Terms of Service

This Agreement governs (i) Customer’s access to and use of the YellowBird website-based marketplace and related platform services, and (ii) YellowBird’s provision of professional safety staffing services to Customer.

PLEASE READ THIS AGREEMENT CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 26, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT BY FOLLOWING THE INSTRUCTIONS IN SECTION 26. BY ACCESSING OR USING OUR SERVICES OR EXECUTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL TERMS HEREIN. IF YOU DO NOT AGREE IN THEIR ENTIRETY, DO NOT USE OUR SERVICES.

We may make changes to this Agreement from time to time. If we make changes, we will provide notice, such as by sending an email or updating the date at the top of this Agreement. Unless stated otherwise, amended terms will be effective immediately, and your continued use of our Services after notice confirms your acceptance. If you do not agree to amended terms, you must stop using our Services.

Questions about this Agreement or our Services? Contact us at operations@goYellowBird.com.

PART I — CONTRACT STAFFING ENGAGEMENT TERMS

1.  Staffing Services

Customer desires to engage YellowBird to provide certain professional services (“Professional Services”) through one or more professionals sourced through the YellowBird platform (each, a “Professional”). YellowBird will provide Customer the Professional Services described in a Contract Staffing Order Form. By mutual agreement, the parties may modify the scope of Professional Services from time to time.

2.  Fees and Payment

a.  Payment of Fees.  Customer will pay YellowBird the fees set forth in your Contract Staffing Order Form. Upon execution of your Contract Staffing Order Form, YellowBird will invoice Customer for the first month of service fees.  Subsequent months are billed in advance on a recurring basis. Overtime and additional hours are billed in arrears, the charges for which will be added to Customer’s next month’s invoice. Any unused monthly service fees will be applied to Customer’s next month’s invoice. Absent a written agreement specifying other payment terms, Customer will pay invoices within fifteen (15) days of receipt. Fees may be paid by ACH, check, credit card, debit card, or other means acceptable to YellowBird.  Professional Services are deemed accepted upon Customer’s approval of the relevant timesheet. 

In addition to the foregoing, if Customer hires a Professional as an employee or independent contractor at any time within one year following commencement of the Professional Services, Customer shall pay YellowBird a Conversion Fee calculated in accordance with your Contract Staffing Order Form, payable in one lump sum prior to the Professional’s first date of engagement as an employee or independent contractor of Customer.

b.  Late Payment.  YellowBird may suspend Professional Services immediately upon notice if Customer fails to pay any amounts due within seven (7) days after the applicable due date. If YellowBird is unable to collect amounts owed by Customer, YellowBird may engage in collection efforts and Customer will reimburse YellowBird, on demand, for its costs of collection, including attorney’s fees.

c.  Taxes.  Except for taxes on YellowBird’s income and gross receipts or where YellowBird is otherwise required to collect taxes, Customer is solely responsible for paying any applicable taxes that arise under this Agreement.

3.  Professional Services Warranty

YellowBird warrants that each Professional will perform the Professional Services consistent with the professional skill and care ordinarily provided by similar professionals practicing in the same or similar locality under the same or similar circumstances. If your Contract Staffing Order Form is for an engagement lasting less than ninety (90) days, within ten (10) business days from the start of the staffing engagement Customer provides evidence reasonably satisfactory to YellowBird that a Professional has not performed in conformance with that standard, Customer shall be entitled to have YellowBird replace the Professional with another Professional, at no additional cost to Customer, on a going-forward basis. If your Contract Staffing Order Form is for an engagement lasting ninety (90) or more days, within twenty (20) business days from the start of the staffing engagement Customer provides evidence reasonably satisfactory to YellowBird that a Professional has not performed in conformance with that standard, Customer shall be entitled to have YellowBird replace the Professional with another Professional, at no additional cost to Customer, on a going-forward basis. The foregoing shall be Customer’s sole and exclusive remedy for any breach of warranty under this Agreement.

4.  Certain Limitations and Disclaimers

a.  EXCEPT AS TO THE EXPRESS WARRANTIES PROVIDED FOR IN SECTION 3, THE SERVICES PROVIDED BY US ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

b.  UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. This twelve-month cap supersedes the general liability limitation in Section 22 with respect to disputes arising from the staffing engagement.

5.  Term; Termination

a.  Term.  The term of this Agreement will commence on the date hereof (the “Effective Date”) and continue for the period set forth in your Contract Staffing Order Form unless terminated in accordance with Section 5(b). Thereafter, this Agreement will remain in effect on a month-to-month basis, subject to the right of either party to terminate for any reason on at least thirty (30) days’ prior written notice.

b.  Termination for Cause.  Either party may terminate this Agreement upon written notice if (a) the other party commits any material breach and fails to remedy such breach within thirty (30) days after written notice thereof, or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings, assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding not dismissed within sixty (60) days.

c.  Survival.  Upon termination, all rights and obligations will immediately terminate except that terms which by their nature should survive termination will survive, including YellowBird’s rights to payment, Sections 4, 10, 15–24, and the general provisions of Part III.

PART II — PLATFORM TERMS OF SERVICE

6.  The Platform Services

YellowBird operates a website-based marketplace (“Platform”) enabling communication and transactions between businesses seeking services (“Customers”) and third-party professionals providing such services (“Professionals” and such services, “Professional Services”). A Customer may book Professional Services (a “Booking”) by submitting a request to YellowBird. YellowBird will connect the Customer with a Professional, who will perform the Professional Services directly for the Customer.

YellowBird is a neutral marketplace. YellowBird does not sell, resell, provide, control, manage, offer, deliver, or supply any Professional Services. Professionals alone are responsible for their Professional Services. When a Customer makes a Booking, the Customer is receiving Professional Services directly from the Professional, not YellowBird, and YellowBird is not and does not become a party to any relationship between Customers and Professionals. YellowBird is not acting as an agent in any capacity for any Customer or Professional and assumes no liability or responsibility for damages associated with Professional Services or any transactions between Customers and Professionals.

While we may help facilitate dispute resolution between you and Customers or Professionals (see Section 12), we have no control over and do not guarantee (a) the existence, quality, safety, suitability, or legality of any Professional Services, (b) the truth or accuracy of any Professional Service descriptions, ratings, reviews, or Content, or (c) the performance or conduct of any Professional, Customer, or third party. YellowBird does not endorse any Professional, Customer, or Professional Services, and any description of any Customer or Professional is not an endorsement, certification, or guarantee by YellowBird.

7. Payment of Fees for Platform Services

Fees for Professional Services booked through the Platform will be invoiced upon the earlier of your issuance of a Purchase Order or the entry of your job order into the Platform.  Approved add-ons or reimbursable expenses are billed in arrears. Absent a written agreement specifying other payment terms, Customer will pay invoices within fifteen (15) days of receipt. Fees may be paid by ACH, check, credit card, debit card, or other means acceptable to YellowBird.

8.  Privacy

For information about how we collect, use, share, or otherwise process information about you, please see our Privacy Policy at www.goYellowBird.com/privacy.

9.  Eligibility

You must be at least 18 years of age (or the age of legal majority where you live) to use our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout this Agreement will include that person or entity, (b) you represent that you are authorized to accept this Agreement on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates this Agreement, the person or entity agrees to be responsible to us.

10.  Accounts and Account Security

You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You are responsible for all activities that occur in connection with your account. If we terminate or suspend your account in accordance with Section 27, you may not create additional accounts.

11.  Conversion Fee

If Customer direct-hires a Professional that Customer first became aware of through the YellowBird platform, Customer shall pay YellowBird a one-time

Conversion Fee in accordance with the schedule set forth in your Contract Staffing Order Form. The Conversion Fee is due and payable in one lump sum prior to the Professional’s first date of engagement as an employee or independent contractor of Customer.

For Customers of the YellowBird marketplace who are not party to a Contract Staffing Order Form, the Conversion Fee shall equal 25% of the Professional’s hourly billing rate on a full-time, annualized basis (e.g., if a Professional charges $100 per hour, the full-time annualized cost is $200,000 and the Conversion Fee is $50,000). The Conversion Fee is due and payable in one lump sum prior to the Professional’s first date of engagement as an employee or independent contractor of Customer.

12.  Mobile Services

By using the Services, you consent to receive information from us via SMS and/or MMS messages sent through an automated telephone dialing system (“Text Service”), even if you have opted in to the National Do Not Call List, any state Do Not Call List, or the internal Do Not Call List of any company. You may be required to respond to an initial message to complete your registration. You do not have to participate in the Text Service to use the Services. To cancel, notify us directly. If you change or deactivate your mobile telephone number, promptly update your account information. Your mobile carrier’s standard message and data rates apply. We are not liable for any delays in the receipt of, or failures to receive, any SMS or MMS messages. You may text “STOP” to cancel or “HELP” for customer support information.

13.  Modifications, Cancellations, and Disputes

Modifications

Professionals and Customers are responsible for any modifications to a Booking they make via the Services or direct YellowBird to make (“Modifications”), which may include additional fees, modified deliverables and/or timeframes, and/or substituting different service providers. If a Modification contains additional fees or taxes, you agree to pay those amounts. A Professional may appoint a substitute provider if and only if (a) agreed to in writing by the Customer, (b) the substitute provider has an active account on the Services and has agreed in writing to accept the Booking, and (c) Professional obtains YellowBird’s consent to the Modification and furnishes YellowBird with all information necessary for YellowBird to consent.

Cancellation Policy

For YellowBird to prepare appropriate accommodations, Customer must notify YellowBird of any need to cancel or reschedule services at least five (5) business days prior to the date services are to be rendered. Cancellation or reschedule notifications received within five (5) business days shall not result in dismissal of outstanding invoices or nullification of previously agreed charges. If one of our Professionals needs to cancel or reschedule, YellowBird will immediately contact Customer and, at Customer’s discretion, substitute an equally qualified professional or reschedule. All rescheduling and cancellation notices must be submitted via email to operations@goYellowBird.com.

Payments on Cancellation

If you cancel services at least five business days before services are to be rendered, your initial invoice shall be voided or your initial payment shall be refunded. In certain circumstances, YellowBird may, in its sole discretion, cancel a pending or confirmed Booking and initiate a full refund to the Customer.

Disputes

You are solely responsible for your interactions with Customers or Professionals. YellowBird does not have any obligation to mediate or facilitate any dispute resolution, however, YellowBird reserves the right to monitor and mediate disputes in its sole discretion. If YellowBird exercises this right, you agree to cooperate in good faith and provide such information and take such actions as reasonably requested by YellowBird. You may terminate your participation in any mediation process at any time. Your right to take legal action before a court of law remains unaffected.

14.  Content

Our Services may allow you to create, post, store and share content, including messages, text, photos, and other materials (collectively, “Content”). Except for the license you grant below, you retain all rights in and to your Content. You grant YellowBird a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your Content and any name, Customer name or likeness provided in connection with your Content in all media formats and channels now known or later developed without compensation to you. If your name, voice, image, persona, likeness, or performance is included in any Content, you hereby waive and release YellowBird and its Customers and Professionals from any claim or cause of action arising out of the use of such Content in accordance with the license in this Agreement. You may not create, post, store or share any Content that violates this Agreement or for which you do not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor Content, we may delete or remove Content at any time and for any reason with or without notice.

15.  Logo Use and Publicity

Customer authorizes YellowBird to use its name, company name, logo and/or trademark, without prior notice to or consent from Customer, in connection with promotional materials that YellowBird may disseminate to the public. Such promotional materials may include, but are not limited to, brochures, video, internet website, press releases, advertising in newspapers and/or other periodicals, and any other materials relating the fact that YellowBird has a service partnership with Customer. Such materials may be developed, disseminated, and used without Customer’s review. Nothing herein obligates YellowBird to use Customer’s name, company name, logo and/or trademark in any promotional materials.

Customer shall not, and shall not permit any of its colleagues to, issue any press release or other public disclosure using the name, logo, or otherwise referring to YellowBird Holdings, Inc. or any of its affiliates or any transaction contemplated herein without at least two (2) Business Days’ prior written notice to and the prior written consent of YellowBird.

16.  Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:

• Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
• Use or attempt to use another Customer’s or Professional’s account without authorization;
• Engage in tactics to bypass the Services or other YellowBird systems to avoid complying with our policies, paying applicable fees, or complying with other contractual obligations;
• Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation;
• Sell or resell our Services without first establishing a separate Reseller Agreement with YellowBird;
• Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
• Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
• Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Customers or Professionals from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services;
• Reverse engineer any aspect of our Services or do anything that might discover source code or bypass measures employed to prevent or limit access to any part of our Services;
• Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
• Develop or use any applications that interact with our Services without our prior written consent;
• Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
• Bypass or ignore instructions contained in our robots.txt file; or
• Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.

You may not create, post, store or share any Content that: is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; would constitute, encourage or provide instructions for a criminal offense; may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; contains any unsolicited promotions, political campaigning, advertising or solicitations; contains any private or personal information of a third party without such third party’s consent; or contains any viruses, corrupted data or other harmful, disruptive or destructive files or content.

Enforcement of this Section is solely at YellowBird’s discretion and failure to enforce it in some instances does not constitute a waiver of our right to enforce it in other instances.

17.  Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by YellowBird or our licensors and are protected under both United States and foreign laws. Subject to your compliance with this Agreement, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

18.  Trademarks

The YellowBird name and our logos, product or service names, slogans and the look and feel of the Services are trademarks of YellowBird and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners.

19.  Feedback

You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about YellowBird or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. YellowBird may treat Feedback as nonconfidential.

20.  Repeat Infringer Policy; Copyright Complaints

In accordance with the Digital Millennium Copyright Act, we have adopted a policy of terminating, in appropriate circumstances, the accounts of Customers or Professionals who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify YellowBird’s designated agent:

Designated Agent: Legal

Address: 2355 E Camelback Road, Suite 325, Phoenix, AZ 85016

Telephone: 623.526.5439

Email: legal@goyellowbird.com

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to YellowBird for certain costs and damages.

21.  Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). YellowBird does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

22.  Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless YellowBird and our officers, directors, agents, partners and employees (collectively, the “YellowBird Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services and/or Professional Services; (b) your Content or Feedback; (c) your violation of this Agreement; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to cooperate with the YellowBird Parties in defending such Claims.

23.  Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YELLOWBIRD AND THE OTHER YELLOWBIRD PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF YELLOWBIRD OR THE OTHER YELLOWBIRD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE TOTAL LIABILITY OF YELLOWBIRD AND THE OTHER YELLOWBIRD PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OUR SERVICES, OR THE Professional SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM GIVING RISE TO LIABILITY.

THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF YELLOWBIRD OR THE OTHER YELLOWBIRD PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

24.  Release

To the fullest extent permitted by applicable law, you release YellowBird and the other YellowBird Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to (a) disputes between you and a Customer or Professional, (b) the acts or omissions of Professionals and/or third parties, and/or (c) the provision of Professional Services. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “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.”

25.  Transfer and Processing of Data

In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.

PART III — GENERAL PROVISIONS

26.  Governing Law and Venue

Any dispute arising from this Agreement and your use of the Services will be governed by and construed and enforced in accordance with the laws of the State of Arizona, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of Arizona and the United States, respectively, sitting in Maricopa County, Arizona.

27.  Dispute Resolution; Binding Arbitration

Please read this section carefully because it requires you to arbitrate certain disputes and claims with YellowBird and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.

No Representative Actions. You and YellowBird agree that any dispute arising out of or related to this Agreement or our Services is personal to you and YellowBird and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

Arbitration of Disputes. Except for small claims disputes or disputes in which you or YellowBird seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and YellowBird waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or our Services resolved in court. Instead, for any dispute or claim that you have against YellowBird or relating in any way to the Services, you agree to first contact YellowBird and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to YellowBird by email at legal@goYellowBird.com or by certified mail addressed to YellowBird Holdings, Inc., 2355 E Camelback Road, Suite 325, Phoenix, Arizona 85016. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. If you and YellowBird cannot reach agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator in Maricopa County, Arizona in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”), which are incorporated herein by reference.

You and YellowBird agree that these Terms affect interstate commerce and that the enforceability of this Section will be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”). The arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and may conduct only an individual arbitration. The arbitrator, YellowBird, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards.

For any arbitration you initiate, you will pay the filing fee and YellowBird will pay the remaining JAMS fees and costs. For any arbitration initiated by YellowBird, YellowBird will pay all JAMS fees and costs. Any claim arising out of or related to this Agreement or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section by sending an email to legal@goYellowBird.com. The opt-out notice must include your full name and address and clearly indicate your intent to opt out. If any portion of this Section is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful provision shall be severed without impact on the remainder of this Section or the parties’ ability to compel arbitration of any remaining claims on an individual basis.

28.  Modifying and Terminating the Platform Services

We reserve the right to modify our Platform or to suspend or stop providing all or portions of our Services at any time on thirty (30) days’ notice to you. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.

29.  Severability

If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

30.  Miscellaneous

a.  Entire Agreement.  This Agreement, together with any applicable Invoice(s) and Exhibits attached hereto, constitutes the entire agreement between Customer and YellowBird with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by YellowBird, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

b.  Assignment; Delegation.  Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

c.  Amendment; Waiver.  No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

d.  Relationship of Parties.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto. Neither party will have the authority to obligate or bind the other in any manner. Professionals engaged through the YellowBird platform are independent, third-party contractors, and not employees, agents, joint venturers or partners of YellowBird.

e.  Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail (return receipt requested), email, or overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or to such other address as a party may designate in writing.

f.  Electronic Communications.  You agree that communications and transactions between us may be conducted electronically.

g.  California Consumers.  Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

h.  Publicity.  The parties’ respective rights and obligations with respect to publicity and logo use are governed by Section 14 of this Agreement.



31.  Text Messaging

By accepting this Agreement you agree to receive recurring messages from YellowBird. You can reply STOP to opt out or HELP for help. Message frequency varies. Message and data rates may apply. Carriers are not liable for delayed or undelivered messages. YellowBird alerts our Professionals of job opportunities, connects our Professionals with their clients and a Customer Success representative in a group text, and inquires about job details, availability, and updates.