DISPUTE RESOLUTION AND ARBITRATION AGREEMENT FOR POURED CONTRACTORS/USERS
This Poured, LLC (“Poured”) Dispute Resolution and Arbitration Agreement (“Agreement”) is a contract to arbitrate claims and covers important issues relating to your rights. It is your sole responsibility to read it and understand this Agreement. You are free to seek assistance from independent advisors of your choice outside the Company or to refrain from doing so if that is your choice.
How This Agreement Applies
This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce. This Agreement is between you (“Contractor” or “User”) and Poured, LLC, including any Affiliates or persons or entities that are controlled by or are under common control with Poured (“Company”), and applies to any dispute, past, present or future, arising out of or related to: Contractor’s relationship with Company; Contactor’s application for or use of the Company’s website and technology platform; Contractor’s application to and/or provision of services as a worker, independent contractor, employee and/or the separation of any such relationship with Company or any organization Contractor provides services for a result of or in connection with utilizing Company’s technology or Contractor’s association with Company. The mutual obligations to arbitrate disputes provide adequate consideration for this Agreement. Nothing contained in this Agreement shall be construed to prevent or excuse Contractor or the Company from utilizing the Company’s existing internal procedures for resolution of complaints, and this Agreement is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court or a forum other than arbitration. This Agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. This Agreement applies to any dispute that Company may have against Contractor or that Contractor may have against: (1) Company; (2) its affiliates, parent companies, successors, subsidiaries or related companies; (3) its officers, directors, principals, shareholders, members, owners, employees, or agents; (4) Company’s benefit plans or the plan’s sponsors, fiduciaries, administrators, affiliates, or agents; (5) all clients or customers of Company, including, without limitation, any hiring organization or other entity for which Contractor performs any work or services through utilization of Company’s website, technology platform, and/or Contractor’s association with Company; and (6) all successors and assigns of any of them. Except as stated in Section 7, below, such disputes include without limitation disputes arising out of or relating to the interpretation, application, enforceability, revocability or validity of this Agreement or any portion of this Agreement.
Except as it otherwise provides, this Agreement also applies, without limitation, to disputes regarding Contractor’s independent contractor status, employment status, trade secrets, unfair competition, compensation, overtime, meal and rest periods, seating, termination, discrimination, retaliation or harassment, tort claims, contract claims, equitable claims, and all local, state or federal statutory and common law claims. Except as it otherwise provides, the Agreement specifically covers, without limitation, all claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Pregnancy Discrimination Act, Age Discrimination in Employment Act, 42 U.S.C. §1981, Fair Credit Reporting Act, Family Medical Leave Act, Fair Labor Standards Act, Worker Adjustment and Retraining Notification Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and local and state statutes, if any, addressing the same or similar subject matters.
Limitations On How This Agreement Applies
This Agreement does not apply to claims for workers’ compensation benefits (but claims for workers’ compensation discrimination are covered under this Agreement), state disability insurance and unemployment insurance benefits.
This Agreement does not apply to an action brought on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., to the extent that such a waiver of such a claim is deemed unenforceable by a court of competent jurisdiction – otherwise, such a PAGA claim is covered by this Agreement.
Nothing in this Agreement prevents Contractor from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Agreement prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Agreement. This Agreement also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Agreement. Nothing in this Agreement shall be deemed to preclude or excuse a party from 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. The Company will not retaliate against Contractor for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
This Agreement does not apply to disputes that may not be subject to pre-dispute arbitration agreement, as expressly provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or other controlling federal statute or lawful, enforceable presidential Executive Order, are excluded from the coverage of this Agreement. This Agreement shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense (“DoD”) Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118), section 8102 of the Department of Defense (“DoD”) Appropriations Act for Fiscal Year 2011 (Pub. L. 112-10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.
This Agreement does not in any way prevent Contractor or the Company from using internal procedures or informal avenues to raise or resolve concerns—including disputes that are covered under this Agreement. Many times addressing concerns to the Company’s management will lead to a resolution. Contractor or Company may also request that the parties participate in a mediation. Although such informal steps under this Section 3 are voluntary, Contractor is encouraged by the Company to use these steps to attempt to resolve disputes, including disputes covered by this Agreement. Requests related to these pre-arbitration steps may be sent to Hello@poured.app Unlike these voluntary pre-arbitration options (under this Section 3), arbitration of covered disputes under this Agreement is mandatory.
Starting The Arbitration
If the dispute has not been resolved by or pursued in the Pre-Arbitration Steps described in Section 3 above and is otherwise subject to arbitration under this Agreement, Contractor and the Company must pursue the dispute only in arbitration and not in court. Arbitration of such disputes is mandatory.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. In other words, the deadline for the filing of claims in arbitration under this Agreement is the same as if you were filing the claim in court. The Arbitrator shall resolve all disputes regarding the timeliness of the demand for arbitration.
The party bringing the claim must demand arbitration in writing within the applicable statute of limitations period. The written demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to the Company shall be provided to Hello@getpoured.com. Contractor will be given notice of any claim by the Company at the last home address Contractor provided in writing to the Company. 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 emergency, temporary or preliminary injunctive relief in connection with an arbitrable controversy, provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the emergency, temporary or preliminary injunctive relief shall not constitute a waiver of rights under this Agreement.
Selecting The Arbitrator
The arbitrator shall be selected by the mutual agreement of the parties. In the event the parties cannot agree to an arbitrator, they shall proceed to arbitration before a single arbitrator under the auspices of the American Arbitration Association, and except as provided in this Agreement, under the then current AAA Employment Arbitration Rules (“AAA Rules”). (The AAA Rules are available by request through Hello@getpoured.com or the AAA’s website (www.adr.org)). Unless the parties jointly agree otherwise, the Arbitrator shall be either an attorney who is experienced in employment law and licensed to practice law in the state in which the arbitration is convened, or a retired judge from any jurisdiction. The arbitration shall take place in the city where Contractor last lived while performing work through the Company’s technology platform, or Orange County, California if no such work was performed, unless each party to the arbitration agrees in writing otherwise.
In the event the parties proceed to arbitration under the auspices of the AAA, the Arbitrator shall be selected as follows: The AAA shall give each party a list of eleven (11) arbitrators drawn from its panel of employment arbitrators. The parties shall strike names alternately from the list of names until only one remains, with the party to strike first to be determined by a coin toss. That person shall be designated as the Arbitrator. If for any reason, that individual cannot serve as the Arbitrator, the AAA shall issue another list of eleven (11) arbitrators drawn from its panel of arbitrators and the parties will repeat this step. If for any reason the AAA will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
How Arbitration Proceedings Are Conducted
Each party shall have the right to take the deposition of one individual witness and any expert witness designated by another party. Each party also shall have the right to propound requests for production of documents to any party. Each party shall also have the right to subpoena witnesses and documents for the arbitration, as well as documents relevant to the case from third parties. Additional discovery may be had by mutual agreement of the parties or where the Arbitrator selected so orders pursuant to a request by either party. In arbitration, the parties will have the right to bring dispositive motions (and the arbitrator will set a briefing schedule upon the request of either party), 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.
CLASS AND COLLECTIVE ACTION WAIVERS
(a) THE COMPANY AND CONTRACTOR WAIVE ANY RIGHT FOR ANY DISPUTE TO BE BROUGHT, HEARD, DECIDED OR ARBITRATED AS A CLASS ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO HEAR OR PRESIDE OVER ANY SUCH CLAIM (“Class Action Waiver”). The Class Action Waiver shall be severable from this Agreement in any case in which (1) the dispute is filed as a class action and (2) there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction—and not in arbitration.
(b) THE COMPANY AND CONTRACTOR WAIVE ANY RIGHT FOR ANY DISPUTE TO BE BROUGHT, HEARD, DECIDED OR ARBITRATED AS A COLLECTIVE ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO HEAR OR PRESIDE OVER ANY SUCH CLAIM (“Collective Action Waiver”). The Collective Action Waiver shall be severable from this Agreement in any case in which (1) the dispute is filed as a collective action and (2) there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction—and not in arbitration.
Notwithstanding any other clause contained in this Agreement, or by virtue of any arbitration organization rules or procedures that now apply or any amendments and/or modifications to those rules, including without limitation the AAA Rules, any claim that all or part of the Class Action Waiver and Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
The Class Action Waiver and/or Collective Action Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
Paying For The Arbitration
If Contractor initiates arbitration, Contractor will be responsible for paying his or her filing fee, unless Contractor cannot afford to do so, and the Company in turn will pay its portion of the filing fee. If the Company initiates arbitration, it will be responsible for paying any filing fee. The Company in all cases where and to the extent required by law (including the common law) will pay the Arbitrator’s and arbitration fees. If AAA administers the arbitration proceedings, the Company will pay fees and costs in accordance with applicable AAA Rules. The Arbitrator shall determine all factual and legal issues regarding the payment and/or apportionment of said fees and costs. 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. In the event the law (including the common law) of the jurisdiction in which the arbitration is held requires a different allocation of arbitral fees and costs in order for this Agreement to be enforceable, then such law shall be followed as determined by the Arbitrator.
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, 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 Agreement. 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.
It is against Company policy for any Contractor to be subject to retaliation if he or she exercises his or her right to assert claims under this Agreement. If Contractor believes that he or she has been retaliated against, Contractor should immediately report this to an officer of the Company or to Hello@getpoured.com.
Enforcement Of This Agreement
This Agreement is the full and complete agreement relating to the formal resolution of applicable disputes. Unless this Agreement in its entirety is deemed void, unenforceable or invalid, this Agreement supersedes any prior or contemporaneous written understandings on the subject. No party is relying on any representations, oral or written, on the subject of the effect, enforceability, or meaning of this Agreement, except as specifically set forth in this Agreement. This Agreement survives after the relationship between Company and Contractor terminates. This Agreement will also continue to apply notwithstanding any change in Contractor’s duties, responsibilities, position, or title, or if Contractor transfers to or an affiliate of the Company. The Company and Contractor agree that this Agreement evidences a transaction involving interstate commerce and that the Company is engaged in transactions involving interstate commerce. Except as stated in Section 7, above, in the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable.