TEND EXCHANGE, INC.
SERVICE PROFESSIONAL AGREEMENT U.S.
This Service Professional Agreement (the Agreement) sets forth the terms and conditions whereby you, an independent service professional fully-licensed (to the extent required by applicable law) and qualified to provide the services contemplated by this Agreement (the Service Professional), agree to provide certain services (as described on Schedule 1) to third parties that may, from time to time, be referred to you via the web-based platform of Tend Exchange, Inc. d/b/a Tend, a Delaware corporation, with a mailing address at 5792 W Jefferson Blvd, Los Angeles, CA 90016 (Tend). Service Professional is obligated to maintain this information and ensure it is current.
Service Professional agrees to download a copy of this Agreement from: https://tend.la/sp-agreement/
All the details follow, but here are some of the highlights.
Tend is the creator of a technology platform that connects potential clients (Service Requesters) with fully-licensed (to the extent required by applicable law) and qualified professionals, such as a Service Professional, in the business of providing bartending, food and/or beverage service, hosting service, cleaning, bussing, concession work, and/or general event service (Services). Tend provides a web-based and mobile application-based portal (the Tend Platform) through which Service Requesters may connect with a network of Service Professionals with whom they may arrange a variety of Services. Service Professional understands and intends that Service Professional will provide the services to Service Requesters strictly as an independently-owned and operated business enterprise, and not as an employee, worker, agent, joint venturer, partner or franchisee of Tend or any Service Requester for any purpose. Tend does not provide the Services described in this Agreement or employ individuals to perform said Services. Tend's role is limited to offering the technology platform as a source of referrals for Service Requesters and Service Professionals and facilitating payments from Service Requesters to Service Professionals.
Tend and Service Professional acknowledge and agree that the Services are outside the usual course of Tend’s business and that the Services will be performed outside all of the places of Tend’s business.
Before receiving access to the Tend Platform, Service Professional must also review and agree to the Terms of Use of the Tend Platform, which are incorporated herein by reference and which Service Professional acknowledges he/she has reviewed and accepted. To the extent the Terms of Use are inconsistent with this Agreement, this Agreement shall control. From time to time, in their sole and complete discretion, Service Requesters will post jobs on the Tend Platform, setting forth the nature of the Services required (the Jobs). Jobs posted will include a date, general neighborhood or geographic area where the Job will take place and time frame (the Timeframe) in which Services are requested, and an estimate of time necessary to complete the work (the Estimated Work Time). Timeframes will be displayed on the Tend Platform either as a specific time (i.e. 5:00 pm) or as a range (i.e., 2:00 pm to 5:00 pm). The Estimated Work Time will be displayed either as a specific time (i.e. 2 hours) or as a range (i.e., 2-3 hours). Service Professional will then have the opportunity to review the Jobs and select those Jobs in Service Professional's area of expertise that meet Service Professional's preferred specifications as to Timeframe, date, neighborhood or geographic location and fees. Tend does not guarantee any minimum number of jobs will be available to Service Professional at any point during the term of this Agreement. Subject only to the limitation set forth in Section 9.1, Service Professional is not obligated to review the Jobs posted or select any Jobs posted by any Service Requester at any time. Once a Service Professional selects a Job, the Tend Platform will confirm with the Service Professional and Service Requester that the Job has been booked by the Service Professional. Once a Job is booked, a contract is formed directly between the Service Requester and Service Professional for Service Professional to complete the Job. Service Professional hereby appoints Tend to be its disclosed agent for the purposes of entering into such a contract with the Service Requester with respect to those Jobs accepted by Service Professional. Service Professional agrees that Service Professional's name, phone number and likeness may be provided or made available to Service Requester by or on behalf of Tend after the Job is booked. It is possible that, based on Service Requester specifications, a Service Professional may claim a Timeframe and/or Estimated Work Time and receive a Job that has a shorter Timeframe and Estimated Work Time (i.e., a Service Professional may claim a Job with a Timeframe of noon-3 pm and has an Estimated Work Time of 2-3 hours and receive a Job that is at 1 pm and only 2 hours.) Service Professional acknowledges and agrees that s/he understands that claiming a Job that has a Timeframe and Estimated Work Time may result in the Job being longer or shorter than the Estimated Work Time. The Professional will be paid based on actual hours worked.
Before receiving access to the Tend Platform, Service Professional must submit to and pass a background check through Tend’s background check provider. After receiving access to the Tend Platform, Tend may from time-to-time, in its reasonable discretion and in accordance with applicable law, conduct additional background checks on Service Professional through Tend’s background check provider. Tend conducts background checks in accordance with applicable law.
In select markets, Service Professional may be required to pay non-refundable registration processing (Registration Processing Fee) in order to process Service Professional’s registration to use the Tend Platform. Payment of the Registration Processing Fee does not guarantee a Service Professional access to or Jobs through the Tend Platform.
Service Professional shall be eligible to book Jobs through the Tend Platform requesting any Services that Service Professional is fully-licensed (to the extent required by applicable law) and qualified to provide as specified on Schedule 1 to this Agreement and as selected by the Service Professional during the sign-up process. In those jurisdictions where a license, permit, or certification is required to perform the Services, Service Professional shall, upon reasonable request, provide proof to Tend of all necessary licenses, permits and/or certifications before Service Professional provides any such Services under this Agreement.
To ensure that the Tend Platform remains a reliable source of referrals and to ensure all Service Professionals are able to have access to available Jobs, once Service Professional has accepted a Job, Service Professional is contractually obligated to complete the Job in accordance with the parameters listed by the Service Requester. Service Professional is required to cancel the job as soon as is practical, and will face in-app penalties for cancelling jobs at the last minute, or frequently cancelling jobs.
In the event that the Service Professional is unable to perform the Job as originally scheduled, Tend shall have the right to make the Job available on the Tend Platform. Repeated cancellations by Service Professional may result in the Service Professional’s rating dropping below the threshold required to be eligible for most Service Requestors’ jobs. Service Professional may also be entitled to a fee or liquidated damages in the event a Service Requester cancels a Job as described in Schedule 2. Modifications to Schedule 2 will be effective upon written notification to Service Professional and will supersede any and all prior versions.
Tend is interested only in the results to be achieved by Service Professional: completion of each accepted Job in accordance with Service Requester's specifications as detailed by Service Requester. Service Professional is solely responsible for determining the manner and method of performing all Jobs under this Agreement. Service Professional understands and agrees that Service Professional's failure to complete a Job in accordance with Service Requester's specifications detailed by Service Requester through the Tend Platform constitutes a material breach of this Agreement and will result in adverse in-app consequences and limited ability to successfully be approved for jobs by Service Requestors.
Service Professional acknowledges that the Tend Platform is intended to refer Service Requesters only to those Service Professionals who maintain high standards of professionalism and quality of service. Service Professional acknowledges that Service Requester may rate and review a Service Professional at the end of every booking. To ensure that the Tend Platform remains a reliable source of referrals, Service Professional will have to maintain a rating at or above the minimum rating threshold established individually by Service Requestors. Dropping below a certain threshold may prevent a Service Professional from being eligible for most, if not all, jobs.
Service Professional shall be, at all times while this Agreement is in effect, both under the terms of this Agreement and in fact, free from Tend's supervision, control and direction in the performance of the Services. Tend shall not control or have any right to control the Jobs Service Professional selects, the schedule of the Service Professional, or the specific manner in which Service Professional completes the Jobs. Tend will not and has no right to, under any circumstances, require Service Professional to participate in training, nor does Tend offer or provide training to Service Professional.
Where approved in advance by the Service Requester, and except as otherwise provided in this Agreement, Service Professional is not obligated to personally perform the Services. Service Professional shall furnish at his/her own discretion, selection, and expense any and all assistants, helpers, subcontractors or other personnel the Service Professional deems necessary and appropriate to complete the Services. Service Professional shall be solely responsible for the direction and control of any such personnel and for all acts and omissions of same.
Before any Services are performed by any assistants, helpers, subcontractors or other personnel engaged by Service Professional, Service Professional shall require any such individuals to submit to a basic background check satisfactory to Tend.
Service Professional assumes full and sole responsibility for the payment of all compensation, benefits and expenses of helpers, assistants, subcontractors and/or other personnel, if any, and for all required state and federal income tax withholdings, unemployment insurance, and social security taxes as to Service Professional and all persons engaged by Service Professional in the performance of the Services. Service Professional agrees that he/she is fully and solely responsible for filing, and shall file, an appropriate schedule of expenses and all other appropriate tax documents with the Internal Revenue Service in compliance with required filing periods. Service Professional shall be responsible for, and shall indemnify and hold Tend harmless for any claims, suits, or actions related to this provision, including any such claims brought by Service Professional or his or her assistants, subcontractors and/or other personnel, or by any third party with respect to any claims for taxes or contributions, including penalties and interest.
To the extent required by applicable law, Service Professional agrees to maintain a separate set of books or records reflecting all items of income and expense associated with operating his or her business.
Service Requester shall pay you for completed Jobs through the Tend Platform at the rates that they select for the Job, which shall be based on the stated parameters of the Job (the Job Rate). You will be paid based on the actual hours worked, which may differ than the number of hours on the posted Job.
When a Job is complete, you will submit your hours via the Tend App. Once those are verified, Tend will release payment via Routable; if you are contracted as an employee of a different company booking through Tend, you will be paid directly by that company. It is your responsibility to input the banking information and paperwork to receive the payment.
By agreeing to this Agreement, Service Professional agrees to be bound by the Routable Services Agreement, as the same may be modified by Routable from time to time. As a condition of Tend enabling payment processing services through Routable, Service Professional agrees to provide Tend accurate and complete information about Service Professional and Service Professional's business, and Service Professional authorizes Tend to share it and transaction information related to Service Professional's use of the payment processing services provided by Routable.
In order to book Jobs, Service Professional must possess a smartphone equipped with access to the Tend Platform (the Compatible Mobile Device).
You are responsible for showing up to each job wearing the required attire, and in possession of all required items (if applicable). These requirements for each Job will be clearly displayed on the Tend App. Failure to meet these requirements will adversely affect your ratings and prevent you from being paid for the shift.
Service Professional will have no obligation to wear or display Tend branded apparel, badge or other form of identification.
Service Professional gives Tend permission to use any and all of Service Professional's voice, image, likeness, and any ratings and reviews from Service Requesters about Service Professional, with or without using Service Professional's name, in connection with the products and/or services available through the Tend Platform, for the purposes of advertising and promoting such products and/or services and/or Tend, for the purposes of identifying Service Professional to Service Requester, and/or for other purposes deemed appropriate by the Tend in its reasonable discretion, except to the extent expressly prohibited by law. In addition to the foregoing, Service Professional may be required to submit an image for use by the Tend Platform to facilitate identifying Service Professional with Service Requesters. Service Professional also represents and warrants the Service Professional owns the copyright of any image or likeness that the Service Professional provides to Tend.
Service Professional agrees to Tend's use of a service provider to mask the Service Professional's phone number when the Service Professional calls or exchanges text (SMS) messages with the Service Requester. To facilitate this process, Tend and its service provider will receive in real time and store call data, including the date and time of the call or text (SMS) message, the parties' phone numbers, and the content of the text (SMS) messages. Service Professional consents to the masking process described above and to Tend's use and disclosure of this call data for its legitimate business purposes.
Service Professional also consents to Tend's sending text (SMS) messages directly to the Service Professional as described in the Terms of Use. You may opt out at any time from these texts by texting “Stop”.
Service Professional is an independent contractor and has not been engaged by Tend to perform services on Tend's behalf. Rather, Service Professional has entered into this Agreement for the purpose of having access to the Tend Platform, in exchange for which it pays Tend a Booking Fee, as described herein. Service Professional represents that he or she is customarily engaged in an independently established trade, occupation, profession and/or business offering the Services to the general public and/or Service Professional represents that he or she maintains a principal place of business in connection with Service Professional’s trade, occupation, profession and/or business that is eligible for a business deduction for federal income tax purposes. This Agreement shall not be construed to create any association, partnership, joint venture, employee, worker or agency relationship between Service Professional and Tend or any Service Requester for any purpose. Service Professional has no authority (and shall not hold himself or herself out as having authority) to bind Tend and Service Professional shall not make any agreements or representations on Tend's behalf without Tend's prior written consent. Service Professional understands that because he / she is not an employee of Tend, Service Professional will not be eligible to participate in any benefit plans offered to Tend's employees, including, but not limited to, vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by Tend to its employees. Tend will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including unemployment or disability, or obtaining workers' compensation insurance on Service Professional's behalf. Service Professional shall be responsible for, and shall indemnify and hold Tend harmless for any claims, suits, or actions related to this provision, including any such claims brought by Service Professional or by any third party with respect to any claims for taxes or contributions, including penalties and interest.
Service Professional represents and warrants to Tend that: (a) Service Professional has the legal right to provide the Services that are contemplated by this Agreement in the United States; (b) Service Professional is fully-licensed (to the extent required by applicable law) and authorized to provide the Services contemplated by this Agreement within the jurisdiction in which Service Professional intends to offer said Services, and has the required skill, experience, and qualifications to perform the Services; and (c) Service Professional shall perform the Services in accordance with best industry standards for similar services and shall ensure that all assistants, helpers, subcontractors and other personnel used by the Service Professional in relation to the delivery of Services shall do likewise, including the completion of all Jobs referred to Service Professional that he/she opts to accept through the Platform; and (d) Service Professional shall perform the Services in accordance with all applicable laws, rules and regulations.
Service Professional acknowledges that his/her failure to comply with the foregoing shall constitute a material breach of this Agreement.
Service Professional shall defend, indemnify and hold harmless Tend and its affiliates and its officers, directors, employees, agents, successors, and assigns and any other entity that requests or is in any way involved in making available, arranging and/or facilitating services through the Tend Platform from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable legal fees) arising out of or resulting from: (a) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from Service Professional's acts or omissions; and (b) Service Professional's breach of any representation, warranty, or obligation under this Agreement.
The Services that Service Professional provides pursuant to this Agreement are fully and entirely Service Professional's responsibility. Tend is not responsible or liable for the actions or inactions of a Service Requester or other third party in relation to the Services provided by Service Professional. Service Professional understands, therefore, that by using the Tend Platform, Service Professional will be introduced to third parties in relation to whom Tend has not conducted any background or reference checking, that may be potentially dangerous, and that Service Professional uses the Tend Platform at his/her own risk.
It is the sole responsibility of the Service Professional to maintain in full force and effect adequate workers' compensation (or, if permitted by law, occupational accident insurance), unemployment, liability, and other forms of insurance, in each case with insurers reasonably acceptable to Tend, with policy limits sufficient to protect and indemnify Tend and its affiliates (including Service Requester), and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from the conduct, acts, or omissions of Service Professional or Service Professional's assistants, agents, contractors, servants, or employees.
This Agreement shall be effective as of the date it is executed by Service Professional and shall remain in effect unless and until terminated as set forth in this Section 9 (the Term). The parties acknowledge that the term of this Agreement does not reflect an uninterrupted service arrangement, as this Agreement guarantees Service Professional the right to choose when to make himself or herself available and each Job referred and accepted is treated as a separate service arrangement.
(a) Tend and Service Professional may terminate this Agreement, effective immediately upon written notice to the other party, in the event that other party materially breaches this Agreement. A material breach shall include, but not be limited to, the acts or omissions expressly defined as constituting a material breach herein, misconduct, or Tend's failure to timely remit Service Fees as described herein.
In the event there is a dispute whether Tend or Service Professional materially breached the agreement, and it cannot be resolved by informal negotiations, the parties agree to submit any such dispute to final and binding arbitration, unless Service Professional exercises his/her right to opt out of arbitration, as described in Section 12.2, below.
(b) In addition to the foregoing, Service Professional may terminate the Agreement for any reason upon fifteen (15) days' written notice.
Upon termination of this Agreement for any reason, Service Professional shall: (a) forfeit any outstanding Jobs Service Professional has booked (the Outstanding Jobs) and (b) certify in writing to Tend that Service Professional has complied with the requirements of this Section.
Upon termination of this Agreement: (a) if the termination is effected by Tend, Tend shall immediately pay to Service Professional any outstanding earned Service Fees; or (b) if the termination is effected by Service Professional, Tend shall pay to Service Professional any outstanding earned Service Fees within seven (7) business days. In either event, Tend shall pay Service Fees for any Outstanding Jobs as soon as practicable after Service Professional has completed the Outstanding Jobs.
The terms and conditions of this Section 9.5 and Sections 5, 6, 7, 9.3, 9.4, 10, 11, and 12 (including, but not limited to, Section 12.2) shall survive the expiration or termination of this Agreement.
Service Professional may be engaged or employed in any other business, trade, profession, or other activity, including providing Services to customers booked through means other than the Tend Platform, including other web-based portals, smartphone applications, and/or platforms.
Service Professional may not assign this Agreement, absent written authorization by Tend. This provision shall not be construed as limiting Service Professional’s right to engage personnel to assist in the Services as set forth in this Agreement. Tend may freely assign its rights and obligations under this Agreement at any time. This Agreement will inure to the benefit of, be binding on, and be enforceable against, each of the parties hereto and their respective successors and assigns.
To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement or otherwise arising from the relationship between Service Professional and Tend, Service Professional and Tend agree to first attempt to negotiate any dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written of the dispute, controversy, or claim. Service Professional's address for such notices is the address provided by Service Professional to Tend. Tend's address for such notices is Tend Exchange, LLC, 5792 W Jefferson Blvd, Los Angeles, CA 90016.
Tend AND SERVICE PROFESSIONAL MUTUALLY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO THE RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE IN ARBITRATION, as set forth below. This Mutual Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and shall survive the termination of this Agreement.
Except as expressly provided below, this Mutual Arbitration Provision shall apply to any and all Claims (as defined below) between you and Tend, including, but not limited to, any Tend d/b/as, affiliates, subsidiaries, parents, successors and assigns and each of Tend’s respective officers, directors, investors, insurers, employees, agents, or shareholders. This Mutual Arbitration Provision shall also apply to any and all disputes and/or claims between you and any Service Requester, and/or any other third-party entity involved in requesting or in any way involved in making available, arranging and/or facilitating the Services. The parties agree that Service Requesters and the other third-parties referenced in this paragraph are intended third-party beneficiaries of this Mutual Arbitration Provision. The parties agree that any disputes and/or claims regarding the application of this Mutual Arbitration Provision to any such Service Requesters and/or other third-parties referenced in this paragraph shall be resolved exclusively by an arbitrator.
EXCEPT AS EXPRESSLY PROVIDED BELOW, ALL DISPUTES AND/OR CLAIMS BETWEEN YOU AND Tend SHALL BE EXCLUSIVELY RESOLVED IN BINDING ARBITRATION ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Disputes and claims covered by this Mutual Arbitration Provision include, but are not limited to, any dispute, claim or controversy, whether based on past, present or future events, arising out of or relating to: this Agreement and any and all prior versions thereof (including the formation, breach, termination, enforcement, interpretation or validity thereof), the Service Professional's classification as an independent contractor, Service Professional’s provision of Services under this Agreement, the payments received by Service Professional for providing Services, Service Professional’s registration to use the Tend Platform, disputes with any entity or individual arising out of or related to the use of the Tend Platform, background checks, privacy, trade secrets, unfair competition, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, retaliation, discrimination or harassment and claims arising under the Fair Credit Reporting Act, the Uniform Trade Secrets Act, the Defend Trade Secrets Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1981, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, the Pregnancy Discrimination Act, Equal Pay Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), 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, state or local statutes or regulations addressing the same or similar subject matters, and all other aspects of the Service Professional's relationship with Tend whether arising under federal, state or local statutory and/or common law. The parties further agree that this Mutual Arbitration Provision covers all claims or disputes between you and a third-party concerning the provision of any background check of you by a consumer reporting agency and claims or disputes between you and any other third-party entity involved in requesting or in any way involved in making available, arranging and/or facilitating the Services.
Except as stated in Section 12.2(d), below, only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, validity, enforceability, conscionability, and/or formation of this Mutual Arbitration Provision.
(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Service Professional must be delivered to: Tend Technologies, Inc. Attn: Legal Department, PO Box #1122, New York, NY 10159.
(b) CLASS ACTION WAIVER-PLEASE READ. Tend AND SERVICE PROFESSIONAL MUTUALLY AGREE THAT BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, BOTH WAIVE THEIR RIGHT TO HAVE ANY DISPUTE OR CLAIM BROUGHT, HEARD OR ARBITRATED AS A CLASS ACTION AND/OR COLLECTIVE ACTION, AND AN ARBITRATOR SHALL NOT HAVE ANY AUTHORITY TO HEAR OR ARBITRATE ANY CLASS ACTION AND/OR COLLECTIVE ACTION (CLASS ACTION WAIVER). Tend AND SERVICE PROFESSIONAL MUTUALLY AGREE THAT BOTH ARE WAIVING THE RIGHT TO BRING, PURSUE OR HAVE A CLAIM OR DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR COLLECTIVE PROCEEDING.
(c)REPRESENTATIVE ACTION WAIVER-PLEASE READ Tend and Service Professional mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a representative action, and an arbitrator shall not have any authority to arbitrate a representative action ("Representative Action Waiver"). Notwithstanding the foregoing, private attorney general representative actions brought prior to the effective date of this Agreement on behalf of the state under the California Labor Code are not arbitrable, not within the scope of this Agreement and may be maintained in a court of law, but any claim brought by Service Professional for recovery of underpaid wages (as opposed to representative claims for civil penalties) under the California Labor Code shall be arbitrable, and must be brought, if at all, on an individual basis in arbitration as set forth in this Mutual Arbitration Provision.
(d) Notwithstanding any other clause contained in this Agreement, this Mutual Arbitration Provision, or the AAA Rules, as defined below, any claim that all or part of the Class Action Waiver and/or Representative Action Waiver is unenforceable, invalid, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. As stated above, all other disputes regarding interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision shall be determined exclusively by an arbitrator.
(e) Service Professional agrees and acknowledges that entering into this Mutual Arbitration Provision does not change Service Professional's status as an independent contractor in fact and in law, that Service Professional is not an employee of Tend or any Service Requester and that any disputes in this regard shall be subject to final and binding arbitration as provided in this Mutual Arbitration Provision.
(f) Unless Tend and Service Professional otherwise mutually agree in a signed writing, the arbitration will be conducted in the county where Service Professional resides. If Service Professional’s claim does not exceed $10,000 (including attorneys' fees), then the arbitration will be conducted solely on the basis of documents Tend and Service Professional submit to the arbitrator, unless Service Professional requests a hearing or the arbitrator determines that a hearing is necessary. Unless Tend and Service Professional both waive the right to a hearing in writing, a hearing shall always be conducted if Service Professional’s claim exceeds $10,000 (including attorneys' fees).
The Arbitrator shall be selected by mutual agreement of Tend and Service Professional. Unless Tend and Service Professional mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted, and who has experience in the underlying subject matter. If the parties cannot agree on the Arbitrator, the selection of the Arbitrator shall be governed by the American Arbitration Association Consumer Arbitration Rules ("AAA Rules").
Regardless of whether the Arbitrator is affiliated with the American Arbitration Association, the parties agree that any arbitration shall be governed by the AAA Consumer Arbitration Rules in effect at the time the arbitration is initiated, except as follows (unless and to the extent otherwise mutually agreed in writing by Tend and Service Professional): (1) The arbitration shall be heard by one Arbitrator selected in accordance with the AAA Rules. The Arbitrator shall be an attorney or a retired federal or state judicial officer with experience in the law underlying the dispute; (2) Tend shall pay the Arbitrator's fees and costs unless the claims and/or relief sought in the Service Professional’s demand for arbitration was found to be frivolous or brought for an improper purpose (as determined by the Arbitrator in accordance with standards set forth in Federal Rule of Civil Procedure 11(b)), or unless applicable law as determined by the Arbitrator provides otherwise; (3) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (4) Except as provided in the Class Action Waiver and Representative Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable; (5) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions; (6) The Arbitrator's decision or award shall be in writing with findings of fact and conclusions of law; (7) Either Tend or Service Professional may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Section 12.2 may be rendered ineffectual.
(g) Regardless of any other terms of this Agreement or Mutual Arbitration Provision, nothing prevents Service Professional from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this arbitration provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this Section 12.2, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any required conditions precedent and/or exhausting required administrative remedies under applicable law before bringing a claim in arbitration. Tend will not retaliate against Service Professional for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
(h) The AAA Rules may be found at www.adr.org or by searching for AAA Consumer Arbitration Rules or by calling the AAA at 1-800-778-7879.
(i) Service Professional’s Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Service Professional’s contractual relationship with Tend, and therefore Service Professional may submit a statement notifying Tend that Service Professional wishes to opt out and not be subject to this Mutual Arbitration Provision. In order to opt out, Service Professional must notify Tend of Service Professional’s intention to opt out by submitting to Tend at Tend Exchange, LLC. Attn: 5792 W Jefferson Blvd, Los Angeles, CA 90016, a signed and dated written notice stating that Service Professional is opting out of this Mutual Arbitration Provision. Service Professional also may opt out by sending an email to [email protected] stating Service Professional’s intention to opt out. In order to be effective, Service Professional’s opt out notice must be provided within 30 days of the date this Agreement is electronically signed by Service Professional ("Effective Date"). If Service Professional opts out as provided in this paragraph, Service Professional will not be subject to any adverse action from Tend as a consequence of that decision and he/she may pursue available legal remedies without regard to this Mutual Arbitration Provision. If Service Professional does not opt out within 30 days of the Effective Date of this Agreement, Service Professional and Tend shall be deemed to have mutually and voluntarily agreed to this Mutual Arbitration Provision.
Service Professional acknowledges and agrees that if Tend modifies any provision of this Agreement other than any term of this Section 12.2, Service Professional will not have a renewed opportunity to opt out of arbitration.
If, however, Tend modifies this Mutual Arbitration Provision after the date you first agreed to this Agreement (or any subsequent changes to the Agreement), you may reject any such change to the Mutual Arbitration Provision by providing Tend written notice of such rejection within 30 days of the date below. This written notice must be provided either (a) by Tend Exchange, LLC. Attn: 5792 W Jefferson Blvd, Los Angeles, CA 90016, or (b) by email from the email address associated with your account to: [email protected]. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to the Mutual Arbitration Provision. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Tend in accordance with the provisions of this Mutual Arbitration Provision as of the date you first agreed to this Agreement (or any subsequent changes to the Agreement).
(j) Right To Consult With A Lawyer: Service Professional has the right to consult with private counsel of Service Professional's choice for independent legal advice with respect to any aspect of this Agreement or Mutual Arbitration Provision, or any claim that may be subject to this Mutual Arbitration Provision.
(k) In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver and/or Representative Action Waiver is invalid or unenforceable, the class, collective, or representative general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver and Representative Action Waiver that is valid and enforceable shall be enforced in arbitration. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the Class Action Waiver and/or Representative Action Waiver is unenforceable, the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
Except for the Mutual Arbitration Provision set forth in Section 12.2, which is governed by the Federal Arbitration Act, and except as may be prohibited by the law of the State in which Service Professional primarily works and resides, this Agreement shall be governed and interpreted pursuant to the laws of the state in which the Service Professional performs the majority of his or her services under the Agreement, notwithstanding any principles of conflicts of law.
Service Professional understands that in performing the Services, he or she may receive certain private and/or confidential information regarding the Service Requesters and may have access to their homes and personal belongings. Except upon order of government authority (e.g., court, administrative agency) having jurisdiction, or upon written consent by the Service Requester, Service Professional agrees that he or she shall not publish, disseminate or disclose, for his or her own benefit or the benefit of any third party, any confidential information regarding the Service Requesters, including addresses, telephone numbers and/or financial information. Service Professional further agrees not to engage in any activity which violates the privacy of any Service Requester, including, but not limited to, taking unauthorized photographs or making unauthorized audio or video recordings of a Service Requester or his or her homes or personal belongings, or publishing, disseminating or disclosing any such photographs or recordings. Service Professional acknowledges that his/her failure to comply with the foregoing shall constitute a material breach of this Agreement.
Service Professional hereby expressly acknowledges and agrees that, by using or receiving access to the Tend Platform, Service Professional and Tend are bound by the then-current version of this Agreement, including any supplements to this Agreement or documents incorporated herein, including the Schedules below, except as stated in Section 12.2(i) with respect to a Service Professional’s right to opt-out of the arbitration. Service Professional shall be bound by modifications to this Agreement only upon Service Professional’s electronically signing any modifications or supplements.
Service Professional acknowledges receipt of the following notice under 18 U.S.C § 1833(b)(1): An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
All notices other than those required by Section 3.1 and Section 12, requests, consents, claims, demands, waivers, and other communications hereunder (each, a Notice) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). The parties agree that Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). This Agreement, together with any other documents incorporated herein by reference, and related exhibits, schedules, and addenda (if any) constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance. Except as expressly provided otherwise in this Agreement, if any term or provision of this Agreement is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may be executed in multiple counterparts, including by facsimile or other electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument. Headings appear solely for convenience of reference. Such headings are not part of this Agreement and shall not be used to construe it.
This Agreement may not be amended, by implication or otherwise, by any marketing material contained on Tend's website or the Tend Platform. Nothing contained in this provision or this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims, except as expressly set forth in Section 12.2.
Service Professional acknowledges that he/she has read and understands this Agreement and also acknowledges that he/she had a reasonable and adequate opportunity to seek and receive independent legal advice, at the Service Professional's own expense, prior to signing this Agreement.
BY CHECKING THE BOX STATING I AGREE TO THE SERVICE PROFESSIONAL AGREEMENT, YOU HEREBY AGREE TO THIS SERVICE PROFESSIONAL AGREEMENT AND AGREE TO ACT IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN.
You understand that your electronic signature is as legally binding as a handwritten signature.
Service Professional acknowledges he or she is licensed (to the extent required by applicable law), qualified and otherwise authorized to provide, among the Services listed below, only those Services selected by the Service Professional during the sign-up process for which the Service Professional is approved:
Service Professional arrives later than the Job start time: Fee of $0.50/minute
Service Professional leaves before Job end time (without permission from Service Requester): Fee of $0.50/minute
Service Professional fails to appear for booked Job without notice to Tend: $100 fee; full forfeiture of all outstanding Service Fees
Service Professional fails to complete Job to the satisfaction of Service Requester (as reported by Service Requester through review), resulting in a refund or credit to Service Requester: Full forfeiture of Service Fee
Damage and/or loss of a Service Requester’s items or property: Fee of $5, or as otherwise negotiated.
* The above-referenced fee amounts are intended to act as default fees only, in the event Service Professional and Service Requester or, separately, Service Professional and Tend do not negotiate a different amount.
Last updated: January 12th, 2019
