Bushel™ Service Provider Terms of Service Agreement
Last updated: June 29, 2017
This Service Agreement (“Agreement”) by and between you, the party clicking through to accept the terms of this Agreement, and Bushel by Welcome2, Inc. (“Bushel”) constitutes a legally binding agreement between you and Bushel governing your use of Bushel’s website located at https://www.bushelapp.com or any related mobile applications (collectively, the “Bushel Platform”). Upon the date of your acceptance of the terms of this Agreement (“Effective Date”), you agree to be bound by the terms and conditions of this Agreement. In the Agreement, you and Bushel may each be referred to as a “Party” or collectively, the “Parties.”
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND A CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BUSHEL PLATFORM OR PROVIDE ANY SERVICES, AS DEFINED BELOW.
1.Representations and Warrants
a.You represent and warrant that you have full authority to enter into this Agreement, including that you are the legal age of majority in your state of residence.
b.If you are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), you represent and warrant to that you have the legal authority to do so. If this is the case, the term “you” as used in this Agreement will refer to any such Entity and its affiliates.
c.Pursuant to Bushel’s Customer Terms of Service, Bushel’s customers (each a “Customer”) may request services from Bushel for the provision of gardening, landscaping, lawn and yard care, and related services (collectively, “Services”) by placing an order on the Bushel Platform (“Order”). You represent and warrant that you will provide the Services to the Customer pursuant to the terms and conditions of this Agreement and in accordance with the specifications of the Order.
d.You represent and warrant that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Customers and that you will not record (whether video or audio or otherwise) and provision of Services or any interaction by or with any Customer and/or Bushel in connection with Bushel platform without the prior written consent of any relevant Customer.
e.You represent and warrant that you will provide timely, high quality Services to Customers, and you will only offer and provide services for which you have the necessary skills and expertise and you will provide the Services safely.
f.You represent and warrant that you and your Assistants (as defined below) have all authority, licenses, permits, and consents necessary to enter into and perform the Services under the terms of this Agreement, and that you will fully comply with all applicable laws and regulations in connection with your provision of the Services.
g.You represent and warrant that you are under no contractual or other restriction or obligation that would be inconsistent with your ability to comply with the terms of this Agreement.
2.Worker Classifications and Withholdings
a.Under the terms of this Agreement, you are an independent contractor and not an employee of Bushel. Bushel does not perform Services and does not employ individuals to perform Services. You hereby acknowledge that Bushel does not supervise, direct, control or monitor your provision of Services and is not responsible for the Services you perform.
b.This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties. At no time will you hold yourself out as an agent, subsidiary or affiliate of Bushel for any purpose, including your interactions with Customers or when reporting to any government authority.
c.Bushel will not be responsible for deducting or withholding any taxes, unemployment, social security or other expense relating to your provision of Services under this Agreement. You maintain complete control of and responsibility for Your provision of Services.
3.Contracts with Customers
a.You acknowledge and agree that an agreement for the provision of Services (the “Services Agreement”) is formed when you and Bushel agree on the terms of your provision of Services. The terms of the Services Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the Bushel Platform, and any other contractual terms accepted by both you and Bushel, to the extent such terms do not conflict with the terms in this Agreement.
b.Where approved in advance by the Customer, you are not obligated to personally perform the Services. Before any Services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”), Assistants must be registered on the Bushel Platform. Bringing an Assistant who is not registered on the Bushel Platform could lead to removal from the Bushel Platform. You assume full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants and for all required and applicable state and federal income tax withholdings as to all persons engaged by You in the performance of the Services.
c.You acknowledge and agree that you will not contact or provide services to Customers other than as permitted under the terms of this Agreement. The foregoing will not apply to any of your customers to whom you provided services prior to the Effective Date or that you otherwise acquire outside of this Agreement.
4.Performance of Services
a.In order to provide Services, you must register on the Bushel website and pay an annual fee of up to $100 which may be waived at the discretion of Bushel
b.Orders will include a general description of the Services required, fees charged (“Fees,” as defined below), and the Customer contact information (name, physical address, and phone number). The Parties agree to cooperate in good faith to achieve satisfactory completion of the Services in a timely and professional manner. Once you agree to perform Services pursuant to an Order, you may not modify the Fees, unless agreed to in writing by Bushel.
c.In performing the Services, you will provide the requisite resources, including but not limited to, all necessary materials, tools, and equipment, and utilize qualified personnel as necessary to perform the services.
d.The Parties agree to work together in good faith if rescheduling of Services is necessary. However, if you fail to provide the Services contained in an Order and do not cancel an Order within 24 hours of the scheduled date and time of the provision of Services by notifying the Customer and Bushel, you will be required to pay 50% of any Fees the Customer or Bushel incurs relating to the provision of materials for the Services.
e.If a Customer objects, for whatever reason, to your provision of Services, the Parties will cooperate in good faith to remedy the situation or transfer the Customer to another service provider to perform the Services. If Bushel determines that a Customer may be better served by a different service provider, Bushel may transfer the Customer to a different service provider upon notice to you without liability.
5.Billing and Payment
a.Bushel shall pay you directly for Services completed by you or on your behalf. Customers using the Bushel Platform will be required to provide their credit card and/or bank account details to Bushel and the Payment Service Provider retained by Bushel (the “PSP”). Customers will be responsible for paying the invoice for Services (the “Invoice”), which will include (i) the Fees for the Services agreed to and provided by you (“Service Payment”) and (ii) any out of pocket expenses agreed to and submitted by you in connection with the provision of Services.
b.You may be required to register with the PSP, agree to Terms of Service of the PSP and agree to go through a vetting process at the request of the PSP to set up an account with the PSP. The Terms of Service between you and the PSP retained by Bushel are available at https://www.braintreepayments.com/legal (the “PSP Agreement”). By accepting the terms of this Agreement, you agree that you have reviewed and agreed to the PSP Agreement. Please note, Bushel is not a party to the PSP Agreement and that you, the PSP or any other parties listed in the PSP Agreement (currently, Braintree) are the parties to the PSP Agreement, and that Bushel has no obligations or liability to you under the PSP Agreement.
c.When you receive a confirmation through the Bushel Platform that Services have been completed, you authorize Bushel to provide your payment details to the PSP for processing of Service Payments and any out of pocket expenses agreed to in connection with the provision of Services.
d.Bushel reserves the right, in its sole discretion (but not the obligation), upon request from you or a Customer or upon notice of any potential fraud, unauthorized charges or other misuse of the Bushel Platform, to (i) place on hold any Service Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
e.Payment of Fees must be paid through the PSP as indicated on the Bushel Platform. Customers may pay using a Gift Card, which may contain additional terms and conditions.
6.Vetting of Service Provider and Assistants
a.You may be subject to a vetting process before you can register for and during your use of the Bushel Platform, including but not limited to a verification of identity and a criminal background check, at the Country, State and local levels, using third party services as appropriate. You hereby give consent to Bushel to conduct background checks of you, and any Assistants you employ to complete Services, as often as may be required in compliance with federal and state laws and regulations, including, without limitation, the Fair Credit Reporting Act.
b.Although Bushel may perform background checks as outlined above, Bushel is not required to do so and cannot confirm that you or your Assistants are who you claim to be. Therefore, Bushel cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information.
7.Prohibited Uses of Bushel Platform; DMCA
a.As a condition to your use of the Bushel Platform, you agree not to:
i.Upload, post, email, transmit or otherwise make available any information, materials or other content that is illegal, harmful, threatening, abusive, harassing, defamatory, obscene, pornographic, offensive, invades another's privacy, or promotes bigotry, racism, hatred for harm against any individual or group;
ii.Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
iii.Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Bushel Platform;
iv.Upload, post, email, transmit or otherwise make available any information, materials or other content that infringes upon another's rights, including any intellectual property rights (including but not limited to, copyrights, patents, trademarks, or trade secrets);
v.Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
vi.Upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
vii.Reverse engineer, decompile or disassemble any of the software used to provide this Bushel Platform and/or resell or redistribute the Bushel Platform, or any part of the Bushel Platform or use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Bushel Platform, including, but not limited to, altering affiliate IDs including in the hyperlinks created by the storefront;
viii.Interfere with or disrupt the Bushel Platform, or any servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Bushel Platform;
ix.Obtain, collect, store or modify the personal information about other users, to harass or stalk any user or Customer of the Bushel Platform in any way;
x.Use automated means, including spiders, robots, crawlers, data mining tools, or the like to 'meta-search' or download data from the Bushel Platform. Bushel reserves the right to block automated programs that do not comply with these restrictions;
xi.Upload, email, transmit, or post any content encouraging illegal activity or racism, hate speech, incitement of hate;
xii.Upload, email, transmit or post any other content that Bushel deems to be inappropriate.
b.Bushel reserves the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Bushel may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Bushel has no obligation to pre-screen or monitor your access to or use of the Bushel Platform or any information, materials or other content provided or made available through the Bushel Platform, but has the right to do so for the purpose of operating the Bushel Platform, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. You hereby agree that Bushel may, in the exercise of Bushel's sole discretion, remove or delete any postings, information, materials or other content that violates these Terms of Service or that is otherwise objectionable;
8.Term and Termination
a.This Agreement will commence on the Effective Date and will remain effective until terminated in accordance with the terms of this Section (the “Term”). Either Party may terminate this Agreement upon written notice to the other Party. Upon termination of this Agreement, you agree to immediately cease performing any Services.
b.Termination of this Agreement will be without prejudice to other rights or remedies of any Party under this Agreement or applicable law or regulation, including without limitation, any remedies for a breach of this Agreement prior to such termination.
c.Bushel may terminate, limit or suspend your right to use the Bushel Platform in the event that Bushel believes you have breached this Agreement by providing you with written or email notice of such breach and termination or suspension, which will be effective immediately upon delivery of such notice.
d.If Bushel terminates, limits, or suspends your right to use the Bushel Platform, you will not be entitled to any refund, and you are prohibited from registering and creating a new account on the Bushel Platform under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating, limiting, or suspending your account, Bushel reserves the right to take appropriate legal action, including without limitation, pursuing arbitration, criminal, and injunctive redress.
e.Even after your right to use the Bushel Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
f.Bushel reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Bushel Platform in its sole discretion. Bushel is not liable to you for any modification or discontinuance of all or any portion of the Bushel Platform. Bushel has the right to restrict anyone from completing registration on the Bushel Platform that Bushel believes may threaten the safety and integrity of Bushel or the Bushel Platform.
g.All sections of this Agreement, which by their nature should survive the expiration or termination of this Agreement, shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
9.Limitation of Liability; Release
a.Except as expressly set forth in this section, Bushel expressly disclaims to the fullest extent allowed by law all representations and warranties, express or implied, including without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose, or the infringement of third party rights. Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will Bushel, or its affiliates, officers, directors, employees, agents, suppliers or licensors (collectively, “Disclaimed Parties”) be liable to you or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales, property damage, business interruption, or any other loss incurred by you or a third party in connection with this Agreement or the Services, regardless of whether that party has been advised of the possibility of, or could have foreseen, such damages.
b.TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
a.You agree to indemnify and hold the Disclaimed Parties harmless from and against any claim against Bushel by a third party, including a Customer, relating to this Agreement and your provision of Services (each a “Claim”).
b.You will, at your expense, defend any related Claim and pay any damages that may be awarded against the Disclaimed Parties in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bushel for the defense, provided that: (a) Bushel promptly notifies you of the threat or notice of a Claim; and (b) Bushel will have the sole and exclusive control and authority to select defense attorneys, defend or settle any Claim. You further agree to cooperate fully with Bushel in connection with any Claim.
a.A Party’s Confidential Information will not include information that: (a) is or becomes a part of the public domain through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (d) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information.
c.Nothing will prevent either Party from disclosing the other Party’s Confidential Information in connection with any legal proceeding arising from, or in connection with, this Agreement or from disclosing Confidential Information to a governmental entity as required by law.
a.“Your Information” is defined as any information and materials you provide to Bushel or other individuals using the Bushel Platform (collectively, “Users”) in connection with your registration for and use of the Bushel Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User of the Bushel Platform, is collectively referred to herein as “User Generated Content.”
b.The Bushel Platform hosts User Generated Content relating to reviews and ratings of specific Service Providers (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Bushel, has not been verified or approved by Bushel. You agree that Bushel is not liable for any Feedback or other User Generated Content. Bushel encourages each User to give objective, constructive and honest Feedback about the Service Providers with whom they have transacted. Bushel does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Bushel do so.
c.Your use of the Bushel Platform and/or Your provision of Services grants Bushel the absolute, irrevocable, worldwide, perpetual right and permission to use, reproduce, publish, broadcast in any media, publicly display, or distribute, in any media now known or hereinafter known, your personal and/or business name and information you provide on the Bushel Platform for any purpose, including but not limited to, advertising of Bushel, all without further notice, consent or payment.
a.All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that you see or read through the Bushel Platform is owned by Bushel, excluding User Generated Content that Bushel has the right to use.
b.Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Bushel owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended.
c.The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Bushel Platform without Bushel's express prior written consent and, if applicable, the holder of the rights to the user generated content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Bushel and, if applicable, the holder of the rights to the User Generated Content.
a.Bushel respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any material provided on or in connection with the Bushel Platform infringe upon your copyright or other intellectual property right, please send the following information to Bushel at: 1 Broad Street Unit 11, Salem, MA 01970 or email@example.com:
i.A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Bushel Platform where the material you claim is infringed is located. Include enough information to allow Bushel to locate the material, and explain why you think an infringement has taken place;
ii.A description of the location where the original or an authorized copy of the copyrighted work exists for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
iii.Your address, telephone number, and email address;
iv.A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
v.A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
vi.An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
a.Non-Solicitation. During the Term and for a period of one year thereafter, you agree that you, or anyone working on Your behalf relating to Your provision of Services under this Agreement will not: (a) directly or indirectly induce any Customer to withdraw, curtail, or cancel their business relationship with Bushel.
b.No Waiver. Neither Party waives any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the Party granting such waiver.
c.Correspondence. You authorize Bushel or any of its agents to send emails and texts, including through the use of an automatic telephone dialing service, to any email address or mobile phone number You provided when registering to use the Bushel Platform. You understand that Your mobile phone service provider may charge You fees for text messages that Bushel sends You, and You agree that Bushel shall have no liability for any cost relating to Your receipt of such text messages. At any time, you may withdraw your consent to receive marketing emails or text messages from Bushel or its affiliates by calling Bushel at 207-232-9006. Alternatively, you may simply reply “Unsubscribe” to any non-transactional email Bushel sends you, or “STOP” to any non-transactional text message Bushel sends you.
d.Assignment and Change of Control. You may not assign any part or all of this Agreement without Bushel’s prior written consent. Bushel may assign this Agreement at any time without notice or consent.
e.Governing Law, Venue, and Jurisdiction. This Agreement is governed by Massachusetts law, excluding its conflicts of law rules. You agree to submit to venue and exclusive personal jurisdiction in the courts in Massachusetts for any dispute arising out of this Agreement, and You agree to waive all objections to jurisdiction and venue of such courts.
f.Dispute Resolution. Any controversy or claim arising out of this Agreement, including any controversy or claim as to requirement of arbitration, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted in Salem, Massachusetts. There shall be one arbitrator to be mutually selected by the Parties. If the Parties are unable to agree upon an arbitrator within 30 days of the demand for arbitration having been filed, an arbitrator shall be appointed by the AAA. Judgment on the arbitration award may be entered in any court having jurisdiction. The arbitrator in any such arbitration proceeding shall make a determination as to the prevailing party and award such prevailing party its reasonable attorneys’ fees, expenses, and other litigation costs incurred in bringing or defending such arbitration.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH PARTIES SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
g.Severability. If any court or governmental authority determines that any provision of this Agreement is unenforceable, the Parties agree that this Agreement will be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions will be enforced to the extent that they are enforceable.
h.Notice. Except as expressly provided herein, all notices, requests, demands, and other communications under this Agreement will be delivered in writing and will be deemed to have been duly given: (i) on the next day if delivered personally to the Party, (ii) on the date three days after mailing if mailed by registered or certified mail, or (iii) on the next day if delivered by courier. The Parties will send all notices to the addresses as may be provided by a Party from time to time.
i.Entire Agreement. This Agreement constitutes the Parties’ complete and final agreement pertaining to the provision of Services. No modification of this Agreement is binding unless it is in writing and signed by both Parties.
j.Force majeure. Neither Party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed or other occurrences which are beyond either Party’s reasonable control.