Platform Agreement

Agreement Between CareerPoint and Client for Use of CareerPoint Professional Services and Technology Platform

August 26, 2021

WHEREAS, the undersigned professional career coach (“Client”) is properly and currently certified, or in the process of being certified to provide and is maintaining an independent business providing career coaching (such services referred to as the “Client Services”);

WHEREAS, Client conducts business as the registered Individual or Entity on the CareerPoint platforms.

WHEREAS, Client wishes to concentrate on practicing Client’s profession instead of spending valuable time and money creating Client’s own website, marketing tools, client-base, and payment processing system; and

WHEREAS, CareerPoint USA, Inc. (“CareerPoint”) is an online professional services company that creates marketing, sales, and payment technology platforms for career coaches (the “Platform Services”).

WHEREAS, CareerPoint does not provide Client Services, is not a career coach nor does it employ any career coaches, is not certified or otherwise qualified to be a career coach, and does not hold itself out as a provider of Client Services, as such services are exclusively rendered by Client.

IMPORTANT: PLEASE BE AWARE THAT SECTION 20 OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW DISPUTES, CONTROVERSIES OR CLAIMS (A “DISPUTE”) BETWEEN CLIENT AND CAREERPOINT WILL BE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION PROVISION WHICH SHOULD BE REVIEWED CAREFULLY, AS IT WILL REQUIRE, WITH LIMITED EXCEPTIONS, CLIENT TO RESOLVE DISPUTES WITH CAREERPOINT ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION UNLESS CLIENT CHOOSES TO OPT OUT OF THE ARBITRATION PROVISION.

UNLESS CLIENT OPTS OUT OF THE ARBITRATION PROVISION: (1) CLIENT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST CAREERPOINT ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) CLIENT IS WAIVING ITS RIGHTS TO SEEK RELIEF IN A COURT OF LAW AND TRIAL BY JURY. IF CLIENT DOES NOT WISH TO BE SUBJECT TO ARBITRATION, CLIENT MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 20 BELOW.
BY VIRTUE OF CLIENT’S ELECTRONIC EXECUTION OF THIS AGREEMENT, CLIENT WILL BE ACKNOWLEDGING THAT CLIENT HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO SECTION 20) AND HAS TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
NOW THEREFORE, Client shall engage CareerPoint for the Platform Services, as set forth below.

1. Acceptance. By signing below, Client hereby agrees (a) to engage CareerPoint to provide it with the Platform Services and (b) to comply with the terms set forth in this Agreement between CareerPoint and Client for Use of CareerPoint Professional Services and Technology Platform (“Agreement”).
2. The Platform Services. CareerPoint shall provide the following services to Client:
   a. Site Listing: CareerPoint shall, unless Client opts out, list Client on CareerPoint’s website, mobile website, and mobile applications (collectively, the “Platform”) with biography, photo, and other information provided by Client and approved by CareerPoint, as supplemented by third-party sources gleaned by CareerPoint.
   b. Appointment Service: CareerPoint shall provide a Web and/or mobile-based appointment system on the Platform, by which visitors to the Platform (“Platform Users”) can make appointments with Client for Client Services.
   c. Recordkeeping Service: CareerPoint shall maintain general appointment and billing records of services provided by Client to Platform Users who make appointments with Client for Client Services.
   d. Administrative, Management, & Technology Services: CareerPoint will provide miscellaneous administrative and management services to facilitate Client’s business, including the technology and operations necessary to communicate with Client and Platform Users.
   e. Billing Service: CareerPoint will provide an online, secure billing and payment system for Client to bill Platform Users who use the Client’s Client Services, or facilitate the same with a third party.
   f. Customer Service. CareerPoint will provide operators to field Platform Users’ complaints and refund requests, which shall be addressed as directed in consultation with Client.

3. Exclusions from the Platform Services. The Platform Services only relate to the business services set forth above. The Platform Services does not provide career coaching. Client is solely responsible for all of Client’s own tools, equipment, training, automobiles, office space, licensing, and other materials or requirements needed, desired or related to the Client Services. Client is also solely responsible for the payment of insurance premiums, licensing fees, certifications, professional dues or other costs or expenses connected with Client’s business, and acknowledges that CareerPoint will not reimburse Client for any such expenses. CareerPoint is not, and shall not be, responsible for any liability arising out of the Client Services, including, but not limited to, lawsuits by Platform Users arising out of the Client Services. Client is not permitted to represent to Platform Users or others that Client is an employee, contractor, or agent of CareerPoint.
4. Platform Control. As an independent business and Client of CareerPoint, Client maintains complete control over Client’s use of the Platform, including:
   a. Client decides on pricing for the Client Services offered directly to Client Generated Users (see Exhibit A).
   b. Client decides when to log into the Platform and be available for appointments through the Platform appointment service;
   c. Client decides whether to accept, reject, or ignore offers of projects if logged in;
   d. Client is permitted to select Client’s attire for the Client Services – no uniforms or other specific clothes are required;
   e. Client and the Platform User determine the time and location of the Client Services;
   f. Client is permitted to maintain Client’s independent business and other clients without using the Platform, provided that coaching using the CareerPoint methodology and intellectual property (including “the Employee Value Curve”, “value driver framework”, self-assessment, peer-assessment and any other proprietary CareerPoint intellectual property is only permitted via the CareerPoint technology platform;
   g. Client is not restricted from using competitive services or technology platforms;
   h. Client retains the right to hire employees or subcontractors in performing Client Services, and acknowledges that these employees or subcontractors will possess the credentials, certification, training, experience, skill and ability to provide Client Services;
   i. Client’s opportunity for profit or loss is dependent on his or her own managerial skill;
   j. Client is responsible for resolving any disputes with Platform Users, including financial responsibilities for refunds, breakage, spoilage, and other losses directly or indirectly caused by Client or Client’s agents;
   k. Client solely controls the amount of Client’s investment in the Client Services, including expenses on training and tools; and
   l. Client exclusively controls Client’s performance of the Client Services, including, but not limited to, possessing the requisite skills, credentials and training to perform Client Services that he or she accepts hereunder.

5. Default Site Terms. In addition to CareerPoint’s Terms of Use set forth at https://careerpoint.com/terms/ (“Terms of Use”), which Client agreed to when engaging CareerPoint, CareerPoint maintains the policies stated in this Section 5 (the “Default Site Terms”) for clients as a default on the Platform. Client is permitted to negotiate the Default Site Terms. Notwithstanding, unless other terms are set forth in a writing signed by Client and CareerPoint’s CEO, the CareerPoint Default Site Terms to which Client agrees are:
   a. Client Pricing. CareerPoint shall advertise for Client’s Client Services as set forth in Exhibit A hereto. The total amount paid by Platform Users through CareerPoint’s payment processing system, not including applicable sales tax, is referred to hereafter as the “User Fee.”
   b. Refund. As a default, CareerPoint maintains a refund and cancellation policy to which Client agrees unless otherwise set forth in writing signed by Client and CareerPoint’s CEO.

6. Fees for Platform Services. The fee for the Platform Services shall be the “Platform Commission”. The Platform Commission is as set forth in Exhibit A hereto. To the extent that a User Fee is refunded, Client agrees that Client may, where circumstances warrant, still owe CareerPoint the CareerPoint Platform Commission on such refunded amount. Any changes to the Platform Commission rate will be communicated in writing. Additionally, there is an annual recertification fee of $300 beginning on the one-year anniversary of the date of this Agreement.
7. Client’s Business. Client affirms that Client is self-employed, maintains and operates a career coaching business, holds himself or herself out to the public as independently competent and available to provide the applicable services, and has obtained and/or expects to obtain clients for whom Client performs Client Services.
8. Client Responsibilities. Client agrees to supply CareerPoint with a copy of current relevant insurance certificates and any relevant professional or academic certifications. Client agrees to submit to a background screening conducted by CareerPoint for the sole purpose of confirming Client’s credentials and/or references. Client represents that all information provided by Client is accurate and complies with relevant law, and will immediately notify CareerPoint of any change in contact, certification, or insurance information. Client assumes complete responsibility for all services to and treatment of each CareerPoint Site User and for compliance with all laws, regulations, and professional ethical guidelines and standards pertaining to Client’s products and services. Client represents that Client is free to enter into this Agreement and perform each of its terms, is not restricted (contractually or otherwise) from entering into and performing this Agreement, and is not subject to any suit, action, claim, arbitration or legal, administrative or other proceeding, or government or professional investigation, pending or threatened or affecting Client’s ability to perform services hereunder. Client will immediately inform CareerPoint of any such action. Client has at least $1 million per claim and will maintain such coverage during the term of this Agreement.
9. Confidential Information. CareerPoint agrees to keep Client’s confidential information (“Client Confidential Information”) absolutely confidential, except as required or provided by law. Client agrees to keep CareerPoint’s confidential information (“CareerPoint Confidential Information”) absolutely confidential, except as required or provided by law. CareerPoint Confidential Information includes but is not limited to information about CareerPoint’s customer base, including Platform Users, business model of creating a marketplace for connecting professionals with new or existing customers/users and providing tools, products and services, and technology to assist Client’s existing business. Client agrees that Client shall not plan, invest in, assist with, start, operate, or otherwise participate in the Business using CareerPoint Confidential Information. For the purposes of this Section, the “Business” is any Web or mobile-based marketplace for connecting individuals or businesses providing services to third parties seeking the same services and providing related business tools. Client also agrees to use and disclose information about Platform Users only as necessary to provide the Client Services under this Agreement and for no other purpose during the term of this Agreement. Upon termination of this Agreement, Client shall return to CareerPoint or destroy any information Client obtained about Platform Users through the Platform and shall no longer maintain, use, or disclose such information for any purpose, except as required by applicable law. Nothing in this Section shall prohibit Client from performing services using another third party platform or as an independent business.
10. No Employment Relationship; No Legal or Other Advice. Neither this Agreement nor Client’s performance under this Agreement shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between CareerPoint and Client, or between CareerPoint and Client’s employees and agents. CareerPoint and Client agree that Client and its employees and agents will receive no Company-sponsored benefits from the Company where benefits include, but are not limited to, paid vacation, sick leave, medical insurance and 401k participation. If Client, its employees, or agents, are reclassified by a state or federal agency or court as CareerPoint’s employee, Client, its employees, or agents, as applicable, will become a reclassified employee and will receive no benefits from CareerPoint, except those mandated by state or federal law, even if by the terms of CareerPoint’s benefit plans or programs of CareerPoint in effect at the time of such reclassification, Client, its employees or agents, as applicable, would otherwise be eligible for such benefits. Client acknowledges Client’s sole responsibility for complying with all federal, state and local tax filing and payment obligations that pertain to any remuneration received from Platform Users or as processed by CareerPoint in connection with this Agreement, including Client’s sole responsibility for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits. Client acknowledges that CareerPoint is not rendering legal, tax, or investment advice, nor is CareerPoint a fiduciary of Client. Accordingly, Client acknowledges that Client may seek advice from an appropriate professional to comply with any and all applicable federal, state, and local laws or ordinances.
11. Indemnification. Client agrees to promptly defend, indemnify and reimburse, and hold harmless CareerPoint and its directors, officers, employees, agents or advisors (“Representatives”), to the fullest extent permitted by law, as such may be amended from time to time, from any losses, liabilities, legal fees or expenses incurred by CareerPoint or its Representatives, as a result of: (a) Client’s negligence, intentional wrongdoing, or a breach of this Agreement, or alleged negligence, intentional wrongdoing, or breach of this Agreement, of the Client or of persons under Client’s control; or (b) any liability of Client or CareerPoint for the payment or non-payment of federal, state, or local taxes, or other withholdings, involving Client. CareerPoint shall be entitled to the rights of indemnification provided if, by reason of Client’s providing Client Services under this Agreement, CareerPoint is, or is threatened to be made, a party to or participant in any proceeding, including any actual or threatened administrative or civil action or lawsuit, arbitration, or criminal indictment or case. Client will cooperate as fully and reasonably as required by CareerPoint in the defense of any claim related to any services under this Agreement.
12. Expenses. Except as otherwise specifically provided herein, CareerPoint and Client shall each bear his, her or its own expenses relating to this Agreement and performance thereunder.
13. Disclaimer of Warranties; Limitation of Liability. CareerPoint provides the Platform on an “as is” and “as available basis” and hereby disclaims all warranties, both express and implied, including any warranty of non-infringement, fitness for a particular purpose or merchantability; and CareerPoint’s and its representatives’ collective maximum liability hereunder, regardless of the cause of action (whether in contract, tort, breach of warranty, or otherwise), shall be limited to the aggregate fees paid to CareerPoint by Client during the prior calendar year. CareerPoint reserves complete and sole discretion with respect to the operation of the Platform, and may, among other things withdraw, suspend or discontinue any functionality or feature. Further, neither party shall be liable for lost profits, lost revenues, lost business, interruption of business, or any indirect, special, incidental, punitive or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if advised of the possibility of such damages.
14. Marks. The domain name and other names for the Platform, all page headers, graphics, and button icons are service marks, trademarks (whether registered or unregistered), logos, and/or trade dress of CareerPoint (collectively, “CareerPoint Marks”). Client will not use any of the CareerPoint Marks without prior written authorization; except that Client has a revocable and non-transferable license for the sole purpose of identifying and promoting CareerPoint’s services under the terms of this Agreement.
15. Termination. The initial term of this Agreement is for one (1) year from the effective date written above. Either party may terminate this Agreement by giving ten (10) business days prior written notice thereof. All licenses granted by CareerPoint under this Agreement shall be revoked as of the termination of this Agreement; notwithstanding the foregoing, Sections 7 (Confidentiality) through 20 (Miscellaneous), and any liabilities or payment obligations that have accrued prior to termination shall survive such termination. CareerPoint may also terminate this Agreement immediately with written notice to Client if Client has breached any material term (a “Material Breach”) of the Agreement. The Agreement shall automatically renew for successive one (1) year terms if not terminated within 30 days prior to the end of the existing term.
16. Material Breach. A Material Breach of this Agreement shall include, but is not limited to, the following:
    (a) Failure to pay any fees;
    (b) Failure to abide by the Terms of Use; and
    (c) Violation by Client of applicable state law and/or possession of deficient and/or misrepresented credentials, or CareerPoint’s reasonable belief that any of the aforementioned has occurred.
17. Changes. Changes to this Agreement shall be binding upon a party who confirms such change in writing, including via electronic mail, if such writing specifically refers to this Agreement.
18. Governing Law and Venue.

(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York law, without regard to the choice or conflicts of law provisions of any jurisdiction.

(b) Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or against CareerPoint that are not subject to arbitration as provided in Section 20 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of New York, New York.

19. No Waiver. The failure of CareerPoint to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CareerPoint in writing.
20. Dispute Resolution — Arbitration. Please read the following arbitration agreement in this section (“Arbitration Provision”) carefully. It requires Client to arbitrate disputes with CareerPoint and limits the manner in which Client can seek relief from CareerPoint

(a) Agreement to Arbitrate. Except as otherwise stated in this Arbitration Provision, any dispute, controversy or claim arising out of or relating to this Agreement, including any question regarding its breach, termination, enforcement, interpretation or validity, or the Client Services shall be finally settled by arbitration. This Arbitration Provision shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

Except as otherwise provided, this Arbitration Provision also applies without limitation to all disputes between Client and (i) CareerPoint’s fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them and (ii) Platform Users, including, but not limited to, any dispute, controversy, or claim arising out of relating to this Agreement or Client’s relationship with CareerPoint, including termination of the relationship or Client’s performance of Client Services for a Platform User.

Except as it otherwise provided or required by law, this Arbitration Provision also applies without limitation, and to the fullest extent permitted by law, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by CareerPoint and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.

(b) Arbitration Rules and Place of Arbitration. The arbitration shall be administered by JAMS (Judicial Arbitration & Mediation Services) pursuant to its Comprehensive Arbitration Rules and Procedures in effect on the date of the arbitration (available at http://jamsadr.com/rules-comprehensive-arbitration/), except as modified herein. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ Streamlined Arbitration Rules and Procedures in effect on the date of arbitration (available at http://www.jamsadr.com/rules-streamlined-arbitration/), except as modified herein. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. The location of the arbitration proceeding shall be no more than 45 miles from the place where Client last provided Client Services under this Agreement, unless each party to the arbitration agrees in writing otherwise. Client and CareerPoint acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding Section H with respect to the applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 – 16) (“FAA”).

(c) Selection of the Arbitrator. There shall be one arbitrator. The Arbitrator shall be selected by mutual agreement of Client and CareerPoint. Unless Client and CareerPoint mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator within 30 days after the commencement of the arbitration, then the arbitrator shall be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS. Client will have the option of making the first strike.

(d) Authority of Arbitrator. Except as otherwise provided herein, all issues shall be decided by an arbitrator and not by a court or judge. The arbitrator shall have the exclusive authority to (a) determine the scope, applicability, enforceability, revocability or validity of this Arbitration Provision or any portion of the Arbitration Provision; and (b) resolve any dispute related to the interpretation, scope, applicability, enforceability, revocability or validity of this Arbitration Provision, including but not limited to any claim that all or any part of this Arbitration Provision is void or voidable. The arbitrator shall not have the authority to consolidate this arbitration with any other arbitration proceeding, to join it with any other cases or parties or to conduct a class-wide arbitration. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral rules and the Agreement (including the Arbitration Provision). The arbitrator shall issue a written award and statement of decision stating the disposition of each claim and a concise written statement describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is binding on Client and CareerPoint, and judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction.

This Arbitration Provision applies without limitation to such disputes arising out of, relating to, or in connection with the interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision.

(e) WAIVER OF CLASS OR CONSOLIDATED ACTIONS (“CLASS ACTION WAIVER”). IMPORTANT –EXCEPT AS PROVIDED IN SECTION (H), ALL CLAIMS AND DISPUTES WITHIN THIS ARBITRATION PROVISION MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CLIENT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Only individual relief is available. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective or representative basis. Except as required by applicable law, this subsection also precludes Client from participating in or recovering relief under any current or future class, collective, or representative action brought against CareerPoint by someone else.

In any case in which (1) a dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable for a given claim for relief, then the claim shall be severed from the arbitration, and the class, collective, and/or representative action shall be litigated in a civil court of competent jurisdiction consistent with the final judicial determination. All other claims shall be arbitrated and the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.

(f) 30-Day Right To Opt Out of Arbitration. Arbitration is not a mandatory condition of Client’s contractual relationship with CareerPoint. Client has the right to opt of this Arbitration Provision by sending written notice of its decision to legal@careerpoint.com within 30 days after first becoming subject to this Arbitration Provision. Client notice must include Client’s name and address, the e-mail address Client used to set up Client’s account with CareerPoint, and an unequivocal statement that Client desires to opt out of this Arbitration Provision. If Client opts of this Arbitration Provision, all other parts of the Agreement will continue to apply to Client. Opting out of this Arbitration Provision has no effect on any other arbitration agreements that Client may currently have, or may enter in the future, with CareerPoint. If Client does not opt out of this Arbitration Provision within the 30-day period, Client and CareerPoint shall be bound by the terms of this Arbitration Provision.

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS CLIENT’S DECISION TO MAKE, AND CLIENT SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. CLIENT SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF CLIENT’S DECISION, JUST AS CLIENT WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION. Client understands that Client will not be subject to retaliation if Client exercises Client’s right to assert claims or opt-out of coverage under this Arbitration Provision.

(g) Third-Party Beneficiary. The parent company of CareerPoint USA, Inc, CareerPoint SEZC is an intended, third party beneficiary of this Agreement, including the Arbitration Provision.

(h) Limitations on How the Arbitration Provision Applies. The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in Section 20 of this Agreement shall not apply to:

i. A representative action brought on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq.;

ii. Representative actions for public injunctive relief may be arbitrated on a class basis;

iii. Claims for workers compensation, state disability insurance, and unemployment insurance benefits (provided, however, that any claims commenced by Client challenging worker classification that may affect workers compensation, state disability insurance, and unemployment insurance benefits are subject to mandatory arbitration);

iv. Harassment and discrimination claims, to the extent applicable law prohibits mandatory arbitration of harassment and discrimination claims and such prohibition is not preempted by the FAA. In the event you intend to bring multiple claims, including a harassment and/or discrimination claim that is prohibited from being subject to arbitration under applicable law that is not preempted by the FAA, the harassment and discrimination claims may be publicly filed with a court, while any other claims are subject to mandatory arbitration, except as limited by this subsection (h);

v. Regardless of any other terms of this Agreement, nothing prevents Client from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration;

vi. Disputes that may not be subject to a pre-dispute arbitration agreement pursuant to applicable federal law or Executive Order are excluded from the coverage of this Arbitration Provision;

vii. This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense (“DoD”) Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118), section 8102 of the DoD Appropriations Act for Fiscal Year 2011 (Pub. L. 112-10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.

(i) Starting the Arbitration.
i. All claims in arbitration are subject to the same statutes of limitation that would apply in court. To start an arbitration, a Party shall file a written demand for arbitration with JAMS and deliver a copy of the demand for arbitration by hand or first class mail to the other Party within the applicable statute of limitations period. Any demand for arbitration made to CareerPoint shall be sent to CareerPoint at 2 Lamy Station Trail, Lamy, NM 87450 USA. The demand for arbitration shall include identification of the Parties, a copy of this Arbitration Provision, a statement of the legal and factual basis of the claim(s), and a statement of the remedy sought.
ii. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A 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 provisional relief.
iii. In arbitration, the Parties shall have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.

(j) Paying For the Arbitration. If Client initiates arbitration under this Arbitration Provision and are otherwise required to pay a filing fee under the relevant JAMS rules, CareerPoint agrees that, unless Client’s claim is for $5,000 or more, Client’s share of the filing and arbitration fees is limited to $50, and that, after Client submits proof of payment of the filing fee to CareerPoint, CareerPoint will promptly reimburse Client for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of Client’s claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the JAMS rules. If CareerPoint initiates arbitration under this Arbitration Provision, CareerPoint will pay all JAMS filing and arbitration fees. Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to Client if Client prevails, to the extent required by applicable law.

(k) Full and Complete Agreement Related to Formal Resolution of Disputes; Enforcement Of This Agreement. This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.

21. Miscellaneous. (a) This Agreement, together with any CareerPoint rules or policies referred to herein, represents the complete agreement between Client and CareerPoint concerning the subject matter hereof, and it replaces and supersedes all prior oral or written communications concerning such subject matter. (b) Any notice hereunder must be given in writing by electronic mail to the CareerPoint email below (if made by Client to CareerPoint) or to the Client email below or updated in CareerPoint’s system (if made by CareerPoint to Client). (c) Client may not assign, transfer or delegate this Agreement or any part of it without CareerPoint’s prior written consent. CareerPoint may freely transfer, assign or delegate all or any part of this Agreement, and any rights and duties thereunder, upon the giving of notice. (d) This Agreement will be binding upon and inure to the benefit of the heirs, successors and permitted assignees of the parties. (e) The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be reformed, if reasonably possible, only to the extent necessary to make it enforceable. (f) The headings and subheadings in this Agreement are for convenience only, confer no rights or obligations in either party, and do not alter any terms of this Agreement. (g) The parties represent and agree that they fully understand their right to discuss all aspects of this Agreement with their attorneys, that they have availed themselves of this right, that their attorneys have counseled them with respect thereto, that they have carefully read all of the provisions of this Agreement, that they fully understand those provisions and that they are voluntarily entering into this Agreement. (h) The Terms of Use shall be incorporated by reference into this Agreement.

Client hereby confirms that Client accepts the terms of this agreement. Client also expressly acknowledges that Client has read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that Client agrees to be bound by the terms and conditions of the Agreement, that Client is legally competent to enter into this Agreement with CareerPoint USA, Inc., and that Client has negotiated and agreed to the CareerPoint Platform Commission percentage described above.

EXHIBIT A – User Fees and Platform Commission

For projects with Platform Users introduced to the Platform solely by Client (“Client Generated Users”), the fee(s) charged to the Platform User will be determined in the discretion of Client. The Platform Commission will be 20% of the fee(s) charged to the Platform User by Client, subject to a minimum Platform Commission of $20 per coaching session.

For projects with Platform Users who are not Client Generated Users, CareerPoint will determine the fee(s) charged to the Platform User and Client will receive $80 per coaching session unless otherwise agreed in writing. In this case, the User Fee will equal the difference between the fee(s) charged to the Platform User and $80 per coaching session.

Client acknowledges and agrees that this Exhibit A may be amended at any time by CareerPoint by providing written notice to Client.

 
EXHIBIT B – Refund & Cancellation Policy

Refunds

Upon request by Users, Users will be eligible for a refund of User Fees paid in the following circumstances:

1. A User expresses their dissatisfaction with the coaching session held with or by the Client within 48 hours of their first coaching session.
2. A User reports a material breach of this agreement or the ICF Code of Ethics or other any inappropriate act or gesture, or other act judged by CareerPoint to constitute impropriety on the part of the Client.

Cancellations

Users may, without penalty:

• Cancel any booked coaching sessions 24 hours or more in advance of the scheduled coaching session.
• Once within any coaching program, cancel a coaching session less than a 24 hr prior to the session. Subsequently, canceling within 24 hrs of the start of a coaching session will result in the forfeiture of the session.
• Failure to show will result in the forfeiture of the session.

Clients may cancel and reschedule any session at any time, however they should endeavour to avoid doing so other than in exceptional circumstances and should be aware that last minute cancelations will adversely impact user ratings.

Client acknowledges and agrees that this Exhibit B may be amended at any time by CareerPoint by providing written notice to Client.