This Online Contractor Services Agreement (“Agreement”) constitutes a legal agreement between Garuda Labs, Inc. d/b/a Instawork (the “Company”) and you (“Contractor”), and governs your use of and access to the Company Application (as defined below), that allows its customers to connect with the Company’s network of independent contractors to obtain service providers for various short term assignments.
PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY IF YOU WISH TO BECOME A CONTRACTOR AND BEFORE ACCESSING OR PROVIDING THE SERVICES.
PLEASE NOTE: SECTION 16 OF THIS AGREEMENT AFFECT HOW DISPUTES BETWEEN YOU AND THE COMPANY ARE RESOLVED. THEY CONTAIN ARBITRATION PROVISIONS THAT REQUIRE DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS AND PROHIBIT CLASS ACTION CLAIMS. BY ACCEPTING THESE TERMS OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THAT ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
This Agreement expressly supersedes prior agreements with you. We reserve the right to modify or amend the terms of this Agreement from time to time without notice; your continued use of the Application following the posting of changes to the terms shall constitute your acceptance of such changes.
ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
a. “Services” means the services described in a Company Request for services to be performed by one of a network of Company contractors (“Company Contractor”) for a Company customer (“Customer”).
b. “Company Request” means a notice provided, through the Application, to one or more Company Contractors, which includes a description of the services to be provided by the Contractors, the time by which the Company Request must be completed (the “Request Completion Date”) and the fee associated with the Company Request (the “Payment”). An open request is a request for services that has not yet been accepted by a Company Contractor (“Open Request”). Company Contractors can use the Application to review Open Requests and to indicate their availability for Open Requests. Once a Company Contractor has accepted a Company Request pursuant to Sections 2 and 3, the Company Request will become a “Company Engagement”. (Company Contractors are under no obligation to accept any Open Request).
c. “Application” means the software application used by the Company in connection with the Services.
d. “Account” means the account created for Contractor upon registration with the Company through the Application. Contractor must maintain an active Account in order to use the Application.
2. Background Checks. As part of Contractor’s initial registration with the Company, Contractor agrees to immediately execute a written consent for a background check. Subject to a satisfactory background check and agreement to the terms herein, Contractor will be eligible to use the Application to view and accept Company Requests. Contractor further agrees to complete any ongoing background checks as may be required by the Company or a Customer. Failure to complete the initial or ongoing background check processes may result in inability to accept Company Requests and/or removal from the Application.
3. Best Efforts. By registering to become a Company Contractor and accepting an Open Request, Contractor agrees to use best efforts to perform the Company Engagement such that the Services meet the requirements and specifications of the Customer, for whom the Open Request was created. Once Contractor has accepted a Company Request, the Open Request will no longer be available for performance by other Company Contractors who received the Open Request. By accepting an Open Request, Contractor is entering into a binding legal agreement to provide the Services for the Payment specified in the Open Request. Contractor may not accept an Open Request unless certain that: (1) Contractor understands what is requested for delivery; (2) Contractor can perform the Services identified in the Open Request; (3) Contractor can deliver the Services in the requested time period; and, if required, Contractor can get to and from the Customer’s location. Failure to timely deliver the Services consistent with the Customer’s requirements and specifications will constitute a breach, resulting in non-payment. Further, in the event of such a breach, Contractor will be responsible for payment of any additional fees (e.g., rush fees) or costs incurred as a result of Contractor’s failure to timely complete the Open Request in accordance with the Customer requirements. Unless otherwise specifically agreed upon by Company in writing (and notwithstanding any other provision of this Agreement), all activity relating to the Services will be performed by and only by Contractor or by employees of Contractor and only those such employees who have been approved in writing in advance by Company. Contractor agrees that Contractor will not (and will not permit others to) violate any agreement with or rights of any third party or, except as expressly authorized by Company in writing hereafter, use or disclose at any time Contractor’s own or any third party’s confidential information or intellectual property in connection with the Services or otherwise for or on behalf of Company.
5. Ownership Rights; Proprietary Information; Publicity.
a. Company shall own all right, title and interest (including all intellectual property rights of any sort throughout the world) relating to any and all inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or for or on behalf of Contractor during the term of this Agreement that relate to the subject matter of or arise out of or in connection with the Servicesor any Proprietary Information (as defined below) (collectively, “Inventions”) and Contractor will promptly disclose and provide all Inventions to Company. Contractor hereby makes all assignments necessary to accomplish the foregoing ownership. Contractor shall assist Company, at Company’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Contractor hereby irrevocably designates and appoints Company as its agents and attorneys-in-fact, coupled with an interest, to act for and on Contractor’s behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Contractor and all other creators or owners of the applicable Invention.
b. Contractor agrees that all Inventions and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees) developed, learned or obtained by or on behalf of Contractor during the period that Contractor is to be providing the Services that relate to Company or Company Customers, or to the business or demonstrably anticipated business of Company or Company Customers, or in connection with the Services or that are received by or for Company or any Company Customer in confidence, constitute “Proprietary Information.” Proprietary information also includes information received in confidence by Company from its customers or suppliers or other third parties. Contractor shall hold in confidence and not disclose or, except in performing the Services, use, or permit to be used, any Proprietary Information. However, Contractor shall not be obligated under this paragraph with respect to information Contractor can document is or becomes readily publicly available without restriction through no fault of Contractor. Upon termination or as otherwise requested by Company, Contractor will promptly provide to Company all items and copies containing or embodying Proprietary Information, except that Contractor may keep its personal copies of its compensation records and this Agreement. Contractor also recognizes and agrees that Contractor has no expectation of privacy with respect to Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that Contractor’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.
c. As additional protection for Proprietary Information, Contractor agrees that during the period over which Contractor is to be providing the Services and for one (1) year thereafter, Contractor will not directly or indirectly encourage or solicit any employee or contractor of Company to leave Company for any reason
d. To the extent allowed by law, Section 5(a) and any license granted Company hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”). Furthermore, Contractor agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, Company may and is hereby authorized to (and to allow others to) use Contractor’s name in connection with promotion of its business, products or services. To the extent any of the foregoing is ineffective under applicable law, Contractor hereby provides any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible and agrees not to assert any Moral Rights with respect thereto. Contractor will confirm any such ratifications and consents from time to time as requested by Company. If any other person is in any way involved in any Services, Contractor will obtain the foregoing ratifications, consents and authorizations from such person for Company’s exclusive benefit.
e. If any part of the Services or Inventions or information provided hereunder is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights owned by or licensed to Contractor (or any person involved in the Services)and not assigned hereunder, Contractor hereby grants Company and its successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and license to exploit and exercise all such technology and intellectual property rights in support of Company’s exercise or exploitation of the Services, Inventions, other work or information performed or provided hereunder, or any assigned rights (including any modifications, improvements and derivatives of any of them).
6. Warranties and Other Obligations. Contractor represents, warrants and covenants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services nor any part of this Agreement is or will be inconsistent with any obligation Contractor may have to others; (ii) all work under this Agreement shall be Contractor’s original work and none of the Services or Inventions nor any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Contractor); (iii) Contractor has the full right to allow Contractor to provide Company with the assignments and rights provided for herein (and has written enforceable agreements with all persons necessary to give Contractor the rights to do the foregoing and otherwise fully perform this Agreement); (iv) Contractor shall comply with all applicable laws and Company and safety rules and the safety rules of Company Customers in the course of performing the Services; and (v) if Contractor’s work requires a license, Contractor has obtained that license and the license is in full force and effect.
7. Avoidance of Conflict of Interest. Contractor represents and warrants that there exist no actual or potential conflicts of interest concerning the Services to be performed under this Agreement. Contractor has not brought and will not bring to Company or Company Customers, or use in the performance of the Services, any materials or documents of another party considered confidential unless Contractor has first obtained written authorization from such party for the possession and use of such materials and has received Company’s prior written consent to use such materials. Contractor will advise Company at such time as any activity of either Company or another business presents Contractor with a conflict of interest or the appearance of a conflict of interest. Contractor will take whatever action is requested by Company or Company Customers to resolve any conflict or appearance of conflict which it finds to exist. Contractor further represents and warrants that Contractor has full power and authority to enter into this Agreement and perform Contractor’s obligations hereunder.
8. Other Business Activities. Contractor may be engaged or employed in any other business, trade, profession or other activity while providing services to Company and Company Customers, in which case Contractor agrees to abide by the terms of Sections 5-7.
9. Termination. This contract may be terminated immediately if either party breaches a material provision of this Agreement, if Contractor violates the law in connection with Contractor’s performance of the Services, or if Contractor engages in conduct that the Company, in its sole discretion, believes in good faith to be detrimental to its business interests. Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days’ notice. Company shall pay Contractor all unpaid, undisputed amounts due for the Services completed prior to notice of such termination, and shall retain the full amount of any fee paid to the Company by Company Customers in connection with Contractor’s Company Engagements. Sections 5 (subject to the limitations set forth in Section 5(c)) through 17 of this Agreement and any remedies for breach of this Agreement shall survive any termination or expiration. Company may communicate the obligations contained in this Agreement to any other (or potential) client or employer of Contractor.
10. Independent Contractor Relationship. Notwithstanding any provision hereof, Contractor is an independent contractor and is not an employee, agent, partner or joint venturer of Company or any Company Customer, and shall not bind nor attempt to bind Company or any Company Customer to any contract. Nothing in this Agreement shall be interpreted or construed as creating or establishing a relationship of employer and employee between Company or any Company Customer and Contractor, or any employee or agent of Contractor. As an independent contractor, Contractor is solely responsible for determining which Open Requests Contractor will choose to accept and how, when and where Contractor will provide the Services under this Agreement. The Company will provide no supervision and will have no control over the manner in which Contractor performs the Services. Further, Contractor must provide all equipment, tools, material and labor that may be necessary to perform the Services. The Company will not provide Contractor with any equipment, tools, material or labor to perform the Services and will only (subject to the terms and condition stated herein) provide Contractor with access to the Application for purposes of enabling Contractor to access and accept (if Contractor so chooses) Company Requests and engage in incidental, related activities (if Contractor so chooses). Contractor shall not be eligible to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs offered by Company. Company shall not provide disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit to Contractor.
a. Taxes. Contractor shall comply at Contractor’s expense with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state and local income tax laws, and all other applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors. Contractor will ensure that its employees, contractors and others involved in the Services, if any, are bound in writing to the foregoing, and to all of Contractor’s obligations under any provision of this Agreement, for the benefit of the Company and Company Customers, and Contractor will be responsible for any noncompliance by them. Contractor shall be responsible for and, and shall indemnify Company against all such taxes or contributions including penalties and interest.
b. Insurance. As an independent contractor, Contractor is solely and exclusively responsible for Contractor’s own insurance. Specifically, in the event that Contractor is injured while working in the course and scope of an engagement sourced through the Company, Contractor acknowledges and understands that Contractor will not be covered by any workers compensation insurance coverage that the Company may provide to its employees. Further, in the event that Contractor’s actions cause an injury to a third party while Contractor is working in the course and scope of performing an engagement sourced through the Company, Contractor acknowledges and understands that Contractor will not be covered by any general liability or automobile liability insurance coverage that the Company may have, and that the Company is not making any commitment to defend and/or indemnify Contractor in such circumstances, and specifically denies such obligation. All Company Contractors must have insurance coverage in order to perform Services. Accordingly, a portion of the hourly proceeds ($0.38 per hour worked) from each Company Engagement will be applied toward coverage under an occupational accident insurance policy (“OAI”) made available by the Company. Additionally, a portion of the hourly proceeds ($0.05 per hour worked) from each Company Engagement will be applied towards membership in the Independent Contractors Benefits Association Inc. (ICBA). By accessing and using the Application, or by clicking to accept this Agreement, you hereby apply for the OAI and membership in the ICBA (both made available by the Company). You certify that you are an Independent Contractor and agree to support the purpose of the ICBA to educate and assist Association members on issues of importance to Independent Contractors. You authorize the Company to pay on your behalf fees for the OAI and ICBA membership dues. Contractor may opt out of the OAI and ICBA membership by providing the Company proof of existing workers’ compensation insurance coverage via email.
c. Indemnification. Contractor agrees to indemnify and hold the Company, its affiliates and their respective directors, officers, agents and employees harmless to the extent of any obligation imposed on the Company (i) to pay withholding taxes or similar items or (ii) resulting from Contractor’s being determined not to be an independent contractor. Contractor further agrees to indemnify and hold the Company, its affiliates and their respective directors, officers, agents and employees harmless from and against all claims, demands, losses, damages and judgments, including court costs and attorneys’ fees, arising out of or based upon any breach or alleged breach by Contractor of any representation, warranty, certification, covenant, obligation or other agreement set forth in this Agreement.
12. Relationship with Customers. You acknowledge and agree that your provision of Services to a Customer creates a direct business relationship between you and the Customer. The Company is not responsible or liable for the actions or inactions of any Customer in relation to you or your activities. You are responsible for any obligations or liabilities to Customers that may arise from your provision of Services, and you agree to indemnify the Company and/or any of their respective subsidiaries and affiliates and the directors, officers, employees, and agents thereof for any liability that they may incur, individually or collectively, as a result of any action or omission by you in the performance of Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper to mitigate such risks.
13. Indemnification. Contractor agrees to defend, indemnify and hold harmless Company and its affiliates, and their officers, directors, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, attorneys’ fees or expenses of whatever kind (including reasonable attorneys' fees) arising out of or resulting from (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Contractor’s acts or omissions; and (b) Contractor’s breach of any representation, warranty or obligation under this Agreement. Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to Contractor.
14. Assignment. This Agreement and the Services contemplated hereunder are personal to Contractor and Contractor shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part.
15. Notice. All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice.
16. Arbitration and Equitable Relief.
a. ARBITRATION. IN CONSIDERATION OF CONTRACTOR’S INDEPENDENT CONTRACTOR RELATIONSHIP WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL DISPUTES RELATED TO CONTRACTOR’S RELATIONSHIP WITH THE COMPANY, AND CONTRACTOR’S RECEIPT OF THE COMPENSATION, AND OTHER BENEFITS PAID TO CONTRACTOR BY THE COMPANY, AT PRESENT AND IN THE FUTURE, CONTRACTOR AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF, RELATING TO, OR RESULTING FROM CONTRACTOR’S INDEPENDENT CONTRACTOR RELATIONSHIP WITH THE COMPANY OR THE TERMINATION OF CONTRACTOR’S INDEPENDENT CONTRACTOR RELATIONSHIP WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION PURSUANT TO CALIFORNIA LAW AND THE FEDERAL ARBITRATION ACT (THE “FAA”). DISPUTES THAT CONTRACTOR AGREES TO ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA LABOR CODE, CLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR COMMON LAW CLAIMS. CONTRACTOR FURTHER UNDERSTANDS THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT THE COMPANY MAY HAVE WITH CONTRACTOR. CONTRACTOR FURTHER AGREES THAT CONTRACTOR WILL NOT ASSERT CLASS ACTION OR REPRESENTATIVE ACTION CLAIMS AGAINST THE COMPANY IN ARBITRATION OR OTHERWISE, NOR WILL CONTRACTOR JOIN OR SERVE AS A MEMBER OF A CLASS ACTION OR REPRESENTATIVE ACTION, AND THAT CONTRACTOR WILL ONLY SUBMIT CONTRACTOR’S OWN, INDIVIDUAL CLAIMS IN ARBITRATION AND WILL NOT SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON. CONTRACTOR UNDERSTANDS THAT EITHER PARTY MAY LAWFULLY SEEK ENFORCEMENT OF THIS ARBITRATION AND EQUITABLE RELIEF AGREEMENT AND THE CLASS ACTION WAIVER UNDER THE FAA AND SEEK DISMISSAL OF SUCH ACTIONS OR CLAIMS. NOTWITHSTANDING ANY OTHER CLAUSE CONTAINED IN THIS ARBITRATION AGREEMENT, ANY CLAIM THAT ALL OR PART OF THE CLASS ACTION WAIVER IS INVALID, UNENFORCEABLE VOID OR VOIDABLE MAY BE DETERMINED ONLY BY A COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. THE CLASS ACTION WAIVER SHALL BE SEVERABLE WHEN A DISPUTE IS FILED AS AN INDIVIDUAL ACTION AND SEVERANCE IS NECESSARY TO ENSURE THAT THE INDIVIDUAL ACTION PROCEEDS IN ARBITRATION. THE CLAIMS NOT COVERED BY THIS AGREEMENT ARE CLAIMS THAT ARE NOT ARBITRABLE BY LAW, WHICH INCLUDE CLAIMS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT (“PAGA”) ONLY FOR SO LONG AS PAGA CLAIMS ARE HELD TO BE NOT ARBITRABLE BY LAW BY THE CALIFORNIA SUPREME COURT, THE NINTH CIRCUIT COURT OF APPEALS, OR THE UNITED STATES SUPREME COURT.
b. PROCEDURE. CONTRACTOR AGREES THAT ANY ARBITRATION WILL BE ADMINISTERED BY JAMS, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (THE “JAMS RULES”). CONTRACTOR AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, PRIOR TO ANY ARBITRATION HEARING. HOWEVER, THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO DECIDE ISSUES OF ARBITRABILITY OR ENFORCEABILITY OF THIS ARBITRATION PROVISION. NOTWITHSTANDING ANY CONTRARY TERMS IN THE JAMS RULES, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO DETERMINE WHETHER THIS ARBITRATION AGREEMENT OR ANY PORTION OF IT IS ENFORCEABLE, REVOCABLE OR VALID, THE ARBITRABILITY OF DISPUTES, OR WHETHER CLAIMS MAY BE ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONSOLIDATE CLAIMS OF DIFFERENT INDIVIDUALS INTO ONE PROCEEDING, CONSIDER OR RESOLVE ANY CLAIM OR ISSUE ANY RELIEF ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. NOTWITHSTANDING ANY OTHER PART OF THIS AGREEMENT, THE VALIDITY AND EFFECT OF THIS CLASS, COLLECTIVE, CONSOLIDATED, AND REPRESENTATIVE ACTION WAIVER MUST BE DETERMINED ONLY BY A COURT AND NOT BY AN ARBITRATOR. CONTRACTOR ALSO AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. CONTRACTOR UNDERSTANDS THAT THE COMPANY WILL PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT CONTRACTOR SHALL PAY ANY FILING FEES ASSOCIATED WITH ANY ARBITRATION THAT CONTRACTOR INITIATES, BUT ONLY SO MUCH OF THE FILING FEES AS CONTRACTOR WOULD HAVE INSTEAD PAID HAD CONTRACTOR FILED A COMPLAINT IN A COURT OF LAW. CONTRACTOR AGREES THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF CIVIL PROCEDURE. I AGREE THAT THIS AGREEMENT AND ITS VALIDITY, CONSTRUCTION, AND PERFORMANCE SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT AND CASES DECIDED THEREUNDER AND, TO THE EXTENT RELEVANT, THE LAWS OF THE STATE OF CALIFORNIA. FURTHER, THE TERMS AND PROCEDURES GOVERNING THE ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE FAA, AND NOT INDIVIDUAL STATE LAWS REGARDING ENFORCEMENT OF ARBITRATION AGREEMENTS. CONTRACTOR AGREES THAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING. CONTRACTOR AGREES THAT ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED IN SAN FRANCISCO COUNTY, CALIFORNIA OR THE SITE OF THE CLOSEST JAMS OFFICE TO CONTRACTOR IN CONTRACTOR’S HOME STATE. THE ARBITRATOR’S DECISION REGARDING THE CLAIMS SHALL BE FINAL AND BINDING UPON THE PARTIES AND SHALL BE ENFORCEABLE IN ANY COURT HAVING JURISDICTION THEREOF.
c. REMEDY. EXCEPT AS PROVIDED BY THE FAA AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN CONTRACTOR AND THE COMPANY. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE FAA AND THIS AGREEMENT, NEITHER CONTRACTOR NOR THE COMPANY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.
D. ADMINISTRATIVE RELIEF. CONTRACTOR UNDERSTANDS THAT THIS AGREEMENT DOES NOT PROHIBIT CONTRACTOR FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY, INCLUDING, BUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE CONTRACTOR FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY LAW.
E. VOLUNTARY NATURE OF AGREEMENT. CONTRACTOR ACKNOWLEDGES AND AGREES THAT CONTRACTOR IS EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. CONTRACTOR FURTHER ACKNOWLEDGES AND AGREES THAT CONTRACTOR HAS CAREFULLY READ THIS AGREEMENT AND THAT CONTRACTOR HAS ASKED ANY QUESTIONS NEEDED FOR CONTRACTOR TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT OF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT CONTRACTOR IS WAIVING CONTRACTOR’S RIGHT TO A JURY TRIAL. FINALLY, CONTRACTOR AGREES THAT CONTRACTOR HAS BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF CONTRACTOR’S CHOICE BEFORE SIGNING THIS AGREEMENT.
17. Miscellaneous. Any breach of Section 5 or 6 will cause irreparable harm to Company for which damages would not be an adequate remedy, and therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof.
18. Defend Trade Secrets Act of 2016; Other Notices. Contractor understands that pursuant to the federal Defend Trade Secrets Act of 2016, Contractor shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Contractor further understands that nothing contained in this Agreement limits Contractor’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company.