Date of Last Revision: March 31, 2016
IMPORTANT NOTICE: THIS AGREEMENT PROVIDES THAT ALMOST ALL DISPUTES BETWEEN YOU AND US ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. BY ENTERING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT SUE IN COURT, OR TO BE PART OF A CLASS ACTION, TO RESOLVE THESE DISPUTES, AS EXPLAINED IN MORE DETAIL IN THAT SECTION.
This Services Agreement (this "Agreement"), including the BINDING ARBITRATION AND CLASS ACTION WAIVER CONTAINED HEREIN, is entered into by and between Grafiservices.com, Pvt. Ltd. ("Company," “we,” “us,” or “our”) and you ("Consultant" or "you" or “your”) (each herein also referred to individually as a "Party," or collectively as the "Parties"), and governs your performance of Services (as defined below). By performing Services, you are consenting to the terms and conditions of this Agreement. If you do not agree to all of the terms of this Agreement, you must not provide Services. In addition, when using certain services provided by Company, you will be subject to any additional terms applicable to such services, including without limitation the Terms of Service located at https://www.Grafiservices.com/about/terms. All such terms are hereby incorporated by reference into this Agreement.
You agree to perform the translation, transcription and/other services and deliver the translation, transcription and deliverables ("Deliverables") as requested by the Grafi services customer from time to time (the "Services"). As the only consideration payable hereunder, the customer for whom you perform services will pay you, minus Grafi services fees, in accordance with the pay cost quoted by the Company's project scheduling platform for your Deliverables. Unless otherwise specifically agreed upon by Company in writing (and notwithstanding any other provision of this Agreement), all activity relating to Services will be performed by and only by Consultant or by employees of Consultant and only those such employees who have been approved in writing in advance by Company. Consultant agrees that it will not (and will not permit others to) violate any agreement with or rights of any third party or, except as expressly authorized by Company in writing hereafter, use or disclose at any time Consultant's own or any third party's confidential information or intellectual property in connection with the Services or otherwise for or on behalf of Company.
Consultant agrees that all Deliverables, and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees) developed, learned or obtained by or for or on behalf of Consultant during the period that Consultant is to be providing the Services that relate to Company or the business or demonstrably anticipated business of Company or in connection with the Services or that are received by or for Company in confidence, constitute "Proprietary Information." Proprietary information also includes information received in confidence by the Company from its customers or suppliers or other third parties. Consultant shall hold in confidence and not disclose or, except in performing the Services, use or permit to be used any Proprietary Information. However, Consultant shall not be obligated under this paragraph with respect to information Consultant can document is or becomes readily publicly available without restriction through no fault of Consultant. Upon termination or as otherwise requested by Company, Consultant will promptly provide to Company all items and copies containing or embodying Proprietary Information (including without limitation all Deliverables), except that Consultant may keep its personal copies of its compensation records and this Agreement. Consultant also recognizes and agrees that Consultant has no expectation of privacy with respect to Company's telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that Consultant's activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.
Consultant represents, warrants and covenants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services nor any part of this Agreement is or will be inconsistent with any obligation Consultant may have to others; (ii) all work under this Agreement shall be Consultant's original work and none of the Services or Inventions nor any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Consultant); (iii) Consultant has the full right to allow it to provide Company with the assignments and rights provided for herein (and has written enforceable agreements with all persons necessary to give it the rights to do the foregoing and otherwise fully perform this Agreement); (iv) Consultant shall comply with all applicable laws and Company safety rules in the course of performing the Services; and (v) if Consultant's work requires a license, Consultant has obtained that license and the license is in full force and effect.
Consultant represents and warrants that Consultant has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude Consultant from fully complying with the provisions hereof, and further certifies that Consultant will not enter into such conflicting agreement during the term of this Agreement.
This Agreement will commence on the date that you first accept the terms of this Agreement and shall continue until terminated, as set forth below. Company may terminate this Agreement and close your account immediately, with or without notice to you. You may terminate this Agreement and close your account by sending an email to servicesagreement@Grafi.com with the subject line, “ACCOUNT TERMINATION”. Sections 2 (subject to the limitations set forth in Section 2(c)) through 11 of this Agreement and any remedies for breach of this Agreement shall survive any termination or expiration. Company may communicate the obligations contained in this Agreement to any other (or potential) client or employer of Consultant.
Consultant is an independent contractor and is not an employee, agent, partner or joint venture of Company and shall not bind nor attempt to bind Company to any contract. Consultant shall not hold itself out as an agent of the Company at any time or on any medium. Consultant shall perform services diligently so that any goals set by the customer or the Company are attained and needed results are obtained for the ultimate user of the project. Consultant shall be solely responsible for the determining the method, mode, manner and hours in which the Services are performed under this Agreement. Consultant shall not be eligible to participate in any of Company's employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. Company shall not provide workers' compensation, disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit to Consultant. Consultant shall comply at Consultant's expense with all applicable provisions of workers' compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state and local income tax laws, and all other applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors. Consultant will ensure that its employees, contractors and others involved in the Services, if any, are bound in writing to the foregoing, and to all of Consultant's obligations under any provision of this Agreement, for Company's benefit and Consultant will be responsible for any noncompliance by them. Consultant agrees to indemnify Company from any and all claims, damages, liability, settlement, attorneys' fees and expenses, as incurred, on account of the foregoing or any breach of this Agreement or any other action or inaction by or for or on behalf of Consultant.
Consultant may choose to accept any assignment made available on the website and understands that there is no minimum or maximum number of assignments that may be accepted. Consultant can also choose not to accept any assignments. This Agreement and the services contemplated hereunder are personal to Consultant and Consultant shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part.
All notices under this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the Party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier in the U.S., freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective Parties to such e-mail address, facsimile number or address as such Party last provided to the other in writing.
Consultant and Company agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
Most disputes can be resolved without resort to litigation. The Parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Company support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. To commence this procedure, Consultant agrees to contact Company’s support department at email@example.com, or Company may contact Consultant using the last available information it has for Consultant.
If the Parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then the Parties agree to resolve by arbitration any and all controversies, claims, or disputes arising out of, relating to, or resulting from: (1) Consultant’s consulting relationship with the Company, (2) the termination of Consultant’s consulting relationship with the Company, (3) the performance or breach of this Agreement, (4) any other aspect of the Agreement, including the classification of Consultant as an independent contractor, or (5) without limiting the foregoing, any city, county, state or federal wage-hour law, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labour Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
The claims not covered by this Arbitration Provision are claims that are not arbitral by law, which include claims under the Florida Private Attorney General Act (“PAGA”) only for so long as PAGA claims are held to be not arbitral by law by the Florida Supreme Court, the Ninth Circuit Court of Appeals, or the United States Supreme Court.Governing Arbitration Rules. All claims subject to arbitration shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures that would permit class actions or other representative actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement including but not limited to any claim that all or any part of Agreement (including Section 9) is void or voidable, or whether a claim is subject to arbitration, except that the arbitrator shall have no authority to find that a claim is subject to arbitration on a class basis or as part of another representative action. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start arbitration, you must do the following: (A) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover. You may find a copy of a Demand for Arbitration at www.jamsadr.com; (B) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco Florida 94111; and (C) Send one copy of the Demand for Arbitration to us at address :
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Company will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Company will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not seek more than $75,000. The Parties agree that the arbitrator shall have the power to award any remedies available under applicable law, and that the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law. The Parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in the State of Florida, United States of America, and you and Company agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, Florida in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
While Company will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labour Relations Act, if any, Company shall not be precluded from moving to enforce its rights under the Federal Arbitration Act to compel arbitration on the terms and conditions set forth in this Agreement.
The Parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action (subject to the portion of Paragraph 9(c) above with respect to PAGA claims), and the Parties expressly waive their right to file a class action, seek relief on a class basis, or join or serve as a member of a class action. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class or representative basis, then this Section 9 shall be deemed null and void in their entirety and the Parties shall be deemed to have not agreed to arbitrate disputes.
You have the right to opt out and not be bound by this version of Section 9 by sending written notice of your decision to opt out to firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the first date on or after April 14, 2016 that you agree to any version of this Agreement that contains this version of Section 9. If you do not opt out, you shall be bound to arbitrate disputes in accordance with the terms of this Section 9. You have the right to consult with counsel of your choice concerning this Section 9. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Section 9. If you opt out of Section 9, Company also will not be bound by it in its disputes with you.
Company will provide (60) days' notice of any changes to this section. Changes will become effective on the sixtieth (60th) day, and will apply prospectively only to claims arising after the sixtieth (60th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from Section 9, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section you agreed to.
Sections 9 and 10 below shall survive any termination of your relationship with Company.
Section 9 (Arbitration and Class Action Waiver) shall be limited as follows:
Claims may be brought before an administrative agency, but only to the extent law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission, the U.S. Department of Labour, and the National Labour Relations Board. Nothing in this Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfil the party’s obligation to exhaust administrative remedies before making a claim in arbitration. This Arbitration Provision does not restrict my rights to engage in concerted activities under Section 7 of the National Labour Relations Act.
Disputes that may not be subject to pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of Section 9.
Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either Party may bring an action in state or federal court or in the U.S. Patent and Trademark Office to protect its patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights.
Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either Party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
The Agreement and the relationship between you and Company shall be governed in all respects by the laws of the State of Florida, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against Company that is not subject to arbitration must be resolved by a court located in San Francisco County, San Francisco, Florida, or a United States District Court, Northern District of Florida, located in San Francisco, Florida, except as otherwise agreed by the Parties. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, Florida or the United States District Court, Northern District of Florida located in San Francisco, Florida, for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defences otherwise available.
NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR INDEMNITY OBLIGATIONS OR BREACHES OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR (II) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID (OR PAYABLE) TO SUCH PARTY BY THE OTHER PARTY HEREUNDER.