TECHNOLOGY SERVICES AGREEMENT
Last update: September 15, 2017
This Technology Services Agreement (“Agreement”) constitutes a legal agreement between you, an individual (“you”) and Repairman Inc. (“Repairman”).
Repairman provides lead generation to independent providers of home services or repair services using the Repairman application and services (as defined below). Repairman Services enables an authorized home service or repair provider to seek, receive and fulfill requests for home service or repair from an authorized user of Repairman mobile applications. You desire to enter into this Agreement for the purpose of accessing and using the Repairman Services solely for the purposes described herein .
You acknowledge and agree that Repairman is a technology services provider that does not provide Home Service or Repair Services.
In order to use the Repairman 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 Repairman shall be bound by the terms and conditions set forth herein.
IMPORTANT: PLEASE NOTE THAT TO USE THE REPAIRMAN 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 THE REPAIRMAN ON AN INDIVIDUAL BASIS, EXCEPT AS PROVIDED IN SECTION 15.3, 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 Repairman from time to time.
1.3 “Repairman Data” means all data related to the access and use of the Repairman Services hereunder, including all data related to Users (including User Information), all data related to the provision of Home Service or Repair via the Repairman Services and the Repairman App, and the Provider ID.
1.4 “Repairman Device” means a mobile device owned or controlled by Repairman that is provided to you solely for your use of the Repairman App to provide Home Service or Repair.
1.5 “Device” means a Repairman Device or Your Device, as the case may be.
1.6 “Repairman App” means the mobile application provided by Repairman that enables home service or repair providers to access the Repairman Services for the purpose of seeking, receiving and fulfilling on- demand requests for home service or repair by Users, as may be updated or modified from time to time.
1.7 “Provider ID” means the identification and password key assigned by Repairman to you that enables you to use and access the Repairman app.
1.8 “Job Fee” has the meaning set forth in Section 4.1.
1.9 “Service Fee” has the meaning set forth in Section 4.4.
1.10 “Territory” means the city or metro areas in the United States in which you are enabled by the Repairman App to receive requests for Home Service or Repair.
1.11 “Tolls” means any applicable road, bridge, ferry, tunnel and airport charges and fees, including inner-city congestion, environmental or similar charges as reasonably determined by the Repairman Services based on available information.
1.12 “Home Service or Repair” means your provision of P2P customer home service or repair to Users via the Repairman Services in the Territory.
1.13 “Repairman Services” mean Repairman’s on-demand lead generation and related services licensed by Repairman to repairmen that enables home service or repair providers to seek, receive and fulfill on-demand requests for home service or repair by Users seeking home service or repair; such Repairman Services include access to the Repairman App and Repairman’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.14 “User” means an end user authorized by Repairman to use the Repairman mobile application for the purpose of obtaining Home Service or Repair offered by Repairman’s home service or repair provider customers.
1.15 “User Information” means information about a User made available to you in connection with such User’s request for and use of Home Service or Repair, which may include the User’s name, pick-up location, contact information and photo.
1.16 “Vehicle” means your vehicle that: (a) meets the then-current Repairman requirements for a vehicle on the Repairman Services; and (b) Repairman authorizes for your use for the purpose of providing Home Service or Repair.
1.17 “Your Device” means a mobile device owned or controlled by you: (a) that meets the then- current Repairman specifications for mobile devices as set forth at https://repairmanapp.com/legal/approved-devices/; and (b) on which the Repairman App has been installed as authorized by Repairman solely for the purpose of providing Home Service or Repair.
- Use of the Repairman Services
2.1 Provider IDs. Repairman will issue you a Provider ID to enable you to access and use the Repairman App on a Device in accordance with this Agreement. Repairman reserves the right to deactivate your Provider ID if you do not fulfill a request for Home Service or Repair using the Repairman App at least once a month. You agree that you will maintain your Provider ID in confidence and not share your Provider ID with any third party. You will immediately notify Repairman of any actual or suspected breach or improper use or disclosure of your Provider ID or the Repairman App.
2.2 Provision of Home Service or Repair. When the Repairman App is active, User requests for Home Service or Repair may appear to you via the Repairman App if you have indicated that you are available and in the vicinity of the User. If you accept a User’s request for Home Service or Repair, the Repairman Services will provide you with certain User Information via the Repairman App, including the User’s first name and service location. In order to enhance User satisfaction with the Repairman mobile application and your Home Service or Repair, it is required that you wait up to ten (10) minutes at the requested service location in case where User is not immediately available. You will obtain the full details of the job from the User, either in person upon arrival or from the Repairman App if the User elects to enter such information via Repairman’s mobile application. You acknowledge and agree that once you have accepted a User’s request for Home Service or Repair, Repairman’s mobile application may provide certain information about you to the User, including your first name, contact information, photo and location. You shall not contact any Users or use any User’s personal data for any reason other than for the purposes of fulfilling Home Service or Repair. As between Repairman 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 Home Service or Repair; and (b) except for the Repairman Services or any Repairman Devices (if applicable), you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Home Service or Repair. You understand and agree that you have a legal obligation under the Americans with Disabilities Act and similar state laws to provide home service or repair to Users with Service Animals (as defined by applicable state and federal law), including guide dogs for the blind and visually impaired Users, and there is no exception to this obligation for allergies or religious objections. Your knowing failure to provide service or repair to a User with a Service Animal shall constitute a material breach of this Agreement. You agree that a “knowing failure” to comply with this legal obligation shall constitute either: (1) a denial of a service or repair where you state the denial was due to a Service Animal; or (2) there is more than one (1) instance in which a User or the companion of a User alleges that you cancelled or refused a service or repair on the basis of a Service Animal.
2.3 Your Relationship with Users. You acknowledge and agree that your provision of Home Service or Repair to Users creates a direct business relationship between you and the User. Repairman is not responsible or liable for the actions or inactions of a User in relation to you, your activities or your Equipment, including your personal Vehicle. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Home Service or Repair. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws including motor vehicle financial responsibility laws) regarding any acts or omissions of a User or third party. You acknowledge and agree that Repairman may release your contact and/or insurance information to a User upon such User’s reasonable request. You acknowledge and agree that, unless specifically consented to by a User, you may not allow User to use your tools, equipment or your Vehicle, during the performance of Home Service or Repair for such User. The prohibition on User’s use of your vehicle will include the User getting in your vehicle to accompany you to purchase parts that become necessary during the course of providing services to the User, even you are operating the vehicle.
2.4 Your Relationship with Repairman. You acknowledge and agree that Repairman’s provision to you of the Repairman App and the Repairman Services creates a contractor-contractee relationship between Repairman and you. You are an independent contractor and under no circumstances an employee of Repairman. You expressly agree that you are an independent contractor and not an employee of Repairman. Under no circumstances are you entitled to employee benefits from Repairman. Repairman 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 Home Service or Repair, your acts or omissions, or your operation and maintenance of your Vehicle or your equipment. You retain the sole right to determine when, where, and for how long you will utilize the Repairman App or the Repairman Services. You retain the option, via the Repairman App, to attempt to accept or to decline or ignore a User’s request for Home Service or Repair via the Repairman Services, or to cancel an accepted request for Home Service or Repair via the Repairman App, subject to Repairman’s then-current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Repairman shall have no right to require you to: (a) display Repairman’s or any of its Affiliates’ names, logos or colors on your Vehicle(s); or (b) wear a uniform or any other clothing displaying Repairman’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 software application services in addition to the Repairman Services; and (ii) engage in any other occupation or business. Repairman retains the right to deactivate or otherwise restrict you from accessing or using the Repairman App or the Repairman Services in the event of a violation or alleged violation of this Agreement, your disparagement of Repairman or any of its Affiliates, your act or omission that causes harm to Repairman’s or its Affiliates’ brand, reputation or business as determined by Repairman in its sole discretion.
2.5.1 You acknowledge and agree that: (a) after receiving Home Service or Repair, a User will be prompted by Repairman’s mobile application to provide a rating of you and such Home Service or Repair and, optionally, to provide comments or feedback about you and such Home Service or Repair; and (b) after providing Home Service or Repair, you may be prompted by the Repairman App to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith.
2.5.2 You acknowledge that Repairman desires that Users have access to high-quality services via Repairman’s mobile application. In order to continue to receive access to the Repairman App and the Repairman Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Repairman for your Territory, as may be updated from time to time by Repairman in its sole discretion (“Minimum Average Rating”). Your average rating is intended to reflect Users’ satisfaction with your Home Service or Repair rather than your compliance with any of Repairman’s policies or recommendations. In the event your average rating falls below the Minimum Average Rating, Repairman will notify you and may provide you, in Repairman’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Repairman reserves the right to deactivate your access to the Repairman App and the Repairman Services. Additionally, you acknowledge that your repeated failure to accept User requests for Home Service or Repair while you are logged in to the Repairman App creates a negative experience for Users of Repairman’s mobile application. If you do not wish to accept User requests for Home Service or Repair for a period of time, you agree that you will log off of the Repairman App. In the event you repeatedly fail to log off the Repairman App during periods of unavailability Repairman reserves the right to deactivate your access to the Repairman App to facilitate a more positive experience for all users.
2.5.3 Repairman and its Affiliates reserve the right to use, share and display your and User ratings and comments in any manner in connection with the business of Repairman and its Affiliates without attribution to you or your approval. You acknowledge and agree that Repairman and its Affiliates are distributors (without any obligation to verify) and not publishers of your and User ratings and comments, provided that Repairman and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Repairman’s or its Affiliates’ content policies.
2.6.1 Repairman encourages you to use Your Device in providing Home Service or Repair. Otherwise, if you elect to use any Repairman Devices, Repairman will supply you upon request with Repairman Devices and provide the necessary wireless data plan for such Devices, provided that Repairman will require reimbursement from you for the costs associated with the wireless data plan of each Repairman Device and/or request a deposit for each Repairman Device. You agree that: (a) Repairman Devices may only be used for the purpose of enabling your access to the Repairman Services; and (b) Repairman Devices may not be transferred, loaned, sold or otherwise provided in any manner to any party other than you. Repairman Devices shall at all times remain the property of Repairman, and upon termination of this Agreement or your termination or deactivation, you agree to return to Repairman the applicable Repairman Devices within ten (10) days. You agree that failure to timely return any Repairman Devices, or damage to Repairman Devices outside of “normal wear and tear,” will result in the forfeiture of related deposits.
2.6.2 If you elect to use Your Devices: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) Repairman shall make available the Repairman App for installation on Your Device. Repairman hereby grants you a personal, non-exclusive, non-transferable license to install and use the Repairman App on Your Device solely for the purpose of providing Home Service or Repair. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Repairman App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the Repairman App from the Provider-Provided Device in the event that you cease to provide Home Service or Repair using Your Device. You agree that: (i) use of the Repairman App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the Repairman App on Your Device as an interface with the Repairman Services may consume very large amounts of data through the data plan. REPAIRMAN ADVISES THAT YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND REPAIRMAN SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
2.7 Location Based Services. You acknowledge and agree that your geo-location information must be provided to the Repairman Services via a Device in order to match User’s with Providers. You acknowledge and agree that: (a) your geo-location information may be obtained by the Repairman Services while the Repairman App is running; and (b) the approximate location of your Vehicle will be displayed to the User before and during the provision of Home Service or Repair to such User. In addition, Repairman and its Affiliates may monitor, track and share with third parties Provider’s geo-location information obtained by the Repairman App and Device for safety and security purposes.
- You and Your Vehicle and Equipment
3.1 Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold and maintain (i) a valid driver’s license with the appropriate level of certification to operate your Vehicle, and (ii) all licenses, permits, approvals and authority applicable to you that are necessary to provide customer home service or repair to third parties in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide Home Service or Repair 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 you may be subject to certain background, professional license and driving record checks from time to time in order to qualify to provide, and remain eligible to provide, Home Service or Repair. You acknowledge and agree that Repairman reserves the right, at any time in Repairman’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Repairman App or the Repairman Services if you fail to meet the requirements set forth in this Agreement.
3.2 Vehicle and Equipment Requirements. You acknowledge and agree that your Vehicle(s) and Equipment shall at all times be: (a) properly registered and licensed to operate in the Territory; (b) owned or leased by you, or otherwise in your lawful possession; (c) suitable for performing the home service or repair contemplated by this Agreement; and (d) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle or Equipment of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.
3.3 Documentation. To ensure your compliance with all requirements in Sections 3.1 and 3.2 above, you must provide Repairman with written copies of all such licenses, permits, approvals, authority, registrations and certifications prior to your provision of any Home Service or Repair. Thereafter, you must submit to Repairman written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. Repairman shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Repairman reserves the right to independently verify your documentation from time to time in any way Repairman deems appropriate in its reasonable discretion.
- Financial Terms
4.1 Job Fee Calculation and Your Payment. You are entitled to charge a job fee for each instance of completed Home Service or Repair provided to a User that are obtained via the Repairman Services (“Job Fee”), where such Job Fee is calculated based upon a base trip charge and/or time amounts, as detailed at https://repairmanapp.com/cities for the applicable Territory (“Job Fee Calculation”). You acknowledge and agree that the Job Fee provided under the Job Fee Calculation is the only payment you will receive in connection with the provision of Home Service or Repair, and that neither the Job Fee nor the Job Fee Calculation includes any gratuity. You are also entitled to charge User for any materials, taxes or other fees incurred during the provision of Home Service or Repair, if applicable. You: (i) appoint Repairman as your limited payment collection agent solely for the purpose of accepting the Job Fee, applicable Tolls and, depending on the region and/or if requested by you, applicable taxes and fees from the User on your behalf via the payment processing functionality facilitated by the Repairman Services; and (ii) agree that payment made by User to Repairman (or to an Affiliate of Repairman acting as an agent of Repairman) shall be considered the same as payment made directly by User to you. In addition, the parties acknowledge and agree that as between you and Repairman, the Job Fee is a recommended amount, and the primary purpose of the pre-arranged Job Fee is to act as the default amount in the event you do not negotiate a different amount. You shall always have the right to: (i) charge a job fee that is less than the pre-arranged Job Fee; or (ii) negotiate, at your request, a Job Fee that is lower than the pre- arranged Job Fee (each of (i) and (ii) herein, a “Negotiated Job Fee”). Repairman shall consider all such requests from you in good faith. Repairman agrees to remit, or cause to be remitted, to you on at least a weekly basis: (a) the Job Fee less the applicable Service Fee; (b) materials; and (c) depending on the region, certain taxes and ancillary fees. If you have separately agreed that other amounts may be deducted from the Job Fee prior to remittance to you (e.g., equipment rental or financing payments, lease payments, mobile device usage charges, etc.), the order of any such deductions from the Job Fee shall be determined exclusively by Repairman (as between you and Repairman).
4.2 Changes to Job Fee Calculation. Repairman reserves the right to change the Job Fee Calculation at any time in Repairman’s discretion based upon local market factors, and Repairman will provide you with notice in the event of changes to the base job fee, trip charge, per mile, and/or per minute amounts that would result in a change in the recommended Job Fee. Continued use of the Repairman Services after any such change in the Job Fee Calculation shall constitute your consent to such change.
4.3 Job Fee Adjustment. Repairman reserves the right to: (i) adjust the Job Fee for a particular instance of Home Service or Repair (e.g., you took an inefficient route, you failed to properly end a particular instance of Home Service or Repair in the Repairman App, technical error in the Repairman Services, etc.); or (ii) cancel the Job Fee for a particular instance of Home Service or Repair (e.g., User is charged for Home Service or Repair that were not provided, in the event of a User complaint, fraud, etc.). Repairman’s decision to reduce or cancel the Job Fee in any such manner shall be exercised in a reasonable manner.
4.4 Service Fee. In consideration of Repairman’s provision of the Repairman App and the Repairman Services for your use and benefit hereunder, you agree to pay Repairman a service fee on a per Home Service or Repair transaction basis calculated as a percentage of the Job Fee determined by the Job Fee Calculation (regardless of any Negotiated Job Fee), as provided to you via email or otherwise made available electronically by Repairman 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 Job Fee, Repairman shall calculate the Service Fee based on the Job Fee net of such taxes. Repairman reserves the right to change the Service Fee at any time in Repairman’s discretion based upon local market factors, and Repairman will provide you with notice in the event of such change. Continued use of the Repairman 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 Home Service or Repair that have been accepted by you via the Repairman App at any time prior to your arrival. In the event that a User cancels an accepted request for Home Service or Repair, Repairman may charge the User a cancellation fee on your behalf. If charged, this cancellation fee shall be deemed the Job Fee for the cancelled Home Service or Repair for the purpose of remittance to you hereunder (“Cancellation Fee”). Repairman will collect a service fee for canceled requests as described in section 4.4 in the agreement. The parties acknowledge and agree that as between you and Repairman, 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. You shall always have the right to: (i) charge a cancellation fee that is less than the Cancellation Fee; or (ii) negotiate, at your request, a cancellation fee that is lower than the Cancellation Fee (each of (i) and (ii) herein, a “Negotiated Cancellation Fee”). If charged, the Cancellation Fee (regardless of any Negotiated Cancellation Fee) shall be deemed the Job Fee for the cancelled Home Service or Repair for the purpose of remittance to you hereunder.
4.6 Receipts. As part of the Repairman Services, Repairman provides you a system for the delivery of receipts to Users for Home Service or Repair rendered. Upon your completion of Home Service or Repair for a User, Repairman prepares an applicable receipt and issues such receipt to the User via email on your behalf. Such receipts are also provided to you via email or the online portal available to you through the Repairman Services. Receipts include the breakdown of amounts charged to the User for Home Service or Repair and may include specific information about you, including your name, contact information and photo, as well as a map of the route you took. Any corrections to a User’s receipt for Home Service or Repair must be submitted to Repairman in writing within three (3) business days after the completion of such Home Service or Repair. Absent such a notice, Repairman shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Job Fee.
4.7 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Repairman and its Affiliates may seek to attract new Users to Repairman and to increase existing Users’ use of Repairman’s mobile 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.
4.8 Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Home Service or Repair as required by applicable law; and (b) provide Repairman with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Home Service or Repair. As an independent contractor Repairman will not withold any taxes on your behalf. Notwithstanding anything to the contrary in this Agreement, Repairman may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Home Service or Repair and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.8 directly to the applicable governmental tax authorities on your behalf or otherwise.
- Proprietary Rights; License
5.1 License Grant. Subject to the terms and conditions of this Agreement, Repairman hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Repairman Services (including the Repairman App on a Device) solely for the purpose of providing Home Service or Repair to Users and tracking resulting Job Fees and Fees. All rights not expressly granted to you are reserved by Repairman, its Affiliates and their respective licensors.
5.2 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 Repairman Services, Repairman App or any Repairman Device in any way; (b) modify or make derivative works based upon the Repairman Services or Repairman App; (c) improperly use the Repairman Services or Repairman App, including creating Internet “links” to any part of the Repairman Services or Repairman App, “framing” or “mirroring” any part of the Repairman Services or Repairman App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Repairman Services or Repairman App; (d) reverse engineer, decompile, modify, or disassemble the Repairman Services or Repairman App, 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 Repairman Services or Repairman App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Repairman 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 Repairman Services; or (iv) attempt to gain unauthorized access to the Repairman Services or its related systems or networks.
5.3 Ownership. The Repairman Services, Repairman App and Repairman Data, including all intellectual property rights therein, and the Repairman Devices are and shall remain (as between you and Repairman) the property of Repairman, its Affiliates or their respective licensors. Neither this Agreement nor your use of the Repairman Services, Repairman App or Repairman Data conveys or grants to you any rights in or related to the Repairman Services, Repairman App or Repairman Data, except for the limited license granted above. Other than as specifically permitted by the Repairman in connection with the Repairman Services, you are not permitted to use or reference in any manner Repairman’s, its Affiliates’, or their respective licensors’ company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the “REPAIRMAN 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 REPAIRMAN 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 Repairman Data, Provider IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons“) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Repairman, 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, Repairman 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 Repairman Data) about you or any Home Service or Repair provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Repairman’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g., Repairman or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in Repairman’s or any Affiliate’s sole discretion, to (1) protect the safety, rights, property or security of Repairman or its Affiliates, the Repairman Services or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Repairman Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which Repairman or any of its Affiliates, in their 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 Repairman’s or any Affiliate’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Repairman Services. You understand that Repairman may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
7.2 Repairman and its Affiliates may collect your personal data during the course of your application for, and use of, the Repairman Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Repairman and its Affiliates, 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 Repairman’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
8.1 You agree to maintain during the term of this Agreement automobile, business and general liability insurance that provides protection against bodily injury and property damage to you or third parties at levels of coverage that satisfy the minimum requirements to operate a home service or repair business within the Territory. This coverage must also include any no-fault coverage required by law in the Territory that may not be waived by an insured. You agree to provide Repairman and its Affiliates a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 8.1 upon request. Furthermore, you must provide Repairman with written notice of cancellation of any insurance policy required by Repairman with ten (10) days of such cancellation. Repairman shall have no right to control your selection or maintenance of your policy, but Repairman does reserve the right to restrict access to your account in the event you fail to maintain insurance as required in this agreement. You must be a named insured or individually rated provider, for which a premium is charged, on the insurance policy required in this Section 8.1 at all times.
8.2 You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in the Territory. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk. Repairman is not responsible for any liability for injuries sustained during your work as an independent contractor for Repairman Services.
8.3 You understand and acknowledge that your personal or business insurance policies, including general liability or automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for the Home Service or Repair services you provide pursuant to this Agreement. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Repairman, to resolve them with your insurer(s).
8.4 Repairman may maintain during the term of this Agreement insurance related to your provision of Home Service or Repair services as determined by Repairman in its reasonable discretion or as described in a City Addendum, provided that Repairman and its Affiliates are not required to provide you with any specific insurance coverage for any loss to you or your Vehicle or Equipment. You are required to promptly notify Repairman of any accidents that occur while providing Home Service or Repair and to cooperate and provide all necessary information related thereto.
- Representations and Warranties; Disclaimers
9.1 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 (i) Home Service or Repair pursuant to this Agreement, and (ii) customer home service or repair to third parties in the Territory generally.
9.2 Disclaimer of Warranties. REPAIRMAN AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE REPAIRMAN SERVICES, REPAIRMAN APP AND THE REPAIRMAN DEVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. REPAIRMAN AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE REPAIRMAN SERVICES, REPAIRMAN APP OR THE REPAIRMAN DEVICES: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR HOME SERVICE OR REPAIR.
REPAIRMAN 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 HOME SERVICE OR REPAIR FROM YOU, AND REPAIRMAN AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE REPAIRMAN SERVICES AND REPAIRMAN APP, 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 REPAIRMAN SERVICES OR REPAIRMAN APP. NOTWITHSTANDING REPAIRMAN’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, REPAIRMAN AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
9.3 No Service Guarantee. REPAIRMAN AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE REPAIRMAN SERVICES OR REPAIRMAN APP. YOU ACKNOWLEDGE AND AGREE THAT THE REPAIRMAN SERVICES OR REPAIRMAN APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE REPAIRMAN SERVICES OR REPAIRMAN APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND REPAIRMAN AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
You shall indemnify, defend (at Repairman’s option) and hold harmless Repairman and its Affiliates and their respective officers, directors, employees, agents, 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 Home Service or Repair or use of the Repairman Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
11.0 Limits of Liability.
REPAIRMAN 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. EXCEPT FOR REPAIRMAN’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF REPAIRMAN OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO REPAIRMAN HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- Term and Termination
12.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
12.2 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, Repairman may terminate this Agreement or deactivate your Provider ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Repairman and its Affiliates, to provide Home Service or Repair or to operate the Vehicle, or as otherwise set forth in this Agreement.
12.3 Effect of Termination. Upon termination of the Agreement, you shall: (a) promptly return to Repairman all Repairman Devices; (b) immediately cease to hold yourself out has an independent contractor of Repairman; and (c) immediately delete and fully remove the Repairman App from any of Your Devices. Outstanding payment obligations and Sections 1, 2.3, 2.5.3, 4.7, 4.8, 5.3, 6, 7, 9, 10, 11, 12.3, 13, 14 and 15 shall survive the termination of this Agreement.
- Relationship of the Parties
13.1 Except as otherwise expressly provided herein with respect to Repairman acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, 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 Repairman and you; and (b) no joint venture, partnership, or agency relationship exists between Repairman and you.
13.2 You have no authority to bind Repairman or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Repairman or its Affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Repairman, you undertake and agree to indemnify, defend (at Repairman’s option) and hold Repairman and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
- Miscellaneous Terms
14.1 Modification. In the event Repairman 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. Repairman reserves the right to modify any information referenced at hyperlinks contained in this Agreement from time to time. You hereby acknowledge and agree that, by using the Repairman Services, or downloading, installing or using the Repairman App, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Job Fee Calculations. Continued use of the Repairman Services or Repairman App 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.
14.2 Supplemental Terms. Supplemental terms may apply to your use of the Repairman 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.
14.3 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.
14.4 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 Repairman 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 Repairman’s business, equity or assets.
14.5 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.
14.6 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement, except as expressly set forth in the Arbitration Provision in Section 15.3. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
14.7 Notices. Any notice delivered by Repairman 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 Repairman Services. Any notice delivered by you to Repairman under this Agreement will be delivered by contacting Repairman at https://repairmanapp.com/provider in the “Contact Us” section. Additional Territory-specific notices may be required from time to time.
- Governing Law; Arbitration
15.1 The choice of law provisions contained in this Section 15.1 do not apply to the arbitration clause contained in Section 15.3, such arbitration clause being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Section 15.3, the interpretation of this Agreement shall be governed by Colorado 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 Repairman Services that are not subject to the arbitration clause contained in Section 15.3 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City of Castle Pines, Douglas County, Colorado. 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-Coloradans to assert claims under Colorado law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 15.3, are only intended to specify the use of Colorado 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 the protections of Colorado law to you if you do not otherwise reside or provide services in Colorado. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 15.3 or to any arbitrable disputes as defined therein. Instead, as described in Section 15.3, the Federal Arbitration Act shall apply to any such disputes. The failure of Repairman 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 Repairman in writing.
15.2 Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 15.3.ii, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Repairman Services shall be subject to arbitration pursuant to Section 15.3.
15.3 _ 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 Repairman. 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 the Repairman.
- IMPORTANT: This Arbitration Provision will require you to resolve any claim that you may have against the Repairman 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 (other than actions under the Private Attorneys General Act of 2004 (“PAGA”), Colorado Labor Code § 2698 et seq. (“PAGA”)) against the Repairman or Repairman, and also precludes you from participating in or recovering relief under any current or future class, collective, or representative (non-PAGA) action brought against the Repairman by someone else.
o Cases may be filed in the future involving claims by users of the Service, including by service providers. You should assume that there are now, and may be in the future, lawsuits against the Repairman alleging class, collective, and/or representative (non-PAGA) 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.
o 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 the Repairman, 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 (non-PAGA) lawsuit, except as provided below.
o However, as discussed above and except as provided below, if you agree to arbitration, you will not be precluded from bringing your claims against the Repairman 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, LEGAL OR LIFE DECISION.
- 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 15.3(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 or PAGA Waiver below, including their enforceability, revocability or validity.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and the Repairman or Repairman, as well as all disputes between You and the Repairman’s or Repairman’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 the Repairman, 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, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by the Repairman and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, 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.
Repairman Technologies, Inc. is an intended, third party beneficiary of this Agreement.
- 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:
A representative action brought on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), Colorado Labor Code, to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction;
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, the Repairman’s, or Repairman’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 the Repairman and you. Unless you and the Repairman 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:
The location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided home service or repair under this Agreement, unless each party to the arbitration agrees in writing otherwise.
- 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 the Repairman shall be provided to Legal, Repairman Inc., 558 Castle Pines Parkway, Suite B4-305, Castle Pines, CO 80108. 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.
- 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 the Repairman 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 Repairman 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, the Repairman 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.
Private Attorneys General Act.
Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) You and Repairman agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), Colorado Labor Code, in any court or in arbitration, and (2) for any claim brought on a private attorney general basis—i.e., where you are seeking to pursue a claim on behalf of a government entity—both you and Repairman agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (“PAGA Waiver”). Notwithstanding any other provision of this Agreement or the Arbitration Provision, the validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the Parties’ attempt to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and (3) any representative action brought under PAGA on behalf of others must be litigated in a civil court of competent jurisdiction and not 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 PAGA Waiver is unenforceable with respect to those claims, the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
- 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, Repairman will pay the Arbitrator’s and arbitration fees. If under applicable law Repairman 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 Repairman 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 the Repairman. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying the Repairman 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 firstname.lastname@example.org, stating your name and intent to opt out of the Arbitration Provision, which intent to opt out is only effective upon acknowledgement by Repairman that they have received said email. In the event that you do not receive confirmation of receipt with twenty four (24) hours of sending your intent to opt out of this provision via electronic mail you MUST re-send said email notice to Repairman, or (2) by sending a letter by Certified. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) requiring a signature, or by hand delivery to:
- Repairman Inc.
- 558 Castle Pines Parkway
- Castle Pines, CO 80108
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 the Repairman. Should you not opt out of this Arbitration Provision within the 30-day period, you and the Repairman 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.
- 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 Repairman.