Last Revised: 4/11/2023
This Agreement for independent contractors, also known as Delivery Professionals to Engage GoShare For Its Services (this “Agreement”) constitutes a binding contract between you (“you”, “Delivery Professional”) and GoShare, Inc. (“GoShare”, “us”, or “we”) governing your use of the Service for marketing, sales, and other services for delivery service entrepreneurs.
Capitalized terms used but not defined in this Agreement have the meaning specified in the EULA. The parties hereby agree as follows:
1. GoShare Services. GoShare will make commercially reasonable efforts to provide the following services to you (the “GoShare Services”):
a. Site Listing. GoShare may list your services via the Service, which may include your biography and other information provided by you and approved by GoShare. GoShare will share your first name and phone number with Customers.
b. Engagement Service. GoShare will provide a Web and mobile based engagement system via the Service, through which Customers that use the Service can engage you to perform a Project. You may accept, reject, or ignore any available Project within the days, times, and locations for which you have indicated you have availability to complete Projects (“Availability”) at your sole discretion.
c. Record Keeping Service. For payment processing and administrative purposes, GoShare will maintain general records of Projects performed by you for Customers.
d. Administrative, Management, and Technology Services. GoShare will provide miscellaneous administrative and management services to facilitate your business, including the technology and operations necessary to communicate with you and your Customers.
f. Customer Service. GoShare will provide operators to field your Customers’ complaints, communicate with you, and refund requests as appropriate.
g. Active Delivery Professional. An Active GoShare Delivery Professional is an independent contractor who is authorized to receive Projects through the GoShare Service. GoShare reserves the right to deactivate your account for violating the terms of this agreement including our Delivery Pro Dealbreakers or our Anti-Sexual Harassment and Anti-Discrimination Policy
2. Exclusions from the Service. The Service only relates to the GoShare Services described above. The Service does not include anything related to picking-up or delivering objects. You are solely responsible for all of your own tools, equipment, training, licensing, materials or requirements related to picking up and delivering cargo in connection with Projects. GoShare is not, and will not be, responsible for any liability arising out of the pick-up or delivery services you provide, including, but not limited to, injuries to Customers or traffic accidents occurring during a Project. GoShare will also not have any input into your work schedule, time off, or other control over your performance of your work. The Service is not available to any person previously removed from The Service by GoShare.
3. Your Responsibilities. You will supply GoShare with a copy of your current driver’s license, other applicable licenses, and any relevant professional certifications. If you elect to use a Car (as defined below) to perform Projects, we may also ask you to provide additional information. You may be required to provide other information we need in order to verify your identity or capacity as an independent delivery professional with your own business. You represent that all information you provide is accurate and complies with relevant law, and, during the term of this Agreement, will immediately notify GoShare of any change in contact, certification, licensing, or insurance information. You assume complete responsibility for all services provided to each Customer and for compliance with all laws, regulations, hours of service, and standards pertaining to your services. You represent that you are (a) free to enter into this Agreement and perform each of its terms, (b) not restricted (contractually or otherwise) from entering into and performing this Agreement, and (c) not subject to, and will immediately notify GoShare of, any suit, action, claim, arbitration, or legal, administrative, or other proceeding, or government or professional investigation, pending or threatened or affecting your ability to perform services under this Agreement.
4. Projects; Payment
a. Projects. If a Project becomes available in your Availability, you may be notified of the opportunity via the Service. If you accept a Project, and your acceptance is confirmed by GoShare, you will notify GoShare, through the functionality provided via the Service, when you arrive at the Project, when you start the Project and when the Project is completed to enable GoShare to perform the GoShare Services, including payment processing. The Project will begin when Delivery Professional begins loading cargo and the Project will end once Delivery Professional has safely unloaded all cargo and confirmed the GoShare Fee is correct through the functionality provided via the Service. GoShare is not responsible for any actions performed by Delivery Professional that occur after the Project is complete. All Delivery Professionals within the applicable zone of service may get the opportunity to accept the Project. The first Delivery Professional to respond with acceptance of the available Project and to have that response confirmed by GoShare will be confirmed as the provider of that Project.
b. Payment. The Projects that you will be notified of via the Service are those for Customers who have agreed to accept the fees calculated by the Service based on the specific Project details submitted by the applicable Customer (the “Base Fee”). You may receive reimbursed fees or gratuities from Customers. You are responsible for any expenses incurred in the normal course of completing your Project, not including any road tolls that are incurred from the pickup address to the drop off address which you may submit to GoShare to be reimbursed for. On a weekly basis, GoShare will transfer to you, through the payment account you specify via the Service, the Base Fee for all eligible Projects completed during the prior week, less the charge for your use of the Service, which will be set forth on the Service (the “GoShare Fee”).
c. Expenses. Except as otherwise specifically provided herein, you and GoShare will each bear your own expenses relating to this Agreement and performance under this Agreement.
d. Claims. If a claim is filed against you with GoShare’s insurance provider or GoShare is otherwise required to pay for damages caused by you, in GoShare’s sole discretion, GoShare may charge you any or all of the deductible or other out-of-pocket expenses GoShare is required to pay as a result of that claim.
e. Cancellations. If a Delivery Professional cancels 2 or more projects they have accepted or does not show up to complete 1 or more projects as scheduled, GoShare may at its discretion impose penalties and fines that include: (a) temporary suspension of your GoShare account; (b) monetary fines not to exceed $30 per cancellation and $50 per no show occurrence; (c) permanent deactivation of your GoShare account. Monetary fines will be due the same day of the cancellation. GoShare is authorized to collect these fines by charging the credit card on file or deducting from future payments for Services provided to GoShare customers. Learn more about our driver cancellation policy.
f. Nonpayment/Disputes. If a customer disputes the Project being complete, disputes the cost of service as reported by you or any other fees that a Delivery Professional has submitted to GoShare, the payment to you may be temporarily withheld pending the outcome of an investigation by GoShare to determine if the fees are appropriate. If GoShare determines that the fees are accurate GoShare will attempt to collect any fees owed by the customer. In the event that a customer refuses to pay the Fees, GoShare will pay the Delivery Professional(s) the amount owed up to $500 per professional, per project. These payments may be issued through our automatic direct deposit, or manually, through PayPal, Zelle or a paper check. In order to receive a payment in this scenario, the following conditions must be met. (1) Delivery Professional must provide valid proof of delivery, including a signed bill of lading or an image of the delivered item at the drop off location after the project is complete. An image of the item in the vehicle is not acceptable. (2) There can be no pending damage claims or damage claims settled in the customer’s favor on the Project. If a damage claim is settled in the Delivery Professionals favor, you are eligible for payment. (3) No fraudulent manipulation of the final price, including running the clock to increase overtime pay or adding unnecessary fees. (4) No platform rules were violated during the Project, including our zero-tolerance harassment policy or accepting off-platform payments for GoShare projects. (5) Project must have been booked on or after March 1, 2021. We are unable to provide payment protection retroactively for past projects. (6) This policy does not apply to tips or Projects that are canceled or not completed. Delivery Pros may be eligible for cancellation fees in the event of a canceled project.
5. Representations and Warranties; Indemnity. You represent, warrant, and covenant to GoShare that: (a) you are at least 18 years of age; (b) you possess a valid driver’s license and are authorized to operate a motor vehicle; (c) you own, or have the legal right to operate, the motor vehicle(s) or bicycle(s) you intend to use or do actually use for Projects (each, a “Car”), and maintain all legally mandated registrations and insurances for such vehicle; (d) in the event of any claim or accident, you will be solely responsible for reporting that accident in compliance with applicable law and your insurance policy; (e) you are solely responsible for any and all liability that results from or is alleged as a result of the operation of the Car you use during a Project, including, but not limited to personal injuries, death, and property damage; (f) if you lift or otherwise move any Item, you do so at your own risk and GoShare has no liability for any claim, loss, or damage related thereto; (g) you will not make any representations regarding GoShare or the Service; (h) you will not, under any circumstances transport any items that would violate local or federal laws (i) you will not discriminate or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation in violation of any applicable law, rule or regulation. You will indemnify GoShare from and against any damages resulting from your performance of Projects, including any personal injury, property damage, or death.
6. Your Business. You affirm, under penalty of perjury, that you operate a licensed pick-up and delivery business and had clients for whom you performed pick-up and delivery prior to entering into this Agreement.
7. Confidential Information. You must keep GoShare’s confidential information absolutely confidential, except as required or provided by law, including but not limited to information about other users of the Service, Items, photos relating to the Service or Customers, and GoShare’s business model. This section does not apply to information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by GoShare; (b) becomes publicly known and made generally available after disclosure by GoShare to you through no action or inaction on your part, (c) is already in your possession at the time of disclosure, as shown by your files and records; or (d) is obtained by you from a third party without a breach of the third party’s obligations of confidentiality.
8. Nature of Relationship. Neither this Agreement, GoShare’s provision of the Services and performance of the GoShare Services, nor your performance of Projects will create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between you and GoShare. You will be solely responsible for all tax withholding or payment in connection with the fees paid to you by GoShare.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, GOSHARE’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GOSHARE FEES RETAINED UNDER THIS AGREEMENT.
10. Termination. Either party may terminate this Agreement by giving the other party notice. Notwithstanding the foregoing, Sections 5 – 13 and any liabilities or payment obligations that have accrued prior to termination will survive termination.
11. Changes. Except for changes in the calculation of Base Fees and GoShare Fees (which GoShare may, in its sole discretion, amend from time to time), changes to this Agreement will be binding upon a party who confirms that change in writing, including via electronic mail, if that writing specifically refers to this Agreement.
12. Dispute Resolution. All disputes under this Agreement must be resolved in accordance with the dispute resolution provisions set forth in the EULA.
a. Indemnification. You will indemnify and hold the GoShare Parties harmless from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses (including reasonable legal fees) arising out of or resulting from (i) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from your acts or omissions, (ii) your breach of any representation or warranty in this Agreement, (iii) any negligent, reckless or intentionally wrongful act by you or your assistants, employees, contractors or agents, (iv) a determination by a court or agency that the you are an employee of GoShare or a Customer, or (v) any claim by a Customer arising from or related to your or your assistants, employees, contractors or agents services for such Customer.
c. Amendment; Waiver. Except as expressly provided in this Agreement, this Agreement may be amended only by a written agreement signed by both parties. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the provision’s benefit. GoShare’s failure or delay in the exercise of any power or right under this Agreement will operate as a waiver thereof. No single or partial exercise of any right or power under this Agreement will operate as a waiver of any right or power. GoShare’s waiver of a breach of any provision of this Agreement will not operate or be construed as a waiver of any other or subsequent breach of this Agreement.
d. Severability. Except as expressly provided in this Agreement, if any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be severable from the remainder of this Agreement and will not affect the validity and enforceability of any remaining provisions.
e. Assignment. You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law, or otherwise, without GoShare’s prior written consent. GoShare may assign this Agreement without your prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. Any assignment in violation of this section is void.
f. No Agency. No joint venture, partnership, employment, or agency relationship exists between you and GoShare as a result of this Agreement or use of the Service.
g. Headings. Headings are for convenience only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any provision of this Agreement.
h. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
Published: October 12, 2006
This license governs use of the accompanying software. If you use the software, you accept this license. If you do not accept the license, do not use the software.
The terms “reproduce,” “reproduction,” “derivative works,” and “distribution” have the same meaning here as under U.S. copyright law.
A “contribution” is the original software, or any additions or changes to the software.
A “contributor” is any person that distributes its contribution under this license.
“Licensed patents” are a contributor’s patent claims that read directly on its contribution.
Work placed in public domain – no copyright asserted.
No requirements for distribution of MinGW runtime.
May use and distribute source or binary without royalty obligation
Must include copyright notice
Must include the following notice:
Copyright (c) 2021 GoShare Inc.
Permission is hereby granted, free of charge, to any person obtaining a copy of this <identify software subject to MIT License> software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
May use and distribute source or binary without royalty obligation.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
THIS SOFTWARE IS PROVIDED BY THE OpenSSL Project AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
NON-DISCLOSURE AND DISPUTE RESOLUTION AGREEMENT
IMPORTANT: Please review this Agreement carefully. This Agreement is a binding contract that addresses important legal issues. Entering into the Agreement, including the Arbitration Provision in Section II below, will affect your legal rights. It is your sole responsibility to read and understand this Agreement and its Arbitration Provision, WHICH REQUIRES THE PARTIES TO RESOLVE ALL DISPUTES ON AN INDIVIDUAL BASIS IN FINAL AND BINDING ARBITRATION TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED IN THE ARBITRATION PROVISION. The Arbitration Provision shall be governed exclusively by the Federal Arbitration Act (“FAA”); however, if it is determined that the FAA does not apply to the Arbitration Provision, and you perform Services contemplated by this Agreement in South Carolina, then THE SOUTH CAROLINA UNIFORM ARBITRATION ACT SHALL APPLY. You are free to seek assistance or advice from an advisor of your choice before entering into the Agreement if you so choose.
This NON-DISCLOSURE AND DISPUTE RESOLUTION AGREEMENT (“Agreement”) is made and entered into by and between Walmart Inc. (“Walmart”) and you (“Contractor” or “You”), an independent contractor engaged in the business of performing the Services contemplated by this Agreement. By entering into this Agreement, You acknowledge that You have read, understood, and voluntarily accept the terms of this Agreement and intend to be bound by this Agreement. This Agreement is effective as of the date and time you accept it.
Walmart is a retail company that seeks to connect independent individuals and entities in the delivery business with Walmart customers to facilitate the delivery of goods purchased by customers and other tasks for customers (collectively, “Services”).
Contractor is an independent business providing Services, authorized and able to satisfy any and all legal requirements necessary to perform the services contemplated by this Agreement in the geographic location(s) in which Contractor operates.
Contractor represents that Contractor lawfully possesses all equipment, insurance, permits, and licenses necessary to perform Services in accordance with all applicable laws, and desires to receive opportunities to perform deliveries.
Contractor acknowledges and agrees that this Agreement is between independent businesses that are separately owned and operated; that the Parties have the relationship of principal and independent enterprise/contractor, not that of employer and employee; and that neither Party shall have the right to bind the other by contract (or otherwise) except as specifically provided in this Agreement.
In the process of performing deliveries, Contractor will be given or provided access to Walmart’s confidential and proprietary information, which Contractor will hold in confidence consistent with the terms of this Agreement.
If a dispute arises between the Parties that cannot be resolved informally, Contractor and Walmart desire to resolve the dispute solely through final and binding arbitration on an individual basis to the fullest extent permitted by law, unless Contractor timely opts out of arbitration, as further detailed in the Arbitration Provision below.
In consideration of these recitals and of the mutual promises below, the Parties agree as follows:
1 TERMS I. CONFIDENTIALITY AND NON-DISCLOSURE
iii. The duty of non-disclosure shall not apply to information when: (i) such information was in the public domain at the time it was communicated to Contractor or subsequently enters the public domain through no fault of Contractor; (ii) Contractor can prove such information was independently developed by Contractor or was already known to Contractor at the time of receipt; (iii) such information was communicated rightfully to Contractor free of any obligation of nondisclosure and without restriction as to use; or (iv) such information is required to be disclosed by Contractor pursuant to judicial order or other compulsion of law, provided that Contractor shall provide to Walmart prompt notice of any such order and comply with any protective or similar order imposed on such disclosure. In the event of unauthorized disclosure of Confidential Information by Contractor, Contractor shall bear the burden of proof of demonstrating that the information falls under one of the above-described exceptions.
If Contractor performed Services contemplated by this Agreement in Alaska, then the Alaska Revised Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Arizona, then the Arizona Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Arkansas, then the Arkansas Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in California, then the California Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Colorado, then the Colorado Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Connecticut, then the Connecticut Revised Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Delaware, then the Delaware Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in the District of Columbia, then the District of Columbia Revised Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Florida, then the Revised Florida Arbitration Code shall apply;
If Contractor performed Services contemplated by this Agreement in Georgia, then the Georgia Arbitration Code shall apply, and the initial requirement set forth in OCGA § 9-9-2(c)(9), to the extent it applies, shall be satisfied by Contractor’s acceptance of this Arbitration Agreement;
If Contractor performed Services contemplated by this Agreement in Hawaii, then the Hawaii Revised Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Idaho, then the Idaho Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement i\n Illinois, then the Illinois Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Indiana, then the Indiana Uniform Arbitration Act shall apply
If Contractor performed Services contemplated by this Agreement in Iowa,
then the Iowa Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Kansas, then the Kansas Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Kentucky, then the Kentucky Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Louisiana, then the Louisiana Binding Arbitration Law shall apply;
If Contractor performed Services contemplated by this Agreement in Maine, then the Maine Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Maryland, then the Maryland Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Massachusetts, then the Massachusetts Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Michigan, then the Michigan Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Minnesota, then the Minnesota Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Mississippi, then the Mississippi Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Missouri, then the Missouri Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Montana, then the Montana Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Nebraska, then the Nebraska Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Nevada, then the Nevada Uniform Arbitration Act of 2000 shall apply;
If Contractor performed Services contemplated by this Agreement in New Hampshire, then N.H. Rev. Stat. Ann. § 542:1 shall apply.
If Contractor performed Services contemplated by this Agreement in New Jersey, then the New Jersey Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in New Mexico, then the New Mexico Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in New York, then the New York Civil Practice Law & Rules § 7501 et seq. Shall apply;
If Contractor performed Services contemplated by this Agreement in North Carolina, then the North Carolina Revised Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in North Dakota, then the North Dakota Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Ohio,then the Ohio Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Oklahoma, then the Oklahoma Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Oregon, then the Oregon Arbitration Act shall apply, and Contractor agrees to the following: I acknowledge that I have received and read or have had the opportunity to read this arbitration agreement. I understand that this arbitration agreement requires that disputes that involve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge and jury in court.
If Contractor performed Services contemplated by this Agreement in Pennsylvania, then the Pennsylvania Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Puerto Rico, then the Puerto Rico Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Rhode Island, then the Rhode Island Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in South Carolina, then the South Carolina Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in South Dakota, then the South Dakota Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Tennessee, then the Tennessee Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Texas,then the Texas Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Utah, then the Utah Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Vermont, then the Vermont Arbitration Act shall apply, and Contractor agrees to the following ACKNOWLEDGMENT OF ARBITRATION:
I understand that this agreement with Walmart contains an agreement to arbitrate. After accepting this document, I understand that I will not be able to bring a lawsuit concerning any dispute that may arise which is covered by the arbitration agreement, unless it involves a question of constitutional or civil rights. Instead, I agree to submit any such dispute to an impartial arbitrator.
If Contractor performed Services contemplated by this Agreement in Virginia, then the Virginia Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Washington, then the Washington Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in West Virginia, then the West Virginia Revised Uniform Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Wisconsin, then the Wisconsin Arbitration Act shall apply;
If Contractor performed Services contemplated by this Agreement in Wyoming, then the Wyoming Uniform Arbitration Act shall apply
iii. Delegation Clause: Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Provision, including without limitation any dispute concerning arbitrability. However, the preceding sentence shall not apply to any dispute relating to or arising out of the Class Action Waiver and/or Representative Action Waiver—including, but not limited to, any claim that all or part of the Class Action Waiver and/or Representative Action Waiver is unenforceable, unconscionable, illegal, void, or voidable; that a breach of either such Waiver has occurred; or that arbitration has been sought in a manner that violates the individual arbitration requirement in the Class Action Waiver and Representation Action Waiver—which must proceed in a court of competent jurisdiction and cannot be heard or arbitrated by an arbitrator. Moreover, all disputes relating to or arising out of whether either Party has satisfied the condition precedent of engaging in a pre-arbitration informal telephonic dispute resolution conference discussed below, shall be decided only by a court of competent jurisdiction and not by an arbitrator. The Parties agree that any and all due dates for arbitration fees shall be tolled while the Parties resolve a dispute relating to or arising out of the Class Action Waiver and/or Representative Action Waiver.
iii. Arbitrator Selection: The Arbitrator shall be selected by mutual agreement of the Parties. Unless the Parties mutually agree otherwise, the Arbitrator shall be an attorney with experience in the law underlying the dispute or a retired federal or state judicial officer. If for any reason the Parties cannot agree to an Arbitrator, either party may apply to a court of competent jurisdiction under 9 U.S.C. § 5 for appointment of a neutral Arbitrator or arbitration provider. The court shall then appoint an Arbitrator, who shall act under this Arbitration Provision with the same force and effect as if the Parties had selected the Arbitrator by mutual agreement.
(a) If a Party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other Party finally obtains is not more favorable than the unaccepted offer, then the other Party shall pay the costs, including filing fees, incurred after the offer was made
(b) The location of the arbitration proceeding shall be no more than 45 miles from the Walmart location in or nearest to the region in which Contractor performed Services contemplated by this Agreement, unless each party to the arbitration agrees otherwise in writing.
(c) The Parties shall have the right to conduct adequate civil discovery, and the Arbitrator may issue orders (including subpoenas to third parties), so that the Parties may adequately prepare their claims and defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes;
(d) The Parties may bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. An Arbitrator may not permit the filing of a motion for summary judgment until after the Parties have conducted discovery to support their claims and defenses. Any dispositive motion shall otherwise be governed by the standards of the Federal Rules of Civil Procedure governing such motions;
(e) Any finding that a claim or counterclaim was filed for purposes of harassment or is frivolous shall entitle the other Party to recover its attorneys’ fees, costs, and expenses
(f) The Arbitrator may consider, but under no circumstances is the Arbitrator bound by, decisions reached in separate arbitrations;
(g) If at any time the Arbitrator fails to enforce the terms of this Arbitration Provision, either Party may seek to enjoin the arbitration proceeding in a court of competent jurisdiction, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
Civil Procedure, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator shall issue a reasoned decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator if there is a dispute, neither a Party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the Parties or order of the Arbitrator. A Party may file the Arbitrator’s decision or award in a court of competent jurisdiction for the purpose of seeking confirmation, vacatur, modification, or correction of that decision or award. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration.
III. MISCELLANEOUS PROVISIONS
By clicking “I agree,” I expressly acknowledge that I have read, understood, and considered the consequences of this Agreement, including THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES; that I affirmatively agree to be bound by the terms of this Agreement; and that I am legally competent to enter into this Agreement.