Terms of Service

Updated: February 11, 2019

1. GENERAL DESCRIPTION; WHO PERFORMS SERVICES.

Zomelle, LLC (“Zomelle” or “Company”) provides home staffing services (“Service” or “Engagement”) that allow its clients (“Client” or “You”) access to our network of prescreened candidates (“Candidate” or “Employee” or “Worker” or “Contractor”) to identify local providers that meet their immediate home needs. When Client (individually or the entity that You represent) use our Service, You are agreeing to the Terms of Service (“Agreement” or “Terms”) below.

2. STATEMENT OF WORK; TERMS RELATING TO SERVICE. 

2.1 Client agrees to provide Zomelle with information relative to the type of Candidate desired, requirements for the position, the number of days per week needed, location, and salary information. Client further agrees to schedule interviews of Candidates selected by Zomelle solely through Zomelle. Client also understands and agrees that all information provided to Zomelle shall be used to match Candidates to the Client’s job description and Zomelle agrees to keep such information confidential with respect to all parties other than Candidates. Zomelle will provide background screenings through an outside third party company for all Candidates. Client agrees that all reports on prospective Candidates given by Zomelle will be kept confidential.

2.2 I understand, agree and accept that all Candidate profiles and files of Candidates, which are received from Zomelle, are the property of Zomelle and the contents are confidential. I agree that I will not disclose to anyone the names, addresses and/or telephone numbers of any Candidate. If within one (1) year of the date of the original referral I offer employment to a Candidate that Zomelle has introduced to me, the full staffing fee will be due to Zomelle.

If I violate this provision and any information contained in the file is disclosed to a third party by Client and that third party hires that Candidate, I agree to pay the staffing fee of said Candidate to the extent that the third party has not paid Zomelle in full. In the event that Zomelle presses suit to enforce this provision, then the prevailing party shall be reimbursed for court costs and reasonable attorney fees.

3. FEES AND PAYMENTS.

3.1 In consideration of the Service provided by Zomelle, Client hereby agrees to pay a non-refundable staffing fee for the hired Candidate for the first year of employment based upon the amount (contact us for current pricing):

3.2  Should I hire a Candidate through Zomelle I understand that the non-refundable Client staffing fee is due when the job offer is extended and accepted by Candidate. My new Employee will not be permitted to begin work until Zomelle has received fees paid in full.

3.3 Should I hire a “Temporary or Contract” Candidate through Zomelle I understand that the non-refundable Client staffing fee is due when the job offer is extended and accepted by Candidate. My new Employee will not be permitted to begin work until Zomelle has received a signed and accepted contract (“Work Contract”) and fees paid in full. If Client decides to extend the Work Contract, Zomelle must be contacted in writing and a newly amended Work Contract must be signed and accepted by all parties. My Worker will not be permitted to continue the current assignment if a new Work Contract has not been agreed upon by all parties.

4. CREDITS.

4.1 If (i) a Client hires a Candidate and terminates the Candidate’s Employment or Contractor Engagement based on unsatisfactory performance within ninety (90) days of the Start Date, (ii) a Candidate voluntarily terminates his or her Employment within ninety (90) days of the Start Date, or (iii) Candidate does not start Employment or Contractor Engagement because either Client or Candidate elects not to begin the employment relationship contemplated in the Job Offer, (each, a “Termination Event”), upon written receipt and confirmation of such information, Zomelle will provide Client a credit for additional Zomelle Services corresponding to the Staffing Fee related to the Candidate who was the subject of the Termination Event if such Staffing Fee was paid by Client prior to the Termination Event.

No credits shall be provided for Staffing Fees pursuant to a contractor to full-time hire conversion or for Subscription Services. Any applied credit will expire twelve (12) months from date issued.

5. REPLACEMENT.

5.1 Should Candidate replacement become necessary within the first ninety (90) days, immediately following my Candidate’s first day of employment, Zomelle will refer additional Candidates to me. I may hire one (1) Candidate without payment of an additional fee (this applies to full-time staffing only).

5.2 In order to receive replacement Service, I must notify Zomelle within seven (7) days of the last day Candidate worked, when the decision had been made to terminate or when my Candidate has given notice of their intent to leave their position. Written notice is required and should include the reason for termination and the date termination is/or will be effective. If subsequent replacement (this applies to full-time staffing only) is needed after the ninety (90) day period or within twelve (12) months following the original Candidate’s anniversary of the start date Zomelle agrees to charge a fifty percent (50%) reduced staffing fee.

5.3 Zomelle understands the urgency that arises when a replacement is needed and therefore treats replacements with the highest priority. Zomelle will begin the search for new Candidates immediately upon receipt of proper notification. Zomelle will discontinue the search for a suitable replacement if Client does not become available to interview potential Candidates within thirty-days. Client understands that the time it will take to find a replacement is unpredictable.

5.4 Zomelle’s obligations under this section shall be null and void if: (i) payment is not made in accordance with this agreement; (ii) the Client alters the Employee’s job description from that which the Client expressed in its intake application for a Candidate, and such alteration causes the Employee to resign; (iii) the Client chooses to replace the Employee and the second replacement Employee resigns or is terminated; (iv) the Employee resigns due to illegal activity, witnessing or observing substance abuse or acts of moral turpitude within the Client’s home.

6. TRIALS.

6.1 During the period prior to Client’s hire of a Candidate, a three (3) day trial Engagement may be conducted for Client evaluation of Full-time or Part-time Candidates. Client shall pay the Candidate directly for these trial Engagements at the agreed upon salary. Client is responsible for covering all accommodations, travel, and food for non-local Candidates.

7. NON-RESPONSIVENESS.

7.1 In the event the Client does not respond to the Agency after three (3) written attempts and a Candidate is not placed by Zomelle within 60 days of signing this Agreement, and Zomelle has provided at least three (3) Candidates who, in the sole and absolute discretion of Zomelle, are reasonably suited to perform the duties set forth in the Client’s job description (a “Viable Candidate”), in order to continue to receive Zomelle Services the Client will be charged a one thousand ($1,000) dollar non-refundable deposit (“Deposit”) to continue Service. The Deposit will be applied towards the final staffing fee due upon hiring a Viable Candidate; however, if the Client alters the Candidates job description from that which the Client expressed in its initial application and such alteration causes a new search, the Deposit will not be applied towards the staffing fee due and is non-refundable.

8. CONFIDENTIALITY.

8.1 Zomelle understands that any and all private information obtained about Client during the course of the search including but not limited to medical, financial, legal, career, children, and Client’s assets are strictly confidential and will not be disclosed to any outside third party. Client understands that in order for Zomelle to provide Service, pertinent information may need to be disclosed to potential Candidates. The confidentiality provisions of this paragraph shall remain in full force and effect for a lifetime period.

9. COMMUNICATION.

9.1 You consent to communicate with Zomelle and Candidates via email, text, video or our website, including the transmission of information about Candidates and Services. Your phone calls with Zomelle may be recorded and you consent to that recording. You may also receive email or text updates about Services, newsletters, special offers, and account reminders. You can remove yourself from digital communications that are not related to the delivery of Services by following the instructions in the email or text.

10. CONTRACTOR ENGAGEMENTS THROUGH ZOMELLE SERVICE.

10.1 General. Client and Candidate are responsible for any contracts or agreements they may form with respect to such Contractor Engagements. Zomelle does not control, manage, or provide any guidance with respect to the determination of independent contractor or employee status, subsequent agreements between Client and Candidate, or services performed by or payments made to the Client pursuant to a Contractor Engagement. Candidate and Client expressly agree that no joint venture, partnership, employment, or agency agreement exists between them and Zomelle as a result of this Agreement or any use of the Zomelle Service and that Zomelle is not a joint employer for purposes of this Agreement.

10.2 Classification and Relationship. Client assumes all liability for proper classification of Candidates as independent contractors or employees based on applicable legal guidelines. Client acknowledges that Zomelle does not, in any way, supervise, direct, or control the manner, means, or conditions of any work or services performed. Client and Candidate will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any jurisdiction, with respect to a contractor Engagement.

10.3 In addition to the indemnification obligations set forth in Section 11, Client and Candidate agree to indemnify, hold harmless and defend Zomelle from any and all claims, demands, causes of action, losses, damages, liabilities, costs, and expenses, including attorneys fees, arising out of or related to their Engagement, including but not limited to any breach of any of Contractor’s representations and warranties, from the death or injury of any person or persons, including employees of Client or Contractor, or from damage or destruction of any work or properties, attributable to or resulting from Contractor Engagement with Client, claims misclassification of a Client as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Candidate was misclassified, any claim that Zomelle was an employer or joint employer of Candidate, as well as breach of agreement, action, inaction, omission or any claims under any employment-related laws, such as those relating to termination of employment, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, minimum wages, payroll taxes, social security or unemployment taxes, or disability insurance, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits required by law.

11. INDEMNIFICATION.

11.1 Client agrees to defend and indemnify Zomelle and its affiliates and each of their respective directors, officers, managers, employees, shareholders, affiliates, agents and representatives, harmless, from and against any and all liability, claims, lawsuits, losses, demands, damages, costs and expenses, including but not limited to reasonable attorney’s fees, expert’s fees, court costs, and other costs (collectively, “Losses”) arising from any third party claim due to (i) any use of the Services, except to the extent such Losses have been incurred as a direct result of Zomelle’s gross negligence or willful misconduct, (ii) any breach of any of Client’s representations or covenants or other terms contained in an Agreement or any other agreement in which these Terms are incorporated or to which these Terms are attached or made part of, (iii) a specification or instruction provided by or on behalf of Client; (iv) bodily injury, personal injury (including death) to any person, damage to tangible property, or violation of any third party intellectual property rights, resulting from the negligent acts or willful misconduct of Client or its personnel or agents hereunder; (v) the Client’s violation of any third party rights including but not limited to rights of third party vendors referred to the Client; or (vi) the Customer’s use or misuse of the online platform or any Services.

12. LIMITATION OF LIABILITY.

12.1 Client hereby agrees that zomelle’s liability to client for any and all claims, losses, expenses, or damages, including attorneys fees and cost, arising out of or related to this agreement shall not exceed the total sum paid to zomelle during the term of this agreement. neither party will be liable for any special, consequential, or incidental damages suffered or sustained by the other, whether arising under contract, tort or any other theory.

13. GOVERNING LAW.

13.1 The laws of the State of Florida will govern this Agreement. Any disputes, claims, or causes of action arising out of or in connection with this Agreement or any services herein, will be subject to the exclusive jurisdiction of the state and federal courts located in the State of Florida, although the parties may agree to arbitration. Furthermore, the prevailing party will be entitled to recover all attorney’s fees, expert fees, non-judicially recoverable costs and court costs associated with the dispute.

14. MISCELLANEOUS.

14.1 No Assignment. This agreement shall not be assignable by Client without the prior written consent of Zomelle.

14.2 Collection. In the event Client defaults on its payment to Zomelle of any of the fees set forth in this Agreement, the Client agrees to pay all costs incurred by Zomelle in connection with its collection of such fees, including reasonable attorney fees.

14.3 Legal Construction. In case one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provision in this Agreement, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision has never been contained in it.

14.4 Prior Agreements Superseded. This Agreement constitutes the sole and only understanding or written or oral agreements between the parties and supersedes any prior understanding or written agreements between the parties respecting the subject matter of this Agreement.

15. AGREEMENT TO ARBITRATE; DISPUTE RESOLUTION.

15.1 Client and Zomelle agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court. Client acknowledge and agree that you and we are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and we otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Agreement to Arbitrate” will be deemed void. Except as provided in the preceding sentence, this “Agreement to Arbitrate” will survive any termination of the relationship between us.

15.2 Arbitration Rules and Process. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

15.2.1 A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at the website above.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

15.2.2 Unless you and we otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties.

15.3 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorney’s fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

15.4 Fees. Your responsibility to pay any arbitration fees will be solely as set forth in the AAA Rules. If your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

15.5 Changes. Notwithstanding anything else in these Terms, if we change this “Agreement to Arbitrate; Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between Client and Zomelle in accordance with the provisions of this “Agreement to Arbitrate; Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

15.6 Your Choices. If you don’t want to settle Disputes by arbitration as described above, you will notify us by sending us an email to [email protected] within thirty (30) days of the date on which you agreed to these Terms, and consequently you agree that all Disputes will be resolved as provided in Section 15.

Updated: February 11, 2019

GENERAL DESCRIPTION; WHO PERFORMS SERVICES.

Zomelle, LLC (“Zomelle” or “Company”) provides home staffing services (“Service” or “Engagement”) that allow its clients (“Client” or “Customer” or “Employer”) access to our network of prescreened candidates (“Candidate” or “Contractor”) to identify local providers that meet their immediate home needs. Candidates have access to Zomelle home staffing to receive and review requests for services from Client’s and to determine their interest in.

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JUDGE OR JURY TRIALS.

1. RESPONSIBILITIES.

a) Zomelle

Zomelle will review Candidate application. If approved, Zomelle will schedule a personal interview. Zomelle will then perform work eligibility verification, past employment, education verification, reference check, full criminal background screening, and current CPR Certification (childcare positions only), before the first day of work. If requested, Zomelle may provide information to Candidate for assistance in obtaining CPR Certification. Zomelle will decide in its sole discretion whether a Candidate is suitable for placement with potential Client based on a combination of all provided information.

b) Candidate

The Candidate shall provide accurate and necessary information for Zomelle to conduct background screening. Candidate acknowledges that all references submitted by Candidate may be contacted. Candidate will schedule and appear to all confirmed interviews with potential Client. Candidate will submit a current CPR Certification verification, before the first day of work (childcare positions only).

Candidate accepts and understands that through criminal background screenings and past employment history verification is essential to be accepted by Zomelle. All of this information will be made available to prospective employers.

2. NO GUARANTEE POLICY.

Candidate acknowledges and agrees that despite Zomelle’s best efforts to place Candidate with a Client, there is no guarantee that employment will be obtained for Candidate. Candidate understands that ultimate employment is solely based on the Client decision.

3. COMMUNICATION WITH ZOMELLE.

A Candidate is required to promptly notify Zomelle if the Candidate (i) accepts a Client’s offer of employment, whether for an indefinite or fixed term, (ii) accepts an offer to engage as a contractor, whether for an indefinite or fixed term (each, a “Contractor Engagement”), (iii) accepts a Client’s employment offer during or within twelve (12) months after termination of a Contractor Engagement with such Client (each, a “Job Offer”). Candidate agrees that (i) if Candidate receives a Job Offer, Candidate shall promptly notify Zomelle of Your Start Date and the key terms of such Job Offer (and notify Zomelle promptly should that Start Date or offer terms change at any time), and (ii) Candidate will promptly notify Zomelle after termination of Your employment as a Candidate, intern, co-op Candidate, consultant or contractor in the event that (a) a Client terminates Your engagement based on unsatisfactory performance within ninety (90) days of the date on which Your Employment commenced, or (b) You voluntarily terminate Your engagement within ninety (90) days of the date on which Your engagement commenced.

The Candidate agrees not to attempt to circumvent the Zomelle Site and Service by independently attempting to communicate with a Client that contacted or communicated with him or her on the Zomelle Site or Service.

4. CONTRACTOR RELATIONSHIP BETWEEN BOTH PARTIES.

a) Candidate understands and agrees that Zomelle is not the Candidate’s employer. Candidate and/or the Client shall define the manner of Candidate’s services and provide any equipment necessary. The nature of the Candidate and Zomelle relationship is as an independent contractor and Zomelle merely provides a service whereby Candidate might find work with Client as a source of referrals. A Candidate is free to accept or reject any work referred to by Zomelle.

b) Candidate agrees that he or she will file federal and state income tax returns either as a business entity or as 1099 contractor, as part of Candidate’s personal income tax returns. Candidate agrees that he or she is not eligible to participate in any benefit plans of Zomelle under any circumstances, even if the Candidate should be found to be an employee of Zomelle, by any Governmental Agency or Court.

5. OTHER COMPANIES.

Candidate may work with other staffing services and perform work for employers, not associated with Zomelle and is encouraged to do so.

6. CONFIDENTIALITY, NON-SOLICIT OF CLIENTS, THEFT OF SERVICES.

a) Confidentiality: From time to time, candidate may be given access to confidential information in the course of performing service that you receive through Zomelle. During the term of this Agreement and at all times thereafter, you will (i) hold all Confidential Information in strict trust and confidence, (ii) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (iii) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Zomelle’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Zomelle or any Client’s home or business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customers and supplier lists, personal information, financial data, and proprietary information of third parties including Client) that Zomelle and/or the Client considers to be confidential or proprietary or which Zomelle has a duty to treat as confidential.

b) On-Call Staffing Services: Candidate will not give their personal information, including but not limited to; phone numbers, email addresses or mailing address to any employing Client at any time, without written permission from Zomelle. Candidate will contact Client through Zomelle only and may only accept additional work requests from Client, through Zomelle. At no time may Candidate solicit work form Client that are signed up with Zomelle during the term of this Agreement.

c) Permanent Staffing Services: Once Candidate has been permanently placed with a single Client for twelve (12) months, Candidate will no longer owe a duty to notify Zomelle of changes in the work commitment with Client.

d) Client Interviews: Candidate shall have no further contact with Client if they were declined for a position after the interview. Candidate agrees they will not call, text or email Client without written consent from Zomelle. At no time may Candidate solicit work from Client’s that are signed up with Zomelle during the term of this Agreement.

e) Theft of Services: Violation of the above provision(s) shall constitute Theft of Services and result in Candidate to pay one thousand dollars ($1000.00) charge in liquidated damages. THE PARTIES AGREE THE DAMAGES SET FORTH IN THIS SECTION ARE LIQUIDATED DAMAGES AND NOT PENALTIES AND THAT THEY ARE REASONABLE IN LIGHT OF THE HARM THAT WILL BE CAUSED BY ANY CLAIM, THE DIFFICULTIES OF PROOF OF LOSS AND THE INCONVENIENCE ARE INFEASIBLE OF OTHERWISE OBTAINING AN ADEQUATE REMEDY.

7. INCORPORATED DOCUMENTS.

Candidate’s job application and the permanent Candidate/Client Work Agreement (if applicable), are incorporated into this Agreement, by this reference. Additionally, any Zomelle policies or handbooks currently in place or later adopted by Zomelle are incorporated by this reference.

8. GENERAL PROVISIONS.

Law. Except for the “Mandatory Binding Individual Arbitration And Class Action Waiver” below, which is governed by the Federal Arbitration Act, 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 in which the Candidate resides regardless of your country of origin or where you access Zomelle, and notwithstanding any conflicts of law principles.

Mandatory Binding Individual Arbitration and Class Action Waiver (“Arbitration Agreement”). The Company and Contractor mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in this Arbitration Agreement, shall apply to any and all claims arising out of or relating to this Contract, the Contractor’s classification as an independent contractor, Contractor’s provision of services to the Company or its Client’s, the payments received by Contractor for providing services to the Company or its Client’s, the termination of this Contract, and all other aspects of the Contractor’s relationship with the Company, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, claims based on a joint employment or misclassification theory, and all other federal or state legal claims arising out of or relating to Contractor’s relationship or the termination of that relationship with the Company.

The agreement by Contractor and the Company to mutually arbitrate disputes provides consideration for this Arbitration Agreement.  This Arbitration Agreement applies to claims and disputes that the Company may have against Contractor and/or that Contractor may have against the Company, and (i) its affiliates and partners (ii) its officers, directors, employees, or agents in their capacity as such or otherwise, and/or (iii) all successors and assigns of any of them; any and all of which may enforce this Arbitration Agreement.

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or alleged waiver of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. However, as stated in the “Class Action Waiver” below, the preceding sentence shall not apply to the clause entitled “Class Action Waiver.”

This Arbitration Agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress. This Arbitration Agreement also does not apply to Private Attorney General Action claims under Florida law, which may only be brought in a court of law—not in arbitration.

If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period.  This demand for arbitration must include (i) the name and address of the party seeking arbitration, (ii) a statement of the legal and factual basis of the claim, and (iii) a description of the remedy sought. Any demand for arbitration by Candidate must be delivered to ATTN: Legal at [email protected]

Class Action Waiver. The Company and Contractor mutually agree that by entering into this Arbitration   both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”).

Notwithstanding any other clause contained in this Arbitration Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (i) the dispute is filed as a class and/or collective action and (ii) 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.

a) Contractor agrees and acknowledges that entering into this Arbitration Agreement does not change Contractor’s status as an independent contractor in fact and in law, that Contractor is not an employee of the Company and that any disputes in this regard shall be subject to arbitration as provided in this Arbitration Agreement.

b) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), except as follows:

c) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.

d) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which Contractor performed his contractual duties for The Company.

e) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that the Company shall pay all of the Arbitrator’s fees and costs.

f) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.

g) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.

h) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.

i) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.

j) Either the Company or Contractor may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual; provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the temporary or preliminary injunctive relief shall not constitute a waiver of rights under this agreement to arbitrate.

k) Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Occupational Safety and Health Administration, Equal Employment Opportunity Commission, or U.S. Department of Labor) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.

l) The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com or www.Yahoo.com or by asking [email protected] to provide a copy.

m) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. Except In addition to as stated with regard to the Class Action Waiver, above, in the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims; therefore any statements in any Company handbooks or policies that otherwise disclaim contracts do not apply to this Arbitration Agreement.

Modifications to Application. Zomelle reserves the right at any time to modify or discontinue, temporarily or permanently, this Service (or any part thereof) with or without notice. However, as stated above (“General Provisions”), which contains the Arbitration Agreement, will survive any termination or expiration of this Agreement and/or any modification or termination of the Service or Application. You agree that Zomelle shall not be liable to you or to any third party for any modification, suspension or discontinuance of Service or Application.

8. DISPUTES.

The laws of the State of Florida will govern this Agreement. Any disputes, claims, or causes of action arising out of or in connection with this Agreement or any services herein, will be subject to the exclusive jurisdiction of the state and federal courts located in the State of Florida, although the parties may agree to arbitration. Furthermore, the prevailing party will be entitled to recover all attorney’s fees, expert fees, non-judicially recoverable costs, and court costs associated with the dispute.