Welcome to GoTu Technology, Inc. (Formerly TempMee Hygienists, Inc.) (“GoTu (Formerly TempMee),” “we,” “us” or “our”)!
YOU SHOULD REVIEW THIS AGREEMENT IN ITS ENTIRETY. YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THIS AGREEMENT BY REGISTERING TO BECOME A USER OR BY BROWSING OR OTHERWISE USING THE GoTu (Formerly TempMee) PLATFORM. YOU WILL BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT REGISTER, BROWSE OR OTHERWISE USE THE PLATFORM.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT, WITH A CLASS ACTION WAIVER, THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JURY TRIALS OR COURT TRIALS.
A. Purpose: The purpose of this Terms is to establish the terms regarding your access to and use of GoTu (Formerly TempMee)’s Platform..
B. GoTu (Formerly TempMee): GoTu (Formerly TempMee) provides access to a technology platform for licensed Dentists and Dental Ofﬁces (collectively “Clients”) and other third-parties, along with licensed, National Board of Dental Hygiene Certiﬁed Registered Dental Hygienists, Dental Assistants (EFDA and RDA), and Associate Dentists (collectively “Dental Auxiliary Personnel”) to connect with each other for the purposes of engaging in a business-to-business arrangement for the provision of Dental Care Services. GoTu (Formerly TempMee) is not a Dentist Office and is neither affiliated with self-employed or independent contractor Dental Auxiliary Personnel nor Clients that use its Platform. GoTu (Formerly TempMee) merely provides a platform for Clients and Dental Auxiliary Personnel to connect under whatever terms they so choose.
C. You: You are a licensed, National Board of Dental Hygiene Certiﬁed Registered Dental Hygienist or Dental Assistant (EFDA and RDA) or Associate Dentist. You seek to provide Dental Care Services to Clients. You independently determine which Clients you want to engage, when you want to engage with the Clients, and what Dental Care Services you want to provide through GoTu (Formerly TempMee)’s platform. You are (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Platform, or engaged in any activity that could result in removal from the Platform, (c) do not have more than one Account on the Platform, (d) you reside in the United States, and (e) have full power and authority to enter into this Terms and in so doing will not violate any other Terms to which you are a party.
D. Acknowledgements: You must read, agree to, and accept all of the terms and conditions contained in these Terms in order to use GoTu (Formerly TempMee)’s Platform. By browsing, using, signing up for, downloading, or otherwise accessing any part of GoTu (Formerly TempMee)’s Platform, or by 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. If you do not want to agree to these Terms, you must not browse, access or otherwise use GoTu (Formerly TempMee)’s Platform. If you are using GoTu (Formerly TempMee)’s Platform on behalf of an organization, you represent that you have the right to bind such organization to these Terms, and the terms “Dental Auxiliary Personnel” and “you” will include both you, the individual user, and such organization.
2. Your Status as an Independent Contractor: You acknowledge, warrant, and agree that:
A. All services undertaken by you and provided secured through the GoTu (Formerly TempMee) marketplace are done so as independent contractors to the Dental Offices. You are not employees, agents, or legal representatives of Client. GoTu (Formerly TempMee) neither employs you nor provides Dental Services.
B. GoTu (Formerly TempMee) is a technology company that constitutes a qualified marketplace under laws recognizing such platforms for businesses that operate a digital website or application facilitating the provision of services by qualified marketplace contractors to individuals or entities seeking such services.
C. This Agreement is not an employer agreement and does not create an employment relationship or contract relationship between GoTu (Formerly TempMee) and you.
D. No joint venture, partnership, or agency relationship exists between GoTu (Formerly TempMee) and you.
E. The business relationship between GoTu (Formerly TempMee) and you under this Agreement is a temporary, and not a permanent, relationship that allows you to use the GoTu (Formerly TempMee) platform to identify contract opportunities.
F. You have no authority to bind GoTu (Formerly TempMee) or its affiliates and you shall not hold yourself out as an employee, agent, or authorized representative of GoTu (Formerly TempMee) or its affiliates.
G. For all purposes, including but not limited to the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act, income tax withholding requirements and all other federal, state and local laws, rules and regulations, you are and will be treated as an independent contractor and not as a GoTu (Formerly TempMee) employee. Accordingly, GoTu (Formerly TempMee) will not withhold any employment taxes from any compensation paid to you under this Agreement, and you will be solely responsible for the reporting and payment of all federal, state, and local taxes or contributions imposed or required under unemployment insurance, social security, medical insurance, income tax or other applicable laws, rules or regulations with respect to the performance or rendering of services through the Platform and/or under this Agreement by you.
H. You will not take any position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving GoTu (Formerly TempMee) that is inconsistent with you being an independent contractor (and not an employee) of GoTu (Formerly TempMee).
I. In performing services or any obligation under this Agreement, you shall be and will remain at all times an independent contractor in fact and law and not an employee of GoTu (Formerly TempMee) or Dental Offices. You further agree that any “supervision” required by a dentist in your role is strictly regulatory in nature and does not impact your role as an independent contractor.
J. Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) you from engaging in any other business activities, services or projects that are separate and distinct from any business activities that you may conduct through the Platform. GoTu (Formerly TempMee) expects you will provide similar services through other Platforms and Platforms and for other parties. GoTu (Formerly TempMee) expressly acknowledges you can earn income from other sources and expects you will do so.
K. You will provide all equipment, labor, and materials that may be needed to perform any dental services pursuant to an engagement entered into on the Platform. GoTu (Formerly TempMee) does not provide any uniforms to you. GoTu (Formerly TempMee) does not provide expense reimbursement to you.
L. Direction and Control
- ⅰ. You determine in your sole discretion the Engagements that you desire to request, approve, offer and/or accept from Clients on the Platform. You are not required to request, approve, offer or accept a minimum number of Engagements per month.
- ⅱ. GoTu (Formerly TempMee) does not dictate the specific time of performance and does not guarantee you any minimum amount of Offers.
- iⅱ. GoTu (Formerly TempMee) shall not provide you with any mandatory training with regard to services provided and will have no control over the manner in which healthcare services are provided.
- iv. You shall at all times comply with any and all laws, ordinances, statutes, executive orders and regulations, federal, state, county and municipal, insofar as applicable to your performance of services under this Agreement.
- v. If during any Engagement, Client does not reasonably find the performance of you to be appropriate, Client is solely responsible for performance management of you, including, but not limited to intentional or unintentional dereliction of duties, negligence, or loss of hospital privileges, as determined by Client in its sole discretion. Client may request to GoTu (Formerly TempMee) that you not be permitted to view future Engagements at Client.
- vi. GoTu (Formerly TempMee) reserves the right to cancel shifts, particularly those involving X-ray duties if a professional is unable to perform due to medical condition of any kind. While we respect your privacy and will not directly inquire about your medical status, we encourage prompt notification if circumstances arise where you may not be able to fulfill the requirements of the shift you have accepted. Please note that in cases of shift cancellation regardless of the reason, GoTu (Formerly TempMee) is not responsible for payment or compensation because no work was performed. Your continued use of GoTu (Formerly TempMee)’s services constitutes your agreement with this disclosure and our Terms and Conditions.
- ⅰ. You are not eligible for, nor shall participate in, any GoTu (Formerly TempMee) or Client pension plan, health or disability plan, health insurance, general liability insurance, and automobile liability insurance or other insurance or fringe benefit plan of any kind.
- iv. In the event that your actions cause an injury to a third party while they are working in the course and scope of providing services during an Engagement or other activities covered by this Agreement, you acknowledge and understand that they will not be covered by any general liability or automobile liability insurance coverage that GoTu (Formerly TempMee) may have, and that GoTu (Formerly TempMee) is not making any commitment to defend and/or indemnify them in such circumstances, and specifically denies any such obligation.
- v. You are required to expeditiously notify GoTu (Formerly TempMee) at (786)460-2170 (GoTu (Formerly TempMee) Customer Success) of any accidents or emergencies that occur while performing Dental Services and to cooperate and provide all necessary information related thereto regardless of whether you purchase OAI or Malpractice insurance through GoTu (Formerly TempMee) or not. Notwithstanding, you should not provide or otherwise disclose to GoTu (Formerly TempMee) or its affiliates any personal health information (“PHI”) in violation of any applicable law, including HIPPA.
- vi. You are not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by you or some other entity and you are obliged to pay federal and state income tax on any money pursuant to your contractual relationship with GoTu (Formerly TempMee) or Client.
- vii. You agree to indemnify, defend and hold GoTu (Formerly TempMee) harmless from any costs, expenses, penalties or damages (including attorney’s fees) arising from your failure to properly pay such taxes or contributions and/or GoTu (Formerly TempMee) not withholding or remitting employment taxes or contributions relative to compensation paid to you.
3. Arrangement Between the Parties
A. Dental Auxiliary Personnel: You acknowledge that you are an independent contractor operating as a self-employed individual who uses GoTu (Formerly TempMee)’s Platforms to offer and provide Dental Care Services to Clients. You acknowledge and agree that GoTu (Formerly TempMee) has no responsibility for, control over, or involvement in the scope, nature, quality, character, timing or location of any work or Dental Care Services performed by you. However, GoTu (Formerly TempMee) requires you to prove your appropriate credentials, including but not limited to, current and active license, Occupational Accident Insurance, and Malpractice Insurance, before being allowed to use the GoTu (Formerly TempMee) Platform.
B. Insurance: At all times during the term of this Agreement, GoTu (Formerly TempMee) shall, provide Client with proof of Occupational Accident Insurance and Malpractice Insurance provided by Dental Auxiliary Personnel providing Dental Services to them Client on Client’s request..
C. Relationship Between GoTu (Formerly TempMee) and Client: You agree that nothing under this Agreement is intended, nor shall be construed, to create a partnership, employer-employee relationship, or joint venture between GoTu (Formerly TempMee) and Client. Neither party nor their respective agents, employees, or independent contractors shall have any authority to bind the other party without the other party’s express written consent.
D. Platform: GoTu (Formerly TempMee) grants to you, a non-exclusive, non-transferable license for you to engage in a business-to-business arrangement to provide Dental Care Services in strict accordance with this Terms, which is incorporated herein by reference.
E. Dental Auxiliary Representations and Warranties: You acknowledge, understand, represent and warrant:
i. You are not currently excluded, debarred, or otherwise ineligible to participate in the federal health care programs as defined in 42 USC § 1320a-7b(f) (the “Federal Healthcare Programs”) or any state healthcare programs; Have not been convicted of a criminal offense related to the provision of healthcare items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs or any state healthcare programs; Are not, to the best of its knowledge, under investigation or otherwise aware of any circumstances which may result in you being excluded from participation in the Federal Healthcare Programs or any state healthcare programs. This shall be an ongoing representation and warranty during the term of this Agreement, and You shall immediately notify GoTu (Formerly TempMee) of any change in the status of the representations and warranty set forth in this section. Any breach of this section shall give GoTu (Formerly TempMee) the right to terminate this Agreement immediately for cause.
ii. You maintain the confidential nature of Client and PHI information at all times in accordance with governing law. For purposes of this provision, “confidential” information means non-public information about either party or its employees or agents that is disclosed or becomes known to the other party as a consequence of or through its performance of Dental Services, including, but not limited to, matters of a business nature, such as bill rates, requests for placement, costs, profits, margins, markets, sales, business processes, information systems, and any other information of a similar nature.
iii. All information that you provide to GoTu (Formerly TempMee) is true and accurate, and you will maintain that information up to date. You will provide GoTu (Formerly TempMee) with whatever proof of identity GoTu (Formerly TempMee) may reasonably request. You will keep secure and confidential your account password or any identification GoTu (Formerly TempMee) provides you which allows access to Platform.
iv. You are solely responsible for activity that occurs with your username/password and shall be responsible for maintaining the confidentiality of your password. You shall never use another person’s Account to accept an Engagement or otherwise. If you discover any unauthorized use of your username/password, or other known security breach, you must report it to GoTu (Formerly TempMee) immediately. You agree that you are responsible for anything that happens through your username/password until you terminate or deactivate your Account with GoTu (Formerly TempMee).
v. You agree that all laws, licenses, certifications, rules, and regulations required of you to act in the field of Dentistry and provide Dental Services are up to date and honored in accordance with the requirements of your state. You agree and understand that each time you accept an Engagement, you warrant that your applicable licenses and certifications are active and current. It is your responsibility to maintain current and active licenses. You agree that you will carry your license with you during the performance of Dental Services secured through the Platform.
vi. You will not use the Services to identify Dentists, Dental Offices, Hygienists or associated employees to complete offline transactions that circumvent your payment obligations for the Services. You may not authorize others to use your user status, and you may not assign or otherwise transfer your user account to any other person or entity without the express written authorization of GoTu (Formerly TempMee).
vii. You shall at all times comply with all applicable state, federal, and local laws while using the Services.
F. GoTu (Formerly TempMee) Duties: You acknowledge and understand:
i. GoTu (Formerly TempMee) provides you with access on the Platforms, in accordance with these Terms. While most information and documentation will be contained and viewable through the Platform, GoTu (Formerly TempMee) may, in its reasonable discretion, and upon reasonable request by the Client, provide the Client with such information as the Client may require from time to time.
ii. GoTu (Formerly TempMee) requires you to provide proof of current and active license, Occupational Accident Insurance, and Malpractice Insurance, before being allowed to use the GoTu (Formerly TempMee) Platform to offer services to Clients. GoTu (Formerly TempMee) further requires you to successfully pass a background check or provide proof of a current and active license from the National Board of Dental Hygienists or any other state or federal regulatory requirement.
iii. Notwithstanding anything to the contrary herein, GoTu (Formerly TempMee) has no authority or control over the Dental Care Services you provide during an Engagement or otherwise, including the quality and method of providing such Dental Care Services or the day-to-day oversight or supervision of your provision of such Dental Care Services. GoTu (Formerly TempMee) does not and will not provide you with any tools, equipment, or uniforms for the performance of Dental Care Services.
4. 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 GoTu (Formerly TempMee), 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 the Platform solely to the extent necessary for the Specified Purpose only, as permitted by this 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:
• Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
• You may store files that are automatically cached by Your Web browser for display enhancement purposes.
• 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 own personal, non-commercial use.
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 [email protected].
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 the 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 GoTu (Formerly TempMee). Any use of the Platform not expressly permitted by this Terms is a breach of this Terms and may violate copyright, trademark, and other laws.
The marks of GoTu (Formerly TempMee), its logo, and all related names, logos, product and service names, designs and slogans are trademarks of GoTu (Formerly TempMee) or its affiliates or licensors. You must not use such marks without the prior written permission of GoTu (Formerly TempMee). All other names, logos, product and service names, designs and slogans on this Platform are the trademarks of their respective owners, 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.
5. Billing and Payment Terms
A. Payment: GoTu (Formerly TempMee) facilities payments to you from the Client for Dental Care Services you provide during Engagements. GoTu (Formerly TempMee) charges Clients for both your pay, as agreed between You and Hygienist, and the GoTu (Formerly TempMee) Booking Fee upon Engagement confirmation. You acknowledge and agree this payment structure fully compensates you for the Dental Services you provide Client.
B. Payment Form: You will be paid either via debit card or ACH. Payments are processed by Stripe, and you must agree to the Stripe terms and conditions prior to using the GoTu (Formerly TempMee) platform.
C. Confirmation of Dental Auxiliary Personnel Hours: Upon completion of an Engagement, you are required to submit to a record confirming your completion of the Engagement through the Platform. Client is required to electronically confirm the number of hours worked by you recorded through the Platform within 24 hours of the completed Engagement. Unchanged hours for confirmed Engagements will be auto-approved. Undisputed or auto-approved hours for completed Engagements after one (1) day of the completed Engagement are deemed correct and payable according to these terms.
D. Cancellation Policy:
i. Once you accept an Engagement, you have committed to put your best efforts forward to complete the Engagement. The Client is counting on you so you should not accept an Engagement unless you are reasonably certain that you can be there. Any Engagement you cancel with less than 4 days/96 hours until the Engagement start time will result in a penalty on your account, resulting in a temporary account restriction.
ii. Not showing up for an Engagement you are confirmed for and not notifying the Client within 24 hours of the start of the Engagement that you are unable to fulfill your temp contract is commonly referred to as a ““No-call, No-Show””. Performing a ““No Call, No Show”” is a breach of this Agreement. Performing a 3 ““No-Call, No-Shows”” will result in you being blocked from the Platform.
iii. In the event of a total Client office closure, which results from causes beyond the reasonable control of the dental practice, including, and not limited to infrastructural emergencies that deem the entire workforce inoperable (general building malfunctions, electrical, gas, and water damage), you will be paid out 25% of your contracted wage and the Client will receive a 75% refund of professional pay. The GoTu (Formerly TempMee) Booking Fee will still be paid in full.
iv. If Client elects to cancel their request for Dental Care Services from you between 96-24 hours before the Engagement, you will still be paid 25% of the booked pay for the inconvenience and loss of work.
v. If the Client elects to cancel their request for Dental Care Services from you within 24 hours before an Engagement you will still be paid 100% of the booked pay for inconvenience and loss of work as you may not be able to otherwise find work during the same time slot.
You acknowledge and agree that Client has the discretion to require you to sign a Business Associate Agreement (“BAA”) should you have access to the personal health information (“PHI”) of Client’s patients. However, you understand and agree that GoTu (Formerly TempMee) provides access to a technology platform and does not provide Dental Care Services and GoTu (Formerly TempMee) not have any access to PHI of Client’s patients.
7. Limitations on Liability
A. IN NO EVENT WILL GoTu (Formerly TempMee), ITS AFFILIATES OR ITS OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PLATFORM, ANY WEBPLATFORMS LINKED TO IT, ANY CONTENT ON THE SERVICE 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, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, 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. THE FOREGOING DOES NOT AFFECT ANY LIABILITY, WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IN NO EVENT SHALL GoTu (Formerly TempMee)’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500).
B. GoTu (Formerly TempMee)’S PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE DENTAL CARE SERVICES WITH CLIENTS, BUT YOU AGREE THAT GoTu (Formerly TempMee) HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES PROVIDED BY YOU OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
C. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER CLIENT’S RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
A. The term of this Terms shall commence on and be effective as of the date of this Terms is first accepted by you and will continue until this Terms is terminated in accordance with the terms and conditions herein.
B. Except as otherwise provided herein, you can terminate this Terms with or without cause by providing prior written notice to GoTu (Formerly TempMee) of such termination. Any termination of the Terms in accordance with the foregoing shall be effective as of the date of the later of (a) the date on which you delete and deactivate your Account and (b) the day after you have completed your last Engagement that has already been scheduled and accepted by Client as of the time GoTu (Formerly TempMee) receives your notice of termination.
C. Notwithstanding anything to the contrary in this Terms, GoTu (Formerly TempMee) may terminate or deactivate your Account and/or terminate this Terms immediately, with respect to you in the event you are in violation of this Terms in material breach of the Terms.
A. By entering into these Terms and providing the Dental Care Services to Clients, you agree, to the fullest extent permitted by applicable law, that you shall defend, indemnify and hold GoTu (Formerly TempMee), its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys, assigns and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with you providing Dental Care Services inconsistently with your classification as an independent contractor, including but not limited to the following claims:
i. based on alleged breach of any term of these Terms, representations, and warranties of you set forth herein,
ii. based on violation of any applicable law or regulation;
iii. based your violation of any rights of any third party, including Clients;
iv. based on the negligent or intentional acts;
v. based on your content you submit, post, or transmit through the Platform,
vi.related to any Engagement, including any claims by any third party or government agency that you were misclassified as an independent contractor or employee of Client, and any claim that GoTu (Formerly TempMee) was an employer or joint employer of you and/or any of your affiliate, employee, or subcontractor, and related legal claims under any employment laws; or
vii. based a claim that any User Data infringes the copyright, trademark, or patent rights of any third party.
10. Arbitration and Class Action Waiver (United States)
PLEASE READ THIS SECTION CAREFULLY—IT AFFECTS THE PARTIES’ LEGAL RIGHTS AND GOVERNS HOW YOU AND GoTu (Formerly TempMee) CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND GoTu (Formerly TempMee) TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
THIS MUTUAL TERMS TO ARBITRATE (“ARBITRATION TERMS”) IS BETWEEN DENTAL AUXILIARY PERSONNEL (ALSO REFERRED TO IN THIS ARBITRATION TERMS AS “YOU”, “YOUR”) AND GoTu (Formerly TempMee). THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) APPLIES TO THIS ARBITRATION TERMS, WHICH COMMENCE THE MUTUAL OBLIGATIONS BY GoTu (Formerly TempMee) AND DENTAL AUXILIARY PERSONNEL TO ARBITRATE DISPUTES PROVIDE ADEQUATE CONSIDERATION FOR THIS TERMS. ALL DISPUTES COVERED BY THIS TERMS WILL BE DECIDED BY A SINGLE ARBITRATOR THROUGH FINAL AND BINDING ARBITRATION AND NOT BY WAY OF COURT OR JURY TRIAL.
A. CLAIMS COVERED BY THE ARBITRATION TERMS: This Arbitration Terms is intended to be as broad as legally permissible, and, except as it otherwise provides, applies to all claims or controversies, past, present, or future, that otherwise would be resolved in a court of law or before a forum other than arbitration. Except as it otherwise provides, this Arbitration Terms applies to any dispute that GoTu (Formerly TempMee) may have against Dental Auxiliary Personnel or that Dental Auxiliary Personnel may have against GoTu (Formerly TempMee), and/or any of its or their, past, present, or future: (i) officers, directors, shareholders, employees, members, agents, clients, customers or facilities utilizing the GoTu (Formerly TempMee) platform; (ii) parents, subsidiaries, affiliates; (iii) benefit plans or the plans’ sponsors, fiduciaries, administrators, affiliates or agents; and (iv) successors or assigns. Each and all of which the individuals and entities listed in (i) – (iv) above may enforce this Terms as a direct or third-party beneficiary.
Except as it otherwise provides, this Arbitration Terms applies, without limitation, to claims based upon or related to the Terms, Dental Auxiliary Personnel’s classification as independent contractors, Dental Auxiliary Personnel’s provision of Dental Care Services, Dental Auxiliary Personnel’s use of the Platform, any payments received by Dental Auxiliary Personnel through the Platform or arising out of or relating to the acceptance or performance of Dental Care Services arranged through the Platform, the termination of these Terms, and all other aspects of the Dental Auxiliary Personnel relationship (or the termination of its relationship) with GoTu (Formerly TempMee), past, present or future, whether arising under federal, state or local statutory and/or common law.
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, scope, applicability, enforceability, or waiver of this Arbitration Terms including, but not limited to any claim that all or any part of this Arbitration Terms is void or voidable. However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
B. LIMITATIONS ON HOW THIS ARBITRATION TERMS APPLIES AND CLAIMS NOT COVERED BY THIS ARBITRATION TERMS: The following claims are not covered under this Arbitration Terms: (i) Dental Auxiliary Personnel’s compensation benefits, state disability insurance benefits or unemployment insurance benefits; however, these Terms apply to discrimination or retaliation claims based upon seeking such benefits; and (ii) disputes that an applicable federal statute expressly states cannot be arbitrated or subject to a pre-dispute arbitration Terms, including disputes that may not be subject to pre-dispute arbitration Terms under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
Nothing in this Arbitration Terms prevents Dental Auxiliary Personnel from making a report to or filing a claim or charge with a governmental agency, and nothing in this Arbitration Terms prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Terms. Nothing in this Arbitration Terms prevents or excuses a party from exhausting administrative remedies by filing any charges or complaints required by any governmental agency before bringing a claim in arbitration. GoTu (Formerly TempMee) will not retaliate against Dental Auxiliary Personnel for filing a claim with an administrative agency. This Arbitration Terms also does not prevent or prohibit Dental Auxiliary Personnel’s in any way from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse.
Either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief. 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.
C. ARBITRATION PROCEDURES: The arbitration will be administered by the American Arbitration Association (“AAA”), and except as provided in this Terms, will be under the then current Commercial Arbitration Rules of the AAA (“AAA Rules”) (the AAA Rules are available via the internet at www.adr.org/commercial or by using a service such as Google to search for “AAA Commercial Arbitration Rules”); provided, however, if there is a conflict between the AAA Rules and this Arbitration Terms, this Arbitration Terms shall govern. Unless the parties jointly agree otherwise, the Arbitrator must be an attorney licensed to practice law in the state in which the arbitration is convened, or a retired judge from any jurisdiction. In the event, however, either party asserts a claim or claims that include a covered ERISA claim, the parties agree the Arbitrator must be a retired federal judge from any jurisdiction. Unless the parties jointly agree otherwise, the arbitration will take place in or near the city and in the state where Dental Auxiliary Personnel engaged or was last engaged by a Client on the GoTu (Formerly TempMee) Platform.
The Arbitrator will be selected as follows: The AAA will give each party a list of 11 arbitrators (who are subject to the qualifications in the preceding paragraph) drawn from its panel of arbitrators. Each party will have ten (10) calendar days to strike all names on the list it deems unacceptable. If only one common name remains on the lists of all parties, that individual will be designated as the Arbitrator. If more than one common name remains on the lists of all parties, the parties will strike names alternately from the list of common names by telephone conference administered by AAA, with the party to strike first to be determined by a coin toss conducted by AAA, until only one remains. If no common name remains on the lists of all parties, the AAA will furnish an additional list of 11 arbitrators from which the parties will strike alternately by telephone conference administered by AAA, with the party to strike first to be determined by a coin toss conducted by AAA, until only one name remains. That person will be designated as the Arbitrator. If the individual selected cannot serve, AAA will issue another list of 11 arbitrators and repeat the alternate striking selection process. If the AAA will not administer the arbitration or is unwilling to administer the arbitration consistent with this Arbitration Terms, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted to appoint a neutral Arbitrator, who shall act under this Arbitration Terms with the same force and effect as if he or she had been specifically named herein.
The Arbitrator may award any remedy to which a party is entitled under applicable law, but remedies will be limited to those that would be available to a party in their individual capacity for the claims presented to the Arbitrator, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. Unless otherwise agreed in writing by the parties, the Arbitrator shall apply the substantive federal, state, or local law applicable to the claims asserted. The Federal Rules of Evidence shall apply to the proceeding. Either party may file dispositive motions, including without limitation a motion to dismiss and/or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure.
The Arbitrator will issue an award by written opinion within thirty (30) days from the date the arbitration hearing concludes or the post-hearing briefs (if requested) are received, whichever is later. The opinion will be in writing and include the factual and legal basis for the award. Judgment on the award issued by the Arbitrator may be entered in any court of competent jurisdiction. Either party may seek correction, confirmation or vacatur in a court of competent jurisdiction as provided by the Federal Arbitration Act.
D. NOTICE OF ARBITRATION DEMAND, COOLING OFF PERIOD, AND INFORMAL SETTLEMENT CONFERENCE: GoTu (Formerly TempMee) and Dental Auxiliary Personnel agree that the party initiating the claim must make a written demand for arbitration of the claim to the other party no later than the expiration of the statute of limitations (deadline for filing) that the law prescribes for the claim. The demand for arbitration shall identify the claims asserted, the facts upon which such claims are based, and the relief or remedy sought. The demand for arbitration must be signed by the party making the demand for arbitration (Dental Auxiliary Personnel personally or authorized representative of GoTu (Formerly TempMee), as applicable). Written demand for arbitration to GoTu (Formerly TempMee) must be sent to the addresses in Section 12. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration and apply the statute of limitations that would have applied if the claim(s) had been brought in court.
The parties mutually agree that after a party initiates the claim by making a written demand for arbitration to the other, unless otherwise mutually agreed to in writing by both parties, neither party will submit the demand to AAA for thirty (30) days after the demand is made (“Cooling Off Period”). During the Cooling Off Period, the parties may attempt in good faith to resolve the claim. The parties may also mutually agree to extend the Cooling Off Period. During the Cooling Off Period, either party may request an informal meeting to discuss in good faith a potential informal resolution of the dispute, without the need to go forward in an arbitration (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. Dental Auxiliary Personnel and a GoTu (Formerly TempMee) representative must both personally participate; any counsel representing Dental Auxiliary Personnel or GoTu (Formerly TempMee) also may participate. The requirement of personal participation in an Informal Settlement Conference may be waived only if both Dental Auxiliary Personnel and GoTu (Formerly TempMee) agree in writing. At the end of the Cooling Off Period or if an Informal Settlement Conference is timely requested, 30 days after completion of the Informal Settlement Conference, and unless the parties have resolved the claim, the demand for arbitration will be submitted to AAA for administration by the party initiating the claim. The AAA’s address is as follows: American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043. The AAA’s current address and/or email address also may be found on its web site at www.adr.org. Unless otherwise prohibited by applicable law, an arbitrator and/or AAA is without authority to accept or administer any arbitration demand unless and until the parties have complied with the demand for arbitration process and Cooling Off Period.
E. ARBITRATION FEES AND COSTS: Dental Auxiliary Personnel and GoTu (Formerly TempMee) shall follow the AAA Rules applicable to initial filing fees, but Dental Auxiliary Personnel will not be responsible for any portion of those fees in excess of the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. GoTu (Formerly TempMee) shall pay any remaining portion of the initial fee and will pay all costs and expenses unique to arbitration, including without limitation the Arbitrator’s fees. Each party will pay for its own costs and attorneys’ fees, if any, except that the Arbitrator may award reasonable fees and costs to the prevailing party as provided by law or contract. The Arbitrator will resolve any disputes regarding costs/fees associated with arbitration
F. SANCTIONS: To the extent allowed by applicable law and if the claim(s) or counterclaim(s) brought by either party in arbitration allow for imposition of sanctions, the Arbitrator may award either party its reasonable attorneys’ fees and costs, including reasonable expenses associated with production of witnesses or proof, upon a finding that the claim or counterclaim was frivolous or brought solely to harass Dental Auxiliary Personnel or GoTu (Formerly TempMee).
G. CONSTRUCTION AND ENFORCEMENT OF THIS ARBITRATION TERMS: This is the complete Terms of the parties about arbitration of covered disputes. Any contractual disclaimers GoTu (Formerly TempMee) has in any handbooks, other Terms, or policies do not apply to this Arbitration Terms. Unless this Arbitration Terms is not entered into, deemed void, unenforceable, or invalid in its entirety, Dental Auxiliary Personnel and GoTu (Formerly TempMee) expressly agree that this Arbitration Terms supersedes and takes priority over any other Terms between the parties. If a court determines the Federal Arbitration Act does not apply to a particular dispute or to one or both parties, the parties agree that the arbitration law of the jurisdiction where the arbitration will take place will apply. This Arbitration Terms will survive the termination of Dental Auxiliary Personnel’s access to GoTu (Formerly TempMee)’s Platform.
Dental Auxiliary Personnel has the right to consult with counsel of Dental Auxiliary Personnel’s choice concerning this Arbitration Terms and to be represented by counsel at any stage during the arbitration process. If any provision of this Arbitration Terms is found to be invalid, unenforceable, unconscionable, void or voidable, in whole or in part, that provision will be severed or modified and such adjudication will not affect the validity of the remainder of the Arbitration Terms. All remaining provisions will remain in full force and effect.
YOU HAVE CAREFULLY READ AND UNDERSTAND THIS MUTUAL TERMS TO ARBITRATE AND AGREE TO ITS TERMS. BY SIGNING THE TERMS PHYSICALLY, OR ELECTRONICALLY THROUGH DOCUSIGN OR OTHER ELECTRONIC MEANS, DENTAL AUXILIARY PERSONNEL IS AGREEING TO AND ACCEPTING THIS ARBITRATION TERMS, AND GoTu (Formerly TempMee) AND DENTAL AUXILIARY PERSONNEL ARE GIVING UP RIGHTS TO A COURT OR JURY TRIAL AND AGREEING TO ARBITRATE CLAIMS AND DISPUTES COVERED BY THE ARBITRATION TERMS.
A. Nondiscrimination: GoTu (Formerly TempMee) does not discriminate on the basis of sex, color, race, national origin, religion, gender, gender identity, marital status, age, sexual orientation, or any other applicable federal, state, or local protected class.
B. Headings: Headings are used in this Terms for reference only and shall not be considered when interpreting this Terms.
C. Modifications: Except as provided in the “Arbitration Agreement and Class Waiver” in Section 11 above, and with the exception of claims already asserted in arbitration, GoTu (Formerly TempMee) reserves the right to change the Provider Terms at any time in our sole business discretion. Updated versions of the Terms will never apply retroactively and the updated Terms will give the exact date they go into effect. If the modifications to the Terms constitute a material change, in GoTu (Formerly TempMee)’s good faith reasonable judgment, GoTu (Formerly TempMee) will notify you Via email or posting notice Via App/Platform. If you do not agree to any amendment of the Terms, you must immediately stop using the Platform. Your continued use of the Platform after any modification to the Terms constitutes acceptance of the amended Terms. However, any changes to the Arbitration Agreement, 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.
D: Survival: Sections 1, 2, 3,4, 5, 6, 7, 8, 9. 10, and 11 will survive any termination of this Terms.
E: Notices: Any notice or other communication required or permitted by this Terms to be given to a party shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by U.S. registered or certified mail (return receipt requested), or sent via facsimile (with receipt of confirmation of complete transmission) to the party at the party’s address or facsimile number written below or at such other address or facsimile number as the party may have previously specified by like notice. If by mail, delivery shall be deemed effective 3 business days after mailing in accordance with this Section 11.E.
(1) GoTu Technology, Inc.
100 SE 2nd St # 1300, Miami, FL 33131
Attention: Edward Thomas
(2) If to Dental Auxiliary Personnel, to last address of Dental Auxiliary Personnel provided in writing by Dental Auxiliary Personnel to GoTu (Formerly TempMee).
F. Waiver and Severability: No waiver by GoTu (Formerly TempMee) of any term or condition set forth in the 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 GoTu (Formerly TempMee) to assert a right or provision under the 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 the Terms shall be declared invalid or unenforceable by a court of competent jurisdiction, or an arbitrator as applicable, the 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.
G. Assignability: The 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. GoTu (Formerly TempMee) may assign or otherwise transfer or delegate the Terms (including any rights or obligations hereunder), including to any purchaser of GoTu (Formerly TempMee)’s business, from time-to-time in our sole discretion. This Terms will be binding upon and inure to the benefit of the parties’ successors and permitted assigns.
H. Governing Law: Other than the Arbitration provision, which shall be governed by the Federal Arbitration Act, this Terms shall be governed by the laws of the State of Florida without regard to Florida’s conflicts of law rules.
I. Entire Terms: This Terms constitutes the entire Terms between the parties with respect to the subject matter of this Terms and supersedes all prior written and oral Terms between the parties regarding the subject matter of this Terms.