CUSTOMER AGREEMENT FOR TRUCKERWALL SERVICE
TruckerWall Inc. in affiliation with YellowCup.Co llc. (“TruckerWall”) provides a service (the “Service”) that allows its customers to connect with TruckerWall’s network of geographically distributed contractors (“Truckers”) to obtain service providers for various short-term engagements. Please read this Customer Agreement (“Agreement”) in its entirety if you wish to become a customer.
ACKNOWLEDGMENT AND ACCEPTANCE OF CUSTOMER AGREEMENT
You agree and understand that certain features of the Application (defined below) may be subject to additional terms and conditions or registration requirements. You agree to abide by these additional terms and you further agree that a violation of those terms shall constitute a breach of this Agreement. TruckerWall reserves the right to change this Agreement, and any additional terms at any time, effective upon making the modified provisions available on the Application or by notifying you directly. You are responsible for regularly reviewing this Agreement for updates and modifications to its terms. Continued use of the Application and/or the TruckerWall Mobile Application after any such changes are made to this Agreement shall constitute your consent to such changes. Other than making the changes available on the Application, TruckerWall does not and will not assume any obligation to notify Truckers of any changes to this Agreement, or the creation or modification of any additional terms.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Deliverables” means the deliverables specified in a TruckerWall Request for delivery by a Trucker to you.
1.2 “TruckerWall Request” means a notice provided by TruckerWall to one or more Truckers, which includes a description of the services to be provided by the Truckers and the associated Deliverables, the date by which the TruckerWall Request must be completed and the fee for the Trucker who performs the TruckerWall Request (the “Payment”). The Payment will be subject to an additional charge to compensate TruckerWall for creating, hosting, administering and providing the Application (the “Service Fee”).
1.3 “TruckerWall Mobile Application” or the “Application” means the software used by TruckerWall in connection with the Service.
1.4 “Service Request” means a request for Service or work by you which includes a description of the Deliverables for which you wish to engage Truckers. Once the Customer and Trucker have agreed upon the terms of a Service Request pursuant to Section 2, the Service Request will become a “Service Engagement”.
2. SERVICE REQUEST
Customer may from time to time submit a Service Request to TruckerWall via the Application. We reserve the right to reject any Service Request that is not appropriate, that violates the terms of service or use or that we believe in good faith to be inconsistent with the business interests of TruckerWall or the integrity of the Application.
3. FEES AND PAYMENT
3.1 Fees. TruckerWall charges fees and collects payment for each Service Engagement. You agree to provide TruckerWall with complete and accurate billing and contact information, including but not limited to, Customer’s legal name, street address, e-mail address, and the name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, TruckerWall reserves the right to terminate your access to the Service, and any outstanding Service Engagement, in addition to pursuing any available legal remedies. Generally, you will be billed each week for services provided that week. Special payment arrangements may be made when appropriate. The Service Fee for engaging a Trucker as an independent contractor totals 30% of the Payment amount and is generally for creating, hosting, administering, maintaining and providing the Application (collectively, the “Invoice Amount”). A Service Request shall be considered complete once the Deliverables have been accepted by Customer in accordance with Section 4. The charge for Service Engagements that involve TruckerWall’s payroll application for hiring Truckers as employees will be determined based on the type of engagement and geographic location of the Trucker and that is mutually agreed upon by TruckerWall and you.
3.2 Taxes. TruckerWall’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If TruckerWall has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer.
3.3 Direct Hire Fee. In the event Customer or any Customer director, officer, or employee (collectively, “Customer Personnel”) desires to Hire or otherwise directly engage a Trucker outside of the TruckerWall Application in the twelve (12) months following Customer’s or any Customer Personnel’s last contact with Trucker through the TruckerWall Mobile Application, Customer will notify TruckerWall and subsequently Customer will be billed and Customer agrees to pay twenty percent (20%) of total annual salary for such direct Hire or other engagement of the Trucker. Such Direct Hire Fee shall be charged regardless of whether: (a) Trucker contacts Customer or applies to Customer independently or otherwise through a public job posting or other job board; (b) different Customer Personnel are involved in the direct Hire of the Trucker and previous engagement of the Trucker through the TruckerWall Mobile Application; or (c) Customer notifies TruckerWall of such direct Hire or engagement of the Trucker. Any hire or engagement of the Trucker by Customer set forth above shall be defined as a “Hire” and shall trigger the Direct Hire Fee, including a full-time hire, part time hire, independent contractor hire, intern hire, or any other such engagement where Trucker receives any compensation from Customer. In addition, “Hire” also shall include any situation where Customer who had contact with Trucker through the TruckerWall Application provides any information regarding Trucker to a third party and that third party hires Trucker within the twelve (12) month period, in any capacity, whether a full time hire, part time hire, independent contractor hire, intern hire, or any other such engagement or relationship where Trucker receives any compensation, directly or indirectly, from Customer and/or the third party.
3.4 Late Cancellation Fee. In the event that Customer cancels a project or a Service Engagement less than twelve hours before the performance of the service is to begin, the Customer will be required to pay half of the cost of the Service Engagement. The cost includes both the payment to the Trucker and the fee paid to TruckerWall.
3.5 Late Payment Charges. Any invoice which remains unpaid after the due date shall bear interest at the rate of 1.5% per month. If the amount of any late payment charge exceeds the maximum permitted by law, the charge will be reduced to that maximum amount.
4. IP OWNERSHIP
4.1 TruckerWall IP. Customer acknowledges that all the intellectual property rights in the Application, the Service, the TruckerWall Mobile Application, and any metadata or other information generated or submitted to TruckerWall by a Trucker in the course of performing a TruckerWall Request are owned by TruckerWall or TruckerWall’s licensors or suppliers (the “TruckerWall IP”). Customer shall not obtain, by this Agreement, any right, title or interest in the trademarks of TruckerWall or TruckerWall’s licensors, affiliates or suppliers, nor shall this Agreement give Customer the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of TruckerWall or TruckerWall’s licensors, affiliates or suppliers. Customer agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the TruckerWall IP, or (b) rent, lease, loan, or sell access to the TruckerWall IP.
4.2 Suggestions. Customer hereby grants to TruckerWall a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the TruckerWall IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Customer related to the TruckerWall IP.
5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
5.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.4 Information Included in Service Engagements. Notwithstanding the foregoing, Customer acknowledges and agrees that some of the information that it provides in Service Engagements will be sent to Truckers who will need this information to respond to requests to perform one or more TruckerWall Requests. By submitting a Service Request, Customer is requesting, and expressly consents to have details of the Service Engagement sent to Truckers that provide like or similar services to those sought through the TruckerWall Requests. Customer agrees that all information that Customer provides will be accurate, current and truthful to the best of its knowledge.
THE SERVICE AND THE DELIVERABLES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” TRUCKERWALL EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. TRUCKERWALL MAKES NO WARRANTY THAT (A) THE SERVICE OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR DELIVERABLES WILL BE ACCURATE OR RELIABLE. TRUCKERWALL DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH TRUCKERWALL REQUEST AND A TRUCKER OR THAT THERE ARE TRUCKERS IN EACH GEOGRAPHIC AREA REQUESTED BY CUSTOMER WHO ARE WILLING TO FULFILL THE TRUCKERWALL REQUEST AT THE TIME AND PLACE REQUESTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT TRUCKERWALL HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY TRUCKER AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN TRUCKERWALL AND THE TRUCKERS. TRUCKERWALL DOES NOT GUARANTEE OR WARRANT THE TRUCKERS’ PERFORMANCE OF THE TRUCKERWALL REQUESTS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL TRUCKERWALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM CUSTOMER’S USE OF THE TRUCKERWALL IP OR THE DELIVERABLES, EVEN IF TRUCKERWALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TRUCKERWALL’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE TRUCKERWALL IP OR THE DELIVERABLES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES CUSTOMER PAID TO TRUCKERWALL IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
8. RELATIONSHIPS BETWEEN TRUCKERWALL, TRUCKERS AND THE
8.1 TruckerWall provides a platform through which Customers and Truckers can buy and sell Services online. Under this Agreement (and TruckerWall’s service agreement with Truckers), TruckerWall provides services to both Customers and Truckers, including the provision of a technology platform, aimed at facilitating the formation of contracts between Customers and Truckers and informally managing disputes related to those contracts. Through the Application, Customers can post Service Requests and invite Truckers to accept. If a Customer and Trucker agree on terms, including how a Trucker will be classified, a Contract is formed directly between such Customer and Trucker.
8.2 The Parties expressly agree that no joint venture, partnership, employment, or agency agreement exists between them as a result of this Agreement or any use of the Application.
8.3 Worker classification. Customer understands that it has the option to determine whether a particular Request will be for work to be performed by a Trucker as an independent contractor or as an employee. This determination is solely in Customer’s control. By entering into this Agreement, Customer has independently determined that it will engage and classify Truckers as independent contractors. Customer acknowledges that Trucker does not have authority to enter into written or oral — whether implied or express — contracts on behalf of TruckerWall. Customer acknowledges that TruckerWall does not and will not, in any way, supervise, direct, or control Trucker’s work or Services performed in any manner. TruckerWall does not set Trucker’s work hours and location of work, nor is TruckerWall involved in determining the type or manner of compensation to be paid for any Service Request. TruckerWall also does not and will not provide Trucker with training or any equipment, labor or materials needed for a particular Request. For Truckers engaged as independent contractors, TruckerWall will not deduct any amount for applicable withholding that may be required by law for employees such as federal and state taxes, unemployment and Social Security. Customer may not require an exclusive relationship between Customer and Trucker. Customer will not restrict (or attempt to restrict) Trucker’s ability to perform Requests for other TruckerWall customers or from being employed by or otherwise engaging with persons or businesses other than Customer, including any competitor of Customer. For Contracts classified as employer-employee relationships, Customer will manage the TruckerWall Request through TruckerWall’s payrolling program, where the Trucker becomes an hourly employee of TruckerWall’s staffing affiliate and Trucker and Customer enter into appropriate additional agreements.
9.1 Termination Without Cause. Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, however, cancellation of this Agreement shall not relieve any party of their obligations relative to any Service Engagements that has been entered into but not completed at the time of the cancellation.
9.2 Surviving Provisions. Sections 3 (“Fees and Payment”), 5 (“IP Ownership”), 6 (“Confidentiality”), 7 (“Disclaimers”), 8 (“Limitation of Liability”), 9.2 (“Surviving Provisions”) and 10 (“Miscellaneous”) shall survive any termination of this Agreement.
10.1 Law. This Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement shall be governed by the laws of the State of Delaware regardless of your country of origin or where you access TruckerWall, and notwithstanding any conflicts of law principles.
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first inform TruckerWall (info@TruckerWall.com) of your complaint and seek resolution. This notice of dispute must include: your name, relevant account information, a brief description of your dispute, and contact information, so that TruckerWall may evaluate the dispute and attempt to informally resolve same. TruckerWall will have 60 days from the date of your original complaint to informally resolve the dispute, which if successful will avoid the need for further action.
10.3 Arbitration Procedures. In the unlikely event that you and TruckerWall end up in a legal dispute and have not been able to resolve it within 60 days of your original informal claim, you and TruckerWall agree to the following:
All Claims (excluding claims for injunctive or other equitable relief) must be resolved through binding arbitration before an AAA arbitrator located in Delaware under the commercial dispute resolution rules then in effect for AAA, except as provided herein. Any disputes as to the applicable rules and procedures shall be resolved by the AAA arbitrator.
The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a Claim, you will submit the demand by certified mail to TruckerWall at 1904 Encinal Ave Alameda, Ca 94501 ATTN: Adrian Giurgiu. If TruckerWall initiates a claim, TruckerWall will serve a demand for arbitration upon you by email to the email address on file with TruckerWall and may send a copy by certified mail to your last known address (or to another address specified by you in your notice of dispute of your informal claim). You agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought.
10.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.5 No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without TruckerWall’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. TruckerWall may assign this Agreement or any of its rights under this Agreement to any third party with or without your written consent.
10.6 Notices. TruckerWall may give any notice required by this Agreement by means of a general notice on the Application, electronic mail to your email address on record with TruckerWall, or by written communication sent by first class mail or pre-paid post to your address on record with TruckerWall. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). Except as set forth in Section 10.3 above, you may give notice to TruckerWall, addressed to the attention of Adrian Giurgiu. Such notice shall be deemed given when received by TruckerWall by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the following address: 1904 Encinal Ave, Alameda, CA 94501 or email to info@TruckerWall.com.
10.7 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.8 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Service Engagement, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation (excluding Service Engagements) shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.
10.9 Modifications to Application. TruckerWall reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. You agree that TruckerWall shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Service.
11. CONTACTING TRUCKERWALL
If you wish to report a violation of the Customer Agreement, have any questions or need assistance, please contact Customer Support at info@TruckerWall.com.
PAYROLL SERVICES AGREEMENT
This Payroll Services Agreement (“Services Agreement”) is a binding legal agreement between and among Customer, Trucker, YellowCup.Co llc. (“YellowCup”) and Payroll Company (currently Employers HR) that (as described below). By using YellowCup Payroll Services (“YellowCup Payroll Services”) provided by the TruckerWall Services Application (“Application”), you signify that you have read, understand, accept and agree to be bound by this Services Agreement.
EMPLOYMENT RELATIONSHIP AND EMPLOYER OF RECORD
Except as otherwise stated in this Services Agreement, Payroll Company is responsible for managing payroll, taxes, government documents, benefits (if applicable) and insurance for Payroll Employee. Customer is responsible for the supervision, direction and control of the day-to-day activities of each Payroll Employee. Payroll Employee is responsible for performing the agreed-upon work for Customer.
HIRING REPRESENTATIONS, DISCLAIMERS AND LIMITATIONS
Customer acknowledges and agrees that Customer has selected a Trucker to become a Payroll Employee based upon Customer’s determination that the Trucker accepted a TruckerWall Request or an Open Request. Neither YellowCup nor the Payroll Company makes any representations or warranties as to the skills, experience, background or education of any Trucker.
Trucker acknowledges that Trucker has agreed to become a Payroll Employee servicing Customer based on Trucker’s own determination that Customer offers work acceptable and appropriate for Trucker on terms that are acceptable to Trucker. Trucker agrees to complete such documents as YellowCup and/or Payroll Company may legally and reasonably require to complete the employer/employee relationship, including without limitation applicable tax forms and the I-9 requirements of the Immigration and Reform and Control Act of 1986 (collectively, the “Employment Paperwork”). Trucker understands and agrees that Trucker will not become an employee of Payroll Company or be entitled to work for Customer or receive payment from Payroll Company until all Employment Paperwork has been completed and returned to Payroll Company, and Payroll Company has accepted Trucker as an employee.
Customer will continue to issue Open or TruckerWall Requests and pay for Trucker through the Application. YellowCup assumes no responsibility for and shall exert no control over the projects and work assigned to Trucker, nor has YellowCup had any role in Customer’s decision to engage Trucker via Payroll Services. YellowCup shall not direct the work of or supervise (to any degree, directly or indirectly) Trucker, nor shall YellowCup determine any terms and conditions of Trucker’s employment relationship with Payroll Company or Customer (including but not limited to rate of pay, performance evaluation, discipline and/or termination). YellowCup merely provides the platform for Customer to request Trucker to accept certain work assignments, and separately facilitates the relationship between Customer and the Payroll Company that will handle the administration of payroll and other legal obligations of Customer with regard to Trucker. These facts, alone or in combination, do not make YellowCup an employer of Trucker or a co-employer/joint employer with Customer and/or the Payroll Company. Trucker acknowledges and agrees that he/she is not and will not be an employee, consultant, or independent contractor of YellowCup, and that he/she will not be providing any services to YellowCup (directly or indirectly) while employed by Payroll Company.
Trucker shall be solely responsible for the professional performance of Trucker’s work. Trucker shall be solely liable for its acts, omissions and negligence as a Payroll Employee.
The following are the services provided by the Payroll Company for Payroll Employees assigned to Customer: (i) calculation and payment of wages (including overtime wages) based upon submitted timesheets; (ii) collection, payment and reporting of all federal, state and local taxes on such wages; (iii) administration and management of unemployment claims; (iv) administration and collection of wages associated with wage garnishments; (v) workers’ compensation coverage. In addition, the Payroll Company shall provide and bear sole responsibility for any health or disability insurance, retirement benefits or other welfare or pension benefits (if any) to which such personnel may be entitled based on eligibility and applicable law.
CONTROL OF WORKPLACE
Customer and Trucker acknowledge and agree that the neither YellowCup nor the Payroll Company will control the working conditions or the workplace in which a Payroll Employee will perform services for a Customer.
PAYROLL EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT
At all times, the Customer will maintain the exclusive supervision, direction and control of the day-to-day activities of each Payroll Employee. The Customer shall be responsible for the implementation and enforcement of any and all workplace laws, rules, regulations and for any procedures that exist for the purpose of preventing the misappropriation, theft or embezzlement of the Customer’s property, including without limitation intellectual property.
Customer acknowledges and agrees that Payroll Employees are not employees or consultants of YellowCup and that YellowCup maintains no control over any TruckerWall Engagement, supervision of Truckers, payroll practices or other terms and conditions of the working relationship described herein. Customer further acknowledges and agrees that Payroll Employees are employees of the Payroll Company for purposes of payroll processing and, in some cases, the provision of certain statutorily required employee benefits, but that the Payroll Company maintains no control over the work assignments, supervision, or other terms and conditions of the working relationship except as described in this Services Agreement.
COMPLIANCE WITH LAWS, RULES AND REGULATIONS
At all times, the Customer will maintain the exclusive supervision, direction and control of the day-to-day activities of each Payroll Employee. The Customer shall be responsible for compliance with any and all workplace laws, rules, regulations (including implementation and enforcement of any policies and procedures required by law) and for implementation and enforcement of any policies and/or procedures that may be necessary to prevent the misappropriation, theft or embezzlement of the Customer’s property, including without limitation intellectual property.
Trucker agrees and understands that Trucker shall not work over 8 hours in a day or 29 hours in a week without express written approval by Customer, YellowCup, and Payroll Company.
Notwithstanding the fact that the Payroll Company reserves the right to make determinations regarding the overtime exemption status of each Payroll Employee, Customer is ultimately and solely responsible for the amount of any wages that are due but unpaid to each of its Payroll Employees, including without limitation any wages, back wages, and liquidated damages determined to be due and owing in connection with any action challenging the overtime exemption status of any Payroll Employee.
EQUAL EMPLOYMENT OPPORTUNITY, WORKPLACE LAWS
Payroll Company selected by YellowCup to provide Payroll Services is an equal opportunity employer and does not discriminate against any candidate, applicant, employee, independent contractor or Payroll Employee on the basis of race, color, religion, sex, national origin, age, creed, ancestry, veteran or military status, disability unrelated to the essential functions of a job, or any other basis prohibited by federal, state or local law. Customer and Payroll Employee shall comply with all federal, state, and local laws that prohibit unlawful discrimination or harassment.
Policy Against Sexual Harassment And Other Illegal Harassment
Payroll Company, Customer and YellowCup prohibit sexual and other illegal workplace harassment. Customer shall train its Payroll Employees about their rights and responsibilities pursuant to applicable law pertaining to non-harassment or other illegal workplace harassment. Customer will be informed if any special training requirements legally pertain to a Payroll Employee by virtue of that person being employed by Payroll Company. Payroll Company and Customer will provide all Payroll Employees with written information detailing their rights and responsibilities under Customer’s and Payroll Company’s policies against sexual harassment and other illegal workplace harassment. Customer shall inform Payroll Company immediately of any complaint or allegation of illegal harassment by or against a Payroll Employee and shall undertake and complete a prompt and thorough investigation of any such complaint. Upon notification, Payroll Company may assist Customer with the investigation of sexual harassment complaints made by or against Payroll Employees, but the costs associated with such investigation shall be borne by Customer.
If Trucker believes that he/she has not been provided equal opportunity in any manner, or if Trucker becomes aware of discrimination or harassment, Trucker should immediately report that conduct to YellowCup at info@YellowCup.co or 510-697-5623.
The Customer will send all written notices and payroll communications to YellowCup in accordance with the requirements of the Terms of Service.
Trucker must inform Customer of any work-related injury in connection with services performed for Customer. Customer will provide YellowCup with written notice within three (3) days of its own receipt of any notice of a work-related accident or injury, and within three (3) days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices of IRS liens and other forms of legal process affecting the payment of wages to a Payroll Employee.
Notwithstanding anything to the contrary, Customer and Trucker acknowledge and agree that:
- YellowCup, via the Application, is solely an online venue for buyers and sellers of services and, as such, shall not be responsible for any breach or failure to perform of the Payroll Company or any other action or inaction of the Payroll Company or any Customer or any Trucker; and
- Payroll Company shall not be responsible for any breach or failure to perform of YellowCup or any Customer or any other action or inaction of YellowCup or any Customer or any Trucker.
CHANGE OF PAYROLL COMPANY
YellowCup may designate a new third-party payroll company (“New Company”), at any time in YellowCup’s sole discretion, to perform YellowCup Payroll Services. Upon such designation, or at any other time as directed by YellowCup, Customer shall: (i) cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of the YellowCup Payroll Services; or if directed by YellowCup (ii) immediately assume all federal, state and local obligations of an employer to the Payroll Employees and immediately assume full responsibility for providing payroll services and workers’ compensation coverage until such time as a New Company takes over such duties from The Payroll Company. If directed by YellowCup, Customer shall inform Payroll Employees that they are no longer covered by the Payroll Company for YellowCup Payroll Services, workers’ compensation and/or health care policies.
Governing Law and Venue. The Services Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer and Trucker hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Delaware, or the county in which Customer’s principal place of business is located solely in the event of any lawsuit filed there against Trucker by Customer or by YellowCup arising from or related to YellowCup Payroll Services and/or this Services Agreement.
Severability. If any provision of the Services Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Services Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
No Assignment. The Services Agreement, and the party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either party without the other’s prior written consent, and any attempted Job, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of the Services Agreement will be binding upon assignees. Notwithstanding the foregoing, Customer may, without the consent of Trucker, assign any rights and obligations under the Payroll.
Waiver. Any waiver or failure to enforce any provision of the Services Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Execution and Delivery; Binding Effect. The parties will evidence execution and delivery of the Services Agreement with the intention of becoming legally bound, by using YellowCup Payroll Services provided by the Application.