Independent Contractor Agreement
TreeStorX Contractors
Last Updated: April 12, 2024
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION 14, OR 25.1, AS APPLICABLE, AS EACH REQUIRES THE PARTIES TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION (UNLESS CONTRACTOR VALIDLY OPTS OUT OF ARBITRATION, AS PROVIDED BELOW). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. BY ACCEPTING THIS AGREEMENT, CONTRACTOR ACKNOWLEDGES THAT THEY HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION 14, OR 25.1, AS APPLICABLE, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
This Independent Contractor Agreement ("Agreement") describes the rules, restrictions, and obligations that govern your provision of services through the TreeStorX Platform ("Contracted Services"), as further described in section 3 below. This Agreement is between you, an independent contractor engaged in the business of performing the Contracted Services ("Contractor"), and the relevant TreeStorX entity with whom you are entering this Agreement, as described in section 24 below. Contractor may enter this Agreement either as an individual sole proprietor or a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether Contractor is eligible to, or ever does, perform any Contracted Services.
BY ACCESSING THE TreeStorX Driver APPLICATION ("Driver APP"), CONTRACTOR AGREES TO BE BOUND BY (1) THIS AGREEMENT, (2) THE TreeStorX Driver PRIVACY POLICY, (3) THE TreeStorX CONSUMER TERMS OF SERVICE, AND (4) THE E-SIGN CONSENT AGREEMENT (SECTION 22).
RECITALS
TreeStorX is a technology company that provides an online marketplace and services platform using web-based technology (including the Driver App) that brokers the exchange of goods and services among contractors, businesses, and consumers (together, the "TreeStorX Platform"). The TreeStorX Platform enables individuals and businesses ("Consumers") to place orders for goods and services from dispensaries and other businesses ("Merchants") and Contractors. Once such orders are placed, the TreeStorX Platform notifies Contractors that a Contracted Service Opportunity (defined in section 3.1 below) is available and facilitates completion of the Contracted Services. TreeStorX is not a dispensary,delivery service, or cannabis preparation business.
Contractor is an independent provider of Contracted Services, authorized to conduct such services in the geographic location(s) in which they operate. Contractor possesses and/or controls all equipment and personnel necessary to perform the Contracted Services in accordance with applicable laws. Contractor desires to enter into this Agreement for the opportunity to receive Contracted Service Opportunities made available through the TreeStorX Platform. Contractor understands and expressly agrees that they are not an employee of TreeStorX or any dispensary, other business, or individual using the TreeStorX Platform and that they are performing Contracted Services on behalf of themselves and their business, not on behalf of TreeStorX. Contractor understands that: (i) they are free to select the times they wish to be available on the TreeStorX Platform to receive Contracted Service Opportunities; (ii) they are free to negotiate their earnings by, among other things, accepting or rejecting the Contracted Service Opportunities presented through the TreeStorX Platform, and can make such decisions to maximize their opportunity to profit; and (iii) they have the sole right to control the manner in which Contracted Services are performed and the means by which those Contracted Services are completed in accordance with applicable laws.
In consideration of the above, as well as the mutual promises described herein, TreeStorX and Contractor (collectively, "the parties") agree as follows:
1. PURPOSE OF THE AGREEMENT
1.1. This Agreement governs the relationship between TreeStorX and Contractor and establishes the parties' respective rights and obligations. In exchange for the promises contained in this Agreement, Contractor will have the opportunity to receive Contracted Service Opportunities through the TreeStorX Platform and Contractor agrees to perform the Contracted Services for any Contracted Service Opportunities they choose to accept. However, nothing in this Agreement requires Contractor to perform any particular volume of Contracted Services, and nothing in this Agreement guarantees Contractor will receive any volume of Contracted Service Opportunities or other business through the TreeStorX Platform.
1.2. Contractor is not obligated to accept or perform any particular Contracted Service Opportunity offered through the TreeStorX Platform. However, once a Contracted Service Opportunity is accepted, Contractor shall be contractually bound to complete the Contracted Services in accordance with all Consumer and Merchant specifications and the terms laid out in this Agreement.
2. CONTRACTOR'S OPERATIONS
2.1. Contractor represents that they operate an independently established business enterprise that provides services, and that they satisfy all legal requirements and have all necessary licenses and permits necessary to perform the Contracted Services. As an independent enterprise, Contractor is solely responsible for determining how to operate their business and how to perform the Contracted Services.
2.2. Contractor agrees that all information they provide to TreeStorX or through the TreeStorX Platform will be true and accurate and that they will promptly inform TreeStorX if any information requires updating.
2.3. Contractor agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. TreeStorX has no right to, and shall not, control the manner, method, or means Contractor uses to perform the Contracted Services. Instead, Contractor shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including, as applicable, determining the manner of pickup, shopping, delivery, and route selection.
2.4. As an independent business enterprise, Contractor retains the right to perform services (whether services similar to the Contracted Services or other services) with or for other businesses and/or other consumers, and Contractor represents that they advertise and hold themselves out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with other businesses to supply services similar or identical to the Contracted Services and nothing in this Agreement prevents Contractor or TreeStorX from doing business with others. TreeStorX does not have the right to restrict Contractor from performing services for Contractor's own business, other businesses, consumers, or any other third parties at any time, even if such business directly competes with TreeStorX, and even during the time Contractor is logged into the TreeStorX Platform so long as performing such services does not otherwise violate this Agreement. Contractor's right to compete with TreeStorX, or perform services for businesses that compete with TreeStorX, will survive even after termination of this Agreement.
2.5. Contractor is not required to purchase, lease, or rent any products, equipment, or services from TreeStorX as a condition of receiving Contracted Service Opportunities through the TreeStorX Platform or entering into this Agreement.
2.6. Contractor agrees to immediately notify TreeStorX in writing at driver.support@treestorx.com if Contractor's right to control the manner or method they use to perform Contracted Services differs from the terms contemplated in this section 2.
2.7. When signing up to be a user of the TreeStorX Platform, Contractor's information will be used to create an account. Contractor may not create multiple Driver App accounts.
2.8. By entering this Agreement, Contractor also agrees to be bound by the TreeStorX Consumer Terms of Service and that any breach of the TreeStorX Consumer Terms of Service will be considered a breach of this Agreement. However, to the extent that this Agreement and the TreeStorX Consumer Terms of Service conflict, the terms of this Agreement will take precedence.
2.9. Contractor also acknowledges that Contractor may be offered opportunities to perform Contracted Services through the TreeStorX Platform by entities other than TreeStorX and that additional terms and conditions may apply to those opportunities. To the extent that any such terms and conditions conflict with this Agreement, they will take precedence over this Agreement.
2.10. Contractor acknowledges that when engaging with the TreeStorX Platform on a mobile device, data usage rates may apply.
2.11. To prevent unauthorized access to Contractor's account and to prevent unauthorized use of Personal Information (as defined in section 5.1) and the TreeStorX Platform, Contractor agrees to protect and keep confidential all Personal Information and their email, phone number, password, and/or other means of accessing their account via the TreeStorX Platform by implementing appropriate technical and organizational measures. Contractor acknowledges that unauthorized use of Contractor's account, email, phone number, password, or other means of accessing their account could lead to financial loss and access to Contractor's sensitive personal and account information. If Contractor discloses (or otherwise allows to be made known) their account information, user ID, password, or other means of accessing their account to any person or entity, Contractor assumes all risks and losses associated with such disclosure. If Contractor believes someone may attempt to use, or has accessed, Contractor's account without Contractor's permission, or that any other unauthorized use or security breach has occurred, Contractor agrees to immediately notify TreeStorX at driver.support@treestorx.com.
2.12. Contractor shall at all times ensure that they use the most up-to-date version of the Driver App available, have a mobile device capable of reliably running the most up-to-date version of the Driver App, and not intentionally block or attempt to bypass any automatic Driver App updates.
2.13. From time to time, TreeStorX may invite Contractors to participate in sessions to test new features or services within or related to the TreeStorX Platform. Contractor shall keep confidential all information learned or obtained during such sessions and shall not disclose such information to anyone without TreeStorX's express written consent.
3. CONTRACTED SERVICES
3.1. From time to time, the TreeStorX Platform may notify Contractor of the opportunity to perform Contracted Services in accordance with orders placed by Consumers or Merchants through the TreeStorX Platform (each a "Contracted Service Opportunity"). Contractor agrees that by logging into the Driver App and starting a Dash, Contractor is making themselves available to receive Contracted Service Opportunities, which Contractor may accept or reject.
3.2. For each Contracted Service Opportunity accepted by Contractor that involves picking up one or more items ("Items") from one or more Merchants and delivering the Items to one more Consumers (a "Delivery Service Opportunity"), Contractor agrees to (i) proceed to the applicable Merchant(s), (ii) retrieve the Item(s) in a safe and timely fashion, (iii) ensure the Delivery Service Opportunity is accurately performed according to the instructions, specifications, or guidelines of the customer, merchant, or any other party requesting the service and (iv) complete delivery of the Item(s) to the Consumer(s) in a safe and timely fashion without taking any action that would change the quality or presentation of the Item(s) and while adhering to applicable law and reasonable expectations of cannabis safety, quality, and health standards as required by the Merchant(s) and/or applicable law. A Delivery Service Opportunity is considered complete when all Items have been delivered to the Consumer(s), or, when applicable, placed in a designated area as instructed by the Consumer(s), in addition to any other task required for completion of the Delivery Service Opportunity as specified by the Consumer(s) and/or Merchant(s). Contractor agrees to timely mark each Delivery Service Opportunity as completed in the Driver App upon completion. If the Consumer is not available, Contractor agrees that the Delivery Service Opportunity will be considered complete only if Contractor both (i) makes reasonable efforts to contact the Consumer and wait a reasonable time for the Consumer to accept the Item(s) by following the applicable flow in the Driver App and (ii) either leaves the Item(s) at the Consumer location or returns the Item(s) if a return is required for a given Delivery Service Opportunity (as indicated at the time the Delivery Service Opportunity is offered). Under no circumstances may Contractor take the Item(s).
3.3. To the extent a Delivery Service Opportunity requires Contractor to select Items from a Merchant's store prior to delivery ("Shop and Deliver"), Contractor acknowledges that additional Items may be added after Contractor has accepted the Delivery Service Opportunity through the Platform. Contractor may opt out of receiving Shop and Deliver Contracted Service Opportunities by contacting TreeStorX Support at driver.support@treestorx.com.
3.4. Contractor understands and agrees that the parameters of each Contracted Service Opportunity are established by the Consumer and/or Merchant, not TreeStorX, and represent the end result desired, not the means by which Contractor is to accomplish the result. Contractor has the right to cancel a Contracted Service when, in the exercise of Contractor's reasonable discretion and business judgment, it is appropriate to do so. Notwithstanding the foregoing, Contractor agrees to maintain both a customer rating and a completion rate found here as of the date this Agreement becomes effective. Failure to satisfy this obligation constitutes a material breach of this Agreement, and in such case TreeStorX shall have the right to terminate this Agreement and/or deactivate Contractor's account. Contractor shall not attempt to induce or persuade a Consumer or Merchant to cancel any Contracted Service.
3.5. Contractor acknowledges that TreeStorX has discretion as to which, if any, Contracted Service Opportunities to present to Contractor, just as Contractor has the discretion whether to accept any Contracted Service Opportunity.
3.6. Contractor warrants that Contractor is engaged in Contractor's own business, separate and apart from TreeStorX's business, which is to provide the TreeStorX Platform.
3.7. Contractor authorizes TreeStorX, during the course of any Contracted Services, to communicate with Contractor, the Consumers, and the Merchants, and/or or facilitate direct communication between Contractor and the Consumers and/or Merchants, to the extent permitted by Contractor, for the purposes of assisting Contractor in their performance of the Contracted Services. Under no circumstances, however, shall TreeStorX be authorized to control the manner or means by which Contractor performs Contracted Services. This includes, but is not limited to, the following:
a. TreeStorX does not require any specific type, or quality, of Contractor's choice of transportation.
b. Contractor does not have a supervisor or any individual at TreeStorX to whom they report.
c. Contractor is not required to use any signage or other designation of TreeStorX on their vehicle or person at any point in their performance of the Contracted Services.
d. TreeStorX has no control over Contractor's personal appearance.
e. Contractor does not receive performance evaluations by TreeStorX.
3.8. Contractor may use whatever payment method they choose to purchase Items to be delivered to Consumers, including but not limited to Contractor's personal credit or debit card, cash, or a physical or electronic card prepaid by TreeStorX. Contractor may use, for Contractor's convenience, the prepaid card solely for purchasing Items to be delivered to Consumers. If Contractor uses their personal credit or debit card or cash, Contractor shall notify TreeStorX by submitting a support inquiry through driver.support@treestorx.com and TreeStorX will reimburse Contractor. Notwithstanding the above or any other provision in this Agreement, Contractor shall not use any payment method linked to SNAP or EBT funds to purchase Items to be delivered to Consumers.
3.9. In the event Contractor fails to fully perform any Contracted Service consistent with the parameters established by the Consumer and/or Merchant, or this Agreement(a "Service Failure"), Contractor shall forfeit all or part of the agreed upon fee for that service. If Contractor disputes responsibility for a Service Failure, the dispute shall be resolved pursuant to the "Payment Disputes" provision below.
3.10. Contractor shall comply with all applicable TreeStorX policies and guidelines as may be published or communicated to Contractor from time to time, including the Delivering Alcohol Guidelines and the Delivering Tobacco Guidelines.
3.11. Contractor agrees to immediately notify TreeStorX in writing by submitting a Support inquiry through driver.support@treestorx.com if Contractor's services or scope of work differ in any way from what is contemplated in this section 3.
4. CONTENT
Parts of the TreeStorX Platform enable Contractor to provide feedback, text, photos, audio, video, information, and other content to TreeStorX (collectively, "Content"). By providing Content, in whatever form and through whatever means, Contractor agrees to the TreeStorX Content and Likeness Consent Release and grants TreeStorX a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to copy, modify, prepare derivative works of, distribute, publish and otherwise exploit, that Content, without limitation. To the extent permitted by law, Contractor waives its moral rights (as defined under applicable law) with respect to any Content Contractor creates or contributes and Contractor unconditionally and irrevocably consents to TreeStorX (and all persons authorized by TreeStorX) (i) exercising any of the rights of an owner of copyright in the Content without attribution to Contractor as the author or by attributing ownership to another person and (ii) to using, reproducing, dealing with, modifying, doing, or omitting to do, anything which would infringe or breach Contractor's moral rights in the Content. Contractor irrevocably waives and agrees not to enforce any moral rights they may have in the Content. If Content includes personal information, TreeStorX's Driver Privacy Policy describes how TreeStorX uses that personal information. Where TreeStorX pays for the creation of Content or facilitates its creation, TreeStorX may own that Content, in which case supplemental terms or disclosures will say that. Contractor is solely responsible for all Content that Contractor provides and warrants that Contractor either owns it or is authorized to grant TreeStorX the rights described in this Agreement. Contractor is responsible and liable if any of Contractor's Content violates or infringes the intellectual property or privacy rights of any third party. Content that is, among other things, discriminatory, obscene, harassing, deceptive, violent, or illegal is prohibited, and Content must comply with all applicable TreeStorX policies, including but not limited to the TreeStorX Social Media Guidelines. Contractor agrees that TreeStorX may make available services or automated tools to translate Content and that Contractor's Content may be translated using such services or tools.
5. PRIVACY OF PERSONAL INFORMATION
5.1. Contractor may only process personal information (as that term is defined under applicable privacy laws) obtained in connection with the Contracted Services ("Personal Information") in compliance with the terms of this Agreement and only for the limited and specified business purpose of providing the Contracted Services. Contractor shall comply with applicable privacy laws and provide the level of privacy protection for Personal Information as is required by those laws. Contractor shall not sell or share Personal Information. Contractor shall not (a) retain, use or disclose Personal Information (i) for any purpose other than the business purpose of providing the Contracted Services or (ii) outside of the direct business relationship between TreeStorX and Contractor; or (b) combine Personal Information received in connection with the Contracted Services with personal information received from or on behalf of another person(s), or collected from Contractor's own interactions with individuals, unless permitted by applicable privacy laws. Contractor certifies that they understand and will comply with these requirements and restrictions.
5.2. Contractor shall process Personal Information only for the duration of this Agreement, or until otherwise instructed by TreeStorX. To the extent Contractor maintains any Personal Information, Contractor shall promptly delete a particular individual's Personal Information from Contractor's records upon request by TreeStorX. TreeStorX may take any reasonable and appropriate steps to ensure that Contractor uses Personal Information in a manner consistent with TreeStorX's obligations under applicable privacy laws. Contractor shall promptly notify TreeStorX if at any time Contractor determines that they can no longer meet their obligations pertaining to Personal Information or applicable privacy laws. Upon notice to Contractor, TreeStorX may take any reasonable and appropriate steps to stop and remediate the unauthorized use of Personal Information. Upon TreeStorX's reasonable request, Contractor shall make available to TreeStorX all information in Contractor's possession necessary to demonstrate Contractor's compliance with its obligations under this Agreement and applicable privacy laws. TreeStorX shall have the right to monitor Contractor's compliance with this Agreement through any measures deemed appropriate by TreeStorX. Contractor shall allow for and contribute to audits, including inspections, conducted by TreeStorX or another auditor designated by TreeStorX.
6. RELATIONSHIP OF PARTIES
6.1. The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create solely the relationship of independent contracting parties. This is not an employment agreement, and the parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement (including section 22).
6.2. TreeStorX shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by Contractor. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in TreeStorX have been inserted solely for the safety of Consumers, Merchants, and other contractors using the TreeStorX Platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
6.3. TreeStorX shall report all payments made to Contractor on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to Contractor qualifies for such reporting. Contractor agrees to report all such payments and any cash gratuities to the appropriate federal, and local tax authorities, as required by law. Where required by law, Contractor understands and agrees to remit all required payments to the appropriate federal, provincial, and local tax authorities.
7. PAYMENT FOR SERVICES
7.1. Unless a different rate of pay is negotiated or Contractor is notified otherwise by TreeStorX in writing or except as provided herein, Contractor will receive payment for all Contracted Services fully performed in an amount consistent with TreeStorX's publicly provided pay model, which can be viewed here. TreeStorX reserves the right to adjust or withhold all or a portion of payment owed to Contractor if TreeStorX reasonably believes that Contractor has defrauded or abused, or attempted to defraud or abuse, the TreeStorX Platform. From time to time, Contractor may be offered opportunities to earn more money for performing Contracted Services at specified times or in specified locations. Nothing prevents the parties from negotiating a different rate of pay, and Contractor is free to accept or reject any such opportunities to be paid at different rates.
7.2. TreeStorX's online payment software may permit Consumers to add a gratuity to be paid to Contractor, and Consumers can also pay a gratuity to Contractor in cash. Contractor shall retain 100% of any gratuity paid by the Consumer to TreeStorX, whether by cash, credit card, or other means. TreeStorX acknowledges it has no right to interfere with the amount of gratuity given by the Consumer to Contractor.
7.3. For purchases that involve Consumer or Merchant payment via the TreeStorX Platform, TreeStorX will process payments made by such Consumers or Merchants and transmit applicable payment for the Contracted Services to Contractor. Contractor is responsible for verifying the accuracy of their bank account and/or debit card information to receive timely payments. TreeStorX is not responsible for lost or late payments due to incorrect routing and/or account information.
7.4. By agreeing to any separate contract with a third party to process payments owed under this Agreement to Contractor, Contractor agrees that TreeStorX shall discharge its payment obligations to Contractor by funding the amounts payable and directing the third-party processor to pay such funded amounts to Contractor. After TreeStorX funds and directs payment, any failure or refusal by the third-party processor to issue payment to Contractor shall be the responsibility of Contractor to resolve.
7.5. From time to time, TreeStorX may offer Contractor cash-based Contracted Service Opportunities. The order subtotal and Contractor earnings from such cash-based Contracted Service Opportunities will be deducted from Contractor's earnings balance in the TreeStorX Platform, and Contractor will keep the cash provided by the Consumer or Merchant. Contractor is responsible for tracking, reporting, and paying appropriate taxes on all tips received from cash-based Contracted Service Opportunities.
7.6. Notwithstanding the terms of sections 7.1-7.3, Consumer orders placed directly with Merchants rather than through the TreeStorX Platform or www.TreeStorX.com ("Fulfillment Orders") may be subject to a different payment model. More information regarding Fulfillment Orders may be found here. Nothing prevents the parties from negotiating a different rate of pay for a Fulfillment Order, and Contractor is free to accept or reject Fulfillment Order Contracted Service Opportunities. TreeStorX will pass through 100% of any gratuity it receives from the Merchant's Consumer for a Fulfillment Order to Contractor. TreeStorX's and/or Merchants' software may not always include an option to add gratuity for Fulfillment Orders; however, Consumers can pay a gratuity to Contractor in cash.
7.7. From time to time, TreeStorX may offer various promotions or referral programs. These promotional or referral programs in no way are meant to infer an employment relationship or any other type of relationship between the parties other than that which is set forth herein. Contractor agrees that they will not manipulate or abuse any such promotion or referral programs by, among other things: (a) tampering with the location feature on their mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or (c) creating multiple contractor or consumer accounts. Contractor understands that engaging in this type of manipulation or abuse constitutes a material breach of this Agreement and may lead to deactivation of their account.
8. PAYMENT DISPUTES
8.1. Contractor's Failure. In the event there is a Service Failure, Contractor shall not be entitled to payment as described above (as determined in TreeStorX's reasonable discretion). Any withholding of payment shall be based upon evidence provided by the Consumer, Merchant, Contractor, and/or any other party with information relevant to the dispute. TreeStorX shall make the initial determination as to whether a Service Failure was the result of Contractor's action or omission. Contractor shall have the right to challenge TreeStorX's determination through any legal means contemplated by this Agreement; however, Contractor shall first notify TreeStorX in writing at driver.support@treestorx.com of the challenge and provide TreeStorX the opportunity to resolve the dispute. Contractor should include any documents or other information in support of their challenge.
8.2. TreeStorX's Failure. In the event TreeStorX fails to remit payment in a timely or accurate manner, except as provided in section 7.5, Contractor shall have the right to seek proper payment by any legal means contemplated by this Agreement and, should Contractor prevail, shall be entitled to recover reasonable costs incurred in pursuing proper payment; provided, however, Contractor shall first inform TreeStorX in writing at driver.support@treestorx.com of the failure and provide TreeStorX a reasonable opportunity to cure it.
9. EQUIPMENT AND EXPENSES
9.1. Contractor represents that they have or will lawfully acquire all equipment, including vehicles, necessary to perform Contracted Services ("Equipment"), and Contractor is solely responsible for ensuring that any vehicle used to perform Contracted Services conforms to all vehicle laws pertaining to registration, safety, equipment, inspection, and operational capability.
9.2. Contractor agrees that they are responsible for all costs and expenses arising from their performance of Contracted Services, including, but not limited to, costs related to Contractor's Personnel (defined below) and Equipment. Typical expenses may include, but are not limited to, vehicle maintenance, gas, traffic fines or penalties, parking fees, and mobile device costs and fees (including applicable text messaging or data rates determined by Contractor's carrier). Except as otherwise required by law, Contractor assumes all risk of damage or loss to their Equipment.
10. PERSONNEL
10.1. In order to perform any Contracted Services, Contractor must, for the safety of the TreeStorX Platform, pass a background check and identity verification administered by third-party vendors, subject to Contractor's lawful consent. Contractor is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of Contractor) to perform all or some of the Contracted Services (collectively, "Personnel"), provided any such Personnel meet all the requirements applicable to Contractor including, but not limited to, entering into a written contract between Contractor and such other party, accepting the terms of this Agreement, separately completing the process to receive Contracted Service Opportunities, and being eligible to provide the Contracted Services in the applicable geographic location. To the extent Contractor utilizes their own Personnel in the performance of Contracted Services, Contractor shall be solely responsible for the direction and control of all such Personnel.
10.2. Contractor assumes full and sole responsibility for the payment of all amounts due to their Personnel for work performed in relation to this Agreement, including all wages, benefits, holiday pay, and expenses, if any, and for all required state, and federal income tax withholdings, applicable goods and services taxes (GST), insurance, duties or levies, unemployment insurance contributions, and social security taxes as to Contractor and all Contractor Personnel in the performance of Contracted Services. TreeStorX is not an employer or joint employer of Contractor Personnel, and shall have no responsibility for any wages, benefits, expenses, or other payments due Contractor Personnel, nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to Contractor or their Personnel. Neither Contractor nor their Personnel shall receive any wages, including vacation pay or holiday pay, from TreeStorX, nor shall they participate in or receive any other benefits, if any, available to TreeStorX's employees.
10.3. Unless mandated by law, TreeStorX shall have no authority to withhold state, or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state, or federal tax on behalf of Contractor or their Personnel.
10.4. Contractor and their Personnel shall not be required to wear a uniform or other clothing of any type bearing TreeStorX's name or logo.
10.5. If Contractor uses the services of any Personnel to perform the Contracted Services, Contractor's Personnel must satisfy and comply with all of the terms of this Agreement, which Contractor must make enforceable by written agreement between Contractor and such Personnel. A copy of such written agreement must be provided to TreeStorX at least 7 days in advance of such Personnel performing the Contracted Services, and Contractor must notify TreeStorX when their Personnel will be performing Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure Contractor's compliance with the terms of this Agreement.
11. INSURANCE
11.1. Contractor shall at all times during the term of this Agreement maintain current insurance in amounts and of types required by law to provide the Contracted Services and cover Contractor during performance of the Contracted Services, at their own expense. Contractor acknowledges that failure to secure or maintain satisfactory insurance coverage shall be deemed a material breach of this Agreement and grounds for termination of the Agreement and the loss of Contractor's right to receive Contracted Service Opportunities.
11.2. Notification of Coverage. Contractor agrees to deliver to TreeStorX, upon request, current certificates of insurance as proof of coverage. Contractor agrees to provide updated certificates each time Contractor purchases, renews, or alters Contractor's insurance coverage. Contractor agrees to give TreeStorX at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement.
11.3. Workers' Compensation/Occupational Accident Insurance. Contractor agrees that Contractor will maintain sufficient insurance to cover any risks or claims arising out of or related to Contractor's relationship with TreeStorX, including workers' compensation insurance where required by law. Contractor acknowledges and understands that, unless otherwise required by law, Contractor will not be eligible for workers' compensation benefits through TreeStorX and is instead responsible for maintaining their own workers' compensation insurance or occupational accident insurance. Contractor's maintenance of their own workers' compensation insurance or occupational accident insurance will not disqualify Contractor from participating in the Occupational Accident Insurance Policy for Drivers, which TreeStorX may make available to Contractor.
11.4. Contractor's Cooperation. For the purpose of assisting with TreeStorX's compliance with insurance obligations, Contractor agrees to notify TreeStorX and/or their carrier of any purported occurrence, dispute, incident or accident ("Event") while logged into the Driver App and/or any Event that took place immediately before or after logging in or out of the Driver App within 48 hours of the Event, where practicable. Contractor agrees to provide any cooperation and assistance that may be requested by a representative or agent of the applicable insurance carrier in relation to any Event while Contractor is logged into the Driver App, including any investigation into the moments leading up to or immediately after the subject Event.
12. COMMUNICATIONS
12.1. By executing this Agreement, Contractor expressly agrees: (a) to accept and receive communications from or on behalf of TreeStorX and its corporate affiliates, Merchants, partners, or other third parties providing services to Contractor or to or on behalf of TreeStorX, including communications via email, SMS/text message, direct message, chat, calls, and push notifications to the contact information that Contractor provides in connection with Contractor's relationship or interaction with TreeStorX and/or its corporate affiliates, and (b) that SMS/text messages and calls (including pre-recorded/automated message calls) may be delivered to Contractor's phone or device including via an automatic telephone dialing system. The communications may include, without limitation, commercial or marketing messages; transactional or relationship messages (e.g., messages about Contracted Services, security, responses to communications initiated by Contractor, earnings for Contracted Services, updates to policies/legal agreements (e.g., privacy policies, terms of service)); newsletters; research; and customer support. The communications may be sent regardless of whether Contractor has performed any Contracted Services (e.g., if Contractor has started but not completed signing up to be a Contractor). Contractor acknowledges that receiving commercial or marketing messages (e.g., emails, SMS/text messages, push-notifications) or calls is not a requirement or condition for Contractor to perform or engage in the Contracted Services. Message and data rates may apply and message frequency may vary. If there are changes to Contractor's contact information (e.g., email address, phone number), Contractor agrees to update Contractor's account to help prevent or limit TreeStorX inadvertently communicating with someone else.
12.2. The opt-out options for communications are set out below. If Contractor opts-out of receiving communications via one channel (e.g., email, SMS/Text message) that opt-out will only apply to the specific channel for which the opt-out is submitted (e.g., if Contractor opts-out of receiving email communications, it will not apply to SMS/text messages that TreeStorX may send). Please see the following for more information:
a. For email communications that permit an opt-out (e.g., commercial/marketing messages), there is an opt-out mechanism in the messages. For certain transactional or relationship email messages (e.g., messages about Contracted Services, security, responses to communications initiated by Contractor, earnings for Contracted Services, updates to policies/legal agreements (e.g., privacy policies, terms of service)) the only opt-out option is to delete Contractor's account.
b. For SMS/text messages, Contractor can opt-out of receiving all non-transactional SMS/text messages (e.g., commercial/marketing messages) from TreeStorX by replying "STOP" to a message or sending "STOP" to 87424. To opt-out of transactional SMS/text messages, the only option is to delete Contractor's account. If Contractor opts-out, TreeStorX may send a one-time SMS/text message confirming the opt-out.
c. For phone calls, Contractor can submit a request to be added to TreeStorX's internal do not call list by making the request during the call or contacting TreeStorX Support at driver.support@treestorx.com.
d. For promotional push notifications, Contractor can toggle or slide off these notifications in the Driver App.
12.3. For support or help, Contractor can contact TreeStorX Support at driver.support@treestorx.com. For more information about TreeStorX's practices, contact information, and opt-out options, Contractor may review the TreeStorX Privacy Policy.
13. INDEMNITY
13.1. TreeStorX agrees to indemnify, protect and hold harmless Contractor from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly from the failure of the Driver App to perform as represented in writing or intellectual propertyIP infringement claims.
13.2. Contractor agrees to indemnify, protect and hold harmless TreeStorX, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of Contractor and/or their Personnel arising from the performance of Contracted Services under this Agreement, including personal injury or death to any person (including to Contractor and/or their Personnel), as well as any liability arising from Contractor's failure to comply with the terms of this Agreement. Contractor's obligations hereunder shall include the cost of defense, including attorneys' fees, as well as the payment of any final judgment rendered against or settlement agreed upon by TreeStorX or its parent, subsidiary, and/or affiliated companies.
13.3. Contractor agrees to indemnify, protect and hold harmless TreeStorX, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all tax liabilities and responsibilities for payment of all federal, state, provincial, and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state, provincial, and local laws, with respect to Contractor and Contractor Personnel.
13.4. Contractor shall be responsible for, indemnify, and hold harmless TreeStorX, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from all costs of Contractor's business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state, provincial, or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
14. MUTUAL ARBITRATION PROVISION
14.1. Contractor and TreeStorX mutually agree to this Mutual Arbitration Provision, which is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) ("FAA") and shall apply to any and all disputes arising out of or relating to this Agreement, including but not limited to Contractor's classification as an independent contractor, Contractor's provision of Contracted Services to Consumers, Merchants, or other individuals or businesses, the payments received by Contractor for providing services to Consumers, Merchants, or other individuals or businesses, the termination of this Agreement, and all other aspects of Contractor's relationship with TreeStorX, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans With Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Federal Credit Reporting Act (or its state or local equivalents), Telephone Consumer Protection Act (or its state or local equivalents), or Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local claims arising out of or relating to Contractor's relationship or the termination of that relationship with TreeStorX.
14.2. This Mutual Arbitration Provision extends to disputes between Contractor and any TreeStorX affiliates, subsidiaries, successors, related entities, agents, employees, contractors, subcontractors, insurers, licensees, assignees, vendors, and suppliers (including but not limited to Persona, Checkr, Blue Star, Stripe, Payfare, and their affiliates) ("Related Third Parties") that arise out of or relate to this Agreement or the TreeStorX Platform. This Mutual Arbitration Provision is expressly intended to inure to the benefit of, and be enforceable by, the Related Third Parties. This Mutual Arbitration Provision also applies to claims brought by an association or organization of which Contractor or TreeStorX is a member, if the association's or organization's claims are asserted in a representative capacity, the association or organization seeks to redress harm allegedly suffered by Contractor or TreeStorX, or the claim would otherwise be covered by this Mutual Arbitration Provision if the claim were brought directly by Contractor or TreeStorX. The parties agree that upon learning of such claims brought by an association or organization, the parties must take all reasonable steps to move the dispute into arbitration, including, but not limited to (1) requesting that the party's association or organization resolve the dispute in arbitration under this Mutual Arbitration Provision, and (2) informing the relevant court or tribunal of the existence of this Mutual Arbitration Provision and requesting the court or tribunal to compel arbitration. This Mutual Arbitration Provision does not apply to any claims that cannot be arbitrated under applicable law, after accounting for FAA preemption.
14.3. The parties expressly agree that this Mutual Arbitration Provision shall be governed by the FAA even ifContractor and/or TreeStorX are otherwise exempted from the FAA. Any disputes regarding the FAA's application shall be resolved exclusively by an arbitrator. If for any reason the FAA does not apply, the state law governing arbitration agreements in the state in which Contractor has performed the majority of Contracted Services shall apply, or, if Contractor has not performed any Contracted Services, the state law governing arbitration agreements in the state in which Contractor's primary residence is located shall apply.
14.4. To the extent the parties have related arbitrable and non-arbitrable disputes, the arbitrable disputes shall proceed first in arbitration and the non-arbitrable disputes shall be stayed, and any applicable statutes of limitations tolled, pending completion of the arbitration.
14.5. Informal Dispute Resolution. (This clause does not apply to a Contractor that resides in and provides the Contracted Services in Australia.) Contractor and TreeStorX agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. Contractor and TreeStorX therefore agree that, before either Contractor or TreeStorX demands arbitration against the other, they will offer to personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this Mutual Arbitration Provision. For sake of clarification only, the informal dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference, unless mutually agreed to by the parties. If Contractor is represented by counsel, Contractor's counsel may participate in the conference, but Contractor shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify TreeStorX that Contractor intends to initiate an informal dispute resolution conference, email Driver.informal.resolution@TreeStorX.com, providing Contractor's name, the telephone number associated with Contractor's Driver App account (if any), the email address associated with Contractor's Driver App account, and a description of Contractor's claims. We may then send Contractor an Informal Dispute Resolution Conference Request form, which Contractor must fill out completely to initiate the informal dispute resolution conference. If TreeStorX intends to initiate an informal dispute resolution conference, TreeStorX shall do so by emailing the email address associated with Contractor's Driver App account, and providing a description of TreeStorX's claims. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party's claims. If the party receiving the informal dispute resolution notice declines to engage in an informal dispute resolution conference or fails to respond to the claimant's notice, then the claimant may initiate an arbitration 60 days after providing the notice. For sake of clarification only, if the party receiving the informal dispute resolution notice declines to engage in an informal dispute resolution conference or fails to respond to the claimant's notice, that shall not constitute a breach of, or failure to comply with, this provision.
14.6. The arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures. If an arbitration is dismissed because a party failed to comply with these informal dispute resolution procedures, the parties agree that the party that failed to comply with the informal dispute resolution procedures shall be responsible for paying any arbitration filing fees and costs incurred by the other party. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph. Likewise, if the party receiving the informal dispute resolution notice declines to engage in an informal dispute resolution conference or fails to respond to the claimant's notice, then the statute of limitations and any filing fee deadlines shall be tolled during the 60 day period between when the claimant provides notice and when the claimant is permitted to initiate the arbitration.
14.7. If, following the informal resolution process, either Contractor or TreeStorX 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 (after accounting for any tolling, including the tolling provided for in the prior section). 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, (3) a description of the remedy sought, (4) the amount in controversy, and (5) the personal signature of the party seeking arbitration. Any demand for arbitration by Contractor must be delivered to the counsel who represented TreeStorX in the informal resolution process, or if there was no such counsel, then to General Counsel, 4767 New Broad Street, Orlando, Fl 32814.
14.8. Arbitration Class Action Waiver. Contractor and TreeStorX 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, or to participate in, a class action, collective action, consolidated action, and/or representative action ("Arbitration Class Action Waiver"). If applicable law (after taking into account FAA preemption) allows parties to waive their right to bring claims pursuant to the Private Attorney General Act ("PAGA"), California Labor Code section 2699 et seq., or the right to seek a public injunction, then the parties mutually agree to waive their right to bring PAGA claims and claims for public injunctive relief under this Arbitration Class Action Waiver. Contractor and TreeStorX agree that all disputes and claims shall be resolved in arbitration on an individual basis only (i.e., whether Contractor has been personally aggrieved or subject to any violations of law), and that any such proceeding may not be used to resolve the claims or rights of other individuals (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law). Further, any dispute or claim belonging to a party, for the benefit of a party, or seeking relief owed to a party brought by anyone (including but not limited to claims by government entities or officials for restitution) shall be resolved in arbitration on an individual basis only. If any provision, portion, or application of this Arbitration Class Action Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision, portion, or application shall be severed from this agreement; (2) severance of the unenforceable provision, portion, or application shall have no impact on the Mutual Arbitration Provision (including the provision, portion, or application of the Arbitration Class Action Waiver that remains valid) or the parties' attempt to arbitrate any remaining claims on an individual basis under the Mutual Arbitration Provision (including the provision, portion, or application of the Arbitration Class Action Waiver that remains valid); and (3) the class, collective, consolidated, or representative action brought on behalf of other individuals must be litigated in a civil court of competent jurisdiction and not in arbitration (but stayed pending the completion of arbitration of any arbitrable disputes per section 14.4 above). The parties intend that this agreement achieve the same result as in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906, 1925 (2022)—i.e., that individual PAGA claims be decided in individual arbitration and that, to the extent the Arbitration Class Action Waiver is invalid in whole or in part, non-individual PAGA claims subsequently be decided by a court of competent jurisdiction (to the extent the plaintiff has standing to maintain such a claim). Nothing in this paragraph shall be construed to prohibit settlements on a class-wide, collective, and/or representative basis.
14.9 Notwithstanding any other clause contained in this Agreement or the NAM Rules, as defined below, any claim that all or part of the Arbitration Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. All other disputes with respect to whether this Mutual Arbitration Provision is unenforceable, unconscionable, applicable, valid, void or voidable, and all disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court.
14.10. Contractor agrees and acknowledges that entering into this Mutual Arbitration Provision does not change Contractor's status as an independent contractor in fact and in law, that Contractor is not an employee of TreeStorX or any Consumer or Merchant and that any disputes in this regard shall be subject to arbitration as provided in this Agreement.
14.11. Any arbitration shall be governed by the National Arbitration and Mediation ("NAM") Comprehensive Rules and Procedures and, when applicable, the NAM Supplemental Rules for Mass Arbitration Filings (together, the "NAM Rules"), except as follows:
a. The arbitration shall be heard by one arbitrator (the "Arbitrator") selected in accordance with the NAM Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute. Nothing in this Agreement or the NAM Rules is intended to override or displace any statutory rights to disqualify an arbitrator.
b. If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 45 miles of Contractor's residence as of the effective date of this Agreement.
c. NAM's fee schedule will apply with the following exceptions. Unless applicable law provides otherwise, TreeStorX and Contractor shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings, but Contractor's share of such fees and costs will not exceed the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. If required by applicable law, TreeStorX shall pay any costs uniquely associated with arbitration, such as payment of the fees of the Arbitrator, as well as room rental.
d. The Arbitrator may issue orders (including subpoenas to third parties, to the extent permitted by law) 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. For example, the parties agree that the Apex Doctrine shall apply and therefore preclude depositions of either party's current or former high-level officers absent a showing that the officer has unique, personal knowledge of discoverable information and less burdensome discovery methods have been exhausted.
e. Except as provided in the Arbitration Class 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 applicable state or federal substantive law, or both, as is applicable.
f. 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.
g. The Arbitrator's decision or award shall be in writing and shall include findings of fact and conclusions of law.
h. The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information. Subject to the discretion of the Arbitrator or agreement of the parties, any person having a direct interest in the arbitration may attend the arbitration hearing. The Arbitrator may exclude any non-party from any part of the hearing.
i. The award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The Arbitrator's decision is final and binding on Contractor and TreeStorX.
j. Either Contractor or TreeStorX 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 paragraph may be rendered ineffectual.
14.12. Mass Filing and Bellwether Protocols (please read this section carefully). If, at any time, 25 or more similar demands for arbitration are asserted against either party or their related parties by the same or coordinated counsel or entities ("Mass Filing"), the additional protocols set forth below shall apply:
a. NAM's Supplemental Rules for Mass Arbitration Filings shall apply if the parties' dispute is deemed by NAM, in its sole discretion pursuant to the NAM Rules and this Mutual Arbitration Provision, to be part of a Mass Filing.
b. Within five (5) business days of being notified by NAM that arbitration demand(s) have been filed, any party may file a Request for Appointment of a Procedural Arbitrator with NAM to determine (i) whether a particular demand(s) is/are part of the Mass Filing as defined by the NAM Rules, procedures or requirements based on that determination and/or (ii) if a demand(s) is/are categorized as part of the Mass Filing, whether the particular demand(s) was/were filed in accordance with the terms and conditions of this Mutual Arbitration Provision, including in accordance with the informal dispute resolution procedures described above.
c. Any Mass Filing shall be subject to a bellwether proceeding intended to reach a fair and speedy resolution of all claims included in the Mass Filing. In any Mass Filing, NAM shall randomly select 4 demands for arbitration to proceed, and then claimants and respondents shall each select 3 demands for arbitration to proceed, for a total of 10 arbitrations (the "Bellwether Arbitrations"). While the Bellwether Arbitrations are adjudicated, all other demands for arbitration that are part of the Mass Filing shall be held in abeyance and stayed, and no party shall be responsible for paying any administrator or arbitrator fees (other than NAM's initial filing/administrative fees, and Procedural Arbitrator fees, if applicable) while the Bellwether Arbitrations are adjudicated. Any applicable statute of limitations regarding those demands shall remain tolled beginning when the Mass Filing claimant first provided the other party with notice of its intent to initiate an informal dispute resolution conference, as defined above.
d. The parties shall work in good faith with the arbitrator to complete each Bellwether Arbitration within 120 days of its initial pre-hearing conference.
e. Following the resolution of all of the Bellwether Arbitrations, the parties shall engage in a global mediation of all remaining demands for arbitration comprising the Mass Filing. The mediation shall be administered by NAM.
f. If the parties are unable to resolve the remaining demands for arbitration comprising the Mass Filing within 30 days following the mediation, the remaining demands for arbitration comprising the Mass Filing shall be administered by NAM on an individual basis pursuant to the NAM Rules.
g. The parties agree that these bellwether proceeding protocols are designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings, including the claims of Contractors who are not selected for a Bellwether Arbitration.
h. If any part of this section 14.12 is found to be unenforceable, then the parties agree that that part shall be severed, and the remaining parts shall be enforced.
14.13. Nothing in this Mutual Arbitration Provision prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. TreeStorX will not retaliate against Contractor 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. Disputes between the parties that, after taking into account FAA preemption, may not be subject to predispute arbitration agreement, including as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Mutual Arbitration Provision.
14.14. The NAM Rules may be found at www.namadr.com/ or by searching for "NAM Comprehensive Rules and Procedures" and "NAM Supplemental Rules for Mass Arbitration Filings" using a service such as www.google.com or by asking TreeStorX's General Counsel to provide a copy (by submitting a written request to General Counsel, 4767 New Broad Street, Orlando, FL, 32814).
14.15. Contractor's Right to Opt Out of Mutual Arbitration Provision. Arbitration is not a mandatory condition of Contractor's contractual relationship with TreeStorX, and therefore each new Contractor may submit a statement notifying TreeStorX that Contractor wishes to opt out and not be subject to this Mutual Arbitration Provision. If you are an existing Contractor and have agreed to a prior version of this Agreement with TreeStorX without opting out of the Mutual Arbitration Provision contained therein, you do not have an opportunity to opt out of this Mutual Arbitration Provision. If you are an existing Contractor and have validly opted out of the Mutual Arbitration Provision in a prior version of the Agreement, that opt out will not be effective for disputes arising under this Agreement; if you want to opt out of arbitration for claims arising under this Agreement, you must submit a new opt out to TreeStorX. In order to opt out, a new Contractor (or an existing Contractor that validly opted out of arbitration in a prior version of the Agreement) must notify TreeStorX in writing of Contractor's intention to opt out by sending a letter, by First Class Mail, to General Counsel, 4767 New Broad Street, Orlando, Fl 32814. Any attempt to opt out by email will be ineffective. The letter must state Contractor's intention to opt out. In order to be effective, Contractor's opt-out letter must be postmarked within 30 days of the effective date of this Agreement. The letter must be signed by Contractor themselves, and not by any agent or representative of Contractor. The letter may opt out, at most, only one Contractor, and letters that purport to opt out multiple Contractors will not be effective as to any. No Contractor (or their agent or representative) may effectuate an opt out on behalf of other Contractors. If Contractor opts out as provided in this paragraph, Contractor will not be subject to any adverse action from TreeStorX as a consequence of that decision and they may pursue available legal remedies without regard to this Mutual Arbitration Provision. If Contractor does not opt out within 30 days of the effective date of this Agreement, Contractor and TreeStorX shall be deemed to have agreed to this Mutual Arbitration Provision. Contractor has the right to consult with counsel of Contractor's choice concerning this Mutual Arbitration Provision (or any other provision of this Agreement).
14.16. Except as specified in the prior paragraph, this Mutual Arbitration Provision supersedes any and all prior arbitration agreements between Contractor and TreeStorX and is the full and complete agreement relating to the formal resolution of disputes covered by this Mutual Arbitration Provision. In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
15. LITIGATION CLASS ACTION WAIVER
(This clause does not apply to a Contractor that resides in and provides the Contracted Services in Australia.) To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in section 14, OR 25.1, as applicable, Contractor and TreeStorX agree that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Contractor opted out of the Mutual Arbitration Provision or any other reason, will be conducted solely on an individual basis, and the parties agree not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Contractor or TreeStorX acts or proposes to act in a representative capacity ("Litigation Class Action Waiver"). Contractor and TreeStorX further agree that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect. For sake of clarification only, nothing in this section shall be construed to prohibit settlements on a class-wide, collective, and/or representative basis.
16. PROPRIETARY RIGHTS AND LICENSES
16.1. All copyright, database rights, trademarks (whether registered or unregistered), design rights (whether registered or unregistered), patent applications, patents, and other intellectual property rights of any nature in the TreeStorX Platform, together with the underlying software code and any and all rights in, or derived from, the TreeStorX Platform, are proprietary and owned either directly by TreeStorX or by TreeStorX's licensors and are protected by applicable intellectual property and other laws. Contractor agrees that they will not use such proprietary information, materials, or intellectual property rights in any way whatsoever except for by use of the TreeStorX Platform to perform the Contracted Services in compliance with the terms of this Agreement. No portion of the TreeStorX Platform may be reproduced in any form or by any means, except as expressly permitted in the terms of this Agreement. Contractor agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the TreeStorX Platform or any intellectual property rights therein in any manner, and Contractor shall not exploit the TreeStorX Platform or any intellectual property rights therein in any unauthorized way whatsoever.
16.2. TreeStorX hereby grants Contractor a non-exclusive, non-transferable, non-sublicensable, revocable license to use the TreeStorX Platform solely for their lawful use to perform the Contracted Services in accordance with these terms of this Agreement. TreeStorX retains all rights, title, and interest in and to the TreeStorX Platform and its other intellectual property rights therein. Any such license shall terminate upon termination of this Agreement.
16.3. Contractor acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information ("Submissions") provided by Contractor to TreeStorX regarding the TreeStorX Platform are provided freely and shall become the sole property of TreeStorX. TreeStorX shall own exclusive rights of such Submissions, including all intellectual property rights therein, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to Contractor.
17. LEGAL PROCESSES AFFECTING Driver APP ACCOUNTS
17.1. If legal action such as a garnishment, levy or other state, or federal legal process ("Legal Process") is brought against Contractor's Driver App account, TreeStorX will not contest on Contractor's behalf any such Legal Process and may take action to comply with such Legal Process as TreeStorX determines to be appropriate in the circumstances without liability to Contractor. Contractor agrees that TreeStorX may honor Legal Process that is served personally, by mail, email or facsimile transmission at any TreeStorX facility or at the office of any agent authorized by appointment or by law to receive service on behalf of TreeStorX, even if such service is insufficient under law.
17.2. If Legal Process is brought against Contractor's Driver App account, TreeStorX may prohibit Contractor from utilizing payment options other than weekly direct deposits. Contractor shall be liable to TreeStorX for any amounts received by Contractor through payment options other than weekly direct deposit that otherwise would have been withheld pursuant to such Legal Process, and TreeStorX may recoup or offset such amounts from any obligation owed by TreeStorX to Contractor.
17.3. Contractor acknowledges that Legal Process against Contractor's Driver App account may result in delays in payments to Contractor. TreeStorX shall not be liable to Contractor on account of any losses resulting from such delay.
18. TERMINATION OF AGREEMENT
18.1. Contractor may terminate this Agreement at any time, for any reason or no reason, upon written notice to TreeStorX, provided that, in order to allow TreeStorX reasonable time to process such termination, Contractor's notice will not be effective until the earlier of (i) seven (7) days following TreeStorX's receipt of said notice or (ii) deactivation of Contractor's Driver App account. TreeStorX may terminate this Agreement and deactivate Contractor's Driver App account only for the reasons set forth in the TreeStorX Service Provider Platform Access Policy which Contractor expressly agrees to, or for a material breach of this Agreement. Notwithstanding the foregoing, TreeStorX reserves the right to temporarily remove access to the TreeStorX Platform for the purposes of timely investigation where fraud or abuse is suspected, including circumvention of compliance with Legal Process, or when deemed necessary by TreeStorX to protect the safety and security of TreeStorX users.
18.2.
Notwithstanding any other provision in this Agreement, TreeStorX reserves the right to modify the Service Provider Platform Access Policy if, in TreeStorX's good faith and reasonable discretion, it is necessary to do so for the safe and/or effective operation of the TreeStorX Platform. TreeStorX shall provide notice of any material changes to Contractor via email. Changes to the Service Provider Platform Access Policy shall be effective and binding on the parties upon Contractor's continued use of the TreeStorX Platform following TreeStorX's email notice of such modifications. Nothing will prevent Contractor from attempting to negotiate an exemption from any modification to the Service Provider Platform Access Policy.
18.3. Contractor's and TreeStorX's obligations and rights arising under the Mutual Arbitration Provision of this Agreement (in section 14, OR 25.1, as applicable) shall survive termination of this Agreement.
19. MODIFICATION
TreeStorX may modify this Agreement at any time. When TreeStorX makes material changes to this Agreement, it will post the revised Agreement on the TreeStorX Platform and update the "Last Updated" date at the top of the Agreement. TreeStorX will also provide Contractor with notice of any material changes before the revised Agreement becomes effective. If Contractor disagrees with the revised Agreement, Contractor may terminate the Agreement as provided herein. If Contractor does not terminate the Agreement before the date the revised Agreement becomes effective, Contractor's continued access to or use of the TreeStorX Platform will constitute acceptance of the revised Agreement. TreeStorX may modify information on any website hyperlinked from this Agreement from time to time, and such modifications shall be effective upon posting. Continued use of the TreeStorX Platform after any such changes shall constitute Contractor's consent to such changes.
20. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
20.1. This Agreement shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed or amended in any respect, unless in writing and signed by both parties, or unless TreeStorX modifies the Agreement pursuant to section 19. Before accepting any modifications, alterations, changes or amendments, Contractor shall have the right to discuss any proposed changes with TreeStorX and consider whether to continue their contractual relationship with TreeStorX. This Agreement supersedes any prior contract between the parties. To the extent TreeStorX's consumer-facing Terms and Conditions Agreement (or updated consumer-facing Terms and Conditions Agreement, if applicable) is inconsistent or conflicts with this Agreement, this Agreement controls. However, the decision to opt-out of the Mutual Arbitration Provision in this Agreement (in section 14, OR 25.1, as applicable) does not affect the enforceability of any arbitration agreement in the consumer-facing Terms and Conditions Agreement to which Contractor may be bound (and vice versa). This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that TreeStorX may assign its rights and obligations under this Agreement to an affiliate of TreeStorX or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to TreeStorX shall be deemed to include such successor(s).
20.2. The failure of TreeStorX or Contractor in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
21. THIRD-PARTY SERVICES
21.1. From time to time, Contractor may receive services from third parties while using the TreeStorX Platform. Contractor understands that these services are subject to the terms and conditions of each such third-party provider. Contractor agrees that TreeStorX is not responsible and may not be held liable for these services or the actions or omissions of any third-party provider.
21.2. Google Maps: While using the Driver App to perform Contracted Services, Contractor may have the ability to use Google Maps in-app navigation services. If Contractor does so, Contractor agree that Google may collect Contractor's location data when the Driver App is running in order to provide and improve Google's services, that such data may also be shared with TreeStorX in order to improve its operations, and that Google's terms and privacy policy will apply to this usage. Contractor can also use any other navigation app outside the TreeStorX Platform or none at all.
22. E-SIGN CONSENT AGREEMENT
This TreeStorX E-Sign Consent Agreement ("E-Sign Agreement") allows us to provide you with electronic versions of notices, disclosures and other communications in connection with the services we offer and agreements we enter into with you. In this E-Sign Agreement, the words "you" and "your" mean any person giving consent to our use of electronic Disclosures and signatures as described below. The words "TreeStorX," "we," "us," and "our," mean TSX Technologies Inc. its affiliates, successors, assigns, and any designated third-party service providers acting on their behalf.
22.1. Scope of E-Sign Agreement. This E-Sign Agreement applies to all agreements, policies, terms, notices, authorizations, receipts, confirmations, statements, account histories, disclosures and any other communication (each, a "Disclosure") that we are required by law to provide to you in connection with any products, services, transactions, or agreements we offer or enter into with you now or in the future (collectively, the "Services").
22.2. Consent to Receive Disclosures Electronically. By consenting to this E-Sign Agreement, you agree to the following:
a. TreeStorX may provide any or all Disclosures to you electronically in any manner, including, but not limited to, via our website, any TreeStorX app, a hyperlink provided on the TreeStorX website or app, a push notification, an email to the email address you provided to us, or a text message to the mobile telephone number you provided to us.
b. TreeStorX may, but is not required to, notify you via email, text message or push notification when aDisclosure is available. The Disclosures will be provided to you in a format that can either be retained, printed or downloaded for your records.
c. Your electronic signature has the same effect as if you signed in ink.
d. Disclosures we provide to you electronically will have the same meaning and effect as if provided in paper form, regardless of whether you actually view those Disclosures.
e. TreeStorX reserves the right to decide whether to provide a Disclosure electronically and whether to request your electronic signature for any Disclosure.
f. You have reviewed this E-Sign Agreement and verified that you can print or save a copy of it with your records.
22.3. System Requirements. You acknowledge and agree that, in order to view and/or retain copies of the Disclosures, you will need the following hardware and software:
a. A personal computer or other access device (such as a mobile phone) that is capable of accessing the internet (e.g., you must have a modem and available phone line, a cable internet connection or some other means of access to the internet, and you must have an active account with an internet service provider). Your access to this page verifies that your system meets these requirements.
b. You must have an Internet web browser which is capable of supporting 128-bit SSL encrypted communications, which requires a minimum web browser version of either Microsoft® Internet Explorer version 9, Mozilla Firefox 21, Google Chrome 27+,or Safari on Mac OS X 10.8 and your system must have 128-bit SSL encryption software. Your access to this page verifies that your browser and encryption software meet these requirements.
c. A current version of a PDF reader.
d. An active email address.
We will notify you if our hardware or software requirements change and whether any change creates a material risk that you would not be able to access or retain your electronic Disclosures. By continuing to use the Services after receiving any notice of a hardware or software requirements change you are reaffirming your consent to electronic Disclosures.
22.4. Revocation of Electronic Record Consent. You may revoke your consent to the use of electronic Disclosures by emailing TreeStorX at privacy@TreeStorX.com with "Revoke Electronic Record Consent" in the subject line. The legal effectiveness, validity and/or enforceability of electronic Disclosures we sent before your consent will not be affected by your revocation. If you revoke your consent, TreeStorX may close or limit access to your TreeStorX account and any or all Services.
22.5. Paper Copies. You agree that TreeStorX may modify or change the methods of issuing Disclosures as described herein, and that TreeStorX may send you Disclosures in paper form at its option. You can obtain a paper copy of an electronic Disclosure at no charge if you request one within a reasonable time after we first provided the electronic Disclosure to you. To request a paper copy of a Disclosure, contact Driver Support at driver.support@treestorx.com.
22.6. Updating Your Information. It is your responsibility to provide TreeStorX with a true and accurate primary email address, phone number, and other contact information. It is also your responsibility to notify TreeStorX of any changes to your primary email address, phone number, or any other contact information so that TreeStorX can communicate with you electronically. To update your information, contact Driver Support at driver.support@treestorx.com.
22.7. Acceptance. By accepting this E-Sign Agreement, you agree that you have read and consent to the terms set forth herein. In doing so, you are also confirming that you meet the system requirements described above, that you have demonstrated your ability to receive, retain, and view electronic Disclosures. If you do not provide your consent to this E-Sign Agreement, we may immediately close or limit access to your TreeStorX account and any or all Services.
23. MISCELLANEOUS
23.1. Captions Section Headings. Captions and section headings appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
23.2. Severability Clause. Except as specifically provided in section 14, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
23.3. Governing Law. Except for the Mutual Arbitration Provision in section 14, OR 25.1 as applicable, which, with respect to section 14, is governed by the Federal Arbitration Act, the choice of law for interpretation of this Agreement, and the right of the parties hereunder, as well as substantive interpretation of claims asserted pursuant to section 14, OR 25.1, as applicable, shall be the rules of law of the state, territory, or province in which Contractor has performed the majority of Contracted Services, or, if Contractor has not performed any Contracted Services, the rules of law of the state, territory, or province in which Contractor's primary residence is located.
23.4. Forum Selection. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both Contractor and TreeStorX agree that such litigation will be conducted exclusively in the state, territory, or province in which Contractor has performed the majority of Contracted Services, or, if Contractor has not performed any Contracted Services, the state, territory, or province in which Contractor's primary residence is located. This provision applies to any and all claims or disputes arising out of or relating to the subject matter of this Agreement; the TreeStorX Platform or services; any Contracted Services or activities incidental to Contracted Services; payments related to this Agreement; and communications by either of the parties or between the parties related to any of the foregoing. This includes, without limitation, contract claims, tort claims, statutory claims, claims for unfair competition, and claims brought under labor or employment law.
23.5. Notice and Opportunity to Cure. Contractor agrees to notify TreeStorX in writing at driver.support@treestorx.com of any breach or perceived breach of this Agreement, of any claim arising out of or related to this Agreement, or of any claim that Contractor's services or scope of work differ in any way from what is contemplated in this Agreement, including but not limited to the terms in sections 2 (Contractor's Operations) and 3 (Contracted Services), or if the relationship of the parties differs from the terms contemplated in section VI (Relationship of Parties).
24. TreeStorX CONTRACTING ENTITY
The TreeStorX entity with whom you are entering this Agreement is as follows:
a. If your primary residence is in United States, you are contracting with TreeStorX Technologies, Inc. and all references to "TreeStorX" in this Agreement refer to that entity.
25. LOCATION-SPECIFIC PROVISIONS
If the Contracted Services are performed in any of the following locations, the following additional terms apply. To the extent that any of the terms in this section 25 conflict with other terms elsewhere in this Agreement, the terms of this section 25 shall take precedence and control:
25.1. New Jersey. If the Contracted Services are performed in the United States of America, in the State of New Jersey, and include the delivery of any beverage product containing alcohol ("alcoholic beverages"), the following requirements apply:
a. Contractor is 21 years or older;
b. Contractor consents to a voluntary background check to include criminal background and driver history checks by TreeStorX or TreeStorX's vendor;
c. If Contractor intends to deliver via motor vehicle, then Contractor is responsible for maintaining a valid driver's license and adequate vehicle insurance coverage;
e. Contractor must have a copy of the Third Party Delivery Permit issued to TreeStorX (paper or electronic) in their possession during the delivery of cannabis products as well as an invoice or bill of sale stating the first name, last initial and address of the receiving customer;
f. Contractor must verify that receiving customers are of legal age and not visibly intoxicated to include electronic verification of a customer's identification as well as a verbal and observable verification;
g. Contractor must obtain the signature (paper or electronic) or "finger scan" of the receiving customer before handing over cannabis products;
h. Contractor is prohibited from engaging in no-contact deliveries without a face-to-face interaction with the receiving customer;
i. Contractor must refuse delivery and return all cannabis products to the Merchant if and when necessary (e.g., customer is underage or intoxicated; customer refuses to sign for delivery; there is reason to doubt the authenticity of the customer's ID; there is a reason to suspect customer is accepting delivery on behalf of an underage person, etc.);
j. Contractor is prohibited from collecting payment for cannabis products from the receiving customer, prohibited from subcontracting or delegating to another person the delivery of cannabis products.
k. Contractor is prohibited from leaving cannabis products unattended or storing cannabis products overnight; and
l. Contractor will not deliver cannabis products without this valid written and executed agreement with TreeStorX, signed by both TreeStorX and Contractor.
b. Contractor consents to a voluntary background check to include criminal background and driver history checks by TreeStorX or TreeStorX's vendor;
c. If Contractor intends to deliver via motor vehicle, then Contractor is responsible for maintaining a valid driver's license and adequate vehicle insurance coverage;
e. Contractor must have a copy of the Third Party Delivery Permit issued to TreeStorX (paper or electronic) in their possession during the delivery of cannabis products as well as an invoice or bill of sale stating the first name, last initial and address of the receiving customer;
f. Contractor must verify that receiving customers are of legal age and not visibly intoxicated to include electronic verification of a customer's identification as well as a verbal and observable verification;
g. Contractor must obtain the signature (paper or electronic) or "finger scan" of the receiving customer before handing over cannabis products;
h. Contractor is prohibited from engaging in no-contact deliveries without a face-to-face interaction with the receiving customer;
i. Contractor must refuse delivery and return all cannabis products to the Merchant if and when necessary (e.g., customer is underage or intoxicated; customer refuses to sign for delivery; there is reason to doubt the authenticity of the customer's ID; there is a reason to suspect customer is accepting delivery on behalf of an underage person, etc.);
j. Contractor is prohibited from collecting payment for cannabis products from the receiving customer, prohibited from subcontracting or delegating to another person the delivery of cannabis products.
k. Contractor is prohibited from leaving cannabis products unattended or storing cannabis products overnight; and
l. Contractor will not deliver cannabis products without this valid written and executed agreement with TreeStorX, signed by both TreeStorX and Contractor.