Mach1, LLC Terms of Service Agreement
Last Modified: July 15, 2018
Mach1, LLC (“Mach1”) operates each Mach1 Platform, that links to these Terms of Service to provide online access to information about Mach1 and the products, services, and opportunities we provide.
By accessing and using the Mach1 Platform, you agree to these Terms of Service.
NOTICE: THIS AGREEMENT INCLUDES AN AGREEMENT THAT ALL CLAIMS OF DAMAGE THAT YOU OR MACH1 HAVE AGAINST EACH OTHER WILL BE BROUGHT THROUGH BINDING ARBITRATION NOT THOUGH A LAWSUIT IN A COURT ON AN INDIVIDUAL BASIS OR IN A CLASS ACTION, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. SERVICE PROVIDERS MAY OPT OUT OF SOME PROVISIONS OF THE ARBITRATION AGREEMENT. PLEASE REVIEW THE CLAUSE IN SECTION 15(j) OF THE ARBITRATION AGREEMENT PRIOR TO USING THE MACH1 PLATFORM.
Mach1 reserves the right to modify these Terms of Service at any time without giving you prior notice. Your use of the Mach1 Platform following any such modification constitutes your agreement to follow and be bound by these Terms of Service as modified. The last date these Terms of Service were revised is set forth below.
DEFINITIONS as used in this Terms of Service Agreement:
Mach1 Platform includes mobile phone app and technology platform including website and any databases and systems that Mach1 uses to deliver the services.
Service Providers are independent contractors that have a service account through Mach1 and who may be available to provide services.
Clients are individuals 16 years of age or older with a Mach1 account who can request Services of Service Providers through the Mach1 platform.
Services that are offered through the Mach1 Platform may include tow truck, tire change, lockout, dead battery, out of fuel, mobile mechanic, and trip inspection or other services listed on the Mach1 Platform.
Content is the information, writings, images and/or other works that you see, hear or otherwise experience on the Mach1 Platform.
- Permitted Use of The Mach1 Platform
Service Providers and Clients are collectively referred to as “Users” or “You”. You may use the Mach1 Platform, and the Content for services provided through the Mach1 Platform, or to learn about Mach1 products and services, and solely in compliance with these Terms of Service. The Mach1 Platform may only be used by Service Providers and Clients who are 16 years of age or older and have the ability to legally enter into this Agreement. By using the Mach1 Platform you represent that you are 18 years of age or older and that you agree to the terms of this Terms of Service Agreement, or that you are 16 years of age or older and have approval from a parent or guardian to enter into this Agreement, and that your parent or guardian agrees to be bound by this Agreement based on your actions.
- Prohibited Use of The Mach1 Platform
By accessing the Mach1 Platform, you agree to the following.
- You will not use the Mach1 Platform in violation of these Terms of Service.
- You will not copy, modify, create a derivative work from, reverse engineer or reverse assemble the Mach1 Platform, or otherwise attempt to discover any source code, or allow any third party to do so.
- You will not sell, assign, sublicense, distribute, commercially exploit, grant a security interest in or otherwise transfer any right in, or make available to a third party, the Content or Service in any way.
- You will not use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Mach1 Platform in a manner that sends more request messages to the Mach1 servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.
- You will not use the Mach1 Platform in any manner that damages, disables, overburdens, or impairs any Mach1 Platform or interferes with any other party’s use and enjoyment of the Mach1 Platform.
- You will not mirror or frame the Mach1 Platform or any part of it on any other Platform or web page.
- You will not attempt to gain unauthorized access to the Mach1 Platform.
- You will not access the Mach1 Platform by any means other than through the interface that is provided by Mach1 for use in accessing the Mach1 Platform.
- You will not impersonate another individual or company using the Mach1 Platform.
- You will not share your username and password with others or otherwise share your account with another individual, with the exception of family plans, where immediate family share a login.
- You will not discriminate against or harass any person based on their race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation or any other characteristic protected under applicable federal or state law. Such discrimination includes but is not limited to, refusing to provide services based on any of these characteristics. Anyone found to have violated this prohibition will lose access to the Mach1 app and Service calls at Mach1, LLC’s discretion.
- You will not use the Mach1 Platform for any purpose or in any manner that is unlawful.
Any unauthorized use of any Content or the Mach1 Platform may violate patent, copyright, trademark, and other laws.
There is no charge to Clients for downloading the App or using the Mach1 Platform to learn about Services. As a Client, however, you understand that when you request Services through the Mach1 Platform from a Service Provider, that you may be charged for Services that you receive.
Service Fee. You may be charged a service fee for a Service Provider to come to your location when requested, regardless of whether services are actually provided.
Cancellation Fee. If you request services through the Mach1 Platform and agree to use a Service Provider you may be charged a cancellation fee if you cancel the services before the Service Provider renders service to your vehicle.
Tips. After you receive Services from a Service Provider you may choose to tip your Service Provider in cash. Payments for Services will be processed through the Mach1 Platform separately from tips.
Payment Processing. Payments will be processed through a payment processing service (e.g. Stripe, Inc., Paypal, or other services) Mach1 may change the company that provides payment processing without notice to the Client or the Service Provider.
No Refunds. All charges are non-refundable. This refund policy will apply at all times regardless of the availability of the Mach1 Platform for your use or your cancellation of your Mach1 account.
Credit Card and Bank Charges. When services are authorized by the Client, Mach1 may initiate authorization of a Client’s credit or debit card for an authorization amount. Although the authorization is not a charge, the authorization amount may reduce the available balance from a bank or credit card company even before the charges are processed. If your available funds in your account or available credit is insufficient to cover charges you may be charged fees by your credit card company or bank. Mach1 is not responsible for the bank or credit card charges, and we do not assist you in recovering these fees.
Mach1 does not tolerate the use of alcohol or drugs by Service Providers using the Mach1 app while on Service calls. If you believe your Service Provider may be under the influence of drugs or alcohol, please have the Service Provider discontinue service immediately. Then after the Service Provider has ended the service, please report any feedback to Mach1 at firstname.lastname@example.org
- Service Provider Compensation
In consideration for Service Provider’s performance of the Services, Mach1 shall pay Service Provider every two days through the payment processing platform, minus 15% (fifteen percent) fee of total Services provided and minus insurance if Service Provider has opted to use Mach1 insurance. Other fees that may be deducted from a Service Provider’s payment may include background check fees, or equipment costs, or starter kits. The use of Mach1 insurance as a Service Provider does not constitute an employer/employee relationship and Service Provider is still considered an independent contractor. Payment to Service Providers may be delayed until a future week based on processing times for payments and documentation.
- Service Provider Representations, Warranties and Agreements
As a Service Provider through the Mach1 Platform, you represent, warrant and agree that:
- You are at least 21 years old;
- You have a valid driver’s license;
- Mach1 may obtain information about you including a background check which includes criminal and driving records, and you agree to provide any necessary authorization to obtain information for the purpose of a background check;
- Your vehicle that you use for providing Services through the Mach1 Platform is properly registered and insured;
- You agree to use insurance provided through Mach1 unless you have provided proof of insurance and received a waiver of insurance through Mach1, and if you dismiss the insurance provided by Mach1 you warrant that you carry and maintain equivalent insurance;
- You will provide your own equipment to complete the Services that you have agreed to provide, as an independent contractor;
- Mach1 is not responsible for any injury, bodily or otherwise, incurred while providing Services;
- All costs and expenses incurred by Service Provider in connection with the performance of the Services shall be the sole responsibility of and paid by Service Provider including any applicable local, state, and federal taxes based on the services you provide;
- You understand that Mach1 reserves the right to allow participation in the Mach1 Platform or to exclude a Service Provider from the Mach1 Platform at any time and without a reason;
- You will not use alcohol or drugs, or be under the influence of alcohol or drugs while providing Services;
- If you posses a firearm while on a service call, you warrant that the firearm is owned and possessed legally, and that you have received firearm safety training and have the experience and ability to posses and use a firearm safely, and will only use a firearm while providing Services when necessary for self-defense; and
- You understand that Mach1 is not to be held responsible for any actions associated with the use of a firearm, and you indemnify Mach1 against all damages and costs Mach1 incurs related to your possession and use of a firearm in any way associated with Mach1 or the Mach1 Platform.
Independent Contractor Agreement:
As a Service Provider, I understand that I am responsible for filing my own taxes with the Internal Revenue Service and Resident State Revenue Department. Mach1 or a partner of Mach1 such as the payment processing company, will provide me with a 1099 form.
I understand it is not the responsibility of Mach1 to reimburse me for personal expenses. I will not be compensated for personal expenses incurred during service calls such as and not limited to: meals, cellular phone usage, motor vehicle violation tickets, tolls, as well as other expenses.
I understand that Mach1, LLC does not guarantee, nor am I obligated to Service a specific number of customers, or earn a specific amount of revenue, or work a specific amount of hours, or work specific days of the week. Any revenue I generate or pay I receive from Mach1 will be solely for individual jobs I complete.
I understand that Mach1 does not guarantee a specific or average amount of revenue/pay. I retain full control and discretion on any Service jobs I choose to accept, I retain full control and discretion on the amount of hours I choose to work, I retain full control and discretion on the hours and days I choose to work; thus I retain full discretion on the potential revenue I may or may not generate based on the Service jobs I accept or do not accept to complete for Mach1.
I understand that Mach1 has a zero tolerance policy for violation of this Agreement and does not permit anything that is deemed contraband or illegal by the laws of the United States of America and accept full responsibility and penalties due to my own actions regarding the zero tolerance policy and violations of this Terms of Service Agreement.
I understand that I am responsible for the service on my own vehicle used to provide Services to Mach1 customers.
If required for Services I agree to provide, I will keep all DOT requirements up-to-date and certified. As well as any tow truck operator certifications required for my city and state of operation.
I understand that any training or procedural instructions I receive from Mach1 may be limited in scope and Mach1 is not liable for any incident that may occur from Services delivered via the Mach1 application.
- Service Provider Equipment
As an independent contractor, each Service Provider will provide and maintain in good working order equipment to complete the Services that they agree to provide. This may include a vehicle or tow truck used to render Services, or any tools or technology used to render services including a mobile phone. Mach1 is not responsible for any damage caused to equipment while performing Services. Mach1 may provide safety equipment (such as safety vests, flashers, and ID badges) or other equipment for purchase to Service Providers through the Mach1 Platform or through other means. Mach1 does not, however, warrant that the equipment is adequate to provide safety, as it is the Service Provider’s responsibility to determine whether all purchased equipment meets regulatory and personal safety standards. MACH1 AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE EQUIPMENT OFFERED THROUGH THE MACH1 PLATFORM OR OTHER MEANS FOR ANY PURPOSE. Service Providers are not required to purchase any equipment through Mach1 and may provide their own equipment including safety equipment from any source. A Service Provider, however, will need minimum safety equipment to qualify as a service provider, and will be sent and charged for safety equipment when the Service Provider signs up for an account unless they are granted an exemption by showing that they already possess the safety equipment.
- Copyrights and Trademarks
The Mach1 Platform is based upon proprietary Mach1 technology and includes the Content. The Mach1 Platform is protected by applicable intellectual property and other laws, including trademark and copyright laws. The Mach1 Platform, including all intellectual property rights in the Mach1 Platform, belongs to and is the property of Mach1 or its licensors (if any). Mach1 owns and retains all copyrights in the Content. Except as specifically permitted on the Mach1 Platform as to certain Content, the Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Content or the Mach1 Platform, in whole or in part, by any means. Mach1, Design, logos, and other marks used by Mach1 from time to time are trademarks and the property of Mach1. The appearance, layout, color scheme, and design of the Mach1 Platform are protected trade dress. User does not receive any right or license to use the foregoing. Mach1 may use and incorporate into the Mach1 Platform any suggestions or other feedback you provide, without payment or condition.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement on the Mach1 Platform or the Service should be sent to Mach1’s designated Copyright Agent.
- a. Copyright. You warrant that any content that you enter, or upload does not violate the copyright rights of others. If you believe that someone has violated your copyright rights, you may send us a notice according to the Digital Millennium Copyright Act (DMCA) as outlined below.
IF YOU USE THE DMCA COPYRIGHT INFRINGEMENT NOTICE TO KNOWINGLY MAKE A FALSE CLAIM OF COPYRIGHT INFRINGEMENT YOU MAY BE LIABLE FOR LARGE CIVIL PENALTIES WHICH MAY INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT SUFFERS ANY LOSS AS A RESULT OF RELYING UPON YOUR FALSE COPYRIGHT CLAIM. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
Notice of Infringement under the DMCA must be sent by email or mail to:
C/O Attorney Wayne Carroll
Inspired Idea Solutions Law Firm
39506 N. Daisy Mountain Dr. Suite 122-501
Phoenix, AZ 85086
Under the DMCA Title 17, United States Code, Section 512(c)(3)(A), requires that the Notification of Claimed Infringement must include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyrighted work.
- Identification of the copyrighted work (or works) that you claim are infringed.
iii. Identification of the specific material that is claimed to be infringed from the copyrighted work (such as URL where the work is lawfully posted or the page numbers or portions of the copyrighted work) and the identification of specific material on our Website that you claim is infringing the copyrighted work, including the location of the material to be removed with a URL or other specific identification.
- Information for us to contact you, such as an address, telephone number, and, an electronic mail address.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and a statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the copyright owner.
- Trademark. You warrant that any trademark you use is not infringing on the trademarks of others and is not confusingly similar to the trademarks of others whether or not those trademarks are registered locally or nationally. If you believe that someone has violated your trademark rights or any other intellectual property rights you may send us a notice of trademark infringement to:
C/O Attorney Wayne Carroll
Inspired Idea Solutions Law Firm
39506 N. Daisy Mountain Dr. Suite 122-501
Phoenix, AZ 85086
- Information and Materials You Post or Provide
You represent that you have all right, title, and interest to materials you post on the Mach1 Platform or provide to Mach1(“Materials”), including but not limited to any consent, authorization, release, clearance or license from any third party (such as, but not limited to, any release related to rights of privacy or publicity) necessary for you to provide, post, upload, input or submit the Materials, and that posting such Materials does not violate or constitute the infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, moral rights, or other intellectual property right recognized by any applicable jurisdiction of any person or entity, or otherwise constitute the breach of any agreement with any other person or entity. You further represent and warrant that you are who you say you are, that you have not submitted fictitious, false or inaccurate information about yourself, and that all information contained in the posted Materials is true and your own work or work you are authorized to submit, and that the posted Materials do not contain any threatening, harassing, libelous, false, defamatory, offensive, obscene, or pornographic, material, or other material that would violate any other applicable law or regulation. You agree that you will not knowingly and with intent to defraud provide material and misleading information. You represent and warrant that the Materials you supply do not violate these Terms of Service.
- Links to Third-Party Platforms
- Downloading Files
Mach1 cannot and does not guarantee or warrant that files available for downloading through the Mach1 Platform will be free of infection by software viruses or other harmful computer code, files or programs.
- Disclaimers; Limitations of Liability
MACH1 AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE MACH1 PLATFORM OR THE CONTENT FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICE AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. MACH1 AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE MACH1 PLATFORM AND THE CONTENT, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MACH1 IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. THE CONTENT MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MACH1 AND ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE MACH1 PLATFORM, WITH THE DELAY OR INABILITY TO USE THE MACH1 PLATFORM, OR FOR ANY CONTENT, OR OTHERWISE ARISING OUT OF THE USE OF THE MACH1 PLATFORM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF MACH1 OR ANY OF MACH1’S SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, MACH1 IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AGREE THAT THE AGGREGATE LIABILITY OF MACH1AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO ONE HUNDRED DOLLARS.
IF A CLIENT OR OTHER USER IS DAMAGED BY A SERVICE PROVIDER, MACH1 IS NOT RESPONSIBLE FOR THE ACTION OR NEGLIGENCE OF A SERVICE PROVIDER. THE DAMAGES FROM THE SERVICE PROVIDER MUST BE RECOVERED DIRECTLY FROM THE SERVICE PROVIDER AND NOT FROM MACH1.
You understand and agree that you are personally responsible for your behavior on the Mach1 Platform. You agree to indemnify, defend and hold harmless Mach1, its parent companies, subsidiaries, affiliated companies, joint ventures, business partners, licensors, employees, agents, and any third-party information providers from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of your use, misuse, or inability to use the Mach1 Platform or the Content, or any violation by you of these Terms of Service.
- DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
The defined terms in the Terms of Service are also used in this Arbitration Agreement
AAA refers to the American Arbitration Association
AAA Rules refers to the Consumer Arbitration Rules that are in effect when arbitration is requested, as modified by the terms of this Arbitration Agreement. AAA Rules can be found at www.adr.org.
Arbitration Agreement refers to this Dispute Resolution and Arbitration Agreement.
Class Action Waiver is a part of the Arbitration Agreement that states that you waive the right to bring a class action lawsuit and that all disputes will be brought on an individual basis and not on behalf of a class, a representative basis or a collective action, with some exceptions as described below.
Claim is a dispute between a Client, a Service Provider, or other user of the Mach1 Platform and Mach1. Multiple disputes are referred to as Claims.
FAA is the Federal Arbitration Act which governs the Arbitration Agreement.
NLRB refers to the National Labor Relations Board
PAGA refers to the Private Attorneys General Act of 2004, a California Law, California Labor Code § 2698 et seq., that allows private California citizens to bring a lawsuit that would normally only be brought by the California Attorney General.
Representative PAGA Waiver is a part of this agreement in Section (c) where you waive your ability to bring a PAGA action in a representative capacity on behalf of others and agree to only use the ability to bring a claim under PAGA on your own behalf.
Service Provider Claims are claims between Mach1 and a Service Provider or potential Service provider as defined in this Arbitration Agreement.
(a) Mutual Agreement to Arbitrate.
ANY ARBITRATION UNDER THE TERMS OF SERVICE WILL BE ON AN INDIVIDUAL BASIS AND NOT AS A CLASS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED UNDER THIS AGREEMENT. To the fullest extent allowed by law, any controversy, claim or dispute (“Claim”) between you and Mach1 (and/or any of its affiliates, owners, shareholders, directors, officers, employees, volunteers or agents) relating to or arising out of the Terms of Service Agreement or any goods or services provided by Mach1 will be submitted to final and binding arbitration in Bexar County, Texas, for determination in accordance with the AAA Consumer Arbitration Rules (the “AAA Rules”), including any subsequent modifications or amendments to such Rules, as the exclusive remedy for such Claim. In any such arbitration, the parties may conduct discovery to the same extent as would be permitted in a court of law. You acknowledge that you have had the opportunity to read and review the AAA Rules prior to agreeing to be bound by this Agreement. A copy of the Rules is available at www.adr.org. The arbitrator shall issue a written decision and shall have full authority to award all remedies which would be available in court. Mach1 shall pay the arbitrators fees and any AAA administrative expenses. Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Possible disputes covered by the above include (but are not limited to) unpaid fees, breach of contract (including this Agreement), torts, violation of public policy, discrimination, harassment, or any other claims under laws including but not limited to, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the California Labor Code and any other statutes, regardless of whether such dispute is initiated by you or Mach1. Thus, this Arbitration Agreement fully applies to any and all claims that Mach1 may have against you, including (but not limited to) claims for misappropriation of Mach1 property, disclosure of proprietary information or trade secrets, interference with contract, trade libel, gross negligence, or any other claim for alleged wrongful conduct or breach of the duties under this Agreement. Any dispute regarding whether a Claim or Claims are subject to arbitration will be decided by the Arbitrator. BY AGREEING TO BINDING ARBITRATION YOU UNDERSTAND THAT YOU AND MACH1 ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT.
(b) Class Action Waiver. You and Mach1 agree that (i) no arbitration proceeding to resolve a Claim or Claims under this Agreement shall be certified as a class action or proceed as a class action, or on a basis involving claims brought in a purported representative capacity on behalf of the general public, other customers or potential customers or persons similarly situated, and (ii) no arbitration proceeding hereunder shall be consolidated with, or joined in any way with, any other arbitration proceeding. THE PARTIES AGREE TO ARBITRATE A CLAIM ON AN INDIVIDUAL BASIS AND EACH WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION. THIS SUBSECTION (b) SHALL NOT APPLY TO REPRESENTATIVE PAGA (PRIVATE ATTORNEYS GENERAL ACT) CLAIMS BROUGHT AGAINST MACH1, WHICH ARE ADDRESSED SEPARATELY IN SUBSECTION (c).
(c) Representative PAGA Waiver. To the extent permitted by law, You agree to waive any right to bring a PAGA claim as a representative of others, and that any PAGA claim that you bring will be in an individual capacity. You further agree that any claim under private attorney general basis including PAGA will be resolved in binding arbitration. If any provision of this Representative PAGA Waiver is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful portion or provision will be struck from this Arbitration Agreement and will not impact the validity of this Arbitration Agreement including the agreement to arbitrate all other Claims. If a court or an arbitrator determines that this Representative PAGA Waiver is unenforceable, and this results in Claims to be litigated in a court of law, the parties agree to stay the proceedings in the court of law until a written opinion is issued by an arbitrator for any related parties or claims in arbitration.
(d) Arbitration Rules. Any arbitration under this Arbitration Agreement will be conducted by the AAA under the Consumer Arbitration Rules. The parties to an arbitration may mutually decide to use a different set of arbitration rules. The arbitrator will decide all Claims on an individual basis based on the applicable state or federal laws. The arbitrator shall not be bound by prior arbitrations involving different Clients or Service Providers but will be bound by prior arbitrations involving the same Clients or the same Service Providers according to applicable laws.
(e) Arbitration Fees and Awards. Each party to arbitration will pay the Arbitration Fees according to the AAA Rules. Each party to arbitration will pay their own attorney fees and costs for the arbitration, except as provided in Federal Rule of Civil Procedure 68 or any state equivalents. The arbitrator may award reasonable fees and costs or a portion of fees and costs to the prevailing party as part of the arbitration award, to the extent authorized by applicable law. If you choose to participate in the Optional Negotiation Process Prior to Arbitration set out in section (j) of this Arbitration Agreement by submitting a Claim through the negotiation process outlined, and then file arbitration for the same Claim under the AAA Rules, Mach1 will reimburse you for all but $50 of the fees required to file the arbitration claim. But if the arbitrator finds that the Claim brought is for an improper purpose or contains frivolous arguments that are not supported by evidence (according to the standard in Federal Rule of Civil Procedure 11(b)), then the payment of the arbitration filing fee will be according to the AAA Rules and you will not receive a reimbursement of your arbitration filing fees according to this provision.
(f) Location and Type of Arbitration. The arbitration will take place in Bexar County, Texas. If You file an arbitration Claim that is less than $10,000 you may choose Desk Arbitration (paper submissions only), In-Person or Telephonic Hearing with a single arbitrator according to the AAA Rules. If Your claim is greater than $10,000, the AAA Rules will govern whether a hearing will take place as part of the arbitration.
(g) Exceptions to Arbitration. This Arbitration Agreement will not require arbitration of claims for workers’ compensation, state disability insurance and unemployment insurance benefits and claims that may not be subject to arbitration as a matter of law not preempted by the FAA. This Arbitration Agreement does not apply to any reports that You choose to make to a local, state or federal authority such as the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities and Exchange Commission, National Labor Relations Board (“NLRB”) or Office of Federal Contract Compliance Programs, and nothing in this Arbitration Agreement will preclude a party from bringing an administrative claim before an agency to fulfill a requirement to exhaust administrative remedies prior to bringing a Claim in arbitration. This Arbitration Agreement does not prevent you from participating in an investigation of a report, claim or charge by a government agency.
(h) Severability. If any provision of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful portion or provision will be struck from this Arbitration Agreement and will not impact the validity of this Arbitration Agreement including the agreement to arbitrate all other Claims, and the remainder of this Arbitration Agreement will be given full force and effect.
(i) Opting Out of Arbitration for Service Providers. Service Provider Claims include Claims brought by a service provider against Mach1 that: (1) are based on an alleged employment relationship between Mach1 and the Service Provider; (2) relate to Mach1’s deactivation or threatened deactivation of a Service Provider’s Mach1 account; (3) relate to Mach1’s termination or threatened termination of a relationship with Service Provider; (4) relate to Claims of compensation for services owed by Mach1 to Service Provider; or (5) relate to background checks performed by Mach1 to determine Service Provider’s eligibility to become or remain a Service Provider. Service Provider in this provision includes current and prospective Service Providers. Service Providers may opt out of the requirement to arbitrate Service Provider Claims by notifying Mach 1 in writing of your desire to opt out of required arbitration for Service Provider Claims. The notice to opt out must be signed and delivered by: (A) email to email@example.com or (B) by certified mail, postage prepaid and return receipt requested, or by a major national delivery service with delivery confirmation (such as FedEx, UPS, etc.) that is addressed to:
9504 N Interstate 35 Suite 319
San Antonio, TX 78233
The written notice must also clearly state your intent to opt out of mandatory arbitration for Service Provider Claims and must state the name, phone number, and email address associated with the Service Provider account. The written notice must be sent within 30 days of the signing or agreement to the Arbitration Agreement in this Terms of Service.
You have the right to consult with an attorney regarding arbitration of Service Provider Claims and Mach1 will not discriminate against Service Providers who choose to opt out of arbitration for Service Provider Claims.
(j) Optional Negotiation Process Prior to Arbitration. You and Mach1 may mutually choose to attempt negotiation of any Claim for 30 days before initiating arbitration under the AAA Rules. The parties may agree to extend the 30 day time limit for negotiation. To initiate a negotiation process the party seeking to recover based on a Claim will send a written notice to the other party that includes (1) the nature of the Claim and any known laws or regulations that the Claim is based on, and (2) the desired outcome of the claim including any specific monetary settlement amounts or other specific actions requested to settle the Claim. All information shared, offers, statements, whether oral or written, and all conduct observed by the parties including their agents, including attorneys and employees are confidential, privileged and inadmissible for any purpose including evidence of liability or for impeachment in an arbitration or other proceeding. Evidence that is otherwise discoverable and admissible will remain discoverable and admissible if obtained through proper discovery process under the AAA Rules or the rules of a proceeding.
- Entire Agreement/No Waiver. These Terms of Service constitute the entire agreement of the parties with respect to the subject matter of this Agreement. No waiver by Mach1 of any breach or default will be deemed to be a waiver of any preceding or subsequent breach or default.
- Correction of Errors and Inaccuracies. The Content may contain typographical errors or other errors or inaccuracies and may not be complete or current. Mach1 therefore reserves the right to correct any errors, inaccuracies or omissions and to change or update the Content at any time without prior notice. Mach1 does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.
Last Revised: July 15, 2018
Copyright 2018 Mach1, LLC. All rights reserved