Miter Company Agreement
Last updated: Sept 18, 2023
This Agreement (the “Terms”) is an agreement between Miter HR, Inc. (“Miter”, “we”, “us” or “our”), which provides access to and use of a proprietary online platform, that offers payroll, payment and other human resources services to companies in the construction industry (“Companies” or “you”) and timekeeping services to individuals who work for such companies (“Team Members”). Miter’s services are available through our website found at https://www.miterhr.com and all related sub-domains (the “Website”), and all related tools and services or through downloadable mobile or other applications that we make available to you, including without limitation any content, functionality and services offered on or through our website (collectively, the “Platform”). Team Members, Companies, and others who browse the Website or use the Platform are sometimes referred to in these Terms as “users”.
1. Acceptance of the Terms
These Terms are entered into by and between Miter and Company. These Terms, which include any supplemental agreements and documents they expressly incorporate by reference, govern your access and use of the Platform.You must read, agree to, and accept all of the terms and conditions contained in these Terms in order to use the Platform. By browsing or using the Website, using, signing up for or downloading any part of the Platform, or clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound and abide by these Terms, and our Privacy Policy, available at https://miterhr.com/privacy. If you do not agree to these Terms, or the Privacy Policy, you must not access or use the Platform. If you are using the Platform on behalf of an organization, you represent that you have the right to bind such organization to these Terms, and the terms “Company” and “you” will include both you, the individual user, and such organization. This Platform is offered and available to users who are 18 years of age or older. By using this Platform, you represent and warrant that you are of legal age to form a binding contract with Miter and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform.
2. Overview of the Platform
The Miter platform enables construction companies to manage their teams and their finances (“Specified Purpose”). For the purposes of these Terms, “work” shall refer to services performed pursuant to either an employment or an independent contractor relationship.
3. Relationship of Companies, Team Members and Miter
These Terms state the terms under which Company has the right to use the Platform, and the obligation to pay the Platform Fees, if applicable.Team Members are individuals who use the Platform to record their working time to Companies. Miter is not a party to any services agreement between Companies and Team Members. Miter has no responsibility for, control over, or involvement in the scope, nature, quality, character, timing, or location of any work or services performed by a Team Member. Company is solely responsible for and assumes all liability for determining whether Team Members should be engaged as independent contractors or employees of Company and engaging them accordingly. Company warrants its decisions regarding classification are correct and its manner of engaging Team Member complies with applicable laws, regulations, and rules. Miter will have no input into, or involvement in, worker classification as between Company and Team Member and both the Company and Team Member agree that Miter has no involvement in and will have no liability arising from or relating to the classification of a Team Member generally or with regard to a particular engagement.Miter is not an employer or joint employer of any Team Member. Miter is not responsible for the performance or non-performance of any Company or any Team Member. Each Team Member is solely and entirely responsible for the Team Member’s acts and for the acts of the Team Member’s employees, agents and subcontractors. Each Company is solely and entirely responsible for the Company's acts and for the acts of the Company's employees, agents and subcontractors.
4. Interactions between Team Members and Companies
We are not responsible for any Company’s selection, communication with or subsequent relationship with any Team Member. The decision to hire or engage or to work is solely at the discretion of each such Company or Team Member. We disclaim all responsibility for the accuracy of any Company or Team Member information, including Company or Team Member personal information. While we may assist Companies or Team Members with information they provide, each remains solely responsible for the information they publish or discuss on the Platform. of Miter. When interacting with other Companies or Team Members, you should exercise caution and common sense to protect your property and intellectual property. To the extent that a Company uses the Platform to provide services for its Team Members, it is the Company’s sole responsibility to determine the appropriate work classification status of such Team Member under applicable law (whether as an employee, independent contractor or otherwise), whether such Team Member is eligible and/or authorized under applicable law to perform work for the Company, and whether such Team Member is otherwise eligible for or entitled to any rights or benefits from Company under applicable law. We will not be involved in any such determinations and disclaim any responsibility for doing so.
5. Accessing the Platform and Account Security
We reserve the right to discontinue or amend this Platform, and any service or material we provide on the Platform, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period, other than for a potential reimbursement of fees already paid or relief from future obligations to pay certain fees with respect to services or materials discontinued. From time to time, we may restrict access to some parts of the Platform, or the entire Platform, to Company or Team Member, including registered Companies or Team Members for cause only. You are responsible for making all arrangements necessary for you to have access to the Platform, and ensuring that all persons who access the Platform through your internet connection are aware of these Terms and comply with them.
To access the Platform, you may be asked to provide certain registration details or other information. It is a condition of your use of the Platform that all the information you provide on the Platform is correct, current and complete. You agree that all information you provide to register with this Platform or otherwise, including but not limited to through the use of any interactive features on the Platform, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
If you choose, or are provided with, a username, password or any other piece of information as part of our registration or security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Platform or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record Your password or other personal information.We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
5.1 Access to Data Upon Cancellation
Data Retention and Access: Notwithstanding any termination or cancellation of a user's agreement or subscription with Miter, users shall have the right to access their data that has been stored or processed on the Miter platform.
Duration of Access: Following the termination or cancellation of a user's agreement or subscription, Miter will allow users to access their data for a period of one hundred-eighty (180) days from the date of such termination or cancellation, unless a longer period is required by applicable law or regulation.
Method of Access: Users can access their data via the usual Miter platform interface. If for any reason the platform is inaccessible, Miter will provide an alternative method for users to retrieve their data.
Limitations: While users have the right to access their data post-cancellation, they will not have access to the full suite of Miter platform features, tools, or customer support reserved for active subscribers.
Data Deletion: After the aforementioned one hundred eighty (180) day period, or longer if required by law, Miter reserves the right to delete or anonymize the user's data. Users are encouraged to retrieve and back up their data within the given time frame.
Exclusions: This clause does not apply to data that is subject to legal holds or other legal obligations that require its retention. In such cases, the data will be retained as required by law.
6. Payment
To use Miter's Platform, Company must enter into a subscription agreement with Miter (the “Subscription Agreement”), which incorporates these Terms. Companies who enter into a paid subscription for the Platform must provide Miter (or our designated third-party payment provider) with accurate and valid credit card or other payment information and update their credit card or other payment information in the event any information provided becomes invalid or incomplete. If any charge is rejected by our bank or payment providers, you are still liable to pay the charged amount. We retain the right to charge interest on any overdue balance at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You will also be responsible for our reasonable costs of collection, including attorney’s fees, if we deem it necessary to take any legal or administrative action to collect unpaid fees.
Miter reserves the right to change the terms of registration from time to time. If Miter changes its payment structure or implements other payment-related charges for use of the Platform, we will give you advance notice of these changes.
6. Our Intellectual Property Rights
The Platform and its entire contents, features and functionality including but not limited to all information, software, text, data, displays, images, video and audio, and the design, selection and arrangement thereof (“Our Property”), are owned by Miter, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Subject to the terms and conditions herein, we grant you the non-exclusive, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Platform for the Specified Purpose only, as permitted by these Company Terms. We reserve all other rights. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit Our Property or any of the material on our Platform, except as follows:
6.1. Your computer may temporarily store copies of Our Property incidental to your accessing and viewing those materials.
6.2. You may store files that are automatically cached by your web browser for display enhancement purposes.
6.3. If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your internal use.
6.4. You must not delete or alter any copyright, trademark, or other proprietary rights notices from Our Property. You must not access or use for any commercial purposes other than the Specified Purpose any part of the Platform or any services or materials available through the Platform. If you wish to make any use of material on the Platform other than that set out in this section, please address your request to support@miterhr.com.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Platform in breach of these Employer Terms, your right to use the Platform will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Platform or any content on the Platform is transferred to you, and all rights not expressly granted are reserved by Miter. Any use of the Platform not expressly permitted by these Employer Terms is a breach of these Employer Terms and may violate copyright, trademark, and other laws.
The marks MITER, MITERHR, the Miter logo and all related names, logos, product and service names, designs and slogans are trademarks of Miter or its affiliates or licensors. You must not use such marks without the prior written permission of Miter. All other names, logos, product and service names, designs and slogans on this Platform are the trademarks of their respective owners, and and each owner retains all rights in its marks. Any use of marks displayed on the Platform will inure solely to the benefit of their respective owners.
8. Prohibited Uses
You may use the Platform only for lawful purposes and in accordance with these Employer Terms. You agree not to use the Platform: (a) in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); (b) for the purpose of exploiting, harming, attempting to exploit, or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise; (c) to send, knowingly receive, upload, download, use or re-use any material, which does not comply with these Employer Terms; (d) to impersonate or attempt to impersonate Miter, a Miter employee, another User or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing); (e) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm Miter or users of the Platform or expose them to liability.
Additionally, you agree not to: (a) use the Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Platform, including their ability to engage in real time activities through the Platform; (b) use any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform; (c) use any manual process to monitor or copy any of the material on the Platform or for any other unauthorized purpose without our prior written consent; (d) use any device, software, or routine that interferes with the proper working of the Platform; (e) introduce any viruses, Trojan horses, worms, logic bombs or other material, which is malicious or technologically harmful; (f) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer, or database connected to the Platform; (g) cause the Platform or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site; (h) link to any part of the Website other than the homepage; or (i) otherwise, attempt to interfere with the proper working of the Platform.
9. Rights in User Content
The Platform allows Companies or Team Members to create, upload, post, submit, publish, display or transmit to other Platform Users (hereinafter, “post”) content or materials (collectively, “User Content”) on or through the Platform. All User Content must comply with these Terms. You hereby grant and agree to grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, transferable license, with the right to sublicense through multiple tiers, to copy, edit, modify, adapt, prepare derivative works, display, and use your User Content in connection with operation and promotion of the Platform and any other purposes reasonably related to the Platform or our business. You represent and warrant that: (a) you own or control all rights in and to your User Content and have the right to grant the license granted above to us and our service providers, and each of their and our respective licensees, successors and assigns; and (b) all of your User Content does and will comply with these Terms. You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Miter, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Content provided by you or any other user of the Platform.
Miter provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
10. Reliance on User Content
Miter makes no representation, warranty, or endorsement regarding any user, the Platform or the authenticity, accuracy, completeness or usefulness of any User Content displayed in connection with the Platform. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Platform, or by anyone who may be informed of any of its contents.
11. Suspension and Termination, and Changes to the Platform
If you use the Platform for free services only, you may terminate this Agreement at any time by ceasing to use the Platform. We reserve the right to suspend your account and/or access to the Platform at any time if we believe you are in breach of these Terms. We reserve the right to terminate these Terms for users of free services or to cease to offer free services at any time on written notice to you (including by posting on the Website), for any reason or no reason.
If you have a paid Subscription Agreement for the Platform, the term of your subscription shall commence on the date you the paid Subscription Agreement becomes effective and, unless earlier terminated as set forth herein, shall continue for the subscription term you purchased, unless otherwise terminated as described in this Article 11. Either party may terminate the Subscription Agreement and these Terms: (a) if the other party materially breaches these Terms or the Subscription Agreement, the non-breaching party provides written notice of such breach and the breaching party does not cure such breach within thirty (30) days after receipt of written notice of such breach, or (b) if the other party (i) becomes insolvent or is unable to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
If your account is terminated for any reason or no reason, you agree: (a) to immediately stop using the Platform, (b) that the license and rights provided by us under these Terms shall terminate, and (c) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of the Platform or for termination of access to your account.
Sections 1 through 4, 6 through 19, and 21 through 26, any accrued obligations and remedies hereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of these Terms.
Upon any termination of a Subscription Agreement or these Terms, neither party will be relieved of the obligation to pay any fees due, which accrued before the termination date. In addition to any other remedies it may have under these Terms, Miter reserves the right to suspend or terminate Company access to the Platform in order to protect Miter’s rights and interests. Any outstanding obligations of Miter to provide the Company with tax reports or other payment information shall survive the termination of these Terms.
12. Privacy Policy
All information we collect on this Platform is subject to our Privacy Policy, which is incorporated herein by reference. By using the Platform, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
13. Cloud Services and Third Party Services. Without limitation of the disclaimers and limitations of liability set forth in Section 14, you acknowledge and agree as follows: (a) we provide the Platform using cloud computing services of one or more third party cloud providers (collectively, the “Cloud Providers”); and (b) we shall not be responsible or liable to you for any act, omission or failure of any Cloud Provider.The Platform may depend upon, interact with or enable access to third parties’ information, content, services or websites (each, a “Third Party Service”), which may in each case be accompanied by separate terms of use. Use of each Third Party Service may require that you accept additional terms of use. You must comply with the applicable terms of use when using the Third Party Service. Miter does not endorse, and hereby disclaims all liability or responsibility to you or any other person for, any Third Party Services.If the Platform contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
14. E-Signatures
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Miter has no responsibility or liability with respect to such matter.
Miter has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Miter makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
15. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Website for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MITER EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
MITER MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, MITER DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.MITER MAKES NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIMS ALL LIABILITY, AS TO THE INTERACTIONS OF USERS OF THE PLATFORM. MITER WILL NOT BE LIABLE FOR TAX LIABILITIES RELATING TO TRANSACTIONS BETWEEN USERS. MITER WILL NOT BE LIABLE FOR, AND USERS SHALL BE SOLELY LIABLE FOR, THEIR COMPLIANCE WITH ALL TAX, EMPLOYMENT AND OTHER LAWS APPLICABLE TO THEIR TRANSACTIONS. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. Limitation on Liability
IN NO EVENT WILL MITER, OR ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PLATFORM, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE PLATFORM OR SUCH OTHER SERVICES OR ANY SERVICES OR ITEMS OBTAINED OR TRANSACTED THROUGH THE PLATFORM OR SUCH OTHER SERVICES, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, MITER’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THESE CUSTOMER TERMS, THE PLATFORM OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU TO MITER FOR USE OF THE PLATFORM IN THE PRIOR YEAR (OR, IF YOU ARE A NON-FEE PAYING USER, TO THE AMOUNT OF $10).THE FOREGOING DOES NOT AFFECT ANY LIABILITY, WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW
17. Indemnification
Company shall indemnify, defend, and hold Miter, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, to the extent arising out of or in connection with: (a) any claim based on any alleged misuse of the Platform by Company (including by any Company affiliate, employee, or subcontractor), or a claim that any User Content infringes the copyright, trademark, or patent rights of any third party; (b) any alleged conduct which would constitute a breach of the representations and warranties of Company set forth herein, or other breach of these Terms; (c) violation of applicable law by Company, or its Team Member, affiliate, employee, or subcontractor; (d) any claim based on the negligent or intentional acts by Company or Company’s Team Members, affiliates, employees, or subcontractors; and (e) related to any project, including any claims by any third party or government agency that Team Member was misclassified as an independent contractor or employee of a Company, and any claim that Miter was an employer or joint employer of Team Member and/or any Team Member affiliate, employee, or subcontractor, and related legal claims under any employment laws. Miter shall indemnify, defend, and hold Company, and its respective subsidiaries, affiliates, officers, directors, employees, attorneys, and agent harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, to the extent arising out of or in connection with: (a) a claim that any Miter content infringes the copyright, trademark, or patent rights of any third party; (b) any alleged conduct which would constitute a breach of the representations and warranties of Miter set forth herein, or other breach of these Terms; (b) violation of applicable law by Miter, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents; and (c) any claim based on the negligent or intentional acts by Miter, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents.
Further, Company shall indemnify, defend, and hold Miter, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with Team Member’s employment, retention, engagement or use of an affiliate, employee, or subcontractor to provide any work/services in connection with the performance of services hereunder, including but not limited to: (a) any claim that Company misclassified any Team Member, employee, or subcontractor (under the Fair Labor Standards Act, the Internal Revenue Code, state wage and hour law or any other law); and (b) any claim that Miter was an employer or joint employer of any Team Member, employee, or subcontractor under any employment or other law, including, but not limited to, the Fair Labor Standards Act, any state wage and hour law, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family Medical Leave Act and the National Labor Relations Act.
18. Governing Law
All matters relating to the Platform and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule.
19. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE CUSTOMER TERMS OR THE PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED, UNLESS NOT PERMITTED BY APPLICABLE LAW.
20. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
How This Agreement Applies.
Miter and Company mutually agree to resolve any and all covered justiciable disputes between the parties exclusively through final and binding arbitration instead of a court or jury trial. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and evidences a transaction involving commerce. This Agreement applies to any and all claims arising out of or relating to the Terms, a Team Member’s classification as an independent contractor, a Team Member’s provision of services, Company’s use of the Platform, any payments made or received by Team Member or Company through the Platform or arising out of or relating to the acceptance or performance of services arranged through the Platform, the termination of these Terms, and all other aspects of the Company’s relationship (or the termination of its relationship) with Miter, past, present or future, whether arising under federal, state or local statutory and/or common law, which Miter may have against Company or which Company may have against Miter and its owners, officers, employees or agents. Company and Miter agree that the mutual obligations to arbitrate disputes provide adequate consideration for this Arbitration Agreement.
Additionally, except as these Terms otherwise provides, the Arbitrator, and not any court, shall have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability or waiver of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. However, as stated in the “Class and Collective Action Waivers” section below, the preceding sentence does not apply to the Class Action Waiver and/or Collective Action Waiver.
Limitations On How This Agreement Applies.
The following claims are not covered under these Terms: (i) Team Members’ Compensation benefits, state disability insurance benefits or unemployment insurance benefits; however, these Terms applies to discrimination or retaliation claims based upon seeking such benefits; (ii) disputes that an applicable federal statute expressly states cannot be arbitrated or subject to a pre-dispute arbitration agreement; and (iii) representative actions for civil penalties filed under the California Private Attorney General Act (“PAGA”) (but to the extent permitted by applicable law, any claim by you on your own behalf to recover your unpaid wages must be arbitrated and is covered by these Terms).
Nothing in these Terms prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement authorities. Nothing in these Terms prevents the investigation by a government agency of any report, claim, or charge otherwise covered by these Terms. This Agreement also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by these Terms. Nothing in these Terms prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. The Company will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
Starting the Arbitration.
If either party initiates arbitration, the initiating party must notify the other party in writing via U.S. Mail, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (1) the name and address of the party seeking arbitration; (2) a statement of the legal and factual basis of the claim; and (3) a description of the remedy sought. Any demand for arbitration by Company must be delivered to Miter at support@miterhr.com. The arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
Class and Collective Action Waivers.
Miter and Company mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator will not have any authority to hear or arbitrate any class and/or collective (“Class Action Waiver”). Company also waives its right to receive notice of any class or collective action that may be filed. Notwithstanding any other clause contained in this Arbitration Agreement or the AAA Rules, as defined below and incorporated herein by reference, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
Arbitration rules
Except as otherwise stated in this Arbitration Agreement, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), subject to the following:The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. Unless the parties agree otherwise, the arbitrator shall be an attorney experienced in the law in the underlying dispute and licensed to practice law in the state in which the arbitration is convened, or a former judge from any jurisdiction. The arbitrator shall have authority to decide gateway issues, including arbitrability.The location of the arbitration proceeding will be San Francisco, California, unless Company and Miter agree in writing otherwise.Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that Company shall pay all of the Arbitrator’s fees and costs. The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.The Arbitrator’s reasoned decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction. The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a search engine.This Agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Agreement. In the event any portion of this Arbitration Agreement is deemed unenforceable, the remainder of this Arbitration Agreement will be enforceable. This arbitration agreement survives after the termination of the Terms and/or after Company ceases any relationship with Miter. Notwithstanding any contrary language, in the Terms or any other agreement, this Arbitration Agreement may not be modified or terminated absent a writing signed (electronically or otherwise) by both Company and an authorized representative of Miter.
At Miter’s option, this Section 19 shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). With respect to any IP Claims that are not subject to arbitration under the above provision, you hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within Boston, Massachusetts, with respect to any suit, claim or cause of action arising from or relating to the Platform or these Terms, and you shall not bring any such suit, claim or cause of action except in a court located within Boston, Massachusetts.
20. Force Majeure
In no event will we be liable for any failure to comply with these Terms to the extent that such failure arises from factors outside our reasonable control. Without limitation of the foregoing, in the absence of our negligence or willful misconduct we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the Platform or using or disclosing any of your User Content.
21. Geography
We are based in the United States. We provide the Platform for use only by persons located in the United States. We make no claims that the Platform or any of its content is accessible or appropriate outside of the United States. Access to the Platform may not be legal by certain persons or in certain countries. If you access the Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
22. Changes to the Terms
We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Platform thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Arbitration and Dispute Resolutions will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Platform. Your continued use of the Platform following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page from frequently so you are aware of any changes, as they are binding on you.
23. Waiver and Severability
No waiver by Miter of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Miter to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.The invalidity of any one or more of the words, phrases, sentences, clauses, or sections contained in these Terms shall not affect the enforceability of the remaining portions of these Terms or any part thereof, all of which are inserted conditionally on their being valid in law, and, in the event that any one or more of the words, phrases, sentences, clauses, or sections contained in these Terms shall be declared invalid or unenforceable by a court of competent jurisdiction, or an arbitrator as applicable, these Terms shall be construed as if such invalid word or words, phrase or phrases, sentence or sentences, clause or clauses, or section or sections had not been inserted. If such invalidity is caused by scope, length of time, or size of area, or any or all of the foregoing, the otherwise invalid or unenforceable provision will be considered to be reduced to such scope, time, or area, which would cure such invalidity and render it valid and enforceable.
24. Entire Agreement
The Terms, our Privacy Policy, and all Subscription Agreements or other supplemental agreements incorporated into these Terms constitute the sole and entire agreement between you and Miter with respect to the Platform and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Platform.
25. Assignment
These Terms and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. Miter may assign or otherwise transfer or delegate these Terms (including any rights or obligations hereunder), including to any successor to or purchaser of Miter’s business, stock or assets. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns.
26. Notice
You agree that email to your email address on record will constitute formal notice under these Terms.