PLEASE READ THIS USER AGREEMENT AND ALL OTHER AGREEMENTS AND POLICIES REFERENCED HEREIN COLLECTIVELY DEFINED BELOW AS THE “TERMS OF SERVICE” CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
Subject to the conditions set forth herein, UpCollision may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. UpCollision will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by UpCollision, UpCollision will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.
1. UPCOLLISION ACCOUNTS
Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.
1.2 ACCOUNT ELIGIBILITY
UpCollision offers the Site and Site Services for your business purposes and for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes and consumer services; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Collision Services; and (d) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services you provide and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES
As described in this Section, there are a number of different Account types. For example, if you already have a Service Account, you can add a Shop/Customer Account as a separate account type with re-registering. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for an Account to use the Site and Site Services as a Client (a “Shop, Customer, Dealership, Fleet Company Account”).
1.4.2 TECHNICIAN, SUBLET VENDOR, EQUIPMENT RENTALS AND MOBILE REPAIR SERVICE ACCOUNT
Technician: You can register for an Account or add an Account type to use the Site and Site Services as a Technician (a “Freelancer Account”).
Sublet Vendor: You can register for an Account or add an Account type to use the Site and Site Services as a Sublet Vendor (a “Freelancer Account”).
Equipment Rentals: You can register for an Account or add an Account type to use the Site and Site Services for Equipment Rentals (a “Freelancer Account”).
Mobile Repair Service: You can register for an Account or add an Account type to use the Site and Site Services as a Mobile Repair Service Company (a “Freelancer Account”).
You acknowledge and agree that the company is solely responsible, and assumes all liability, for: (a) the classification of your members as employees or independent contractors; and (b) paying your employees in accordance with applicable law for work performed on behalf of the company for Projects. You further acknowledge and agree that (i) the company may determine the Profile visibility and pricing/rate information of any of its employees; and (ii) Company Profiles may display work history that includes work done under the company account.
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent and warrant that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site and Site Services. Upon closure of an Account, UpCollision may close any or all related Accounts.
1.6 USERNAMES AND PASSWORDS
Each person who uses the Site must register for their own Account. When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account. You authorize UpCollision to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both or (b) the use would violate the Terms of Service.
2. PURPOSE OF UPCOLLISION
Section 2 discusses what UpCollision does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Technician, Shop, Vendor, or Customer, as detailed below.
The Site is a marketplace where Customers, Shops, Sublet Vendors, Dealerships, and Technicians can identify each other and advertise, buy, and sell Collision Repair Services in person on site. Subject to the Terms of Service, UpCollision provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts.
2.1 RELATIONSHIP WITH UPCOLLISION
UpCollision merely makes the Site and Site Services available to enable Customers, Shops, Sublet Vendors, Dealerships, and Technicians to find and transact directly with each other. UpCollision does not introduce users to users, find Projects for users, or find users for users. Through the Site and Site Services, Users may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Users that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or User on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and UpCollision is not a party to that Service Contract.
You acknowledge, agree, and understand that UpCollision is not a party to the relationship or any dealings between Client and User. Without limitation, Users are solely responsible for: (a) ensuring the accuracy and legality of any User Content; (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions); (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts; (d) performing Collision Services; and/or (e) paying for Collision Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User. UpCollision does not make any representations about or guarantee the truth or accuracy of any Freelancer’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Users or Clients; and does not perform background checks on or guarantee the work of Users or Clients. You acknowledge, agree, and understand that UpCollision does not, in any way, supervise, direct, control, or evaluate service providers or their work and is not responsible for any Project, Project terms or Work Product. UpCollision makes no representations about and does not guarantee, and you agree not to hold UpCollision responsible for, the quality, safety, or legality of User Services; the qualifications, background, or identities of Users; the ability of Users to deliver Collision Repair Services; the ability of Clients to pay for Collision Repair Services; User Content and statements or posts made by Users; or the ability or willingness of a Client or User to actually complete a transaction.
You also acknowledge, agree, and understand that Service Providers are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Collision Repair Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of UpCollision, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) UpCollision will not have any liability or obligations, including under or related to Service Contracts and/or Collision Repair Services for any acts or omissions by you or other Users; (iii) UpCollision does not, in any way, supervise, direct, or control any Service Provider or Collision Repair Services; does not impose quality standards or a deadline for completion of any Collision Repair Services; and does not dictate the performance, methods or process Service Provider uses to perform services; (iv) Service Provider is free to determine when and if to perform Collision Repair Services, including the days worked and time periods of work, and UpCollision does not set or have any control over Service Provider’s pricing, work hours, work schedules, or work location, nor is UpCollision involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Service Provider for a Project; (v) Service Provider will be paid at such times and amounts as agreed with a Client in a given Service Contract, and UpCollision does not, in any way, provide or guarantee Service Provider a regular salary or any minimum, regular payment; (vi) UpCollision does not provide Technicians with training or any equipment, labor, tools, or materials related to any Service Contract; (vii) UpCollision does not provide the premises at which Service Providers will perform the work.
Without limiting the foregoing paragraph, if you are a company, you expressly acknowledge, agree, and understand that: (1) the company is solely responsible for paying its employees for work performed on behalf of the company and that such payments will not be made through the Site; (2) UpCollision is not a party to any agreement between the company and its employees and does not have any liability or obligations under or related to any such agreement, even if the company or employee defaults; (3) neither Companies nor employees are employees or agents of UpCollision; (4) UpCollision does not, in any way, supervise, direct, or control the Company or employees; (5) UpCollision does not set companies or employees contract terms amongst themselves or with Clients, fees, pricing, work hours, work schedules, or location of work; (6) UpCollision does not provide Companies or Agency Employees with training or any equipment, labor, tools, or materials needed for any Service Contract; (7) UpCollision does not provide the premises at which the Company or Employees will perform the work; and (8) UpCollision makes no representations as to the reliability, capability, or qualifications of any Company or Employees or the ability or willingness of any Company to make payments to or fulfill any other obligations to Employees, and UpCollision disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
2.2 TAXES AND BENEFITS
Service Provider acknowledges and agrees that Service Provider is solely responsible (a) for all tax liability associated with payments received from Service Provider’s Clients and through UpCollision, and that UpCollision will not withhold any taxes from payments to Service Provider; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Service Provider is not covered by or eligible for any insurance from UpCollision; (c) for determining whether Service Provider is required by applicable law to issue any particular invoices for the Service Provider Fees and for issuing any invoices so required; (d) for determining whether Service Provider is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Service Provider Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if UpCollision is required by applicable law to withhold any amount of the Service Provider Fees and for notifying UpCollision of any such requirement and indemnifying UpCollision for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of UpCollision, Service Provider agrees to promptly cooperate with UpCollision and provide copies of Service Provider’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Service Provider is engaging in an independent business as represented to UpCollision.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request UpCollision to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Service Providers or Clients voluntarily submit to UpCollision and does not constitute and will not be construed as an introduction, endorsement, or recommendation by UpCollision; UpCollision provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that UpCollision post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your rating, wherever referenced, and other User Content highlighted by UpCollision on the Site, if any, may include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that UpCollision will make information available to other Users, including compiled feedback. UpCollision provides its feedback system as a means through which Users can share their opinions of other Users publicly, and UpCollision does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted feedback and any other information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
UpCollision does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content. UpCollision is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, UpCollision reserves the right (but is under no obligation) to remove posted feedback or information that, in UpCollision’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of UpCollision. You acknowledge and agree that you will notify UpCollision of any error or inaccurate statement in your feedback results and that if you do not do so, UpCollision may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND SERVICE PROVIDER
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1 SERVICE CONTRACTS
If a Client and Service Provider decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Service Provider. Client and Service Provider have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that UpCollision is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between UpCollision and any User or a partnership or joint venture between UpCollision and any User.
With respect to any Service Contract, Clients and Service Provider may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand UpCollision’s rights and obligations under the Terms of Service, including this Agreement.
4. WORKER CLASSIFICATION AND UPCOLLISION
Section 4 discusses what you agree to concerning whether a Service Provider is an employee or independent contractor and when you agree to use UpCollision Payroll, as detailed below.
4.1 WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between UpCollision and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Service Provider for any Project. Client is solely responsible for and assumes all liability for determining whether Service Provider should be engaged as independent contractors or employees of Client and engaging them accordingly. Client warrants its decisions regarding classification are correct and its manner of engaging Service Providers complies with applicable laws, regulations, and rules. UpCollision will have no input into, or involvement in, worker classification as between Client and Service Provider and Users agree that UpCollision has no involvement in and will have no liability arising from or relating to the classification of a Service Provider generally or with regard to a particular Project.
5. UPCOLLISION FEES
Section 5 describes what fees you agree to pay to UpCollision in exchange for UpCollision providing the Site and Site Services to you as detailed below.
5.1 FEES FOR SERVICE PROVIDERS
Service Fees. Freelancers will pay UpCollision a commision fee for the use of the Site Services as set forth 12% commision, for using the Site Services, including the communication, invoicing, reporting, dispute resolution and payment services. The Service Fees (to use the Site Services) are paid solely by the Service Provider. When a Client pays a Service Provider for a Project or when funds related to a Project are otherwise released to a Service Provider as required, UpCollision will credit the Service Provider Account for the full amount paid or released by the Client, and then subtract and disburse to UpCollision the Service Fee. Service Provider hereby irrevocably authorizes and instructs UpCollision to deduct the Service Fee from the Service Provider Account and pay UpCollision on Service Provider’s behalf. In the event the Service Provider chooses to withdraw funds in a currency other than U.S. dollars, there may also be a foreign currency conversion charge imposed by UpCollision or an affiliate and the rate may differ from rates that are in effect on the date of the payment and you may be able to obtain a better rate from your bank or financial institution.
Section 6 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that UpCollision is not a party to any contract between Users, you hereby release UpCollision, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Services provided to Client by a Service Provider and requests for refunds based upon disputes.
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 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.”
This release will not apply to a claim that UpCollision failed to meet our obligations under the Terms of Service.
Section 7 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless UpCollision, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims and Indemnified Liabilities relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default incurred through use of the Site Services; (b) any Work Product or User Content developed, provided, or otherwise related to your use of the Site Services; (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Service Provider as an independent contractor; the classification of UpCollision as an employer or joint employer of Service Provider; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (d) failure to comply with the Terms of Service by you or your agents; (e) failure to comply with applicable law by you or your agents; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents include any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
CONSENT TO USE ELECTRONIC RECORDS