End User Agreement
Updated: January 18, 2023
Agreement, acknowledgment, and acceptance of terms
Welcome to Papa, Inc. (“Papa”) we are excited for you to work with us as an independent service provider (a “Papa Pal”). With your help, Papa is able to provide companionship and assistance to individuals and their families (our “Members”). We work with you to provide these services by means of Papa’s website, mobile application, email exchanges, call in service, or other means (the “Service”).
By using the Service, you agree that you are at least the legal age of majority in the jurisdiction in which you reside. The Service is not targeted for use by children under the age of eighteen. IF YOU ARE UNDER THE AGE OF EIGHTEEN YOU ARE NOT AUTHORIZED TO USE THE SERVICE OR TO OTHERWISE WORK WITH PAPA.
Papa reserves the right to change the terms of this Agreement at any time and at our sole discretion. Any changes to the Agreement will be effective immediately upon posting and you agree to the new posted Agreement by continuing your use of the Service. We will notify you of changes to this Agreement by email and it is your responsibility to review the notice and revised terms. You consent to the revised terms by continuing to provide services as a Papa Pal and by using the Service following notice to you of the revised terms.
THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS, RESPONSIBILITIES, AND OBLIGATIONS, GOVERNS YOUR USE OF THE SERVICE AND SERVICE AS A PAPA PAL, IS LEGALLY BINDING, LIMITS PAPA’S LIABILITY TO YOU, REQUIRES YOU TO INDEMNIFY PAPA, AND REQUIRES BOTH YOU AND PAPA TO SETTLE CERTAIN DISPUTES THROUGH ARBITRATION. YOUR CONTINUED USE OF THE SERVICE AND SERVICE AS A PAPA PAL AFFIRMS YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OR ANY FUTURE MODIFICATIONS OR AMENDMENTS TO THESE TERMS, DO NOT PARTICIPATE IN OR USE THE SERVICE. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION SPECIFICALLY, YOU MAY OPT OUT OF THE MUTUAL AGREEMENT TO ARBITRATE BY EMAILING OPTOUT@PAPA.COM. In order to be effective, you must provide notice of your intent to opt out of the arbitration provision within thirty (30) days of first receiving or being notified to review this Agreement. This arbitration requirement is discussed further below under the heading “ARBITRATION OF ALL CLAIMS ON AN INDIVIDUAL BASIS”.
This Agreement is written in the English language. We do not guarantee the accuracy of any translated versions of this Agreement. To the extent any translated versions of this Agreement conflict with the English language version, the English language version of the Agreement shall control.
Subject to the terms contained herein, Papa hereby grants you a limited right to access and use the Service. You agree that you shall use the Service only in accordance with the terms of this Agreement, applicable law, and any additional rules, policies and procedures established by Papa for use of the Service. Any and all policies and procedures issued by Papa shall apply to your service as a Papa Pal and use of the Service. Papa reserves the right, at any time, to modify or supplement external policies referenced and incorporated into this Agreement as well as any information referenced via hyperlink (or the addresses where such information may be found). Such modifications shall become effective upon posting. Such modifications or supplements may be provided to you via electronic means.
By registering and using the Service, you represent and warrant that all information provided to Papa in connection with this Agreement, including in the process of registration for the Service, is true, accurate and complete. You are responsible for installing and maintaining all equipment and systems necessary to access the Service and for paying all charges related thereto.
Nothing in this Agreement requires you to accept any opportunity on the Service, and nothing in this Agreement shall guarantee you any particular volume of opportunities for any particular time period.
Relationship of the parties
You understand that this Agreement is for an independent contractor relationship with Papa. Neither this Agreement nor any other verbal or written communication is, nor should it be considered to be, an agreement or contract of employment, express or implied, or a promise of treatment in any particular manner in any given situation, nor does it confer any contractual or employment rights whatsoever.
You shall be solely responsible for all taxes arising from compensation and other amounts paid under this Agreement and shall be responsible for all payroll taxes and fringe benefits. No federal, state, local income tax, or payroll tax of any kind, will be withheld or paid by Papa on your behalf. You understand that you are responsible to pay, according to law, your taxes and you shall, if requested by Papa, properly document to Papa that any and all federal and state taxes have been paid. You may be issued a Form 1099 at the end of the tax year. You shall hold Papa harmless for any claims related to late or non-payment of said taxes.
You agree that you are not entitled to the rights or benefits afforded to Papa’s employees. You will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of Papa. No workers’ compensation insurance shall be obtained by Papa covering you or your employees. You are responsible for providing, at your own expense, disability, unemployment, and other insurance, workers’ compensation, training, permits, licenses, and any other requirement for yourself.
You shall not take any actions on behalf of Papa or in Papa’s name. You shall not at any time represent that you are employed by Papa, or that you are authorized to make any contracts, agreements or obligations on behalf of Papa or any of its affiliates. You shall not use the names, logos, and any variation thereof, of Papa or its affiliates or subsidiaries, in connection with any of your business or operations without the prior written approval of Papa and then only in the manner approved.
You may represent, perform services for, and contract with as many additional clients, persons, or companies as you, in your sole discretion, see fit, provided those services do not pose a conflict of interest with the services performed for Papa. You acknowledge that this is a non-exclusive engagement, and that Papa retains the right to appoint additional contractors as Papa, in its sole and absolute discretion, may from time to time determine to be in the interests of Papa without liability or obligation to you.
You are free to select the times you wish to access the Service. You are free to accept, reject, or ignore any particular request, assignment, or opportunity made available to you through the Service and you have the sole right to control the manner and means by which you serve as a Papa Pal through the Service, so long as you obey applicable law and comply with the terms of this Agreement. You are engaging Papa to provide you access to the Service, which will permit you to serve as a Papa Pal.
You possess and are solely responsible for all tools, vehicles, and equipment, including mobile telephone, modes of transportation, etc. (collectively “Equipment”) necessary to serve as a Papa Pal. You are responsible for all costs and expenses that you may incur as a Papa Pal, including, but not limited to, traffic tickets, tolls, parking fees, inspections, insurance, and any costs related to Equipment. Except as otherwise required by law, you assume all risk of damage or loss to your Equipment. You understand and agree that you are not required at any time to wear or use any clothing or equipment provided by or bearing Papa’s name or logo; or to purchase, lease, or rent any products, equipment, or services from Papa.
Papa policies for independent contractors
You agree to be bound by the terms and conditions of any Independent Contractor Policies of Papa as may be in effect from time to time, including but not limited to Papa’s anti-discrimination policy, anti-sexual harassment policy, and background check policy.
Such policies are intended to supplement this Agreement and are subject in all respects to the terms of this Agreement. In the event of any direct conflict between the terms of Papa’s Independent Contractor Policies and this Agreement, the terms of this Agreement shall control unless specified otherwise herein.
Neither the policies nor any other verbal or written communication is, nor should it be considered to be, an agreement or contract of employment, express or implied, or a promise of treatment in any particular manner in any given situation, nor does it confer any contractual or employment rights whatsoever.
Papa Pal representations and warranties
You represent and warrant that you are qualified to perform services as a Papa Pal in connection with the Service and all such services will be performed in a professional, timely, and workmanlike manner without the advice or direction of Papa. You represent and warrant that you are, to the extent applicable, licensed, bonded, insured, and meet all other legal requirements put forth by all federal, state, county, and local governmental authorities to perform your obligations hereunder and you shall maintain all such qualifications. You represent and warrant that you have the right to enter into this Agreement and there are no agreements or arrangements, whether written or oral, that you would breach upon agreeing to this Agreement or that would impair or prevent you from serving as a Papa Pal and participating in the Service. You represent and warrant that you hold sufficient liability insurance, workers compensation insurance, and motor vehicle insurance as applicable.
Background and motor vehicle record checks
Papa is committed to ensuring that both the Service and the services provided by you and other Papa Pals are as safe as possible. In this regard, Papa has a strict background check and onboarding policy. Papa will use all information obtained during background checks solely for evaluating your suitability to serve as a Papa Pal and provide services to Papa’s Members.
Papa may conduct background checks on applicants as well as active Papa Pals concerning your references, motor vehicle records, and your employment, driving, criminal, and credit history, to the extent permitted by federal, state, and local laws. Papa will conduct a background check when you apply to be a Papa Pal and may continue conducting such background checks on an annual basis or with greater frequency in Papa’s sole discretion during your time as a Papa Pal.
Papa will determine the nature and scope of the background check. The background check will be consistent with the needs of the Papa Pals position.
You agree that you will complete a consent form authorizing Papa to conduct a background search. If you refuse to sign the consent form, Papa may no longer consider you able to serve as a Papa Pal. As part of Papa’s background check process, you agree to provide Papa with your social security number. You also agree that, at its sole discretion and in accordance with applicable law, Papa may require you to consent to and pass additional background checks.
Additionally, as part of the Papa application, you agree to upload an accurate and up-to-date acceptable form of identification consistent with the United States Department of Homeland Security. Acceptable forms of photo identification include a Driver’s License; ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address; a School ID card with a photograph; Voter registration card; a U.S.military card or draft record; a Military dependent’s ID card; a U.S.Coast Guard Merchant Mariner Document (MMD) card; a Native American tribal document; or a Driver’s license issued by a Canadian government authority.
If Papa discovers that you falsified or omitted information on consent forms, you may be denied the opportunity to serve as a Papa Pal. Any opportunity to serve as a Papa Pal offered by Papa may be contingent upon the successful completion of a background check.
The information obtained through background checks is confidential and will be shared only with individuals with an essential business need to know, or where Papa has a legal obligation to share the information at issue.
Additional requirements for Papa Pal drivers
If, in connection with the Service and your role as a Papa Pal, you will be offering driving services or accommodations to Papa’s Members, then you must adhere to the following additional requirements.
You shall (a) own a personal motor vehicle registered and insured in your name or which you are fully authorized and insured to operate; (b) operate your motor vehicle in a safe manner and abide by all federal, state, and local motor vehicle regulations, laws, and ordinances; (c) ensure your vehicle is maintained in a safe driving condition; (d) maintain a valid state driver’s license, and (e) maintain automobile insurance for death, bodily injury, and property damage coverage that meets or exceeds minimum state requirements.
You agree to deliver to Papa, upon request, up-to-date certificates of insurance as proof of coverage. You agree to make available updated certificates each time you purchase, renew, or alter your insurance coverage. You also agree to give Papa at least thirty (30) days’ prior written notice before cancellation of any insurance policy required by this Agreement.
Papa will review your motor vehicle history at least once per year. Your ability to participate in, access, or use the Service and serve as a Papa Pal is contingent upon your consent to ongoing background and motor vehicle history checks which at minimum will be conducted and reviewed by Papa on an annual basis.
While driving, use of a cell phone or other device for phone calls or GPS should be limited and at all times must be hands free only and in compliance with applicable state and federal law. Using a cellphone or other device for any other purpose, including texting, email, streaming, or using the Internet, is strictly prohibited.
You shall notify Papa immediately upon the occurrence of any motor vehicle accidents and as soon as you have knowledge of the suspension, revocation, or expiration of your driver’s license. Failure to do so will result in the automatic termination of your role as a Papa Pal.
When driving as a Papa Pal or when a Papa Member is in your motor vehicle, you are prohibited from having family members, friends, or other persons in your vehicle.
Papa Pal services
Papa may notify you via the Service of opportunities to serve as a Papa Pal. For each opportunity that you accept, you shall complete the services requested by Papa’s Members in a satisfactory and professional manner and in compliance with this Agreement and any and all applicable federal, state, and local laws, rules, and regulations.
If you fail to complete any opportunity you have accepted, Papa reserves the right to recover any costs incurred by Papa related to your action(s) or omission(s).
Papa Pal services for Florida residents
If you are a Papa Pal conducting visits in the state of Florida, to ensure compliance with certain state regulatory requirements and to provide an optimal experience for both Papa Pals and Members, you are limited to spending ten (10) hours per calendar week on work with any given Member. Any hours worked for an individual Member in excess of ten (10) hours per week will NOT be eligible for compensation; therefore, please schedule yourself accordingly. This does not limit the total number of hours that you may work per week generally, and only applies to hours worked with any specific Member in a given week.
Papa will compensate you for your services as a Papa Pal in connection with the Service at the standard rate and schedule then in effect at the time the services are rendered. Papa reserves the right to change the rate and schedule of compensation for Papa Pals at any time and in its sole discretion, and your continued use of the Service shall constitute your consent to any change.
Nothing in this Agreement prevents the parties from negotiating a different rate of pay. You are free to contact Papa regarding the payment schedule, and are free to accept, reject, or ignore any opportunities as a means to earn different rates of pay.
In the event Papa fails to remit payment in a timely or accurate manner, you shall have the right to seek proper payment by any legal means contemplated by this Agreement, provided, however, that you first inform Papa in writing of the failure and provide Papa a reasonable opportunity to cure.
Security and passwords
Access to the Service is enabled only by usernames and passwords. The security of your Papa account relies on your protection of your user profile information. You are responsible for maintaining the security of your user profile information, including your password, and for all activities that occur under your account. You shall maintain your username and password in strict confidence. In no event shall you share your username or password with any third party or allow another person to access the Service using your username and password. You shall notify Papa immediately at email@example.com if you have any reason to believe that your username or password has been lost, compromised, or misused in any way. You are fully and solely responsible for any and all use of the Service via your username and password. Papa reserves the right to revoke or deactivate your username and password at any time.
You shall not access or use the Service in an unlawful way or for an unlawful or illegitimate purpose or in any manner that contravenes this Agreement. You shall not post, use, transmit or store (a) a message or information under a false name; (b) information that is unlawful, libelous, defamatory, obscene, fraudulent, predatory of minors, harassing, threatening or hateful to any person; or (c) information that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others. You shall not attempt to disrupt the operation of the Service by any method, including through use of viruses, Trojan horses, worms, time bombs, denial of service attacks, flooding or spamming. You shall not use the Service in any manner that could damage, disable or impair our services or networks. You shall not attempt to gain unauthorized access to any user accounts or computer systems or networks, through hacking, password mining or any other means. You shall not use any robot, scraper or other means to access the Service for any purpose. You shall not circumvent Papa in any way by serving Members outside the Service.
Operation and record retention
Papa reserves complete and sole discretion with respect to the operation of the Service. Papa may, among other things, withdraw, suspend or discontinue any functionality, or feature of the Service. Subject to applicable law, Papa reserves the right to maintain, delete, or destroy all communications and materials posted or uploaded to the Service pursuant to its internal record retention or destruction policies.
Non-disclosure and confidentiality
In using the Service, you may gain access to confidential and proprietary information about Papa and its operations and well as its Members, customers, licensors, and suppliers. Any information furnished by Papa for your use is the sole property of Papa, or its customers, licensors, or suppliers. The term “Confidential Information” includes but is not limited to all data, materials and information related to or associated with Papa’s products, business, services or activities; proprietary computer software or data; marketing plans or techniques; customer lists or information; information relating to finance, accounting, sales, suppliers, procurement, distributors (including sub-distributors), personnel and management; information related to supplier lists, price lists, costs of goods and services and maintenance; protected health information; and trade secrets (“Confidential Information”). The requirement of confidentiality shall not apply to information that is (a) in the public domain through no wrongful act of the receiving party; (b) rightfully received by the receiving party from a third party who is not bound by a restriction of nondisclosure; (c) is required to be disclosed by applicable rules and regulations of government agencies or judicial bodies; (d) was already in properly possession of the receiving party as of the date of the receipt of the information.
You shall indefinitely maintain and vigilantly safeguard the privacy and security of all Confidential Information in the strictest confidence, and shall not disclose it, or allow it to be disclosed, by any means to any person except with Papa’s written approval, and then only to the extent necessary to participate in, access, or the Service.
You shall safeguard all protected health information (“PHI”) as required by the Health Information Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health (“HITECH”) Act.
You shall implement and maintain appropriate administrative, physical, technical, and procedural safeguards to protect the confidentiality of all Confidential Information, to protect against reasonably anticipated threats or hazards, and to prevent use or disclosure of Confidential Information accessed through the Service other than as permitted by this Agreement or required by law. Such safeguards shall comply with all applicable federal, state, and local requirements and with security measures and controls that may be required from time to time by Papa and its licensors and suppliers.
Without limiting the foregoing, you agree to undertake all necessary measures to ensure the privacy and security of all Confidential Information including without limitation: (i) to use the Service and the Confidential Information only as needed to perform your responsibilities as a Papa Pal; (ii) not to access, use, or disclose any Confidential Information that you have no prior legitimate authorization to access, use, or disclose; (iii) to restrict physical and system access to the Service or other equipment which contains Confidential Information (such as by diligently locking and monitoring office premises and requiring password verification to gain access to desktop computers); and (iv) implementing all required policies and procedures to ensure compliance with applicable state law.
You shall immediately notify and cooperate fully with Papa in the event you discover or suspect: (a) any unauthorized use of or access to the Service; (b) any inappropriate use or disclosure of information contained in or obtained through use of the Service; or (c) the recognition or introduction of any virus, worms, trojan horses and other destructive items.
Upon expiration or termination of this Agreement, you will return any Confidential Information in your possession to Papa and delete or destroy any copies you may possess. Improper disclosure of any of Papa’s Confidential Information is a material breach of this Agreement. The provisions of this section shall survive expiration or termination of this Agreement for any reason.
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order.
Non-circumvention and non-solicitation
Papa requires this limited non-circumvention and non-solicitation clause to protect against direct use of Papa’s Confidential Information to circumvent Papa’s contractual relationships with its customers. You agree that to provide this limited protection you shall not use the Confidential Information to (a) directly or indirectly initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any such Member or third party identified or introduced by Papa; or (b) seek to by-pass, compete, avoid or circumvent Papa from any business opportunity that relates to the Services by utilizing the Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
You shall not, for yourself, or on behalf of any other person, firm, partnership, corporation, or company, (a) call on, solicit, or take away any of Papa’s customers or potential customers which you became aware of as a result of performing services under this Agreement, or (b) solicit or hire away any of Papa’s employees or contractors which you became aware of as a result of performing services under this Agreement, during the Term of this Agreement and for a period of twelve months after termination of the Agreement. The provisions of this section shall survive expiration or termination of this Agreement for any reason.
You shall notify Papa immediately in the event you are (a) convicted of or plead nolo contendere to any felony, (b) convicted of any misdemeanor involving fraud or moral turpitude.
You shall also notify Papa immediately if you become aware of any medical incident, error, or adverse event arising out of any conversation, advice, or service rendered by you within the Service which may reasonably be expected to give rise to a claim being made against you or if you have been named in any claim or suit arising out of any conversation, advice or service rendered by you as a Papa Pal or in connection with the Service.
Papa may suspend or terminate your participation in, access to, or use of the Service and your role as a Papa Pal at any time, for any reason or for no reason at all in our sole discretion. Papa reserves the right to change, suspend, or discontinue all or part of the Service, temporarily or permanently, without prior notice. Papa reserves the right to delete or change any username or password at any time, for any reason or for no reason at all.
You acknowledge and agree that all obligations relating to Confidential Information, Non-Circumvention and Non-Solicitation, Intellectual Property, Indemnification, and Arbitration under this Agreement will continue after termination of this Agreement and termination of access rights hereunder.
The Service and all of its content, including without limitation all copyrights, patents, trademarks, service marks, and trade names, as well as all logos, text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof, and all other intellectual property (collectively referred to as the “Content”), are all proprietary and owned or controlled by Papa, our licensors, and certain other third parties. All right, title, and interest in and to the Content available via the Service is the exclusive property of and owned by Papa, our licensors or certain other third parties, and is protected by United States and international copyright, trademark, trade dress, patent or other intellectual property and unfair competition rights and laws to the fullest extent possible.
Papa owns and uses several trademarks on the Service, including but not limited to: PAPA, PAPA HEALTH, PAPA DOC, PAPA PAY, PAPA PALS, GRANDKIDS ON DEMAND, FAMILY ON-DEMAND, and related logos and designs. All other trademarks, brands, and names are the property of their respective owners.
Nothing contained in the Service should be construed as granting any license or right to use any trademark displayed on this site without the express written permission of Papa or such third-party that may own the trademark.
Subject to the terms of this Agreement, Papa hereby grants you a limited, revocable, non-transferable, and non-exclusive license to temporarily download and use one copy of the Service for personal, transitory viewing only in order to participate as a Papa Pal. This is not a transfer of title, right, or interest in the Service or Content. The license does not give you the right to, and you are strictly prohibited from, modifying or copying the Content, using the Content for any commercial purpose other than serving as a Papa Pal, publicly displaying the Content, attempting to decompile or reverse engineer the Content, removing any copyright, trademark, or other proprietary notations from the Content, or otherwise infringing upon the intellectual property rights of Papa. This license shall automatically terminate if you violate any of these restrictions and may be terminated by Papa at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
Some features of the Service may now or in the future allow you to provide content, such as written comments or reviews, or responses to interactive content, to be published or displayed on public areas of the Service (“User Content”). All content submitted by you to the Service may be retained by us indefinitely, even after you terminate your account. By submitting any User Content, you grant to Papa a perpetual, worldwide, irrevocable, non-exclusive, royalty-free license to use the User Content in any manner, including to create derivative works, without any compensation or notice to you. Your User Content may be posted and transmitted to others at your own risk. We cannot control the actions of other Users of the Service with whom you may choose to share your User Content.
You acknowledge that all original works of authorship, whether or not registrable under copyright or similar laws, which are created, conceived, developed by or under the direction of Papa (solely or jointly with others) under this Agreement, or that relate to the present or anticipated business activities or operations of Papa, or any affiliate of Papa, including, without limitation, any drafts, customer or distributor lists or information, accounting or financial information, supplier pricing or information, products, packaging, business plans or promotions, marketing plans or promotions, designs, layouts, materials, forms, formulas, components, work product, inventions, developmental or experimental work, protocols, procedures, policies, computer software programs (including, without limitation, images, text, source code, object code, html code and scripts), databases and other original works, and any upgrades, modifications or enhancements to the foregoing and any related patents, patent applications, copyrights, copyright applications (collectively referred to herein as the “Work Product”), are and shall remain the sole and exclusive property of Papa, and all right, title and interest therein shall vest in Papa and shall be deemed a “work made for hire,” as that term is defined in the United States Copyright Act. To the extent any of such Work Product may not be considered a “work made for hire,” you hereby irrevocably assign all right, title and interest in such Work Product to Papa without limitation. Unless otherwise agreed to in writing by Papa, nothing in this or any other agreement or in the course of dealing between you and Papa shall be construed to grant you any ownership right, title or interest in or license to any of the Work Product. All Work Product shall belong exclusively to Papa with Papa having the right to obtain and to hold in its own name copyright, patent and trademark registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Any Work Product conceived, developed or designed by you prior to the commencement of the Agreement that is incorporated into the Work Product of Papa or utilized by you in rendering the Work Product to Papa is hereby licensed to Papa by you. This license granted to Papa shall be royalty free, non-exclusive, perpetual in duration, fully assignable and Papa shall have the right to sub-license its rights under such license on such terms as it shall determine, in its sole and absolute discretion. The provisions of this section shall survive expiration or termination of this Agreement for any reason.
THE SERVICE AND THE INFORMATION CONTAINED THEREIN IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PAPA DISCLAIMS ALL WARRANTIES OF ANY KIND REGARDING THE SERVICE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICE (OR ANY PART THEREOF) WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE, WILL BE COMPATIBLE WITH THE SITE, AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE AND SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO ACCESS AND USE THE SERVICE AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE SERVICE. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE.
YOU SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ANY DAMAGE TO THE SERVICE OR ANY COMPUTER SYSTEM, ANY LOSS OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION ON THE SERVICE CAUSED BY YOU OR ANY PERSON USING YOUR USERNAME OR PASSWORD. PAPA CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY PROTECTED HEALTH INFORMATION, ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SERVICE.
Limitations of liability
IN THE EVENT OF ANY PROBLEM WITH THE SERVICE OR ANY OF ITS CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING IT. UNDER NO CIRCUMSTANCES SHALL PAPA, ANY OF ITS LICENSORS OR SUPPLIERS OR ANY THIRD PARTY WHO PROMOTES THE SERVICE OR PROVIDES YOU WITH A LINK TO THE SERVICE BE LIABLE IN ANY WAY FOR YOUR USE OF SERVICE OR ANY OF ITS CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, ANY INFRINGEMENT BY ANY CONTENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT.
UNDER NO CIRCUMSTANCES SHALL PAPA, ITS LICENSORS OR SUPPLIERS OR ANY THIRD PARTY WHO PROMOTES THE SERVICE OR PROVIDES YOU WITH A LINK TO THE SERVICE BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, STATUTORY, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOW DOWN COSTS, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE, OR OTHER ECONOMIC LOSS) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICE, WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, MALPRACTICE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
If you are a California resident, you agree to consciously waive all claims, both known and unknown that may be later discovered, to the maximum extent permitted by law, including but not limited to that permitted by California Civil Code Section 1542, which states “[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.”
Except to the extent prohibited under applicable law, you shall indemnify, defend, and hold harmless Papa, and its officers, directors, employees, and agents from and against any and all claims, liability, expenses, causes of action, damages, losses, costs, or obligations including reasonable attorneys’ fees arising or allegedly arising in any manner out of or attributable to (i) your failure to comply with any applicable laws and regulations; (ii) your breach of any obligation, representation, or warranty hereunder; (iii) any allegation that the services your provide infringe upon any third-party right of any kind, including without limitation, any intellectual property right; (iv) your acts or omissions in connection with this Agreement, including any services rendered as a Papa Pal, (v) your use of, or activities in connection with the Service; (vi) any and all tax liabilities and responsibilities for payment of all federal, state, or local taxes that are owed by you with respect to your using the Service to serve as a Papa Pal; and (vii) all costs associated with your services, including but not limited to the expense and responsibility for any and all applicable insurance, local, state, or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards, or municipalities.
You may not settle any potential suit hereunder without Papa’s prior written approval. If you fail to promptly indemnify and defend a covered claim, Papa shall have the right to defend itself, and in such case, you shall promptly reimburse Papa for all of Papa’s associated costs and expenses. Papa may offset the amount of any indemnification obligation against compensation due to you.
This indemnification obligation shall survive expiration or termination of this Agreement for any reason.
Arbitration of all claims on an individual basis
If a dispute arises between you and Papa, we want to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Please contact us regarding disputes between you and Papa related to the Service and your experiences as a Papa Pal.
TO THE FULLEST EXTENT PERMITTED BY FEDERAL LAW, YOU AND PAPA AGREE THAT ANY AND ALL DISPUTES OR CLAIMS THAT HAVE ARISEN OR MAY ARISE BETWEEN YOU AND PAPA OR ANY OF ITS SUBSIDIARIES, AFFILIATES, OWNERS, DIRECTORS, EMPLOYEES, OR AGENTS THAT RELATE IN ANY WAY TO YOUR PARTICIPATION IN, USE, OR ACCESS OF THE SERVICE, INCLUDING BUT NOT LIMITED TO SERVICES PROVIDED AS A PAPA PAL OR THE ACTIONS OF PAPA OR ITS AGENTS, SHALL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION RATHER THAN IN A JUDGE OR JURY TRIAL IN COURT, WITH THE EXCEPTION OF ANY DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF INTELLECTUAL PROPERTY RIGHTS. The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this Agreement to arbitrate.
TO THE MAXIMUM EXTENT PERMITTED BY THE FAA, UNLESS YOU AND PAPA AGREE OTHERWISE, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, REPRESENTATIVE ACTION, OR PRIVATE ATTORNEY GENERAL PROCEEDING. ALSO, TO THE EXTENT AVAILABLE BY LAW, AND SUBJECT TO THE DAMAGE LIMITATIONS DISCUSSED HEREIN, THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR, AND FOR THE BENEFIT OF, THE INDIVIDUAL PARTY SEEKING RELIEF. Accordingly, to the maximum extent permitted by the FAA, there will be no right or authority for any dispute covered by this agreement to arbitrate to be brought, heard, or arbitrated as a class action, collective action, or representative action. If a court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this Section shall still apply. With respect to the class, collective, and representative action waiver in this paragraph, if a court decides that applicable law precludes enforcement of any of this paragraph’s limitations on class, collective, and representative actions, any remaining portion of the class, collective, and representative action waiver in this paragraph that is enforceable and requires the claim to be initiated and adjudicated in arbitration on an individual basis only shall be enforced. In the event that a court determines the class, collective, and representative action waiver in this paragraph is unenforceable in its entirety with respect to any claim, the waiver shall not apply to that claim and that claim must be initiated and adjudicated in court. All other claims shall be arbitrated.
NOTICE REGARDING PENDING LITIGATION: There is currently one putative class, collective, and representative action pending against Papa in court. If you enter into this Agreement (by failing to timely opt out of the Agreement as set forth above), then you will waive your right to participate in this class, collective, and representative action. The case is currently pending as Pardo v. Papa, Inc., Case No. 3:21-cv-06326-RS, and was filed in the U.S. District Court for the Northern District of California on August 17, 2021. The plaintiff seeks to represent California Pals under the California Labor Code Private Attorneys General Act of 2004 (“PAGA”) from June 2020 until the conclusion of this action, and as members of a class of Pals from August 2017 until the conclusion of this action. The plaintiff is also seeking to represent all Pals, whether or not based in California, from August 2018 until the conclusion of this action as part of a collective action under the Fair Labor Standards Act (“FLSA”). She alleges the following claims: Failure to pay minimum wages, failure to pay overtime wages, failure to provide meal periods, failure to provide rest breaks, failure to pay wages upon separation of employment, failure to provide accurate and itemized wage statements, failure to reimburse for business expenses, and violation of California Business and Professions Code § 17200. Additional information can be found in the Court’s public records.
Any arbitration commenced under this Agreement shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and held in the county in which the dispute arose or any another mutually agreed location. To initiate arbitration, a party must deliver a demand for arbitration to the other party within the statute of limitations that would apply to the claims had the claims been raised in a court with jurisdiction. The demand for arbitration must (1) be written; (2) provide a brief description of the claims and relief sought; and (3) be personally signed by the allegedly aggrieved party. Papa will deliver any demand for arbitration to you at your address in its records. You must deliver any demand for arbitration to Papa at firstname.lastname@example.org, with the subject line titled “DEMAND FOR ARBITRATION.”
The arbitrator (i) shall have the authority to permit any type of discovery available to the parties had the matter been brought in a court of competent jurisdiction, including third party subpoenas; (ii) shall decide any dispositive motions submitted by a party in accordance with the Federal Rules of Civil Procedure; and (iii) has authority to award any party any remedy to which that party is entitled under applicable law (including the award of attorneys’ fees to a prevailing party if such fees are provided under applicable law). The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
In California and in any other state where it is required to do so by law, Papa will pay the arbitrator’s fees and costs, and the arbitration filing fees. 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. Except as set forth herein, payment of all other filing, administration, and arbitrator fees will be governed by the JAMS’s rules which can be found online through the JAMS website at https://www.jamsadr.com/.
You agree and acknowledge that entering into this arbitration provision does not change your status as an independent contractor in fact and in law. You further agree that when performing services pursuant to the terms of this Agreement, you are not doing so as an employee of Papa. You further agree that any disputes in this regard, including specifically any disputes regarding your classification as an independent contractor and your provision of services under this Agreement, shall be determined exclusively by an arbitrator. This arbitration provision shall survive any termination of your providing independent contractor services to Papa.
This Agreement does not prevent you from filing charges, complaints, or petitions with any federal, state, or local law enforcement agency, including but not limited to the National Labor Relations Board, the U.S. Department of Labor, or the U.S. Securities and Exchange Commission. Further, nothing in this Agreement prevents your cooperation with a government investigation or 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 prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration.
Electronic contracting and communication
You agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Service (collectively, “Notices”). We can send you electronic Notices (1) to the email address that you provided to us during registration, or (2) by posting the Notice on the Service or otherwise through the site. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling or discontinuing your use of the Service.
You expressly consent to be contacted by, and to receive and accept communications from Papa and authorized partners, representatives, or affiliates (which may include merchants or customers) via different communication methods, including but not limited to email(s), SMS/text message(s), push notification(s), or call(s) to contacts, including telephone number(s), you provide to Papa. By consenting to being contacted, you understand and agree that you may receive communications–including artificial or pre-recorded messages or automated systems, such as automatic telephone dialing systems–sent by or on behalf of Papa on various subjects, including but not limited to: (1) operational or transactional communications, such as those concerning your user account, sign up progress to become a Papa Pal, use of the Service, or features available on the Service; (2) communications relating to service opportunities; (3) news concerning Papa and industry developments that affect your relationship with us; and (4) account verification communications. Message and data rates may apply. By consenting to be contacted, you represent that the telephone number(s) that you have provided to us are your contact numbers, that you are permitted to receive calls at such telephone number(s), and that you will promptly alert us whenever you stop using a particular telephone number.
IF YOU WISH TO OPT OUT OF TEXT OR SMS MESSAGES, IN RESPONSE TO SUCH A MESSAGE YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGE.
Media consent and release
By signing this Agreement, you grant Papa and its respective licensees, advertising agencies, promotion agencies, and fulfillment agencies, and the employees, shareholders, officers, directors, managers, members, representatives, photographers, and agents of each and all of them (collectively “Authorized Persons”) the absolute right and unrestricted permission to photograph, record, reproduce, transmit, telecast, create, publish, and otherwise use in any manner your likeness, legal name or fictitious name, quoted remarks, testimonials, interviews, audio recordings, photographs, and video recordings, in which you may be included in whole or part, and as well as any copies, reproductions, and any other material based upon or derived therefrom (collectively, the “Materials”) in any manner, in any and all media now or hereafter devised, including without limitation, printed materials, television or online broadcasts, and social media posts, for purposes of advertising, trade, display, exhibition, editorial use, illustration, promotion, art, or any other lawful purpose whatsoever without any payment, monetary compensation, or any other consideration.
You consent to participate in the recording or creation of such Materials and waive any right that you may have to inspect or approve the Materials or the manner in which they are used. You also waive any rights in and to the Materials and acknowledge that the Materials are the sole and exclusive property of the Authorized Persons and all right, title, and interest therein shall vest in the Authorized Persons.
You hereby release, discharge, and agree to indemnify and hold harmless the Authorized Persons from (i) any and all claims, demands, liabilities, actions, suits, losses, damages, and costs and expenses (including attorneys’ fees) of any kind whatsoever, that you have or may have arising out of or in connection with the recording, creation, and use of the Materials, and you name in connection with same, and the exercise of any of the rights granted to the Authorized Persons above, including, without limitation, any and all claims for defamation, distortion, alteration, or violation of any privacy, publicity, intellectual property, or any other personal or property rights, and (ii) any and all claims to receive compensation or royalties for or relating to the Materials or use of your name or likeness.
You may opt out of this Media Consent and Release at any time by emailing Papa at email@example.com.
This Agreement has been and shall for all purposes be deemed to have been, negotiated, executed, and delivered within the state of Florida, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by the laws of the Florida without regard to its rules on conflicts or choice of law. If this choice of law is invalid under the law of the state where the proceeding is initiated, that state’s choice of law provisions will apply.
This Agreement constitutes the complete and entire Agreement between you and Papa relating to your use and our provision of the Service and the subject matter hereof, and no representations, statements or inducements, oral or written, not contained in this Agreement shall bind either you or Papa. It supersedes all prior and contemporaneous oral and written agreements and discussions. Any of the terms of this Agreement which are determined to be invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable any of the remaining terms of this Agreement or affecting the validity or enforceability of the Agreement as a whole. Failure to insist on performance of any of the terms of the Agreement will not operate as a waiver of any subsequent default. No waiver by Papa of any right under this Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. You may not assign, transfer or delegate your rights or obligations hereunder, in whole or in part. This Agreement shall be binding upon and inure to the benefit of each of the parties and the parties’ respective successors and permitted assigns. Except as otherwise specifically provided herein, this Agreement may not be modified, supplemented, qualified, or interpreted except in writing signed by the parties.