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 floa partner agreement

Last Updated July 13, 2020

The terms of the following Services Agreement (“Agreement”) constitute an agreement between you and Floa, Co. (“Floa”) governing the services you provide to Floa in various capacities including as a Delivery partner or other role as may be offered by Floa from time to time (collectively, “Floa Services”) on an independent contractor basis.

Please read the terms of this agreement carefully.  By clicking on the “I agree”, “Sign Up”, or similar button, you expressly represent that (1) you have read, understand, and agree to be bound by the terms and conditions of this agreement, (2) you are of legal age to form a binding contract with Floa,  (3) you have the authority to enter into the agreement personally or on behalf of the company you represent and to bind that company to the agreement; and (4) you are legally authorized to work in the United States.

Your Relationship with Floa

Floa is an on-demand watersport rental company. In performing the Floa Services, you acknowledge and agree that you and Floa are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties.  You and Floa agree that nothing in this Agreement should be construed to create (1) an employer-employee relationship or (2) a joint venture, franchisor-franchisee, partnership or agency relationship, or (3) any other relationship other than that of an independent contractor between you and Floa. You have no authority to bind Floa, and you will not undertake to represent yourself as an employee, agent or authorized agent of Floa.

Floa does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Floa Services.

You retain the sole right to determine when, where, and for how long you will perform Floa Services.  In addition, subject to the limitations set forth herein, you can determine the method, details, and means of performing the Floa Services, including whether you engage your own employees or contractors to assist you with the provision of Floa Services. You acknowledge and agree that (i) you have no authority to enter into any agreement or contract that binds Floa or creates obligations on the part of Floa, and (ii) you are not eligible for any Floa employee benefits and, to the extent that you otherwise would be eligible for any Floa employee benefits except for the express terms of this Agreement, you expressly decline to participate in such Floa employee benefits.  With the exception of any permit/license rule or other legal requirements, Floa shall have no right to require you to: (i) display Floa’s names, logos or colors, or (ii) wear a uniform or any other clothing displaying Floa’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Floa Services or otherwise engage in other business or employment activities with other companies.

Payment for Your Services

  • You will pay all applicable federal, state and local taxes based on your provision of Floa Services and any payments received by you. You understand Floa will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. You agree to indemnify, defend and hold Floa harmless from any liability for any breach of this Agreement by you, or any liability for or assessment of, any claims or penalties or interest with respect to such taxes.

  • If applicable (for example, if you earn at least $600 in any calendar year from Floa), you will be required to complete and submit an IRS Form W-9 to Floa, which you hereby agree to do upon request from Floa, and Floa will report fees paid to you for the Floa Services by filing a Form 1099-MISC with the Internal Revenue Service, as required by law.

Your Responsibility for Prohibited Activities

While providing Floa Services, you agree that you will be solely responsible for the consequences of:

  • any damage to Floa inflatable standup paddleboard/kayak hybrids (“Floa iBoards”);

  • any damage or injury to yourself or third parties;

  • entering any private or public property for which you do not have full authorization to enter;

  • failing to follow the protocol or rules of any particular jurisdiction in which you may be performing Floa Services (e.g., particular local regulations, private boat launch, etc.);

  • performing Floa Services in an unsafe, unprofessional, or unworkmanlike manner, including while under the influence of alcohol or other legal or illegal drug;

  • any damage, depreciation, and/or wear and tear to your vehicle or personal property;

  • using electricity or water you do not pay for (as applicable);

  • violating any law, statute, rule, permit, ordinance or regulation;

  • although you may hire contractors or employees to assist you, you are responsible for anyone under your control while providing any Floa Services;

  • colluding, gaming the rules governing Floa Services, or otherwise attempting to defraud Floa in the provision of Floa Services; and

  • causing any third party to engage in the restricted activities above.

Expenses/Tools/Insurance

  • You are solely responsible for all of your own tools, equipment, insurance and any expenses that you incur in connection with the Floa Services.  

  • While you are providing any Floa Services, including delivery and pickup of Floa iBoards, inflating, washing, or repair services, you may be engaged in commercial activity. Your private passenger automobile, homeowners, condominium, or renters insurance policies might not provide coverage for you, depending on the terms of your policy.  You are responsible for maintaining adequate insurance coverage to cover losses incurred during your commercial activity.

Lost or Stolen Vehicles 

If you do not timely release Floa into designated Nests or other authorized locations, or otherwise fail to timely return/release Floa in your possession, Floa reserves the right to pursue any and all remedies available to it for the recovery of such Floas, including imposing contractual penalties, charging you for the replacement cost of the Floa plus an administrative fee (i.e., up to $1,000.00 each), or pursuing other civil or criminal remedies that may involve local law enforcement. 

You agree that the data generated by Floa’s systems is conclusive evidence of the location of a Floa and/or the time of a Floa’s release.  You agree to report a Floa disappearance or suspected theft or fraudulent activity to Floa immediately or as soon as possible.

Intellectual Property

All intellectual property rights in the Floa mobile application and/or website (“Web Services”) shall be owned by Floa absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered), information regarding how to use Floa iBoards, Floa’s maintenance, repair, inflation and washing procedures, the contents of the Web Services and how the Web Services functions, and the contents of any communications from Floa to you, and other similar rights wherever existing in the world together with the right to apply for protection of the same (“Intellectual Property Rights”). All other trademarks, logos, service marks, company or product names set forth in the Floa Web Services are the property of their respective owners.

Confidential Information

During the course of providing Floa Services under this Agreement, you may be provided with and/or granted access to Confidential Information (as defined below).

You shall not use any Confidential Information for any purpose other than as necessary to provide Floa Services.  You agree to use reasonable care to protect the confidentiality of the Confidential Information. If you are compelled by law to disclose Confidential Information, you shall provide Floa with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if Floa wishes to contest the disclosure.  If you disclose or use (or threaten to disclose or use) any Confidential Information in breach of this paragraph, Floa shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.  You specifically acknowledge that any other available remedies are inadequate.

“Confidential Information” includes, but is not limited to: Intellectual Property Rights, nonpublic information in any form including without limitation technology, data, plans, projects, drawings, schematics, standard operating procedures, know-how, client and/or vendor lists, employee and other personnel information, proposals, contracts, reports, photographs, video recordings, audio recordings, and work space inside and outside of buildings.

Indemnity

You agree to strictly comply with the terms of this Agreement.  You agree to be solely responsible for all liabilities resulting from your failure to do so, including but not limited to, loss or damage to any persons or property resulting from such failure.

You will defend, indemnify, and hold Floa including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of this Agreement and your performance of Floa Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including any employee or contractor you may engage to assist you with the provision of Floa Services; (3) any allegation that any information you pass along to Floa infringes or otherwise violates the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a Floa iBoard, or any vehicle used in the performance of Floa Services; and/or (5) any other activities in connection with the Floa Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.

Limitation of Liability

In no event will Floa, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders (the “Floa Parties”), be liable to you for any incidental, special, exemplary, punitive, consequential, or indirect damages (including damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the Floa App, service interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the Floa App, the Floa Services, or this Agreement, however arising including negligence, even if we or our agents or representatives know or have been advised of the possibility of such damages.

You understand and agree that at all times while performing Floa Servies the Floa iBoards are owned by and remain the property of You.

The Floa Web Services, Floa, and any other Floa property provided to you by Floa are provided to you “as is” and any use of the Web Services, Floa, or Floa property are at your own risk.  Floa disclaims all warranties, whether express, implied, or statutory, including without limitation, any implied warranties of title, non-infringement, merchantability, or fitness for a particular purpose.

You agree that Floa will not be responsible for any loss or damage to you or any third parties arising from or related to the Web Services, Floa, or Floa property.  In no event will Floa be liable for any lost profits, lost or incorrect data, or loss of use in connection with the use of the Web Services, Floa, or any other Floa property provided by Floa or in connection with any other claim arising from this Agreement, even if Floa has been advised of the possibility of such damages.  The maximum liability of Floa arising out of or in any way connected to this Agreement shall not exceed $100.

You may not use, export, import, or transfer the Web Services, Floa, or Floa property, except as authorized by Floa in writing and by U.S. law, the laws of the jurisdiction in which you obtained the foregoing, and any other applicable laws.

Modification of the Agreement

Please note that the Agreement is subject to change by Floa in its sole discretion at any time. When material changes are made, Floa will make a new copy of the Agreement available within the Floa Web Services.  Floa will also update the date at the top of this Agreement. Any modifications to the Agreement shall be binding on you upon your acceptance of the modified Agreement. Continued use of the App to provide services to Floa shall constitute your acceptance to such modifications.

No Assignment of Rights

You may not assign any of your rights under this Agreement without prior written consent of Floa.  Absent any such prior written consent, any attempted assignment hereunder shall be null, void, and have no effect.

Waiver

Any waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time.  Any delay or forbearance by Floa in exercising any right hereunder shall not be deemed a waiver of that right.

Notices

All notices to Floa under this Agreement shall be in writing, and will be deemed given when personally delivered, when sent by prepaid certified or registered U.S. mail with return receipt requested, or when sent by a recognized delivery service to:

Floa, Co.

601 Innovation Way

Daytona Beach, FL 32114.

Term and Termination

This Agreement may be terminated: a) by either party, without cause, upon seven (7) days’ prior written notice to the other party; or b) by either party immediately, without notice, upon the other party’s material breach of this Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Floa’s satisfaction, Floa may choose not to permanently terminate this Agreement. In addition, Floa may terminate this Agreement or deactivate your account immediately in the event Floa has the good faith belief that such action is necessary to protect the safety of Floa, the Floa community or third parties, or to promote the operations of Floa’s business. The provisions regarding Intellectual Property, Indemnity and Confidential Information shall survive any termination or expiration of this Agreement.

Binding Arbitration and Class or Collective Action Waiver

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT

Initial Dispute Resolution

Support is available via the Floa Web Services to address any concerns you may have regarding your provision of Floa Services and/or this Agreement.   The parties shall use their best efforts through this support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.

Binding Arbitration

If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution under the Initial Dispute Resolution provision is initiated, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to Floa Services, this Agreement, and the parties’ relationship with each other shall be finally settled by binding arbitration administered by JAMS, or alternatively a mutually agreed upon arbitrator or arbitration service, under the applicable commercial arbitration rules for JAMS or the mutually agreed upon arbitration service, excluding any rules or procedures governing or permitting class actions.

The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Floa will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Floa will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $10,000. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

Location

The arbitration will take place in the County in which you provided the majority of Floa Services at issue in the arbitration.

Class or Collective Action Waiver

The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other collective action, and the parties expressly waive their right to file a class action or seek relief on a class or collective basis. YOU AND FLOA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR COLLECTIVE PROCEEDING.

Litigation of Intellectual Property and Small Claims Court Claims

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its Intellectual Property Rights, including patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

Changes to this Section

Floa will provide prior written notice of any material changes to this section. Changes will become effective only after prior written notice and will apply prospectively only to any claims arising after the notice period.

For any dispute not subject to arbitration you and Floa agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

General

This Agreement shall be governed, construed and interpreted in accordance with the laws of the state of Delaware, without regard to choice of law principles. 

If one or more provisions of this Agreement are held to be unenforceable under applicable law, then (i) such provision shall be excluded from this Agreement, (ii) the remainder of the Agreement shall be interpreted as if such provision were so excluded and (iii) the remainder of the Agreement shall be enforceable in accordance with its terms.

This Agreement is the final, complete and exclusive agreement between you and Floa with respect to the subject matter hereof and supersedes any prior agreements or discussions.

If you have any questions regarding this Agreement, please contact Customer Support at partners@floa.co.