dispute, claim, or controversy arising out of or relating to this Agreement, the Shiftsmart Platform, the Services, or the parties’ relationship, whether arising before, during, or after that relationship and whether based on contract, tort, statute, equity, or another legal theory, shall be resolved by final and binding arbitration. Covered disputes include disputes concerning compensation, expenses, classification or alleged employment status, discrimination, harassment, retaliation, privacy, background screening, eligibility, suspension, deactivation, termination, and the interpretation or performance of this Agreement. Coverage extends to otherwise arbitrable disputes involving Shiftsmart’s Affiliates, Users, and their respective officers, directors, employees, agents, successors, and assigns, who may enforce this provision as intended third-party beneficiaries, subject to applicable law.
14.4 Canadian Arbitration Procedure. Arbitration shall be conducted before one independent and impartial arbitrator under the Arbitration Rules of the ADR Institute of Canada, Inc. (“ADRIC”), available at https://adric.ca/rules-codes/arbrules/, subject to the protections in this Section and mandatory applicable law. The parties shall attempt to agree on the arbitrator within thirty days after delivery of a written arbitration notice. If they cannot agree, either may request appointment under the ADRIC Rules or applicable arbitration legislation.
The legal seat of arbitration shall be in the province or territory identified in Section 14.2, and any in-person hearing shall take place reasonably near where you reside in that province or territory, unless you agree otherwise after the dispute arises. Remote participation shall be available where reasonably practicable and consistent with procedural fairness. No provision requires you to travel outside Canada. Proceedings may be conducted in English or French at your election, subject to mandatory language rights.
Shiftsmart shall advance and pay all arbitrator compensation, appointment charges, administrative fees, and deposits necessary to commence and conduct the arbitration. You shall not be required to advance those amounts or reimburse Shiftsmart for them. Each party shall initially bear its own legal and evidentiary expenses, subject to any mandatory entitlement to funding or assistance and any lawful award of legal costs. No costs may be imposed on you merely because you do not succeed, and no costs award may deprive you of a nonwaivable statutory protection.
The arbitrator shall permit disclosure and a fair opportunity to present evidence sufficient to resolve the dispute and may grant every remedy available under applicable law. No limitation elsewhere in this Agreement restricts a nonwaivable remedy. The arbitrator shall issue a reasoned written award. Statutory rights to seek court review, setting aside, recognition, or enforcement are preserved. The arbitrator’s jurisdiction and any court’s jurisdiction shall be determined under applicable Canadian arbitration law.
14.5 Individual Proceedings and Class Action Waiver. To the fullest extent permitted by applicable law, you and Shiftsmart agree to resolve covered disputes individually and waive the right to commence, participate in, or obtain relief through a class, collective, or representative proceeding concerning those disputes, whether in arbitration or court. An arbitrator shall not conduct class, collective, or representative arbitration or combine the merits of different Partners’ claims without the affected parties’ written agreement after the disputes arise. This paragraph does not prohibit common legal representation, lawful cooperation, protected collective activity, or procedural measures that applicable law does not permit the parties to restrict.
14.6 Mandatory Exceptions and Protected Rights. The foregoing Sections 14.3-14.5 do not apply to any contract, claim, remedy, or proceeding to the extent applicable law prohibits the relevant arbitration requirement or waiver. Nothing in this Agreement prevents you from contacting, filing a complaint with, or participating in proceedings before an employment standards authority, human rights commission or tribunal, workers’ compensation authority, labour relations board, privacy regulator, law-enforcement agency, or other governmental authority where that access cannot lawfully be waived. Nor does it restrict a legally protected court proceeding, statutory benefit claim, collective agreement procedure, or other nonwaivable right. The parties’ characterization of their relationship does not determine the availability of these protections. Either party may seek urgent interim relief from a court of competent jurisdiction without waiving arbitration of an otherwise arbitrable dispute. No informal resolution or mediation process is a prerequisite to accessing arbitration, a protected statutory process, or urgent court relief under this Section.
14.7 Severability; Survival. An invalid or unenforceable restriction shall be severed only to the extent permitted by law. Any claim or remedy that cannot lawfully be required to arbitration or subjected to an individual-proceeding requirement may proceed in the competent court or tribunal. Other disputes remain subject to arbitration to the extent legally permissible. Nothing authorizes class arbitration without the parties’ express agreement after the dispute arises. This provision survives termination of this Agreement.
14.8 Relationship to Section 15. This Section 14 exclusively governs dispute resolution for Canadian Engagements. Section 15, including its United States governing law, arbitration procedures, preliminary dispute requirements, mass-arbitration procedures, and litigation waivers, does not apply to those engagements. References elsewhere in this Agreement to Section 15 shall, for Canadian Engagements, mean this Section 14 where the context concerns dispute resolution. This Section controls over any conflicting provision of this Agreement.
14.9 Language. As applicable, the Parties have expressly required that this Agreement and all documents and notices relating to this Agreement be drafted in English. Les parties aux présentes ont expressément exigé que la présente convention et tous les documents et avis qui y sont afférents soient rédigés en anglais. For a contract subject to applicable Quebec French-language requirements, the French version of this Agreement and related documents will first be provided as required by law. The parties may elect to be bound by an English version only after that delivery and an express choice made in accordance with applicable law. The language declaration above does not replace that process.
PLEASE READ THIS SECTION 15 CAREFULLY—IT AFFECTS THE PARTIES’ LEGAL RIGHTS AND GOVERNS HOW YOU AND SHIFTSMART CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION 15 WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND SHIFTSMART TO SUBMIT CLAIMS ARISING UNDER THIS AGREEMENT, INCLUDING CLAIMS AGAINST EACH OTHER, FIRST TO MANDATORY INDIVIDUALIZED INFORMAL DISPUTE RESOLUTION PROCEDURES AND MEDIATION AND THEN, IF ANY OF THE CLAIMS REMAIN UNRESOLVED, TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, GROUP, REPRESENTATIVE, COORDINATED, CONSOLIDATED, MASS, MULTI-CLAIMANT, OR PRIVATE ATTORNEY GENERAL ACTION IN COURT OR ARBITRATION.
CLAIMS MAY NOT BE COORDINATED, CONSOLIDATED, JOINED, ADMINISTERED, OR PROCESSED WITH THE CLAIMS OF ANY OTHER PERSON OR ENTITY EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 15 OR BY WRITTEN CONSENT OF ALL PARTIES. Administrative coordination permitted by the applicable rules of the American Arbitration Association (“AAA”) and the Mass Arbitration Procedures below is not consolidation of the merits, and common counsel or similar claims alone do not constitute misconduct.
THIS MUTUAL AGREEMENT TO ARBITRATE (“ARBITRATION PROVISION”) IS BETWEEN YOU AND SHIFTSMART. THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) APPLIES TO THIS ARBITRATION PROVISION, WHICH EVIDENCES COMMERCE. THE MUTUAL OBLIGATIONS BY SHIFTSMART AND YOU TO ARBITRATE DISPUTES PROVIDE ADEQUATE CONSIDERATION FOR THIS PROVISION. ALL DISPUTES COVERED BY THIS PROVISION WILL BE DECIDED BY A SINGLE ARBITRATOR THROUGH FINAL AND BINDING ARBITRATION AND NOT BY WAY OF COURT OR JURY TRIAL.
15.1 CLAIMS COVERED BY THE ARBITRATION PROVISION. This Arbitration Provision is intended to be as broad as legally permissible, and, except as it otherwise provides, applies to all claims or controversies, past, present, or future, that otherwise would be resolved in a court of law or before a forum other than arbitration. Except as it otherwise provides, this Arbitration Provision applies to any dispute that Shiftsmart may have against you or that you may have against Shiftsmart, an Affiliate or User and/or any of its or their, past, present, or future: (i) officers, directors, shareholders, employees, members, or agents; (ii) Affiliates, parents, and subsidiaries; (iii) benefit plans or the plans’ sponsors, fiduciaries, administrators, affiliates or agents; and (iv) successors or assigns. Each and all of the individuals and entities listed in (i) – (iv) above may enforce this Agreement as a direct or third-party beneficiary.
Except as it otherwise provides, this Arbitration Provision applies, without limitation, to claims based upon or related to discrimination, harassment, retaliation, defamation (including post-engagement defamation or retaliation), whistleblowing, breach of a contract or covenant, fraud, negligence, seating, breach of fiduciary duty, trade secrets, unfair competition, wages, minimum wage and overtime or other compensation, including any monies claimed to be owed, meal breaks and rest periods, termination, tort claims, common law claims, equitable claims, and claims arising under the Defend Trade Secrets Act, Fair Credit Reporting Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and any claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance. Additionally, any claims or disputes about your relationship with Shiftsmart, work you perform hereunder, or alleged employment status with Shiftsmart, including, without limitation, any claims that you should be classified as an employee of Shiftsmart is arbitrable and covered under this Arbitration Provision.
This Arbitration Provision also applies, without limitation, to disputes concerning account registration, identity verification, background checks, eligibility to access or use the Shiftsmart Platform, suspension, restriction, deactivation, account closure, alleged wrongful deactivation, payment eligibility, payment holds, fraud reviews, safety investigations, User complaints, audit findings, Task completion determinations, classification as an independent contractor, alleged employment status, and any dispute concerning compliance with the dispute resolution procedures in this Section 15.
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, scope, applicability, enforceability, waiver, interpretation, severability, implementation, or application of this Arbitration Provision including, but not limited to any claim that all or any part of this Arbitration Provision is void or voidable. However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and it does not apply to the Class Action Waiver or PAGA Individual Action Requirement. Notwithstanding any other clause or language in this Arbitration Provision and/or any rules or procedures that might otherwise apply because of this Arbitration Provision (including without limitation the AAA Rules discussed below) or any amendments and/or modifications to those rules, any claim that all or any part of the Class Action Waiver or PAGA Individual Action Requirement is unenforceable, inapplicable, unconscionable, or void or voidable, will be determined only by a court of competent jurisdiction and not by an arbitrator. A court shall decide whether an agreement to arbitrate was formed and any other issue that applicable law reserves exclusively to a court. This delegation does not restrict governmental authority over reports, investigations, or enforcement proceedings.
15.2 LIMITATIONS ON HOW THIS ARBITRATION PROVISION APPLIES AND CLAIMS NOT COVERED BY THIS ARBITRATION PROVISION. The following claims are not covered under this Arbitration Provision: (i) claims for workers’ compensation benefits, state disability insurance and unemployment insurance benefits; however, it applies to discrimination or retaliation claims based upon seeking such benefits; however, this Arbitration Provision does apply to any claims for breach of fiduciary duty, or for penalties, alleging that any of Shiftsmart’s benefit plans violate the requirements of the Employee Retirement Income Security Act of 1974 (ERISA), claims arising under sections 601-607 of ERISA (relating to continuation coverage under group health plans), or alleging any other violation of ERISA (including but not limited to claims under section 510 of ERISA), even if such claim is combined with a claim for benefits; (ii) claims, proceedings, or remedies that applicable law, not preempted by the FAA, prohibits requiring arbitration; and (iii) disputes that may not be subject to pre-dispute arbitration agreement under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (at your election). If any claim(s) not covered under this Arbitration Provision above are combined with claims that are covered under this Arbitration Provision, to the maximum extent permitted under applicable law, the covered claims will be arbitrated and continue to be covered under this Arbitration Provision. Nothing in this Agreement requires arbitration or enforcement of a pre-dispute joint-action waiver to the extent prohibited by 9 U.S.C. Section 402, including where that statute applies to a case rather than only an individual claim.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a governmental agency, including without limitation, the Equal Employment Opportunity Commission (EEOC), U.S. Department of Labor, Securities and Exchange Commission, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement agencies, and nothing in this Arbitration Provision prevents the investigation or prosecution by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from exhausting administrative remedies by filing any charges or complaints required by any governmental agency (including without limitation the EEOC and/or similar state or local agency) before bringing a claim in arbitration. Shiftsmart will not retaliate against you for filing a claim with an administrative agency or for exercising rights under the National Labor Relations Act. This Arbitration Provision also does not prevent or prohibit you in any way from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse.
Either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief (“Provisional Relief”) in connection with an arbitrable controversy but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration, and the pursuit of Provisional Relief will not be deemed incompatible with or constitute a waiver of rights under this Arbitration Provision.
15.3 DISPUTE RESOLUTION PROCEDURES. The parties agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome.
15.4 MANDATORY NOTICE OF DISPUTE REQUIREMENT. Before either party may initiate mediation, arbitration, or any court proceeding, the initiating party must first serve a written Notice of Dispute by certified mail, return receipt requested, to the receiving party and allow the receiving party 60 calendar days to investigate and attempt to resolve the dispute. This requirement does not apply to governmental filings, requests for Provisional Relief authorized above, or filings reasonably necessary to preserve a claim against an expiring deadline. A protective filing does not waive arbitration of an otherwise arbitrable claim; further proceedings may be stayed while the required process is completed.
The Notice of Dispute must be individualized and must include: (i) the claimant’s full legal name; (ii) the claimant’s phone number, email address, and mailing address; (iii) a description of the claim with enough factual support for the recipient to understand the dispute and the relief sought; (iv) supporting documents reasonably available to the initiating party, excluding privileged material; and (v) a statement that the information is accurate to the initiating party's knowledge after reasonable inquiry, followed by that party's signature (or an authorized representative's signature for an entity).
Each Notice of Dispute must relate to a single claimant only. Notices of Dispute may not be submitted on a consolidated, group, collective, coordinated, representative, mass, or multi-claimant basis. No attorney or law firm may submit arbitration demands on behalf of multiple claimants in a single submission package unless permitted by the applicable AAA Rules or authorized by the arbitration administrator. Separate notices and demands must still identify each claimant and that claimant's dispute.
The Notice of Dispute shall not be deemed effective unless served in compliance with this Section 15. Compliance with this Notice of Dispute process is a mandatory condition precedent to mediation, arbitration, or litigation. Any mediation demand, arbitration demand, or court filing submitted before completion of this process shall be premature and subject to dismissal or stay. The receiving party must identify any material deficiency promptly and allow at least fifteen calendar days to cure it. Technical defects causing no material prejudice do not waive a claim or restart the resolution period. The exceptions in the Mandatory Notice of Dispute Requirement above control over any contrary procedural language in this Section 15.
15.5 MANDATORY INFORMAL DISPUTE RESOLUTION CONFERENCE. The party receiving a compliant Notice of Dispute may request an individualized informal dispute resolution conference by telephone or video conference during the 60-day resolution period. If requested, the claimant and Shiftsmart must personally participate in the conference within the 60-day time period at a mutually reasonable time; an authorized representative with settlement authority may participate for Shiftsmart, and reasonable disability or other legally required accommodations will be provided. If either party is represented by counsel, counsel may also participate, but counsel’s participation alone shall not satisfy this requirement.
Each conference must be individualized. Multiple claimants may not participate in the same conference, even if represented by the same counsel, unless Shiftsmart agrees in writing.
The parties agree to toll applicable limitations periods for the claims identified in the Notice of Dispute from receipt of that notice through completion or expiration of the required informal-resolution and mediation periods, including any reasonable cure period. This tolling does not purport to bind a governmental agency or extend a deadline that the parties cannot lawfully extend; protective filings remain permitted as stated above.
Failure to participate personally and in good faith in any required informal dispute resolution conference shall constitute failure to satisfy a mandatory condition precedent. After notice and an opportunity to cure, the Arbitrator may stay proceedings to permit completion of the procedures, subject to the exceptions and deadlines in this Section 15. A party may not enforce a condition it prevented the other party from satisfying.
Failure by a claimant to timely prosecute an arbitration demand, participate in required proceedings, comply with scheduling obligations, appear at required conferences or hearings, provide required discovery, or pay required fees may result in proportionate relief under the applicable AAA Rules and law, after notice and a reasonable opportunity to cure. No claim is forfeited solely for a technical procedural defect, and no party is required to pay fees allocated to the other party or waived under applicable rules or law.
The parties therefore agree that, before an arbitration demand is submitted to an arbitration provider, the party bringing the claim shall first attempt to mediate with the other party, in good faith, a resolution of the dispute, claim, or controversy between the parties. Only after full compliance with the Notice of Dispute process and any required Mandatory Informal Dispute Resolution Conference may either party initiate mediation and arbitration by serving a written “Demand for Mediation and Arbitration” on the other party.
Any Demand for Mediation and Arbitration must attach or include proof of compliance with the Notice of Dispute and Mandatory Informal Dispute Resolution Conference requirements. Any Demand for Mediation and Arbitration submitted without such proof is defective and may be subject to a request to cure or a stay as determined by the AAA or Arbitrator under applicable rules and law. This provision does not limit the AAA's authority to accept filings or assess fees, excuse timely payment of required fees, or override the protective-filing exception above.
Unless extended by mutual agreement of the parties, within three business days of service of the demand, the initiating party will serve on the receiving party a list of five mediators maintained by the AAA. Within two business days of service of the mediator list, the receiving party will select one of the names from the list and inform the initiating party of the selected name. Within one business day thereafter, the initiating party will contact the mediator, copying the receiving party, to request that the mediator agree to be engaged and conduct the mediation. If the mediator is unable or unwilling to conduct the mediation, then the receiving party will serve a new list of five mediators on the initiating party and the initiating party will contact one of the mediators, copying the receiving party, to request that the mediator agree to be engaged and conduct the mediation. If the mediator is unable or unwilling to conduct the mediation, then the initiating party will contact the other remaining mediators in the same manner. If none are able or willing to conduct the mediation, then the parties will jointly request the AAA to appoint an appropriate mediator.
The mediation will be administered by the AAA, and except as provided in this Agreement, will be under its Commercial Mediation Procedures. To the extent the AAA Commercial Mediation Procedures conflict with this Agreement, this Agreement shall control to the fullest extent permitted by law. Each party will pay its own costs, including attorneys’ fees, subject to applicable law, and Shiftsmart will pay the mediator's fees and the AAA administrative fees for required mediation. If the mediator determines that the mediation is unsuccessful, the parties shall proceed with arbitration and the arbitrator shall be selected under the arbitrator-selection procedures below unless all parties expressly agree otherwise in writing. Unless the parties agree otherwise in writing, mediation must conclude within sixty calendar days after service of the Demand for Mediation and Arbitration. Either party may proceed to arbitration after that period expires, after the mediator declares an impasse, or if the other party refuses to participate. Delays in mediator selection do not extend this deadline without mutual written agreement.
All mediations shall be individualized such that a separate mediation must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same mediation. If either party is represented by counsel, that party’s counsel may participate in the mediation, but the party also must appear at and participate in the conference. Engaging in mediation is a condition precedent that must be fulfilled before commencing individual arbitration. This requirement is subject to the mediation deadline, protective-filing exception, and consequences of nonparticipation stated above. The Arbitrator may stay proceedings to permit timely completion but shall not dismiss a claim solely because the other party failed to participate.
15.6 DEMAND CERTIFICATION. Any party initiating arbitration must sign the Demand for Mediation and Arbitration personally. If represented by counsel, counsel must also certify, after reasonable inquiry, that: (i) the demand is not being presented for any improper purpose, including harassment, unnecessary delay, or needless increase in dispute-resolution costs; (ii) the claims and legal contentions are warranted by existing law or by a nonfrivolous argument for changing existing law; and (iii) the factual contentions have evidentiary support or are likely to have evidentiary support after reasonable investigation or discovery.
15.7 ARBITRATION PROCEDURES. The arbitration will be administered by the AAA, and except as provided in this Agreement, will be under the then-current AAA Employment/Workplace Arbitration Rules for work-related disputes involving an individual unincorporated independent contractor, and otherwise the AAA rules applicable to the dispute as determined by the AAA (collectively, “AAA Rules,” available at https://www.adr.org/rules-forms-and-fees/employment/). Use of the Employment/Workplace Rules does not establish employee status. Any applicable AAA Mass Arbitration Supplementary Rules also apply. This Arbitration Provision controls a conflict only to the extent permitted by applicable law and mandatory AAA administration and fairness requirements. Unless the parties agree otherwise, the Arbitrator must be an attorney licensed to practice law in the state in which the arbitration is convened, or a retired judge from any jurisdiction. In the event, however, either party asserts a claim or claims that include a covered ERISA claim, the parties agree that the Arbitrator must be a retired federal judge from any jurisdiction. Unless the parties agree otherwise, the arbitration will take place in or near the city and in the state where you performed the Tasks giving rise to the arbitration demand or by remote video or telephonic hearing for any preliminary, procedural, scheduling, or non-evidentiary hearing.
15.8 MASS ARBITRATION PROCEDURES. If five or more arbitration demands asserting substantially similar claims are submitted against Shiftsmart within any 180-day period by the same law firm, group of law firms, coordinated claimants, organizations, or entities, the demands shall constitute a “Mass Arbitration” for the contractual procedures below, subject to the AAA's determination of applicable rules and administration requirements.
Any Mass Arbitration shall proceed as follows:
(i) A procedural arbitrator may be appointed in accordance with the applicable AAA Rules to determine whether the demands are part of a Mass Arbitration and whether they comply with this Section 15. The procedural arbitrator additionally may determine: (A) whether all pre-filing requirements were satisfied; (B) whether notices were individualized; (C) whether filing requirements were satisfied; (D) whether demands are procedurally defective; (E) whether claims are coordinated or mass-filed; (F) whether claims are barred procedurally; (G) whether claimants complied with individualized participation requirements; and (H) whether this Section 15 has otherwise been fully complied with.
(ii) The Mass Arbitration shall first proceed through bellwether arbitration. Four demands shall be selected for initial arbitration: two selected by claimants and two selected by Shiftsmart.
(iii) All remaining demands shall be stayed while the bellwether arbitrations proceed. The arbitration administrator and/or procedural arbitrator may stay, sequence, batch, coordinate scheduling of, or administratively manage claims to promote efficiency, fairness, proportionality, cost control, and orderly administration. The bellwether proceedings shall run concurrently where practicable and conclude within 180 calendar days after appointment of the procedural arbitrator or, if none is appointed, the first bellwether arbitrator. After that deadline, an unselected claimant may elect to have that claimant's individual arbitration proceed without waiting for other claims. The deadline may be extended only by agreement of the affected claimant or as required by applicable law.
(iv) After the bellwether arbitrations conclude, the parties shall participate in a global mediation of the remaining demands; provided that, the results of the bellwether arbitrations shall not bind other claimants absent their agreement. The global mediation shall conclude within thirty calendar days after the bellwether phase ends unless the affected parties agree otherwise. It does not delay an individual claimant who has elected to proceed under subsection (iii).
(v) If the remaining demands are not resolved, they shall proceed in batches of no more than 25 individual demands per batch for administrative purposes. Batches may proceed concurrently as directed by the AAA or procedural arbitrator. No claimant is required to wait for another batch to conclude or to remain stayed beyond the deadline in subsection (iii). Each demand retains a separate merits determination and award.
(vi) Statutes of limitation shall be tolled for stayed demands during the Mass Arbitration process.
(vii) The Arbitrator shall not consolidate claims, conduct class arbitration, conduct collective arbitration, or preside over any coordinated, consolidated, representative, mass, or multi-claimant proceeding except as expressly provided in this Mass Arbitration Procedures section.
The Arbitrator will be selected as follows: The AAA will give each party a list of 11 arbitrators (who are subject to the qualifications in the preceding paragraph) drawn from its panel of arbitrators. Each party will have ten calendar days to strike all names on the list it deems unacceptable. If only one common name remains on the lists of all parties, that individual will be designated as the Arbitrator. If more than one common name remains on the lists of all parties, the parties will strike names alternately from the list of common names by telephone conference administered by AAA, with the party to strike first to be determined by a coin toss conducted by AAA, until only one remains. If no common name remains on the lists of all parties, the AAA will furnish an additional list of 11 arbitrators from which the parties will strike alternately by telephone conference administered by AAA, with the party to strike first to be determined by a coin toss conducted by AAA, until only one name remains. That person will be designated as the Arbitrator. Either party may challenge an arbitrator for bias, conflict, or lack of neutrality under applicable AAA rules. If the individual selected cannot serve, AAA will issue another list of 11 arbitrators and repeat the alternate striking selection process.
If the AAA is unavailable, unwilling, or unable to administer the arbitration consistent with this Section 15, the parties shall confer in good faith to select an alternative arbitration provider. If the parties cannot agree, either party may apply to a court of competent jurisdiction to appoint a neutral arbitrator or arbitration provider consistent with this Section 15. This fallback does not excuse either party's payment obligations, permit avoidance of mandatory fairness requirements, or require substitution where applicable law provides a different remedy for nonpayment or refusal to arbitrate. Any substitute must be neutral and apply the fee-allocation and statutory-rights protections in this Section.
The Arbitrator may award any remedy to which a party is entitled under applicable law and this Agreement, but remedies will be limited to those that would be available to a party in their individual capacity for the claims presented to the Arbitrator, and no nonwaivable remedy, statutory penalty, or mandatory attorneys' fee award available under applicable law will be forfeited. Sections 10 and 11 apply only to the extent enforceable and do not limit such nonwaivable rights or remedies. Unless otherwise agreed in writing by the parties, the Arbitrator shall apply the substantive federal, state, or local law applicable to the claims asserted. The Federal Rules of Evidence shall apply to the proceeding. Either party may file dispositive motions, including without limitation a motion to dismiss and/or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure.
The Arbitrator shall promptly consider dispositive motions, including motions to dismiss, motions for summary judgment, motions to compel compliance with this Section 15, motions to stay proceedings, and motions challenging defective or premature demands before permitting broad merits discovery.
The Arbitrator may resolve threshold procedural, administrative, arbitrability, notice, filing, service, compliance, sequencing, and case-management disputes before merits discovery or evidentiary proceedings commence.
The Arbitrator will issue an award by written opinion within thirty days from the date the arbitration hearing concludes or the post-hearing briefs (if requested) are received, whichever is later. The opinion will be in writing and include the factual and legal basis for the award. Judgment on the award issued by the Arbitrator may be entered in any court of competent jurisdiction. Either party may seek correction, confirmation or vacatur in a court of competent jurisdiction as provided by the Federal Arbitration Act.
15.9 CLASS AND COLLECTIVE ACTION WAIVERS. Shiftsmart and you agree to bring any claim on an individual basis only. Accordingly, YOU AND SHIFTSMART WAIVE ANY RIGHT FOR ANY DISPUTE TO BE BROUGHT, HEARD, DECIDED, OR ARBITRATED AS A CLASS, COLLECTIVE, COORDINATED, CONSOLIDATED, REPRESENTATIVE, MASS, OR MULTI-CLAIMANT ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO HEAR OR PRESIDE OVER ANY SUCH CLAIM (“Class Action Waiver”). Additionally, no arbitration proceeding under this Arbitration Provision may be consolidated or joined in any way with an arbitration proceeding involving other contractors of Shiftsmart. This waiver is subject to the PAGA Individual Action Requirement, the statutory exceptions above, and the administrative coordination expressly permitted in this Section 15.
The Class Action Waiver shall be severable from this Arbitration Provision if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In any case in which (1) the dispute is filed as a class, collective or representative action and (2) if there is a final judicial determination that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void, or voidable, the unenforceable class, collective, coordinated, consolidated, representative, mass, multi-claimant may proceed only in a court of competent jurisdiction and, in that event, any class or collective action must be litigated in a court of competent jurisdiction—not in arbitration—but the portion of the Class Action Waiver that is enforceable shall be enforced.
15.10 LITIGATION CLASS ACTION WAIVER. To the extent any dispute is permitted to proceed in court, the dispute shall proceed solely on an individual basis. You and Shiftsmart waive any right to have any dispute brought, heard, decided, or resolved as a class, collective, coordinated, consolidated, representative, mass, multi-claimant, or private attorney general action in court. No court proceeding may be joined, consolidated, or combined with another proceeding without the prior written consent of all parties. This paragraph does not waive non-individual PAGA claims addressed below or other representative relief that cannot lawfully be waived, or administrative coordination expressly permitted under this Section. It does not restrict a court’s nonwaivable authority to manage proceedings.
15.11 PRIVATE ATTORNEYS GENERAL ACT (“PAGA”) INDIVIDUAL ACTION REQUIREMENT. You and Shiftsmart agree to arbitrate PAGA claims on an individual basis only. Therefore, the portion of any PAGA claim based on Labor Code violations you personally sustained must be arbitrated under this Arbitration Provision. Shiftsmart and you also agree the parties will request that the court stay any non-individual PAGA claims pending arbitration of the individual portion, to the extent permitted by applicable law. Those non-individual claims are not waived, and the court retains authority over their disposition, including standing and the effect of any arbitration findings, as provided by applicable law. The Arbitrator is without authority to preside over any PAGA claim by you on behalf of any other person or joined by or consolidated with another person’s or entity’s PAGA claim. This PAGA Individual Action Requirement clause will be severable from this Arbitration Provision if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable. In such case, the PAGA action must be litigated in a civil court of competent jurisdiction—not in arbitration—but the portion of the PAGA Individual Action Requirement that is enforceable will be enforced in arbitration.
15.12 NOTICE OF DEMAND FOR MEDIATION AND ARBITRATION. Shiftsmart and you agree that the party initiating the claim must make the written Demand for Mediation and Arbitration of the claim to the other party no later than the expiration of the statute of limitations (deadline for filing) that the law prescribes for the claim. The Demand for Mediation and Arbitration shall identify the claims asserted, the facts upon which such claims are based, and the relief or remedy sought. The Demand for Mediation and Arbitration must be signed by the party making the demand (you personally or authorized representative of Shiftsmart, as applicable). The written Notice of Dispute and any Demand for Mediation and Arbitration to Shiftsmart must be sent by mail, return receipt requested to Shiftsmart’s registered agent at:
Shiftsmart, Inc.
c/o Capitol Corporate Services, Inc.
108 Lakeland Avenue
Dover, DE 19901.
You will be given notice of any Notice of Dispute or Demand for Mediation and Arbitration by Shiftsmart by mail, return receipt requested, to your last known mailing address contained in Shiftsmart’s records. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the Demand for Mediation and Arbitration and apply the statute of limitations that would have applied if the claim(s) had been brought in court. Any Notice of Dispute, Demand for Mediation and Arbitration, or other dispute-resolution filing submitted without proof of compliant service may be subject to a request to cure or a stay, consistent with the notice, cure, tolling, and protective-filing provisions above. Technical service defects causing no material prejudice do not automatically forfeit a claim.
15.13 DISCOVERY AND SUBPOENAS. Each party may take the deposition of one individual fact witness and any expert witness designated by another party. Each party also may propound ten requests for production of documents and three interrogatory requests to the other party. And, each party shall have the right to subpoena witnesses and documents for discovery or the arbitration hearing, including testimony and documents relevant to the case from third parties, in accordance with any applicable state or federal law. Additional discovery may be conducted by mutual stipulation, and the Arbitrator will have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests, based on the Arbitrator’s determination whether additional discovery is warranted by the circumstances of a particular case.
Discovery shall be limited to non-privileged information directly relevant and proportional to the claims and defenses asserted. The Arbitrator shall limit cumulative, duplicative, burdensome, disproportionate, speculative, or abusive discovery.
15.14 ARBITRATION FEES AND COSTS. You and Shiftsmart shall follow the AAA Rules applicable to initial filing fees, but you will not be responsible for any portion of those fees in excess of the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. Shiftsmart shall pay any remaining portion of the initial fee and will pay all costs and expenses unique to arbitration, including without limitation the Arbitrator’s fees. Each party will pay for its own costs, including all fees and costs associated with depositions it requests and all other expenses, fees, and costs that it would ordinarily be required to bear if an action were filed in a court of law, and attorneys’ fees, if any, except that the Arbitrator may award fees and costs only to the extent permitted by applicable law and enforceable contract terms, applying any mandatory limits on awards against an individual claimant. The Partner's filing fee shall not exceed the lesser of the applicable AAA individual filing fee and the comparable court filing or initial appearance fee, and any required fee-waiver process remains available. The Arbitrator will resolve any disputes regarding costs/fees associated with arbitration.
15.15 SANCTIONS. To the extent allowed by applicable law and if the claims or counterclaims brought by either party in arbitration allow for imposition of sanctions, the Arbitrator may award either party its reasonable attorneys’ fees and costs, arbitration fees, administrative fees, expert costs, discovery costs, investigation expenses, and other costs, including reasonable expenses associated with production of witnesses or proof, upon a finding that the claim or counterclaim was frivolous or brought solely to harass you or Shiftsmart.
After notice and a reasonable opportunity to respond and cure where appropriate, the Arbitrator may impose proportionate sanctions for demonstrated bad-faith conduct or material procedural abuse only as permitted by applicable law and AAA Rules. Common counsel, similar claims, good-faith challenges to this Agreement, and curable technical defects do not alone support sanctions. Mandatory protections limiting fee or cost awards against an individual claimant remain applicable.
15.16 CONFIDENTIALITY OF DISPUTE RESOLUTION PROCEEDINGS. Except as otherwise required by law, all informal dispute resolution conferences, mediations, arbitrations, filings, evidence, testimony, discovery, rulings, awards, and settlement communications shall remain confidential and shall not be disclosed to any third party except legal counsel, tax advisors, insurers, auditors, regulators, courts of competent jurisdiction, witnesses, experts, interpreters, and other persons to the extent reasonably necessary to pursue or defend a claim, or as necessary to enforce or challenge an arbitration award. Disclosures to participants shall be limited to information reasonably necessary for that purpose and subject to reasonable confidentiality safeguards. Nothing in this paragraph restricts legally protected reports, disclosures, or activity permitted by Sections 6.3 and 15, and no prior notice or authorization is required for such activity. Violation of this confidentiality provision shall constitute a material breach of this Agreement.
15.17 CONSTRUCTION, SURVIVAL, AND ENFORCEMENT OF THIS ARBITRATION PROVISION. This is the complete agreement of the parties about mediation and then arbitration of covered disputes. Any contractual disclaimers Shiftsmart has in any handbooks, other agreements, or policies do not apply to this Arbitration Provision. If a court determines the Federal Arbitration Act does not apply to a particular dispute or to one or both parties, the parties agree that the laws of the State of Texas apply. This Arbitration Provision will survive the termination of your use of the Shiftsmart Platform.
You have the right to consult with counsel of your choice concerning this Arbitration Provision and to be represented by counsel at any stage during the mediation and arbitration process. Subject to the clauses entitled “Class and Collective Action Waivers” and “Private Attorneys General Act (“PAGA”) Individual Action Requirement” above, if any provision of this Arbitration Provision is found to be invalid, unenforceable, unconscionable, void or voidable, in whole or in part, that provision will be severed or modified and such adjudication will not affect the validity of the remainder of the Arbitration Provision. If any portion of the Notice of Dispute process, Mandatory Informal Dispute Resolution Conference requirement, Mass Arbitration Procedures, Litigation Class Action Waiver, or confidentiality requirement is found unenforceable, that portion shall be severed or modified to the minimum extent necessary, and the remaining portions shall be enforced to the fullest extent permitted by law. All remaining provisions will remain in full force and effect.
Noncompliance with this Section 15 is subject to its express exceptions, deadlines, notice-and-cure protections, and limitations on sanctions. No technical defect automatically waives a claim or excuses payment of required fees. Any relief must be proportionate and authorized by applicable law and AAA Rules.
YOU AGREE THAT YOU HAVE CAREFULLY READ AND UNDERSTAND THIS MUTUAL AGREEMENT TO ARBITRATE AND AGREE TO ITS TERMS. BY SIGNING THE AGREEMENT PHYSICALLY, OR ELECTRONICALLY THROUGH DOCUSIGN OR OTHER ELECTRONIC MEANS, YOU ARE AGREEING TO AND ACCEPTING THIS ARBITRATION PROVISION, AND SHIFTSMART AND YOU ARE GIVING UP YOUR RIGHTS TO A COURT OR JURY TRIAL AND AGREEING TO MEDIATE THEN ARBITRATE CLAIMS AND DISPUTES COVERED BY THE ARBITRATION PROVISION.