Independent Contractor Agreement- United States
Effective Date: January 2, 2021
This Agreement (“Agreement”) is made and entered into by and between you, the undersigned contractor (“CONTRACTOR”), an independent contractor engaged in the business of performing the services contemplated by this Agreement, and Grab My Bag, Inc. (“GRAB MY BAG” or “COMPANY”). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Contracted Services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XI, AS IT REQUIRES THE PARTIES (UNLESS YOU VALIDLY OPT OUT OF ARBITRATION, AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XI, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
GRAB MY BAG is a company that provides an online marketplace platform using web-based technology that connects GRAB-bers and airline travelers (consumers/customers), for the purposes of delivering their luggage or airline checked items from airport baggage claim to customer specified destination. (“GRAB MY BAG platform” or “platform”). GRAB MY BAG’s software permits registered users to place orders for GRAB Packages, for GRAB-bers to deliver the requesting user’s luggage or airline checked items, from the airport baggage claim to the customer/traveler specified destination. Once such orders are made, GRAB MY BAG software notifies contractors that a delivery opportunity is available and the GRAB MY BAG software facilitates completion of the delivery. GRAB MY BAG is not an airport, airline, baggage claim delivery service, that is directly affiliated with any airports or airlines we service.
CONTRACTOR is an independent provider of delivery and other services, authorized to conduct the services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR possesses all equipment and personnel necessary to perform the delivery and any other services contemplated by this Agreement in accordance with applicable laws. CONTRACTOR desires to enter into this Agreement for the right to receive delivery opportunities made available through GRAB MY BAG’S platform. CONTRACTOR understands and expressly agrees that they are not an employee of GRAB MY BAG or any airport, airline or other business or consumer and that they are providing delivery and other services on behalf of themself and their business, not on behalf of GRAB MY BAG. CONTRACTOR understands (i) they are free to select those times they wish to be available on the platform to receive delivery opportunities; (ii) they are free to accept or reject the opportunities transmitted through the GRAB MY BAG platform by consumers, and can make such decisions to maximize their opportunity to profit; and (iii) they have the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed. The CONTRACTOR agrees to adhere to a reasonable delivery timeline not to exceed three hours from the time the customers’ checked items arrive at airport/airline baggage claim, and are claimed by the CONTRACTOR for delivery.
In consideration of the above, as well as the mutual promises described herein, GRAB MY BAG and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
- This Agreement governs the relationship between GRAB MY BAG and CONTRACTOR, and establishes the parties’ respective rights and obligations. In exchange for the promises contained in this Agreement, CONTRACTOR shall have the right and obligation to perform the “Contracted Services” as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shall guarantee CONTRACTOR any particular volume of business for any particular time period.
- CONTRACTOR shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered by GRAB MY BAG. However, once a Delivery Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications and the terms laid out in this Agreement, including adhering to a reasonable delivery timeline not to exceed three hours from the time the customers’ checked items arrive at airport/airline baggage claim, and are claimed by the CONTRACTOR for delivery.
II. CONTRACTOR’S OPERATIONS
- CONTRACTOR represents that they operate an independently established enterprise that provides delivery and other services, and that they satisfy all legal requirements and have all necessary licenses, permits, and insurance, necessary to perform any services contemplated by this Agreement. As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate their business and how to perform the Contracted Services, and agrees to adhere to a reasonable delivery timeline not to exceed three hours from the time the customers’ checked items arrive at airport/airline baggage claim, and are claimed by the CONTRACTOR for delivery, and the CONTRACTOR assumes any and all responsibility for customers’ checked items while in their possession. The CONTRACTOR will be responsible for any and all insurance claims or requests for reimbursement made by a customer for damage to their checked items while in the CONTRACTOR’S possession.
- CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. GRAB MY BAG shall have 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 determining the manner of pickup, delivery, and route selection. Contractor agrees to adhere to a reasonable delivery timeline not to exceed three hours from the time the customers’ checked items arrive at airport/airline baggage claim, and are claimed by the CONTRACTOR for delivery.
- As an independent business enterprise, CONTRACTOR retains the right to perform services (whether delivery services or other services) for others and to hold themself out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with others and nothing in this Agreement shall prevent CONTRACTOR or GRAB MY BAG from doing business with others. GRAB MY BAG does not have the right to restrict CONTRACTOR from performing services for CONTRACTOR’s own business, other businesses, customers, or consumers at any time, even if such business directly competes with GRAB MY BAG, and even during the time CONTRACTOR is logged into the GRAB MY BAG platform. CONTRACTOR’s right to compete with GRAB MY BAG, or perform services for business that compete with GRAB MY BAG, will survive even after termination of this Agreement.
- CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from GRAB MY BAG as a condition of doing business with GRAB MY BAG or entering into this Agreement.
- CONTRACTOR agrees to immediately notify GRAB MY BAG in writing at LEGAL@grabmybag.com if CONTRACTOR’s right to control the manner or method they use to perform services differs from the terms contemplated in this Section.
III. CONTRACTED SERVICES
- From time to time, the GRAB MY BAG platform will notify CONTRACTOR of the opportunity to complete deliveries from airports/airlines baggage claim or other businesses to consumers or consumer specified destinations, in accordance with orders placed by consumers through the GRAB MY BAG platform or directly from airports/airlines or other businesses (each of these is referred to as a “Delivery Opportunity”). For each Delivery Opportunity accepted by CONTRACTOR (“Contracted Service”), CONTRACTOR agrees to retrieve the orders from airport/airline baggage claim or other businesses on time and safely, ensure the order is accurately executed and that the proper number of bags or checked items are retrieved according to the consumer, airport/airline, and/or business’ specifications, and complete delivery orders to consumers in a safe and timely fashion. CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer, airport/airline, and/or other business, not GRAB MY BAG, and represent the end result desired, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel, from time to time, 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 GRAB MY BAG shall have the right to terminate this Agreement and/or deactivate CONTRACTOR’S account.
- CONTRACTOR acknowledges that GRAB MY BAG has discretion as to which, if any, Delivery Opportunity to offer, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
- CONTRACTOR acknowledges that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from GRAB MY BAG’S business, which is to provide an online marketplace platform using web-based technology that connects GRAB-bers and airline travelers (consumers/customers), for the purposes of delivering their luggage or airline checked items from airport baggage claim to customer specified destination.
- CONTRACTOR authorizes GRAB MY BAG, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or airport/airline or other business to assist CONTRACTOR, or facilitate direct communication between CONTRACTOR and the consumer, airport/airline, and/or business, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall GRAB MY BAG be authorized to control the manner or means by which CONTRACTOR performs delivery services or other services contemplated under this agreement. This includes, but is not limited to, the following:
a. GRAB MY BAG 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 GRAB MY BAG to whom they report.
c. CONTRACTOR is not required to use any signage or other designation of GRAB MY BAG on their vehicle or person at any point in their use of the platform to perform the Contracted Services.
d. GRAB MY BAG has no control over CONTRACTOR’s personal appearance.
e. CONTRACTOR does not receive regular performance evaluations by GRAB MY BAG.
5. CONTRACTOR may use whatever payment method they choose for expenses arising from their Delivery Opportunities, to
purchase needed to facilitate consumer/customer deliveries, including, but not limited to CONTRACTOR’s personal credit or
debit card, cash or a prepaid card.
6. In the event CONTRACTOR fails to fully perform any Contracted Service (a “Service Failure”) due to CONTRACTOR’s action or
omission, 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.
7. CONTRACTOR agrees to immediately notify GRAB MY BAG in writing by submitting a Support inquiry through
firstname.lastname@example.org if CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this
IV. RELATIONSHIP OF PARTIES
- 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 the relationship of principal and independent contractor and not that of employer and employee. 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.
- GRAB MY BAG 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 GRAB MY BAG have been inserted solely for the safety of consumers and other CONTRACTORS using the GRAB MY BAG platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
- GRAB MY BAG 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 qualify. CONTRACTOR agrees to report all such payments and any cash gratuities to the appropriate federal, state and local taxing authorities.
V. PAYMENT FOR SERVICES
- Unless notified otherwise by GRAB MY BAG in writing or except as provided herein, CONTRACTOR will receive payment per accurate Contracted Service completed in an amount consistent with the publicly provided pay model, which CONTRACTOR can view here. From time to time, GRAB MY BAG may offer opportunities for CONTRACTOR 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 deny any such opportunities to earn different rates of pay.
- GRAB MY BAG’s online credit card 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, whether by cash or credit card. GRAB MY BAG acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR.
- GRAB MY BAG will process payments made by consumers and transmit to CONTRACTOR. Payments for all deliveries completed in a given week will be transferred via direct deposit on no less than a weekly basis unless it notifies CONTRACTOR otherwise in writing.
- Notwithstanding the terms of Section V(1) – (3), fulfillment orders placed directly with airports/airlines or other businesses rather than through the App (coming soon) or www.grabmybag.com (“Fulfillment Orders”) may be subject to a different payment model. More information regarding Fulfillment Orders will be available at the time one arises. Nothing prevents the parties from negotiating a different rate of pay for a Fulfillment Order, and the CONTRACTOR is free to accept or reject Fulfillment Order opportunities. As with all Delivery Opportunities, CONTRACTOR shall retain 100% of any gratuity paid by the consumer for a Fulfillment Order. GRAB MY BAG’s software may not always include an option to add gratuity for Fulfillment Orders; however, consumers can pay a gratuity to CONTRACTOR in cash.
- From time to time, GRAB MY BAG may offer various GRAB-ber promotions or referral programs. CONTRACTOR agrees that they will not manipulate or abuse the referral programs or GRAB-ber promotions 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 GRAB-ber 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.
VI. PAYMENT DISPUTES
- CONTRACTOR’s Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in GRAB MY BAG’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, airport/airline or other business, CONTRACTOR, and any other party with information relevant to the dispute. GRAB MY BAG shall make the initial determination as to whether a Service Failure was the result of CONTRACTOR’s action/omission. CONTRACTOR shall have the right to challenge GRAB MY BAG’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify GRAB MY BAG in writing at LEGAL@grabmybag.com of the challenge and provide GRAB MY BAG the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of their challenge.
- GRAB MY BAG’s Failure: In the event GRAB MY BAG fails to remit payment in a timely or accurate manner, 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 GRAB MY BAG in writing at LEGAL@grabmybag.com of the failure or failure to pay, and provide a reasonable opportunity to cure it.
VII. EQUIPMENT AND EXPENSES
- CONTRACTOR represents that they have or can lawfully acquire all equipment, including vehicles and luggage locks (“Equipment”) necessary for performing Contracted Services, and CONTRACTOR is solely responsible for ensuring that the vehicle used conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability.
- CONTRACTOR agrees that they are responsible for all costs and expenses arising from CONTRACTOR’s performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR’s Personnel (defined below) Equipment, and Insurance of all pertinent and necessary types. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to their Equipment, or that of the customer/consumer, airport/airline, or other businesses’ property; personal or otherwise, during the fulfillment of Delivery Opportunities accepted by the CONTRACTOR.
- In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the GRAB MY BAG platform, pass a background check if requested by GRAB MY BAG, administered by a third-party vendor, 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, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, accepting the terms of this Agreement, separately completing the process to receive Delivery Opportunities, and being eligible to provide the Contracted Services in the geographic location. To the extent CONTRACTOR furnishes their own employees or subcontractors (collectively “Personnel”), CONTRACTOR shall be solely responsible for the direction and control of the Personnel it uses to perform all Contracted Services, and any and all necessary or pertinent insurances, licenses, etc.
- 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 and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this Agreement. GRAB MY BAG shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR’s 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 GRAB MY BAG, nor shall they participate in or receive any other benefits, if any, available to GRAB MY BAG’s employees.
- Unless mandated by law, GRAB MY BAG 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.
- CONTRACTOR and their Personnel shall not be required to wear a uniform or other clothing of any type bearing GRAB MY BAG’s name or logo.
- 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 GRAB MY BAG at least 7 days in advance of such Personnel performing the Contracted Services, and CONTRACTOR must notify GRAB MY BAG 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.
- CONTRACTOR agrees, as a condition of doing business with GRAB MY BAG, that during the term of this Agreement, CONTRACTOR will maintain current insurance, in amounts and of any and all types required by law to provide 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 shall result in the termination of the Agreement and the loss of CONTRACTOR’s right to receive Delivery Opportunities. CONTRACTOR agrees that GRAB MY BAG is not responsible for covering the costs of any customer claims or reimbursement requests for any damage to a customer’s checked items while in the CONTRACTOR’S possession.
- NOTIFICATION OF COVERAGE: CONTRACTOR agrees to deliver to GRAB MY BAG, 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 GRAB MY BAG at least thirty (30) days’ prior written notice before cancellation of any insurance policy required by this Agreement.
- 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 GRAB MY BAG, including workers’ compensation insurance where required by law. CONTRACTOR acknowledges and understands that CONTRACTOR will not be eligible for workers’ compensation benefits through GRAB MY BAG and is instead responsible for maintaining CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance. CONTRACTOR’S maintenance of CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance will not disqualify CONTRACTOR from participating in the Occupational Accident Insurance Policy for GRAB-bers (coming soon), which GRAB MY BAG may make available to CONTRACTOR.
- GRAB MY BAG 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 GRAB MY BAG’s actions offering and facilitating the Contracted Services to CONTRACTOR.
- CONTRACTOR agrees to indemnify, protect and hold harmless GRAB MY BAG, 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 delivery 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 GRAB MY BAG or its parent, subsidiary and/or affiliated companies.
- CONTRACTOR agrees to indemnify, protect and hold harmless GRAB MY BAG, 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 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 and local laws, with respect to CONTRACTOR and CONTRACTOR’s Personnel.
- CONTRACTOR shall be responsible for, indemnify and hold harmless GRAB MY BAG, 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 or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
XI. MUTUAL ARBITRATION PROVISION
- CONTRACTOR and GRAB MY BAG 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, CONTRACTOR’s classification as an independent contractor, CONTRACTOR’s provision of Contracted Services to consumers, airports/airlines, or other businesses, the payments received by CONTRACTOR for providing services to consumers, airports/airlines, or other businesses, the termination of this Agreement, and all other aspects of CONTRACTOR’s relationship with GRAB MY BAG, 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 GRAB MY BAG. The parties expressly agree that this Agreement shall be governed by the FAA even in the event CONTRACTOR and/or GRAB MY BAG are otherwise exempted from the FAA. Any disputes in this regard 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 the CONTRACTOR operates shall apply.
- CONTRACTOR and GRAB MY BAG agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. CONTRACTOR and GRAB MY BAG therefore agree that, before either CONTRACTOR or GRAB MY BAG demands arbitration against the other, we will personally meet and confer, via recorded telephone or videoconference (dispute resolution conference), in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. 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 GRAB MY BAG that CONTRACTOR intends to initiate an informal dispute resolution conference, email LEGAL@grabmybag.com, providing CONTRACTOR’s name, the telephone number associated with CONTRACTOR’s GRAB0ber account (if any), the email address associated with CONTRACTOR’s GRAB-ber account, and a description of CONTRACTOR’s claim. 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. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. 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.
- If, following the informal resolution process, either CONTRACTOR or GRAB MY BAG wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought and (4) the amount in controversy. Any demand for arbitration by CONTRACTOR must be delivered to the counsel who represented GRAB MY BAG in the informal resolution process, or if there was no such counsel, then to General Counsel, 1445 Woodmont Lane, Suite 2612, Atlanta, GA 30318.
- Arbitration Class Action Waiver. CONTRACTOR and GRAB MY BAG 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 and/or representative action—including but not limited to actions brought pursuant to the Private Attorney General Act (“PAGA”), California Labor Code section 2699 et seq. (if contractor resides in California), and any request seeking a public injunction—and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action, or to award relief to anyone but the individual in arbitration (“Arbitration Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the CPR Rules, as defined below, any claim that all or part of this 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. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Arbitration Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Arbitration Class Action Waiver that is enforceable shall be enforced in arbitration. 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. For sake of clarification only, nothing in this paragraph shall be construed to prohibit settlements on a class-wide, collective, and/or representative basis.
- 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 GRAB MY BAG or its customers and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
- Any arbitration shall be governed by the CPR Administered Arbitration Rules and, when applicable, the CPR Employment-Related Mass-Claims Protocol (together, the “CPR Rules”) of the International Institute for Conflict Prevention & Resolution, except as follows:
a. The arbitration shall be heard by one arbitrator (the “Arbitrator”) selected in accordance with the CPR Rules. The Arbitrator
shall be an attorney with experience in the law underlying the dispute.
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. The CPR fee schedule will apply with the following exceptions. Unless applicable law provides otherwise, in the event that
GRAB MY BAG and CONTRACTOR have agreed to this Mutual Arbitration Provision, GRAB MY BAG 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. GRAB MY BAG shall pay half of 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) 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.
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 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 with 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. Either CONTRACTOR or GRAB MY BAG 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
7. 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.
This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and
awarding remedies based on those claims, even if the claims would otherwise be covered by this Mutual Arbitration
Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent
and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. GRAB MY BAG 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 may not be
subject to pre-dispute 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.
8. The CPR Rules may be found at www.cpradr.org or by searching for “CPR Administered Arbitration Rules” and “CPR Employment-Related Mass-Claims Protocol” using a service such as www.google.com or www.bing.com or by asking GRAB MY BAG’s General Counsel to provide a copy (by submitting a written request to General Counsel, 1445 Woodmont Lane, Suite 2612, Atlanta, GA, 30318).
9. CONTRACTOR’s Right to Opt Out of Mutual Arbitration Provision. Arbitration is not a mandatory condition of CONTRACTOR’s contractual relationship with GRAB MY BAG, and therefore CONTRACTOR may submit a statement notifying GRAB MY BAG that CONTRACTOR wishes to opt out and not be subject to this MUTUAL ARBITRATION PROVISION. In order to opt out, CONTRACTOR must notify GRAB MY BAG in writing of CONTRACTOR’s intention to opt out by sending a letter, by First Class Mail, to General Counsel, 1445 Woodmont Lane, Suite 2612, Atlanta, GA 30318. 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 themself, 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, at the time of CONTRACTOR’s receipt of this Agreement, CONTRACTOR was bound by an existing arbitration agreement with GRAB MY BAG, that arbitration agreement will continue to apply to any pending litigation, even if CONTRACTOR opts out of this Arbitration Agreement. If CONTRACTOR opts out as provided in this paragraph, CONTRACTOR will not be subject to any adverse action from GRAB MY BAG 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 GRAB MY BAG 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).
10. Except as specified in the prior paragraph, this Mutual Arbitration Provision supersedes any and all prior arbitration agreements between CONTRACTOR and GRAB MY BAG 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.
XII. LITIGATION CLASS ACTION WAIVER
- To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section XI, CONTRACTOR agrees 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 CONTRACTOR agrees 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 acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). CONTRACTOR further agrees 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.
XIII. PROPRIETARY RIGHTS AND LICENSES
- 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 GRAB MY BAG platform together with the underlying software code and any and all rights in, or derived from the GRAB MY BAG platform are proprietary and owned either directly by GRAB MY BAG or by GRAB MY BAG’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 GRAB MY BAG platform to perform the Contracted Service in compliance with the terms of this Agreement. No portion of the GRAB MY BAG 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 GRAB MY BAG platform or any intellectual property rights therein in any manner, and CONTRACTOR shall not exploit the GRAB MY BAG platform or any intellectual property rights therein in any unauthorized way whatsoever.
- GRAB MY BAG hereby grants CONTRACTOR a non-exclusive, non-transferable, non-sublicensable, revocable license to use the GRAB MY BAG platform solely for their lawful use to perform the Contracted Services in accordance with these terms of this Agreement. GRAB MY BAG retains all rights, title, and interest in and to the GRAB MY BAG platform and its other intellectual property rights therein. Any such license shall terminate upon termination of this Agreement.
- CONTRACTOR acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by CONTRACTOR to GRAB MY BAG regarding the GRAB MY BAG platform are provided freely and shall become the sole property of GRAB MY BAG. GRAB MY BEG 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.
XIV. TERMINATION OF AGREEMENT
- CONTRACTOR may terminate this Agreement upon seven (7) days written notice. GRAB MY BAG may terminate this Agreement and deactivate CONTRACTOR’S GRAB-ber account only for the reasons set forth in the GRAB MY BAG Deactivation Policy, which CONTRACTOR expressly agrees to, or for a material breach of this Agreement. Notwithstanding any other provision in this Agreement, GRAB MY BAG reserves the right to modify the Deactivation Policy if, in GRAB MY BAG’s good faith and reasonable discretion, it is necessary to do so for the safe and/or effective operation of the GRAB MY BAG platform. GRAB MY BAG shall provide notice of any such changes to CONTRACTOR via e-mail. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the GRAB MY BAG platform following GRAB MY BAG’s e-mail notice of such modifications. Nothing will prevent CONTRACTOR from attempting to negotiate an exemption from any modification to the Deactivation Policy.
- CONTRACTOR’s and GRAB MY BAG’s obligations and rights arising under the Mutual Arbitration Provision of this Agreement shall survive termination of this Agreement. Notwithstanding any other provision in this Agreement, the Deactivation Policy is subject to change; such changes shall be effective and binding on the parties upon GRAB MY BAG’s provision of notice to CONTRACTOR via e-mail.
- GRAB MY BAG may modify this Agreement at any time. When GRAB MY BAG makes material changes to this Agreement, it will post the revised Agreement on the GRAB MY BAG’s Platform and update the “Last Updated” date at the top of the Agreement. GRAB MY BAG will also provide CONTRACTOR with notice of any material changes before the date the revised Agreement becomes effective. If CONTRACTOR disagrees with the revised Agreement, CONTRACTOR may terminate the Agreement immediately 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 GRAB MY BAG platform will constitute acceptance of the revised Agreement. GRAB MY BAG 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 GRAB MY BAG platform after any such changes shall constitute CONTRACTOR’s consent to such changes.
XVI. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
- 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. Before accepting any modifications, alterations, changes or amendments, CONTRACTOR shall have the right to discuss any proposed changes with GRAB MY BAG and consider whether to continue their contractual relationship with GRAB MY BAG. This Agreement supersedes any prior contract between the parties. To the extent GRAB MY BAG’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 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 GRAB MY BAG may assign its rights and obligations under this Agreement to an affiliate of GRAB MY BAG or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to GRAB MY BAG shall be deemed to include such successor(s).
- The failure of GRAB MY BAG 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.
- CAPTIONS: Captions 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.
- SEVERABILITY Clause: Except as specifically provided in Section XI, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
- GOVERNING LAW: Except for the Mutual Arbitration Provision above, which 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 XI, shall be the rules of law of the state in which CONTRACTOR performs the majority of the services covered by this Agreement.
- NOTICE AND OPPORTUNITY TO CURE: CONTRACTOR agrees to notify GRAB MY BAG in writing at LEGAL@grabmybag.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 II (Contractor’s Operations) and III (Contracted Services), or if the relationship of the parties differs from the terms contemplated in Section IV (Relationship of Parties).