TECHNOLOGY SERVICES AGREEMENT
This Technology Services Agreement (hereinafter the "Agreement") constitutes a legal agreement between you, (hereinafter "you", "your") and Mobefix, registered in New York, Mobefixinc, One World Trade Center, Suite 8500, NY 10007 (hereinafter referred to as "we",
"our" or "Mobefix").
Provides services to independent mobile device repair service providers using the Mobefix Services (as defined below). Mobefix Services allows an authorized repairer to receive and fulfill requests for repair services from an authorized Mobefix user. You wish to sign this Agreement for the purpose of accessing and using the Mobefix Services
You acknowledge and agree that Mobefix is a technology services provider that does not provide repair services.
In order to use the Mobefix Services, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Mobefix shall be bound by the terms and conditions set forth herein.
If the Repairer is entering into this Agreement on behalf of a company or other legal entity, the Repairer represents that it has the authority to bind such entity to these terms and conditions. If the Repairer does not have such authority, or if the Repairer does not agree with the terms of this Agreement, Repairer must not accept this Agreement.
Important: please note that to use the Mobefix services, you must agree to the terms and conditions set forth below. Please review the arbitration provision set forth below carefully, as it will require you to resolve disputes with Mobefix on an individual basis, except as provided in section 14.3, through final and binding arbitration unless you choose to opt out of the arbitration provision. By virtue of your electronic execution of this agreement, you will be acknowledging that you have read and understood all of the terms of this agreement (including the arbitration provision) and have taken time to consider the consequences of this important business decision. If you do not wish to be subject to arbitration, you may opt out of the arbitration provision by following the instructions provided in the arbitration provision below.
1.1 "Affiliate" means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 "City Addendum" means an addendum or supplemental information to this Agreement setting forth additional Territory-specific terms, as made available and as updated by Mobefix from time to time.
1.3 "Mobefix Data" means all data related to the access and use of the Mobefix Services hereunder, including all data related to Users (including User Information), all data related to the provision of repair Services via the Mobefix Services, and the Repairer ID.
1.4 "Site" means the Mobefix's website www.mobefix.com.
1.5 "Repairer ID" means the identification and password key assigned by Mobefix to you that enables you to use and access the Site.
1.6 "Fare" the meaning set forth in Section 4.1.
1.7 "Service Fee" has the meaning set forth in Section 4.4.
1.8 "Territory" means the city or metro areas in the United States in which you are enabled to receive requests for repair Services.
1.9 "Repair Services" means your provision of repair services to Users via the Mobefix Services.
1.10 "Mobefix Services" mean Mobefixr's on-demand lead generation and related that enable repair providers to seek, receive and fulfill on-demand requests for repair services by Users seeking repair services; such Mobefix Services include access to the Mobefix's website, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.11 "User" means an end user authorized by Mobefix to use the Mobefix site or application for the purpose of obtaining repair Services offered by Mobefix's repair provider customer.
1.12 "User Information" means information about a User made available to you in connection with such User's request for and use of Repair Services, which may include the User's name, Telephone, contact information and email.
2. Use of the Mobefix Services
2.1 Repairer IDs. Mobefix will issue you a Repairer ID to enable you to access and use the Mobefix Site or App on a device in accordance with this Agreement. Mobefix reserves the right to deactivate your Repairer ID at any time at it sole discretion without previous written notify. You agree that you will maintain your Repairer ID in confidence and not share your ID with any third party. You will immediately notify to Mobefix of any actual or suspected breach or improper use or disclosure of your Repairer ID.
2.2 Provision of Repair Services. User requests for Repair Services may appear to you via your account on the Site or by email. If you accept a User's request for Repair Services, the Mobefix Services will provide you with certain User Information via email or you can see the information on the Site. In order to enhance User satisfaction with the Mobefix Services and your Repair Services, it is recommended that you wait at least twenty (20) minutes for a User to show up at the address that we provide you. You acknowledge and agree that once you have accepted a User's request for Repair Services, Mobefix's mobile application may provide certain information about you to the User, including your name and contact information. You shall not contact any Users or use any User's personal data for any reason other than for the purposes of fulfilling Repair Services. As between Mobefix and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Repair Services; and (b) except for the Mobefix Services, you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Repair Services.
2.3 Your Relationship with Users. acknowledge and agree that your provision of Repair Services to Users creates a direct business relationship between you and the User. Mobefix is not responsible or liable for the actions or inactions of a User in relation to you, your activities or your Services. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Repair Services. You acknowledge and agree that Mobefix may release your contact information to a User upon such User's reasonable request.
2.4 Your Relationship with Mobefix. You acknowledge and agree that Mobefix's provision to you of the Mobefix Services creates a direct business relationship between Mobefix and you. Mobefix does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Repair Services, your acts or omissions. You retain the sole right to determine when, where, and for how long you will utilize the Mobefix Services. You retain the option, via the Site, to attempt to accept or to decline or ignore a User's request for Repair Services via the Mobefix Services, or to cancel an accepted request for Repair Services via the Site, subject to Mobefix's then-current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Mobefix shall have no right to require you to: (a) display Mobefix's or any of its Affiliates' names, logos or colors on your store(s); or (b) wear a uniform or any other clothing displaying Mobefix's or any of its Affiliates' names, logos or colors. You acknowledge and agree that 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 to; (i) use other services in addition to the Mobefix Services; and (ii) engage in any other occupation or business. Mobefix retains the right to deactivate or otherwise restrict you from accessing or using the Mobefix Services in the event of a violation or alleged violation of this Agreement, your disparagement of Mobefix or any of its Affiliates, your act or omission that causes harm to Mobefix's or its Affiliates' brand, reputation or business as determined by Mobefix in its sole discretion.
3. You and Your Certification or Company
3.1 Your Requirements. You acknowledge and agree that at all times, you shall: (a) have the appropriate certification to operate as a Technician if you are working as individual or your Company in the you're you are a legal person, and (ii) all licenses, permits, approvals and authority applicable to you that are necessary to provide repair services to third parties in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide Repair Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that Mobefix reserves the right, at any time in Mobefix's sole discretion, to deactivate or otherwise restrict you from accessing or using the theMobefix Services if you fail to meet the requirements set forth in this Agreement.
4. Financial Terms
4.1 Fare Calculation and Your Payment. We charge a fare to the User for each instance of completed Repair Services provided to the User that are obtained via the Repair Services ("Fare"), where such Fare (as determined by Mobefix and/or time amounts, as detailed at www.mobefix.com) is calculated based upon a base fare amount, which we will deduct the transaction fee, taxes and Mobefix's commission. You acknowledge and agree that the Fare provided under the Fare Calculation is the only payment you will receive in connection with the provision of Repair Services. Mobefix agrees to remit, or cause to be remitted, to you on at least a weekly basis: (a) the Fare less the applicable Service Fee; and (b) depending on the region, certain taxes and ancillary fees.
4.2 Changes to Fare Calculation. Mobefix reserves the right to change the Fare Calculation at any time in Mobefix's discretion based upon local market factors. Continued use of the Mobefix Services after any such change in the Fare Calculation shall constitute your consent to such change.
4.3 Fare Adjustment. Mobefix reserves the right to: (i) adjust the Fare for a particular instance of Repair Services; or (ii) cancel the Fare for a particular instance of Repair Services (e.g., User is charged for Repair Services that were not provided, in the event of a User complaint, fraud, etc.). Mobefix's decision to reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
4.4 Service Fee. In consideration of Mobefix's provision of Repairer and the Mobefix Services for your use and benefit hereunder, you agree to pay Mobefix a service fee on a per Repair Services transaction basis calculated as a percentage of the Fare determined by the Fare Calculation (regardless of any Negotiated Fare), as provided to you via email or otherwise made available electronically by Mobefix from time to time for the applicable Territory ("Service Fee"). In the event regulations, applicable to your Territory require taxes to be calculated on the Fare, Mobefix shall calculate the Service Fee based on the Fare net of such taxes. Mobefix reserves the right to change the Service Fee at any time in Mobefix's discretion based upon local market factors, and Mobefix will provide you with notice in the event of such change. Continued use of the Mobefix Services after any such change in the Service Fee calculation shall constitute your consent to such change.
4.5 Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Repair Services that have been accepted by you via the Site after one hour prior to your arrival, without this implying any charge for the customer. In the event that a User cancels an accepted request for Repair Services after one hour, Mobefix may charge the User a cancellation fee on your behalf. If charged, this cancellation fee shall be deemed the Fare for the cancelled Repair Services for the purpose of remittance to you hereunder ("Cancellation Fee"). The parties acknowledge and agree that as between you and Mobefix, this Cancellation Fee is a recommended amount, and the primary purpose of such Cancellation Fee is to act as the default amount in the event you do not negotiate a different amount. Mobefix shall always have the right to: (i) charge a cancellation fee to the User that is less than the Cancellation Fee;
4.6 Receipts. As part of the Mobefix Services, Mobefix provides to the User an automated receips' system via our website for Repair Services rendered. Such receipts are also provided to the User via email. Receipts include the breakdown of amounts charged to the User for Repair Services and may include specific information about you, including your name and contact information. Any corrections to a User's receipt for Repair Services must be submitted to Mobefix in writing within three (3) business days after the completion of such Repair Services. Absent such a notice, Mobefix shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fare. The repairer may access to the transaction tool in the section and may manage transactions and will be provided including, but not limited to, remitanceID,service request ID, transaction dates and fund availability status.
4.7 Increase in the invoice to the User. The price that has been provided by the Site during the request can be increased by Repairer for causes, including but not limited to, other details that was not visible at the momento of the request, or internal damages not perceptible for the User. The increase will be added to the invoice.
4.7 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Mobefix and its Affiliates may seek to attract new Users to Mobefix and to increase existing Users' use of Mobefix's application. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
5. Proprietary Rights;
5.1 Restrictions. 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 Mobefix Services; (b) modify or make derivative works based upon the Mobefix Services; (c) improperly use the Mobefix Services, including creating Internet "links" to any part of the Mobile Services, "framing" or "mirroring" any part of the Mobefix Services on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Mobefix Services; (d) reverse engineer, decompile, modify, or disassemble the Mobefix Services, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Mobefix Services 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 Mobefix Services 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 Mobefix Services; or (iv) attempt to gain unauthorized access to the Mobefix Services or its related systems or networks.
5.2 Ownership. The Mobefix Services and Mobefix Data, including all intellectual property rights therein, and the Mobefix Devices are and shall remain (as between you and Mobefix) the property of Mobefix. Neither this Agreement nor your use of the Mobefix Services, or Mobefix Data conveys or grants to you any rights in or related to the Mobefix Services or Mobefix Data. Other than as specifically permitted by the Mobefix in connection with the Mobefix Services, you are not permitted to use or reference in any manner Mobefix's 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 (hereinafter the "Mobefix 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 Mobefix 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 and services.
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 Mobefix Data, Repair 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, 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 Mobefix, its internal record-keeping requirements).
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 the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
7.1 Disclosure of Your Information. Subject to applicable law, Mobefix and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Mobefix Data) about you or any Repair Services provided hereunder if: (a) there is a complaint, dispute or conflict, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Mobefix's or any Affiliate's sole discretion, by applicable law or regulatory requirements (e.g., Mobefix or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in Mobefix's or any Affiliate's sole discretion, to (1) protect the safety, rights, property or security of Mobefix, the Movefix Services or any third party; (2) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which Mobefix, in its sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity); or (e) it is required or necessary, in Mobefix's or any Affiliate's sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Mobefix Services. You understand that Mobefix may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
7.2Mobefix may collect your personal data during the course of your application for, and use of, the Mobefix Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Mobefix, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Mobefix's and its Affiliates' legitimate business needs. You expressly consent to such use of personal data.
8. Representations and Warranties; Disclaimers
8.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide Repair Services.
8.2 Disclaimer of Warranties. Mobefix provide, and you accept, the Mobefix Services on an "as is" and "as available" basis. Mobefix and its affiliates do not represent, warrant or guarantee that your access to or use of the Mobefix Services: (a) will be uninterrupted or error free; or (b) will result in any requests for Repair Services. Mobefix and its affiliates function as an on-demand lead generation and related service only and make no representations, warranties or guarantees as to the actions or inactions of the users who may request or receive Repair Services from you, and Mobefix and its affiliates do not screen or otherwise evaluate users. By using the Mobefix services 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 Mobefix Services.
8.3 No Service Guarantee. Mobefix does not guarantee the availability or uptime of the Mobefix Services. You acknowledge and agree that the Mobefix Services may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Mobefix Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Mobefix is not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
9. Indemnification. You shall indemnify, defend (at Mobefix's option) and hold harmless Mobefix and the respective officers, directors, employees, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Repair Services or use of the Mobefix Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
10. Limits of Liability. MOBEFIX 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 PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF MOBEFIX OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO MOBEFIX HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
11. Term and Termination
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 terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party's material breach of this Agreement; or (c) immediately, without notice, 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. In addition, Mobefix may terminate this Agreement or deactivate your Repairer ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Mobefix to provide Repair Services or as otherwise set forth in this Agreement.
11.3 Effect of Termination. payment obligations and all the Sections in this Agreement shall survive the termination of this Agreement.
12. Relationship of the Parties
12.1 The relationship between the parties under this Agreement is solely that of independent contracting parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Mobefix and you; and (b) no joint venture, partnership, or agency relationship exists between Mobefix and you.
12.2 have no authority to bind Mobefix or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Mobefix or its Affiliates.
13. Miscellaneous Terms
13.1Modification. In the event Mobefix modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Mobefix reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Mobefix Services you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare Calculations. Continued use of the Mobefix Services after any such changes shall constitute your consent to such changes. Unless changes are made to the arbitration provisions herein, you acknowledge and agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration.
13.2 Supplemental Terms. Supplemental terms may apply to your use of the Mobefix Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time ("Supplemental Terms"). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
13.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
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 Mobefix 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 Mobefix'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 No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement, except as expressly set forth in the Arbitration Provision in Section 14.3. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
13.7 Notices. Any notice delivered by Mobefix 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 Mobefix Services. Any notice delivered by you to Mobefix under this Agreement will be delivered by contacting Mobefix at http://mobefix.com/contact-us in the "Contact Us" section or to the address One World Trade Center, Suite 8500, NY 10007.
14. Governing Law; Arbitration
14.1 The choice of law provisions contained in this Section 15.1 do not apply to the arbitration clause contained in Section 14.3, such arbitration clause being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Section 14.3, the interpretation of this Agreement shall be governed by New York law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Mobefix Services that are not subject to the arbitration clause contained in Section 14.3 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of New York. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non- New Yorkers to assert claims under New York law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 14.3, are only intended to specify the use of New York law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending New York law to you if you do not otherwise reside or provide services in New York. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 14.3 or to any arbitrable disputes as defined therein. Instead, as described in Section 14.3, the Federal Arbitration Act shall apply to any such disputes. The failure of Mobefix to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Mobefix in writing.
14.2 Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 14.3.ii, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Mobefix Services shall be subject to arbitration pursuant to Section 14.3.
14.3 Arbitration Provision Important Note Regarding this Arbitration Provision:
? Except as provided below, arbitration does not limit or affect the legal claims you may bring against the Mobefix. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
? Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties' dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein.
? Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with Mobefix.
? IMPORTANT: This Arbitration Provision will require you to resolve any claim that you may have against Mobefix on an individual basis, except as provided below, pursuant to the terms of the Agreement unless you choose to opt out of the Arbitration Provision. Except as provided below, this provision will preclude you from bringing any class, collective, or representative action against the Mobefix, and also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against Mobefix by someone else.
* Cases have been filed against Mobefix and may be filed in the future involving claims by users of the Service, including by repairers. You should assume that there are now, and may be in the future, lawsuits against Mobefix class, collective, and/or representative claims on your behalf, including but not limited to claims for tips, reimbursement of expenses, and employment status. Such claims, if successful, could result in some monetary recovery to you.
* The mere existence of such class, collective, and/or representative lawsuits, however, does not mean that such lawsuits will ultimately succeed. But if you do agree to arbitration with Mobefix, you are agreeing in advance, except as otherwise provided, that you will not participate in and, therefore, will not seek to recover monetary or other relief under any such class, collective, and/or representative lawsuit, except as provided below.
However, as discussed above and except as provided below, if you agree to arbitration, you will not be precluded from bringing your claims against Mobefix in an individual arbitration proceeding. If successful on such claims, you could be awarded money or other relief by an arbitrator (subject to splitting the cost of arbitration as mentioned above).
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS - INCLUDING BUT NOT LIMITED TO AN ATTORNEY - REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
i. How This Arbitration Provision Applies.
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. $ 1 et seq. (the "FAA") and evidences a transaction involving interstate commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Except as provided in Section 14.3(v), below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver, including their enforceability, revocability or validity.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and Mobefix, as well as all disputes between You and the Mobefix's fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with Mobefix, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
ii. Limitations On How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
Claims for workers compensation, state disability insurance and unemployment insurance benefits;
Regardless of any other terms of this Agreement, nothing prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration;
Disputes that may not be subject to a predispute arbitration agreement pursuant to applicable Federal law or Executive Order are excluded from the coverage of this Arbitration Provision;
Disputes regarding your, Mobefix's intellectual property rights;
This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118), section 8102 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2011 (Pub. L. 112- 10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.
iii. Selecting The Arbitrator and Location of the Arbitration.
The Arbitrator shall be selected by mutual agreement of Mobefix and you. Unless you and Mobefix mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply; however, if there is a conflict between the JAMS Rules and this Agreement, this Agreement shall govern. Those rules are available here:
http://www.jamsadr.com/rules-streamlined-arbitration/ The location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided Repair Services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
iv. Starting The Arbitration.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Mobefix shall be provided to Mobefixinc, One World Trade Center, Suite 8500, NY 10007. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive 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 provisional relief.
v. How Arbitration Proceedings Are Conducted.
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. You and Mobefix agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class, collective action, or representative basis ("Class Action Waiver"). The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. Notwithstanding any other provision of this Agreement, the Arbitration Provision or the JAMS Streamlined Arbitration Rules & Procedures, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
While the Mobefix will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, Mobefix shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.
vi. Paying For The Arbitration.
Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, Mobefix will pay the Arbitrator's and arbitration fees. If under applicable law Mobefix is not required to pay all of the Arbitrator's and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. However, you will not be required to bear any type of fee or expense that you would not be required to bear if you had filed the action in a court of law. Any disputes in that regard will be resolved by the Arbitrator as soon as practicable after the Arbitrator is selected, and Mobefix shall bear all of the Arbitrator's and arbitration fees until such time as the Arbitrator resolves any such dispute.
vii. The Arbitration Hearing And Award.
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
viii. Your Right To Opt Out Of Arbitration.
Arbitration is not a mandatory condition of your contractual relationship with Mobefix. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying Mobefix in writing of your desire to opt out of this Arbitration Provision, either by (1) sending, within 30 days of the date this Agreement is executed by you, electronic mail to email@example.com, stating your name and intent to opt out of the Arbitration Provision or (2) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery to:
One World Trade Center, Suite 8500,
In order to be effective, the letter under option (2) must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is executed by you. Your writing opting out of this Arbitration Provision, whether sent by (1) or (2), will be filed with a copy of this Agreement and maintained by Mobefix. Should you not opt out of this Arbitration Provision within the 30-day period, you and Mobefix shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision. You understand that you will not be subject to retaliation if you exercise your right to assert claims or opt-out of coverage under this Arbitration Provision.
ix. Full and Complete Agreement Related to Formal Resolution of Disputes; Enforcement of This Agreement.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as stated in subsection v, above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
By clicking "I accept", you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with Mobefix.