Clipboard Health Terms of Service
Updated December 16, 2021
THE FOLLOWING USER AGREEMENT DESCRIBES THE TERMS AND CONDITIONS ON WHICH TWOMAGNETS INC. OFFERS YOU ACCESS TO THE CLIPBOARD HEALTH SERVICES.
Welcome to the user agreement (the “Agreement” or “User Agreement” or “Terms of Service”) for Clipboard Health (“Clipboard”), an application and service (the “Service”) owned an operated by Twomagnets Inc., a Delaware corporation, whose principal office is located at 340 S Lemon Ave #5028 Walnut, CA 91789-2706. This User Agreement is a legally binding agreement made between the facility(ies) you represent (“You,” “Your,” or “Yourself”), Twomagnets Inc. and our affiliates Clipboard Health LLC (Clipboard,” “We,” “Us” or “Our”).
Clipboard is willing to license the Service and use of our website located at www.clipboardhealth.com (the “Site”) to you only upon the condition that you accept all the terms contained in this Agreement. By signing up with Clipboard or by using the Service you indicate that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then Clipboard is unwilling to license the Services to you.
Clipboard provides a means to enable you to fill open shifts with persons who seek work in healthcare facilities (“healthcare professionals” or “HCPs”).
Please read this Agreement carefully before using the Services. You must read, agree with and accept all of the terms and conditions contained in this in this User Agreement, which includes those terms and conditions expressly set out below and those incorporated by reference, before You use any of the Services. By using any of the Services, You become a User of all Services available (“Participant” or “User”) and You agree to be bound by the terms and conditions of this Agreement.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT USE OR ACCESS CLIPBOARDHEALTH.COM OR REGISTER FOR THE SERVICES PROVIDED BY CLIPBOARD. We may amend this Agreement at any time by posting the amended terms on Clipboard. If we post amended terms on Clipboard, you may not use the Services without accepting them. Except as stated below, all amended terms shall automatically be effective after they are posted on Clipboard. This Agreement may not be otherwise modified except in writing signed by You and Twomagnets Inc.
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR FACILITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR FACILITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR FACILITY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR FACILITY TO THE TERMS OF SERVICE IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR FACILITY.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Services and Site (an “Account”), by using the Site or Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY
Clipboard offers the Site and Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of HCP Services; and (d) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business,or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4 IDENTITY AND LOCATION VERIFICATION
You can register for an Account or add an Account type to use the Site and Services as a Client (a “Client Account”). Each User under a Client Account (“Team Member”) can be given different permissions to act on behalf of the Client Account.
1.5 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Clipboard. You authorize Clipboard, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents. During verification some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored.
1.6 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account. You authorize Clipboard to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both or (b) the use would violate the Terms of Service.
PURPOSE OF CLIPBOARD
2.1 RELATIONSHIP WITH CLIPBOARD
Clipboard merely makes the Site and Services available to enable HCPs and Clients to find and transact directly with each other. Clipboard does not introduce HCPs to Clients, select Shifts for HCPs, or select HCPs for Clients. Through the Site and Services, HCPs may be notified of Clients that may be seeking the services they offer, and Clients may be notified of HCPs that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Shift, Client or HCPs on their own.
Upon request by Client, Clipboard shall provide Healthcare Professionals (“HCPs”) to Client for Services at Client’s facility(ies). All HCPs shall be independent contractors of Clipboard. No HCPs will be employees of Clipboard. Clipboard agrees to assume full responsibility for the payment to HCPs for Services performed by them for Client. HCPs shall not be entitled to holidays, vacations, disability, insurance, pensions or retirement plans, or any other employee benefits offered or provided by Client to its direct employees.
Clipboard does not make any representations about or guarantee the truth or accuracy of any HCPs or Client’s listings or other User Content on the Site. You acknowledge, agree, and understand that Clipboard does not, in any way, supervise, direct, control, or evaluate HCPs or their work and is not responsible for any Project or Work Product. Clipboard makes no representations about and does not guarantee, and you agree not to hold Clipboard responsible for, the quality, safety, or legality of HCP Services; the qualifications, background, or identities of HCPs; the ability of HCPs to deliver HCP Services. While Clipboard may provide certain badges on HCPs or Client profiles, such badges are not a guarantee or warranty of quality or ability or willingness of the badged HCP or Client to complete a Service Contract and is not a guarantee of any kind, including, the quality of HCP’s Services or Client Project.
You also acknowledge, agree, and understand that HCPs are solely responsible for determining, and have the sole right to determine, which shifts to accept; the time, place, manner, and means of providing any HCP Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Clipboard, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Clipboard will not have any liability or obligations, including under or related to Service Contracts and/or HCP Services for any acts or omissions by you or other Users; (iii) Clipboard does not, in any way, supervise, direct, or control any HCP or HCPs Services; does not impose quality standards or a deadline for completion of any HCP Services; and does not dictate the performance, methods or process HCP uses to perform services; (iv) HCP is free to determine when and if to perform HCP Services, including the days worked and time periods of work, and Clipboard does not set or have any control over HCP’s pricing, work hours, work schedules, or work location.
Clipboard does not, in any way, provide or guarantee HCP a regular salary or any minimum, regular payment; (vi) Clipboard does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Service Contract; (vii) Clipboard does not provide the premises at which HCPs will perform the work.
2.2 TAXES AND BENEFITS
HCP acknowledges and agrees that HCP is solely responsible (a) for all tax liability associated with payments received from Clients and through Clipboard, and that Clipboard will not withhold any taxes from payments to HCP; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that HCP is not covered by or eligible for any insurance from Clipboard. In the event of an audit of Clipboard, HCP agrees to promptly cooperate with Clipboard and provide copies of HCP’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing HCP is engaging in an independent business as represented to Clipboard.
3. WORKER CLASSIFICATION AND MONITORING
Section 3 discusses what you agree to concerning whether an HCP is an employee or independent contractor and when you agree to use Clipboard DailyPay, as detailed below.
3.1 WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Clipboard and a User. Client is solely responsible for and has complete discretion with regard to selection of any HCP for any Project. Client is solely responsible for and assumes all liability for determining whether HCPs should be engaged as independent contractors or employees of Client and engaging them accordingly and, if applicable. Client warrants its decisions regarding classification are correct and its manner of engaging HCPs complies with applicable laws, regulations, and rules. Clipboard will have no input into, or involvement in, worker classification as between Client and HCP and Users agree that Clipboard has no involvement in and will have no liability arising from or relating to the classification of an HCP generally or with regard to a particular Project.
3.2 WORKER MONITORING
Client shall provide orientation which, at minimum, includes the review of policies and procedures regarding medication administration, documentation procedures, patient rights, Infection Prevention, and Fire and Safety, OSHA, and EMR/Charting where applicable.
Client shall provide HCP with a workplace free from occupational hazards and shall be responsible for compliance with all applicable federal, state, and local occupational safety and health regulation standards.
Client shall provide HCP all necessary equipment and software needed to perform Client’s required duties. HCP will be required to follow all Client’s procedures and protection protocols. It is the sole responsibility of the Client to monitor and enforce all policies and procedures with HCP. Agency will assume no liability for any equipment, software, policies or enforcement measures provided to HCP.
Client’s appropriate personnel shall supervise the HCP and the evaluation of Services provided by HCP will be conducted as per Client policy.
4. CLIPBOARD FEES
4.1 Payment to Agency and Disputes
Client shall be invoiced weekly or at any other time thereafter and Client shall pay all fees within fifteen (15) calendar days from receipt of invoice.
Client shall contact Clipboard within five (5) calendar days from receipt of invoice to dispute any charges on said invoice, by sending an email including a detailed explanation of such dispute to firstname.lastname@example.org. If notice is timely received, Clipboard shall call a representative of Client or respond to Client’s email disputing the invoice no later than five (5) business days following the Clipboard’s receipt of the dispute to verify the accuracy of the invoice and make any adjustments to the invoice. If notice is not timely received by Clipboard, Client shall be deemed to have waived any objections to the invoice and its right to dispute the charges on the invoice.
Client acknowledges that fees quoted do not include and Client shall be responsible for all sales, use, gross receipts, value-added, personal property, or other taxes, duties, and charges (including interest and penalties imposed thereon) of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder, other than taxes based on the net income or profits of Agency.
Except for invoiced payments that Client has successfully disputed, all late payments shall bear interest at the highest rate permissible under applicable law, compounded daily. Client shall also reimburse Clipboard for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and costs.
4.2 Confirmation of Services
Client shall provide Clipboard with a list of Facility authorized personnel that are accessible to HCPs for the purpose of obtaining any signatures on time cards or time keeping processes that may be required by the Client. Further, Client shall provide Clipboard a list of Authorized Signatories at Client’s Facility that are accessible to Us for the confirmation of Services provided by HCP.
Client Authorized Signatories shall review shifts completed and hours worked promptly after receiving a request from Clipboard, whether by phone, email, or text.
Client and Client Authorized Signatories acknowledge and understand that Agency may elect to pay HCP immediately in reliance of Client Authorized Signatory’s confirmation and approval of shifts completed and hours worked and therefore no retroactive disputes (shift length, lunch breaks, documentation, etc) of already confirmed shifts will be possible, and Client agrees to pay Agency for all shifts as they were confirmed and approved by Client’s Authorized Signatory.
4.3 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Clipboard to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment, and to charge Client’s credit card (or any other Payment Method) for the fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.
By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Clipboard; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law.
When Client authorizes a payment using a Payment Method via the Site, Client represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Clipboard is not liable to any User if Clipboard does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method.
5. COMMUNICATING THROUGH THE SITE
The provisions of this Section 5 apply to any interaction between Users. Users agree to use the communication services available on the Site to communicate with other Users regarding arrival details to the location, pre-work requirements prior to arrival, and coordination during work hours.
You are prohibited from using the communication services to ask users about work verifications, payments or incidents/disputes.
You are prohibited from using the communication services to post or transmit any unlawful, threatening, libelous, defamatory, obscene, pornographic, illegal, or any material that could constitute conduct that would be considered a criminal offense, violate the rights of any party, or which may otherwise violate any law or give rise to civil or criminal liability. In all cases, we reserve the right, but are not obligated, to remove any content, message or transmission you have made for any or no reason, including but not limited to, messages that, in our sole discretion, violate these Terms. We reserve the right to suspend or permanently deactivate your account, if we determine, in our sole discretion, that you violate these Terms.
6. WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Clipboard MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, USER CONTENT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLIPBOARD DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 9 (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST Clipboard WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
7. LIMITATION OF LIABILITY
Clipboard is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL CLIPBOARD, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF CLIPBOARD, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED $2,500. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You hereby release Clipboard, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User or HCP, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the HCP Services provided to Client by an HCP and requests for refunds based upon disputes.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
This release will not apply to a claim that Clipboard failed to meet our obligations under the Terms of Service.
You will indemnify, defend, and hold harmless Clipboard, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default incurred through use of the Site Services; (b) any Work Product or HCP Services provided, or otherwise related to your use of the Site Services; (c) the classification of an HCP as an independent contractor; the classification of Clipboard as an employer or joint employer of Clipboard; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (d) failure to comply with the Terms of Service by you or your agents; (e) failure to comply with applicable law by you or your agents; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 8, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
10. AGREEMENT TERM AND TERMINATION
Unless both you and Clipboard expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Client understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any obligation to pay outstanding fees. You will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open invoice, whichever is later, to Clipboard for any Services or such other amounts owed under the Terms of Service.
Without limiting Clipboard’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Clipboard or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register under a new Account without Clipboard’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or Clipboard from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
11. DISPUTES BETWEEN YOU AND CLIPBOARD
11.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Clipboard or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, Clipboard, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Clipboard (including without limitation any claimed employment with Clipboard or one of our Affiliates or successors), the termination of your relationship with Clipboard, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Site, Site Services, the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from Clipboard or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Clipboard or the termination of that relationship.
Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
11.2 CHOICE OF LAW
11.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Clipboard agree to first notify each other of the Claim. You agree to notify Clipboard of the Claim at Attn: Legal, 340 S Lemon Ave #5028 Walnut, CA 91789-2706 and Clipboard agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Clipboard then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Clipboard, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Clipboard will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
11.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Arbitration Provision applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Clipboard, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
11.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Clipboard ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service and the Clipboard Payroll Agreement. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS 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.
Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Freelancers that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where Freelancer is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and Clipboard will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Freelancer will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Clipboard to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with Clipboard to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Clipboard and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you 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 Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision 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 Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Clipboard will not retaliate against you 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.
11.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, 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. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, below, of this Arbitration Provision is deemed to be unenforceable, you and Clipboard agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
11.4.3. CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Clipboard agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach 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 or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective 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. You and Clipboard agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, Clipboard may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
11.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Clipboard in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Clipboard at Attn: Legal,340 S Lemon Ave #5028 Walnut, CA 91789-2706 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to legalnotices@Clipboard.com. Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section 14.4.4, continuing your relationship with Clipboard constitutes mutual acceptance of the terms of this Arbitration Provision by you and Clipboard. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
11.4.5. Enforcement of this Arbitration Provision
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and Clipboard agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
12.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Clipboard relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Clipboard drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Clipboard because of the authorship of any provision of the Terms of Service.
12.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Clipboard unless they are agreed in a written instrument signed by a duly authorized representative of Clipboard or posted on the Site by Clipboard. Email will not constitute a written instrument as contemplated by this Section 15.2. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Clipboard’s prior written consent in the form of a written instrument signed by a duly authorized representative of Clipboard. Clipboard may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
12.4 SEVERABILITY; INTERPRETATION
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
12.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
12.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.
12.7 CONSENT TO USE ELECTRONIC RECORDS