This Technology Services Agreement (“Agreement”) constitutes a legal agreement between you, an individual (“you”) and Yocura Inc., a Delaware corporation (as applicable, “Company,” “we,” “our,” and/or “us”).
Company, provides a marketplace for Yocura Users to be matched with independent providers of childcare services using the Yocura Services (as defined below). The Yocura Services enable a local childcare service professional, (each “Childcare Professional”) to seek, receive and fulfill requests for childcare services through the Yocura Childcare Professional mobile application (“Yocura CP App”) from an authorized user (“User”) of the Yocura user mobile application (the “Yocura App,” “Mobile Application,” or “App”), or the various childcare services procured through the Yocura platform (together with the App, the “User Services”). You desire to enter into this Agreement for the purpose of accessing and using the Yocura Services.
You acknowledge and agree that Company is a technology services provider that does not provide childcare services.
In order to use Yocura Services, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Company shall be bound by the terms and conditions set forth herein.
IMPORTANT: PLEASE NOTE THAT TO USE THE YOCURA SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS, EXCEPT AS PROVIDED IN SECTION 15.3, THROUGH FINAL AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE ARBITRATION PROVISION. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.
1.1 “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 “Company Data” means all data related to the access and use of the Yocura Services hereunder, including all data related to Users (including User Content), all data related to the provision of Orders via the Yocura Services, the Yocura CP App, and the Yocura CP ID.
1.3 “Device” means Your Device.
1.4 “Yocura CP App” means the mobile application provided by Company that enables childcare providers to access the Yocura Services for the purpose of seeking, receiving and fulfilling on-demand requests for childcare services by Yocura Service Users, as may be updated or modified from time to time.
1.5 “Yocura CP Services” means Yocura’s on-demand lead generation and related services that enable childcare service providers to seek, receive and fulfill on-demand requests for childcare services by Users seeking childcare services; such Yocura CP Pro Services include access to the Yocura CP App and Yocura CP’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.6 “Yocura CP ID” means the identification and password key assigned by Company to you that enables you to use and access the Yocura CP App.
1.7 “Childcare Services” means your provision of childcare services to Users through Schedule Orders via the Yocura Services in the Territory.
1.8 “Revenue Sharing Fee” has the meaning set forth in Section 4.4.
1.9 “Scheduling Order” is the provision of Childcare Services which includes the type and scope of work, the requested date and time of the work, the location at which the work will be performed, and the minimum fee, if applicable.
1.10 “Scheduling Order Fee” has the meaning set forth in Section 4.1.
1.11 “Childcare Professional” means the pre-screened local childcare professionals that are verified with Yocura to perform Childcare Services.
1.12 “Territory” means the city or metro areas in the United States in which you are enabled by the Yocura CP App to receive requests for Schedule Orders.
1.13 “User” means an end user authorized by Yocura to use the Yocura App for the purpose of obtaining Childcare Services offered by Childcare Professionals.
1.14 “User Information” means information about a User made available to Childcare Professionals in connection with such User’s request for and use of Childcare Services, which may include the User’s name, address, contact information, and a description of a particular service need.
1.15 “Your Device” means a mobile device owned or controlled by you: (a) that meets the then current Company specifications for mobile devices as set forth at www.Yocura.com/devices; or (b) on which the Yocura CP App has been installed as authorized by Company solely for the purpose of providing Childcare Services.
- Use of the Yocura CP Services
2.1 Yocura CP IDs. Yocura will issue you a Yocura CP ID to enable you to access and use the Yocura CP App on a Device in accordance with this Agreement. Company reserves the right to deactivate your Yocura CP ID if you have not fulfilled a request for Childcare Services using the Yocura CP App at least once every three months. You agree that you will maintain your Yocura CP ID in confidence and not share your Yocura CP ID with any third party. You will immediately notify Company of any actual or suspected breach or improper use or disclosure of your Yocura CP ID or the Yocura CP App.
2.2 Provision of Childcare Services. When the Yocura CP App is active, User requests for Childcare Services may appear to you via the Yocura CP App if you are available and in the Territory of the User. If you accept a User’s request for Childcare Services, the Yocura CP Services will provide you with certain User Information via the Yocura CP App, including the User’s name, location, and description of the particular childcare services needed. You acknowledge and agree that once you have accepted a User’s request for Childcare Services, Yocura may provide certain information about you to the User, including your first name, contact information, photo and location, and reviews by previous Users. You shall not contact any Users or use any User’s personal data for any reason other than for the purposes of fulfilling Childcare Services. As between Company and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Childcare Services; and (b) except for the Yocura CP Services, you shall provide all necessary equipment, tools and other materials, at your own expense (“Equipment”), necessary to perform Childcare Services.
2.3 Your Relationship with Users. You acknowledge and agree that your provision of Childcare Services to Users creates a direct business relationship between you and the User. Yocura is not responsible or liable for the actions or inactions of a User in relation to you, your activities or your Equipment. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Childcare Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance and licensing that meets the requirements of all applicable laws) regarding any acts or omissions by you, of a User, or a third party. You acknowledge and agree that Company may release your contact, insurance, and/or licensing information to a User upon such User’s reasonable request. You acknowledge and agree that, unless specifically consented to by a User, you may not perform any additional Childcare Services on unless the additional Childcare Services are in response to an emergency to prevent harm or further damage.
2.4 Your Relationship with Company.
2.4.1 You acknowledge and agree that Company’s provision to you of the Yocura CP App and the Yocura CP Services creates a direct business relationship between Company and you. Company does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Childcare Services, your acts or omissions, or your operation and maintenance of your Equipment. You retain the sole right to determine when, where, and for how long you will utilize the Yocura CP App or the Yocura CP Services. You retain the option, via the Yocura CP App, to attempt to accept or to decline or ignore a User’s request for Childcare Services via the Yocura CP Services, or to cancel an accepted request for Childcare Services via the Yocura CP App, subject to Company’s then-current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Company shall have no right to require you to: (a) display Company’s or any of its Affiliates’ names, logos or colors on any of your Equipment; or (b) wear a uniform or any other clothing displaying Company’s or any of its Affiliates’ names, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the Yocura CP Services; and (ii) engage in any other occupation or business.
2.4.2 Company retains the right to deactivate or otherwise restrict you from accessing or using the Yocura CP App or the Yocura CP Services in the event of a violation or alleged violation of this Agreement, your disparagement of Company or any of its Affiliates, your act or omission that causes harm to Company’s or its Affiliates’ brand, reputation or business as determined by Company in its sole discretion.
2.5.1 You acknowledge and agree that: (a) after the completion of a Scheduling Order, a User will be prompted by the Yocura App to provide a rating of you and such Scheduling Order and, optionally, to provide comments or feedback about you and such Scheduling Orders; and (b) after completion of Scheduling Orders, you will be prompted by the Yocura CP App to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith.
2.5.2 You acknowledge that Company desires that Users have access to high-quality services via the Yocura App. In order to continue to receive access to the Yocura CP App and the Yocura CP Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Company for your Territory, as may be updated from time to time by Company in its sole discretion (“Minimum Average Rating”). Your average rating is intended to reflect Users’ satisfaction with your Scheduling Orders rather than your compliance with any of Company’s policies or recommendations. In the event your average rating falls below the Minimum Average Rating, Company will notify you and may provide you, in Company’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the Yocura CP App and the Yocura CP Services.
2.5.3 Company and its Affiliates reserve the right to use, share and display your and User ratings and comments in any manner in connection with the business of Company and its Affiliates without attribution to you or your approval. You acknowledge and agree that Company and its Affiliates are distributors (without any obligation to verify) and not publishers of your and User ratings and comments, provided that Company and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Company’s or its Affiliates’ content policies.
2.6 Your Devices. You are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and Company shall make available the Yocura CP App for installation on Your Device. Company hereby grants you a personal, non-exclusive, non-transferable license to install and use the Yocura CP App on Your Device solely for the purpose of performing Scheduling Orders. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Yocura CP App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the Yocura CP App from Your Device in the event that you decide to cease to perform Scheduling Orders using Your Device. You agree that: (i) use of the Yocura CP App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the Yocura CP App on Your Device as an interface with the Yocura CP Services may consume very large amounts of data through the data plan. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
2.7 Location Based Services. You acknowledge and agree that your geo-location information must be provided to the Yocura CP Services via a Device in order to receive Scheduling Orders and provide Childcare Services. You acknowledge and agree that: (a) your geo-location information may be obtained by the Yocura CP Services while the Yocura CP App is running; and (b) your approximate location will be displayed to the User before and during the provision of Scheduling Order to such User. In addition, Company and its Affiliates may monitor, track and share with third parties your geo-location information obtained by the Yocura CP App and Device for safety and security purposes.
- Licensure and Service Order Requirements
3.1 Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold and maintain a government issued photo ID (driver’s license, ID card, passport); (b) possess the appropriate and current level of training, expertise and experience to provide Childcare Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you may be subject to certain background checks from time to time in order to qualify to provide, and remain eligible to provide, Childcare Services. You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Yocura CP App or the Yocura CP Services if you fail to meet the requirements set forth in this Agreement.
3.2 Documentation. To ensure your compliance with all requirements in Sections 3.1 above, you must provide Company with sufficient verification of all such licenses, permits, approvals, authority, registrations and certifications as deemed satisfactory by Company prior to your fulfillment of any Scheduling Orders. Thereafter, you must submit to Company written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. Company shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Company reserves the right to independently verify your documentation from time to time in any way Company deems appropriate in its reasonable discretion.
- Payment and Cancellation
4.1 Scheduling Order Fee Calculation and Your Payment. Prior to accepting a Scheduling Order, you are entitled to set the hourly rate that you will be paid during the Scheduling Order (“Bid Rate”). On the Services, you may bid for Scheduling Orders by inputting your Bid Rate, the times that you are available, and your geographic location. If a Yocura User chooses you for a Scheduling Order, you will be paid the Bid Rate for as many hours you work (“Bid Fee”) subject to the Cancellation Charges provisions in Section 4.6. The Revenue Sharing Fee (as defined below) plus the Bid Fee will be the total fee charged to the Yocura User (“Scheduling Order Fee”).
Bid Fees are subject to change due to any adjustments or extensions requested by the Yocura User after the Scheduling Order has been accepted by the Childcare Professional. After an adjusted estimate, and at the Childcare Professional’s discretion, the Bid Fee shall be agreed to by the Childcare Professional and the Yocura User. You acknowledge and agree that the Bid Fee, including any agreed upon adjustment, is the only payment you will receive in connection with each Scheduling Order. You: (i) appoint Company as your limited payment collection agent solely for the purpose of accepting the Bid Fee, and, depending on the Territory and/or if requested by you, applicable taxes and fees from the User on your behalf via the payment processing functionality facilitated by the Yocura Services; and (ii) agree that payment made by the Yocura User to Yocura (or to an Affiliate of Yocura acting as an agent of Yocura) shall be considered the same as payment made directly by the Yocura User to you.
4.2 Changes to Scheduling Order Fee Calculation. Yocura reserves the right to change a proposed Bid Rate before your acceptance of a Scheduling Order based upon local market factors, and Yocura will provide you with notice in the event of changes to the factors that would result in a change in the recommended Bid Rate. Acceptance of the suggested Bid Rate after any such change shall constitute your consent to such change.
4.3 Bid Fee Adjustment. Yocura reserves the right to: (i) adjust the Bid Fee for a particular instance during a Scheduling Order (e.g., there was a material disagreement between the Childcare Professional and the Yocura User, technical error in the Yocura Services, etc.); or (ii) cancel the Bid Fee for a particular instance during a Scheduling Order (e.g., events concurrent with the Yocura Cancellation Policy, in the event of a Yocura User complaint, fraud, etc.). Yocura’s decision to reduce or cancel the Bid Fee in any such manner shall be exercised in a reasonable manner.
4.4 Revenue Sharing Fee. In consideration of Yocura’s provision of the Yocura CP Services for your use and benefit hereunder, you agree to allow Yocura to collect a service fee on a per Scheduling Order basis calculated on a percentage of the Scheduling Order Fee. In the event regulations applicable to your Territory require taxes to be calculated on the Scheduling Order Fee, Company shall calculate the Revenue Sharing Fee based on the Scheduling Order Fee net of such taxes. Company reserves the right to change the Revenue Sharing Fee at any time in Company’s discretion based upon local market factors. Continued use of the Yocura CP Services after any such change in the Revenue Sharing Fee calculation shall constitute your consent to such change.
4.5 Payment Processing Fee. Yocura uses Braintree Payments, a PayPal company, to facilitate payments to Childcare Professionals. Each time you are paid, Braintree charges $0.30 + 2.99% of total payment as a processing fee.
4.6 Cancellation Charges. You acknowledge and agree that Yocura Users may elect to cancel requests for Scheduling Orders that have been accepted by you via the Yocura Services up to two hours prior to the start of any assignment without incurring any financial liability. If a Yocura User cancels between 1-2 hours from the start time indicated in the Scheduling Order, the User will be charged $5.00. If a Yocura User cancels between 0-1 hours from the start time indicated in the Scheduling Order, the User will be charged $10.00. In the event that a Yocura User cancels after you arrive, you will be compensated for two (2) hours at the applicable rate or the total hours worked, whichever is greater.
4.7 Methods of Payment. Yocura compensates Childcare Professionals for Childcare Services provided to Yocura users via Automated Clearing House (“ACH”) deposit. ACH Deposit. ACH deposit payments are distributed within 48-72 following your last completed Scheduling Order.
4.8 Tips. Through the Yocura Mobile Application, Users have the opportunity to provide a tip to the Childcare Professional. The Childcare Professional will receive 100% of any tip provided by the User.
4.9 Overpayment. In any event that you are over compensated for any Scheduling Order, whether through clerical or technological error, you agree and understand that Yocura may recover the amount of overpayment through deduction(s) of payments for future Scheduling Orders. The deduction for such repayment will be equal to and never exceed the amount of the overpayment, unless Yocura and Childcare Professional agree in writing to a series of smaller deductions in specified amounts.
4.10 Receipts. As part of the Yocura CP Services, Company provides you a system for the delivery of receipts to Users for Scheduling Orders rendered. Upon your completion of a Scheduling Order for a User, Company prepares an applicable receipt and issues such receipt to the User via email on your behalf. Such receipts are also provided to you via email or are available through the Yocura CP Mobile Application. Receipts include the breakdown of amounts charged to the User for the Scheduling Orders and may include specific information about you, including your name, contact information and photo, as well as a description of the Childcare Services provided. Any corrections to a User’s receipt for Scheduling Orders must be submitted to Company in writing within three (3) business days after the completion of such Scheduling Orders. Absent such a notice, Company shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Scheduling Order Fee.
4.11 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Company and its Affiliates may seek to attract new Users to Yocura and to increase existing Users’ use of the Yocura App. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
4.12 Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your completion of Scheduling Orders as required by applicable law; and (b) provide Company with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Scheduling Orders. Notwithstanding anything to the contrary in this Agreement, Company may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Scheduling Orders and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.12 directly to the applicable governmental tax authorities on your behalf or otherwise.
4.13. Surge Pricing, Cancellation and No Call/No Show Policy
4.13.1. Surge Pricing. The Services allow that a Yocura User can extend a Scheduling Order without penalty for up to 30 minutes while paying the additional bid rate price. If a Yocura User requests to extend a Scheduling Order more than 30 minutes, any time after the first 30 minutes will be charged at 1.5x the bid rate.
4.13.2 Cancellation by Childcare Professional. Once Childcare Professionals accept a Scheduling Order, Childcare Professionals must communicate any cancellations directly with Yocura at email@example.com or through the Yocura CP App. (At no time should a Childcare Professional communicate directly with a Yocura User regarding a cancellation).
4.13.3 Late Arrival Policy. Yocura Users rely on the punctuality of Childcare Professionals and Yocura Users should not be charged for hours that the Childcare Professional is not there. If a Childcare Professional arrives between 10-30 minutes late for a Scheduling Order, the Childcare Professional’s compensation for the first hour of the Scheduling order will be reduced by $5.00. If a Childcare Professional arrives over 30 minutes late for a Scheduling Order, this will be deemed a “No Show.” Yocura reserves the right to remove from any future Scheduling Orders or restrict account access of Childcare Professionals who arrive late to accepted Scheduling Orders unless adequate reasoning is provided. Adequate reasoning will be determined by Yocura, in its sole discretion, on a case by case basis.
4.14 Notification of Cancelled Scheduling Order. Scheduling Order cancellations are done solely through our management software. Childcare Professionals should ensure proper notification settings are enabled under their profile in order to be notified if there has been a change in an approved Scheduling Order. Yocura is not responsible for Childcare Professional notification settings (i.e. text messages, emails, etc.) or the receipt of any notifications. Childcare Professionals are encouraged to elect to receive all text and email notifications when setting up their account and should always ensure assignment accuracy through the Yocura App.
- Proprietary Rights; License
5.1 License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Yocura CP Services (including the Yocura CP App on a Device) solely for the purpose of providing Childcare Services to Users and tracking resulting Scheduling Order Fees and Revenue Sharing Fees. All rights not expressly granted to you are reserved by Company, its Affiliates and their respective licensors.
5.2 Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Yocura CP Services or the Yocura CP App in any way; (b) modify or make derivative works based upon the Yocura CP Services or Yocura CP App; (c) improperly use the Yocura CP Services or Yocura CP App, including creating Internet “links” to any part of the Yocura CP Services or Yocura CP App, “framing” or “mirroring” any part of the Yocura CP Services or Yocura CP App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from Yocura CP Services or the Yocura CP App; (d) reverse engineer, decompile, modify, or disassemble the Yocura CP Services or Yocura CP App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Yocura CP Services or Yocura CP App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Yocura CP Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Yocura CP Services; or (iv) attempt to gain unauthorized access to the Yocura CP Services or its related systems or networks.
5.3 Ownership. The Yocura CP Services, Yocura CP App and Company Data, including all intellectual property rights therein, are and shall remain (as between you and Company) the property of Company, its Affiliates or their respective licensors. Neither this Agreement nor your use of the Yocura CP Services, Yocura CP App or Company Data conveys or grants to you any rights in or related to the Yocura CP Services, Yocura CP App or Company Data, except for the limited license granted above. Other than as specifically permitted by the Company in connection with the Yocura CP Services, you are not permitted to use or reference in any manner Company’s, its Affiliates’, or their respective licensors’ company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the “Yocura Marks and Names”) for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the Yocura Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
6.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party (“Confidential Information”). Confidential Information includes Company Data, Yocura CP IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers (“Permitted Persons”) as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Company, its internal record-keeping requirements).
6.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
7.1 Disclosure of Your Information. Subject to applicable law, Company and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Company Data) about you or any Scheduling Orders provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Company’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g., Company or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in Company’s or any Affiliate’s sole discretion, to (1) protect the safety, rights, property or security of Company or its Affiliates, the Yocura CP Services, or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Yocura Services or Yocura CP Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which Company or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity); or (e) it is required or necessary, in Company’s or any Affiliate’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Yocura CP Services. You understand that Company may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
7.2 Background Checks. Yocura uses HireRight to perform background screening of Childcare Professionals. You acknowledge and agree that we may share any information you provide us with HireRight so that HireRight may perform a full and accurate background screening.
7.3 Company and its Affiliates may collect your personal data during the course of your application for, and use of, the Yocura CP Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Company and its Affiliates, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Company’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
8.1 You agree to maintain during the term of this Agreement on all vehicles operated by you under this Agreement automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate a private passenger vehicle on the public roads within the Territory. This coverage must also include any no-fault coverage required by law in the Territory that may not be waived by an insured. You agree to provide Company and its Affiliates a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 8.1 upon request. Furthermore, you must provide Company with written notice of cancellation of any insurance policy required by Company. Company shall have no right to control your selection or maintenance of your policy. You must be a named insured or individually rated driver, for which a premium is charged, on the insurance policy required in this Section 8.1 at all times.
If you are operating your vehicle in Texas, the minimum liability limits are $30,000 for each injured person, up to a total of $60,000 per accident, and $25,000 for property damage per accident.
8.2 You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in the Territory. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
8.3 You understand and acknowledge that your personal automobile insurance policy may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, or other coverage for transportation to the Scheduling Orders you provide pursuant to this Agreement. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Company, to resolve them with your insurer(s).
8.4 Company may maintain during the term of this Agreement insurance related to your provision of Scheduling Orders as determined by Company in its reasonable discretion, provided that Company and its Affiliates are not required to provide you with any specific insurance coverage for any loss to you. You are required to promptly notify Company of any accidents that occur while performing Scheduling Orders and to cooperate and provide all necessary information related thereto.
- Representations and Warranties; Disclaimers
9.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to perform (i) Scheduling Orders pursuant to this Agreement, and (ii) Childcare Services to third parties in the Territory generally.
9.2 Disclaimer of Warranties. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE YOCURA CP SERVICES OR THE YOCURA CP APP ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE YOCURA CP SERVICES OR THE YOCURA CP APP: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR CHILDCARE SERVICES. COMPANY AND ITS AFFILIATES FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE CHILDCARE SERVICES FROM YOU, AND COMPANY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE YOCURA CP SERVICES AND YOCURA CP APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE YOCURA SERVICES OR YOCURA CP APP. NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
9.3 No Service Guarantee. COMPANY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE YOCURA CP SERVICES OR YOCURA CP APP. YOU ACKNOWLEDGE AND AGREE THAT THE YOCURA CP SERVICES OR YOCURA CP APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE YOCURA CP SERVICES OR YOCURA CP APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
You shall indemnify, defend (at Company’s option) and hold harmless Company and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Scheduling Orders or use of the YOCURA CP Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
- Limits of Liability
COMPANY AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF COMPANY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- Term and Termination
12.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
12.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Company may terminate this Agreement or deactivate your Yocura CP ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Company and its Affiliates, to provide Childcare Services, or as otherwise set forth in this Agreement.
12.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Yocura CP App from any of Your Devices. Outstanding payment obligations, Article 4, and Sections 1, 2.3, 2.5.3, 5.3, 6, 7, 9, 10, 11, 12.3, 13, 14 and 15 shall survive the termination of this Agreement.
- Relationship of the Parties
13.1 Except as otherwise expressly provided herein with respect to Company acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contracting parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Company and you; and (b) no joint venture, partnership, or agency relationship exists between Company and you.
13.2 You have no authority to bind Company or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Company or its Affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
- Miscellaneous Terms
14.1 Modification. In the event Company modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Company reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Yocura CP Services, or downloading, installing or using the Yocura CP App, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Scheduling Order Fee Calculations. Continued use of the Yocura CP Services or Yocura CP App after any such changes shall constitute your consent to such changes. Unless changes are made to the arbitration provisions herein, you acknowledge and agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration.
14.2 Supplemental Terms. Supplemental terms may apply to your use of the Yocura CP Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
14.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
14.4 Assignment. This Agreement is personal to you, and is not assignable or transferable by you except with Company’s prior written consent. Any assignment in violation of this section shall be null and void. Company may assign, transfer, or delegate this Agreement or any or all of its rights or obligations under this Agreement without consent.
14.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.
14.6 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement, except as expressly set forth in the Arbitration Provision in Section 15.3. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
14.7 Notices. Any notice delivered by Company to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Yocura CP Services. Any notice delivered by you to Company under this Agreement will be delivered by contacting Company at firstname.lastname@example.org or by mail to Yocura Inc., Attn: Childcare Professional Support, 310 Foreman Drive, Euless, Texas, 76039. Additional Territory-specific notices may be required from time to time.
14.8 State Specific Terms. There may be additional state specific rights and obligations relating to the provision of the Yocura CP Services. Such rights and obligations shall supersede any terms to the contrary otherwise contained in this Agreement.
- Governing Law; Dispute Resolution; and Arbitration
15.1 The choice of law provisions contained in this Section 15.1 do not apply to the arbitration clause contained in Section 15.4, such arbitration clause being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Section 15.3, the interpretation of this Agreement shall be governed by Texas law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Yocura CP Services that are not subject to the arbitration clause contained in Section 15.3 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of Dallas, Texas. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-Texans to assert claims under Texas law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 15.3, are only intended to specify the use of Texas law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending Texas law to you if you do not otherwise reside or provide services in Texas. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 15.3 or to any arbitrable disputes as defined therein. Instead, as described in Section 15.3, the Federal Arbitration Act shall apply to any such disputes. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Yocura in writing.
15.2 It is Yocura’s goal that the Services meet your expectations and live up to our promises to you. However, there may be instances when you feel that we have not fulfilled our obligations or you may have a different type of problem or dispute that needs special attention. In those instances, Yocura is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Yocura, you acknowledge and agree that you will first give Yocura an opportunity to resolve your problem or dispute. In order to initiate this dispute resolution process, you must first send us a written description of your problem or dispute within sixty (50) days of the event giving rise to the dispute by sending an email to: providers@Yocura.com or by mail to 310 Foreman Drive, Euless, Texas 76039.
You then agree to negotiate with Yocura in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after Yocura’s receipt of your written description of the dispute, you agree to Arbitration policy in Section 15.3 unless you affirmatively opt-out of the arbitration policy in accordance with 15.3.8.
15.3 Arbitration Provision
Important Note Regarding this Arbitration Provision:
Except as provided below, arbitration does not limit or affect the legal claims you may bring against the Company. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
IMPORTANT: This Arbitration Provision will require you to resolve any claim that you may have against the Company on an individual basis, except as provided below, pursuant to the terms of the Agreement unless you choose to opt out of the Arbitration Provision. Except as provided below, this provision will preclude you from bringing any class, collective, or representative action against the Company, and also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against the Company by someone else.
However, as discussed above and except as provided below, if you agree to arbitration, you will not be precluded from bringing your claims against the Company in an individual arbitration proceeding. If successful on such claims, you could be awarded money or other relief by an arbitrator (subject to splitting the cost of arbitration as mentioned above).
- How This Arbitration Provision Applies.
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving interstate commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Except as provided in Section 15.3(v), below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver below, including their enforceability, revocability or validity.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and the Company, as well as all disputes between You and the Company’s fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with the Company, including termination of the relationship. This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
- Limitations On How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
- Claims for workers compensation, state disability insurance and unemployment insurance benefits;
- Regardless of any other terms of this Agreement, nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from making a report to, filing a claim or charge with, or bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim, or charge otherwise covered by this Arbitration provision;
- Disputes that may not be subject to a predispute arbitration agreement pursuant to applicable Federal law or Executive Order are excluded from the coverage of this Arbitration Provision;
- Disputes regarding your or the Company’s intellectual property rights;
- Selecting The Arbitrator and Location of the Arbitration.
The Arbitrator shall be selected by mutual agreement of the Company and you. Unless you and the Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the applicable arbitrator selection rules provided by the American Arbitration Association (the “AAA”). The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
The arbitration shall take place in the state and county in which you last performed a Service order under this Agreement, unless each party to the arbitration agrees in writing otherwise.
- Starting The Arbitration.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. Any demand for arbitration made to the Company shall be provided to Yocura Inc., ATTN: Legal, 310 Foreman Drive, Euless, Texas, 76039. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
- How Arbitration Proceedings Are Conducted.
In arbitration, the Parties will have the right to conduct adequate civil discovery, 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.
You and the Company agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class, collective action, or representative basis (“Class Action Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Provision or the American Arbitration Association Rules & Procedures, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
- Paying For The Arbitration.
Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, the Company will pay the Arbitrator’s and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. However, you will not be required to bear any type of fee or expense that you would not be required to bear if you had filed the action in a court of law. Any disputes in that regard will be resolved by the Arbitrator as soon as practicable after the Arbitrator is selected, and Company shall bear all of the Arbitrator’s and arbitration fees until such time as the Arbitrator resolves any such dispute.
- The Arbitration Hearing and Award.
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, 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 will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
- Your Right To Opt Out Of Arbitration.
Arbitration is not a mandatory condition of your contractual relationship with the Company. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying the Company in writing of your desire to opt out of this Arbitration Provision, either by (1) sending, within 30 days of the date this Agreement is executed by you, electronic mail to arbitration@Yocura.com, stating your name and intent to opt out of the Arbitration Provision or (2) by sending a letter by U.S. Mail, or by any nationally recognized delivery service, or by hand delivery to:
310 Foreman Drive, Euless, Texas, 76039
In order to be effective, the letter under option (2) must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is executed by you. Your writing opting out of this Arbitration Provision, whether sent by (1) or (2), will be filed with a copy of this Agreement and maintained by the Company. Should you not opt out of this Arbitration Provision within the 30-day period, you and the Company shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision. You understand that you will not be subject to retaliation if you exercise your right to assert claims or opt-out of coverage under this Arbitration Provision.
- Full and Complete Agreement Related to Formal Resolution of Disputes; Enforcement Of This Agreement.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as stated in subsection v, above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
If you have any questions regarding these Terms, please contact us at providers@Yocura.com or by mail at the address below:
Attention: Yocura Childcare Provider Support
310 Foreman Drive, Euless, Texas 76039
January 19, 2017