Effective Date: October 30, 2020
Welcome to MowSnowPros!
THIS AGREEMENT LIMITS YOUR LEGAL RIGHTS AND OUR LIABILITY TO YOU AND IMPOSES LEGAL OBLIGATIONS ON YOU, WHICH OBLIGATIONS YOU ACCEPT BY ENTERING INTO THIS AGREEMENT.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN THIS AGREEMENT CAREFULLY BEFORE CHOOSING “ACCEPT” OR “DO NOT ACCEPT”. BY CLICKING ON “ACCEPT”, OR BY ACCESSING AND USING THE APP (AS DEFINED BELOW), OR BY BOOKING MOWSNOWPRO’S/SERVICE PROVIDERS OR RECEIVING SERVICES BOOKED THROUGH THE APP, YOU ARE ENTERING INTO A BINDING LEGAL CONTRACT WITH US.
IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, PLEASE DO NOT CLICK ON “ACCEPT”.
This Agreement applies equally to the App and to the Website, and all Services booked or made available through either. All references herein to the App will be deemed to apply to the Website, and all references to Services and related matters will apply to all such matters, whether through the App or the Website.
This Agreement applies to and legally binds Customers, and you become a Customer upon any one or more of the following: clicking “Accept”, using the App, booking Services, or receiving Services. Service providers, referred to in this Agreement and generally by us as “MowSnowPro’s”, are required to enter into a separate agreement with us, and with you. This Agreement does not amend or terminate in any way any other agreement you may have with us.
You agree that you enter into this Agreement as a Customer, as defined below. You warrant and represent to us that you are of the full age of 18 years, or the age of majority in your jurisdiction, whichever is higher. If you are under the age of majority, you cannot enter into this Agreement.
This Agreement commences after you click “I Accept”. Capitalized terms in this Agreement have the meanings defined below.
You agree to communicate, transact, and contract with us and with MowSnowPro’s electronically via email, text or through the App or the Website. You acknowledge and agree that all such electronic communications may be insecure and subject to not being received, or loss or alteration of data in transit or otherwise. You voluntarily accept all risks of electronic communications with us and with MowSnowPro’s.
In addition to communicating with us electronically through the App with respect to Services, you consent to receiving commercial electronic messages from us, including offers to purchase Services, discounts, coupons, third party offers, and other commercial information we believe may be of interest to you.
We may change the terms and conditions of this Agreement at any time upon 15 days’ notice. Notice may be validly given by email or text message, whether or not you receive, open or download the message containing such notice, or by posting in the App or on the Website. Notice will be deemed to be given by us and received by you upon our sending the email or text message providing such notice or posting the notice in the App or on the Website. Your continued use of the App or booking or receipt of Services following such notice will be conclusively deemed to confirm your acceptance of the changes to this Agreement as stated in the notice sent to you.
1.1 Set out below are the defined terms used in this Agreement, which may be used in the singular or plural, where applicable:
“App” means our proprietary application and software available for mobile devices on both Google Play and the Apple App Store. All references to the App in this Agreement include the Website and the use thereof, unless otherwise stated.
“Bid” means an online form completed by you and sent through the App in the form of a Statement of Work including your Customer Requirements and other information to potential MowSnowPro’s for their consideration and possible acceptance, with any acceptance by a MowSnowPro resulting in a Service Contract incorporating such Statement of Work being formed between you and the accepting MowSnowPro.
“Change Order” means a change, modification, or cancellation of a Service Contract by you, or by us, or by the MowSnowPro, and sent by email or text communication.
“Fees” means all payments, fees, charges, compensation, remuneration and other payments you agree to make or pay using the App to a MowSnowPro in consideration of bidding for Services, contracting with MowSnowPro’s pursuant to a Service Contract or otherwise, or receiving the Services in compliance with this Agreement. Applicable taxes, including GST, HST and any other sales or value-added tax are payable in addition to Fees.
“Customer” means one or more persons, consumers, homeowners, property owners, occupants of real property, clients, or companies which requests and orders Services for themselves or a third party through the App or the Website.
“Customer Requirements” are the specifications and requirements for the Services which are specified by you as a Customer in a bid, and which become part of the Service Contract when accepted pursuant to a Statement of Work or other agreement by you to receive the Services and pay the Fees in compliance with this Agreement.
“MowSnowPro” means a third-party service provider, being an independent contractor that you may book and contract to receive Services from through the App as stated and described in a Statement of Work as incorporated into a Service Contract. MowSnowPro’s are not our employees, servants or agents, and we are not liable for their actions, errors, or omissions.
“Service Contract” is the arrangement pursuant to which you agree to receive Services from a MowSnowPro as detailed in a Statement of Work.
“Services” are the services offered or made available to you as a Customer by MowSnowPro’s using the App and available to be selected from our established Services offering list which may be updated from time to time as demand for new Services arises, and include Services you agree in a Service Contract to receive and pay Fees for. The Services are provided by MowSnowPro’s, and currently include lawn mowing, landscaping, spring cleanup, fall cleanup, power-raking, aeration, weeding, hedge trimming, and snow shoveling and clearing.
“Statement of Work” means any electronic communication contained in or derived from your Bid, and sent to selected and available MowSnowPro’s via the App, or by email, text or other means of communication, including electronic and virtual communications, and providing your contact information and other information about you as a Customer as required for the MowSnowPro to consider and, if they elect to do so, accept your Bid. Acceptance of your Bid by a MowSnowPro forms a Service Contract between you and the MowSnowPro, pursuant to which the MowSnowPro agrees to provide Services to you. A Statement of Work will generally include your name, address and phone number, the location where Services are to be provided, and details and specifications of Services to be provided.
“Website” means our website at mowsnowpros.com and mowsnowpros.ca
a) The purpose of the App is to provide you and our other Customers a simple way to request on-demand Services from independent contractors and service providers listed with us as MowSnowPro’s. We provide a third-party marketplace and platform allowing you and other Customers to connect with MowSnowPro’s and enter into Service Contracts with them. While we expect MowSnowPro’s to always be professional, respectful, competent, and honest, and to provide an exceptional level of service to you and other Customers, all MowSnowPro’s are independent contractors, not under our direct control, and not our employees or agents.
b) Services may only be requested through the App. You may initiate your request for Services by placing a Bid in the App at a rate selected by you or a price quoted by us, and with specifications and information about the Services requested sufficient to generate a Statement of Work describing the Services desired by you. Suggested bid rates are provided in the App, and you should use a fair and reasonable price in your Bid, but it is up to you to select the bid rate or price you are willing to offer in your Bid to request Services. A Bid made by you is an offer open to acceptance by a MowSnowPro. Your Bid may not be accepted and if that occurs, you may resubmit a Bid with a higher amount or price in that Bid or choose to not pursue a request for Services by not making a further Bid.
c) You may cancel withdraw a Bid at any time before acceptance by a MowSnowPro. However, once your Bid has been accepted by a MowSnowPro, it becomes a Service Contract which you enter into directly with that MowSnowPro, subject to the terms and conditions of this Agreement as to the manner in which your Service Contract with that MowSnowPro is formed and is to be performed. You may be liable under the Service Contract for all applicable Fees. Otherwise, we are merely a conduit for information and payments, and not a party to any Service Contract between you and any MowSnowPro.
d) Upon your requesting Services through the App by placing a Bid, the App will match your Bid with any one or more MowSnowPro’s which have listed themselves in the App as available to provide the Services requested, and generally the App will restrict Bids being available for MowSnowPro’s not geographically in reasonable proximity to you. We reserve the right to program the App to consider factors, including intangibles and information not known to you, and including your requests and preferences, in selecting and matching you with any one or more MowSnowPro’s for the purposes of communicating your Bid to such MowSnowPro’s.
e) Bids made by you and not accepted by a MowSnowPro will expire after a reasonable period of time, in which case you will not enter into a Service Contract, nor receive the Services described in the Bid and associated Statement of Work, nor will you be obligated to pay the Fees for such Services to the extent they were not provided or received by you. Under no circumstances will we have any liability to you for any Bid not being accepted.
f) Payment to MowSnowPro’s for Services provided to you pursuant to a Service Contract must be made through the App, and you agree to pay the Fees for Services stated in the Service Contract using your credit card and billing information provided by you and held on account by our third-party credit card and payment services provider. We have agreements with MowSnowPro’s pursuant to which we are entitled to a portion of payments made to MowSnowPro’s by you, and you agree to not take steps to interfere with our relationships with MowSnowPro’s, or to interfere with our payment arrangements and agreements.
g) As a registered user of the App, you can receive updates from the contracted MowSnowPro while the Services are being provided, or after provision of the Services, and you can provide and receive feedback and ratings afterwards through the rating system in the App.
h) You acknowledge and agree that MowSnowPro’s may or may not be licensed, insured, or have WCB or other applicable coverage, and we give no guarantee, representation, warranty, or condition as to the status of MowSnowPro’s with respect to their licensing, legal status, insurance coverage, WCB coverage or any other coverage. You therefore acknowledge and agree that you enter into Services Contracts with and receive Services from MowSnowPro’s entirely at your own risk.
i) You warrant and represent that you will carefully, fully, and completely review each Bid you make for accuracy, errors, omissions, and incorrect information before submitting such Bid for possible acceptance by MowSnowPro’s. Although we will make reasonable efforts on your request to correct any errors or misunderstandings on your part discovered after you issue a Bid, and/or modify the Services accordingly, it may not always be possible to do so, and we will not be liable to you for any damages whatsoever arising out of your errors or omissions in reviewing and issuing a Bid.
j) We will have no liability to you whatsoever for any failure of the App to accept, process, or deliver a Bid to MowSnowPro’s, or to deliver communications, including acceptance of your Bid, to you. We retain the right to withdraw or terminate a Service Contract at any time, without notice to you or any liability to you, and we also reserve the right to contact you and request modifications to a Service Contract at any time. If we request modifications and you do not accept them, we may terminate the Service Contract without liability to you.
k) Acceptance of your Bid by a MowSnowPro does not guarantee that the Services will be provided, and we reserve the right to change the referred MowSnowPro at any time and for any reason.
l) We will not be liable to you for any damages whatsoever due to force majeure, or any other circumstances of any kind beyond our reasonable control, or that of any MowSnowPro, that may delay the delivery of Services, or prevent the delivery of Services, or require modifications to the Services.
2.2 Cancellation: You may cancel a Service Contract and its associated Statement of Work at any time through the App. Upon receipt of your notice of cancelation, we will make reasonable efforts to stop delivery of the Services described in the Service Contract and its Statement of Work. Depending on the timing of your exercise of your right to cancelation, we may or may not be able to avoid your being liable to pay the Fees, or some portion thereof. Where your cancelation is delivered too late to be reasonably able to stop the MowSnowPro you have booked to provide Services from travel to the location for such Services, or commencement of such Services, we reserve the right to charge you a reasonable portion of the applicable Fees and you may be fully liable to the MowSnowPro for all Fees under the Service Contract.
2.3 Change Orders: We may provide you with a Change Order to a Service Contract or Statement of Work at any time without notice, whether because of changes requested by you, or by a MowSnowPro, or otherwise. You agree to review any Change Order promptly on receipt. If you do not agree to modify the Services as stated in a Change Order, you will notify us immediately and we may, in our sole discretion, suggest a different modification or cancel the Service Contract or Statement of Work entirely. Where you requested the changes set out in a Change Order, you will remain liable for any applicable Fees incurred before the Change Order being communicated to the MowSnowPro.
2.4 Policies, Procedures and Requirements: You agree to fully comply with all policies, procedures or requirements we may implement from time to time, and at any time
2.5 MowSnowPro Responsibilities: Subject to the terms and conditions of this Agreement, you acknowledge and agree that the MowSnowPro providing the Services will generally be responsible, in consultation with you, for the means, methods, techniques, and procedures for coordinating and delivering the Services.
2.6 Safety: While the MowSnowPro remains responsible for taking all reasonable safety measures within their control, you agree to take reasonable steps to ensure the safety of you and your family, employees, contractors, occupants of your property, and pedestrians and other third parties or members of the public while receiving the Services;
2.7 Fees, GST and Taxes: You agree to pay all applicable Fees as stated in a Statement of Work accepted by you, and you also agree to pay GST, HST, and any other legally required value-added or sales tax in addition to Fees. You agree to pay interest at eighteen per cent (18%) per annum, both before and after judgment, until paid, on any and all unpaid Fees and applicable taxes due for more than ten (10) days, together with all legal costs of collection, including lawyer’s fees and disbursements on a solicitor and own client basis.
2.8 No Additional Charges: MowSnowPro’s are not authorized to solicit or charge, or attempt to charge, any fee, cost, expense or other requirement to pay of any kind in addition to, or in substitution for, the payments and Fees you have agreed to pay using the App or the Website. You will not under any circumstances be obligated to any MowSnowPro for any such additional payments. The MowSnowPro is not authorized to solicit or request any such tips or gratuities from you, and you are free to choose to not pay or offer any tip or gratuity.
2.9 Compliance with Applicable Law: In your use of the App and in your dealings with MowSnowPro’s, including your Bids and Service Contracts, will in all cases be in compliance with all applicable laws, legislation, and regulations.
2.10 Honest Performance and Good Faith: You agree that you have a duty of honest performance and good faith with respect to this Agreement, Service Contracts, Statements of Work, and performance of your obligations under this Agreement, and you will not breach any such duty.
3.1 The App consists of software, algorithms, scripts, tools, and includes all data, information, graphics, designs, text, artistic and literary works, and content of any kind which is displayed or made available by the App. This Agreement grants you a limited, personal, revocable, and non-exclusive license, with no right to sub-license, to use the App for the purposes for which it is intended, and to display and use the content provided by the App for the purposes for which it is intended, and for no other purpose. All rights not expressly granted in this Agreement are reserved exclusively to us. The App is licensed, not sold, and you do not own the App, or any right, title or interest therein, other than the foregoing limited license. This Agreement is for licenses and services and is not a sale of goods. You may not use the App as a service bureau, reseller, distributor, or sales agent for goods or services. You may not transfer or assign this Agreement or the App, and any attempt to do so will be void. You acknowledge and agree that the App is subject to copyrights and other intellectual property rights, and you will not run, copy, distribute, publish, rent, display or use the App except as permitted in this Agreement. You will not reverse engineer, decompile or otherwise attempt to discover the source code to the App.
4.1 You, along with other Customers and MowSnowPro’s are permitted to use the rating system forming part of the functionality of the App. The rating system allows Customers to rate MowSnowPro’s on a scale representing a number of metrics, and the rating system allows MowSnowPro’s to rate Customers, including you, on a similar basis. You agree to provide honest and accurate ratings of MowSnowPro’s which have provided Services to you, and you consent and agree to being rated by MowSnowPro’s in the rating system. We reserve the right to remove MowSnowPro’s and Customers, including you, from the App where ratings fall below acceptable levels, determined in our sole discretion. Ratings are the independent statements and opinions of the persons posting or making such ratings and are outside our control. We will have no liability under any circumstances to you or any other Customer or MowSnowPro arising out of being rated or being the subject of a rating that is negative or that you disagree with. Notwithstanding the foregoing, we do retain the right to edit ratings or to remove them from the App in our sole discretion.
5.1 Acceptable Use: You will use the App for only lawful purposes, as permitted in this Agreement, and in any event you will not:
a) post, upload, transmit, display, send, or otherwise make available to any other person any information or content that:
(i) is illegal, unlawful, false, fraudulent, infringing of any proprietary right (including intellectual property rights and copyrights), tortious, obscene, racially, ethnically or sexually offensive, sexist, racist, discriminatory, defamatory (including slander and libel), harassing, abusive, threatening, or that advocates any violent or unlawful activity, or constitutes hate literature, or is pornographic, or that violates any local, provincial, state, or national laws or regulations applicable to you, or to us, or to any MowSnowPro;
(ii) invades the privacy of any individual, misappropriates the personality of any individual, or unlawfully collects, uses, or discloses personal information;
(iii) that constitutes pyramid schemes, chain letters or similar content, including solicitations to purchase any good or service, make any investment, or enter into any contract other as permitted by this Agreement; or
b) do anything that affects the operation of the App in any adverse manner, or that interferes with the use and enjoyment of the App by other Customers, or by MowSnowPro’s.
6. JURISDICTION AND DISPUTE RESOLUTION
6.1 This Agreement will be deemed to be an agreement made in Alberta, and will be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, excluding any conflict of laws rules that might otherwise require the application of the laws of another jurisdiction. Regardless of your domicile, place of residence, or jurisdiction in which you reside or are present, whether permanently or temporarily, you irrevocably attorn and submit to the exclusive jurisdiction of the courts of the Province of Alberta and/or the Federal Court of Canada, sitting at Calgary, as applicable. You undertake and agree to bring no action or seek to resolve any dispute with us in any other jurisdiction, and to not seek arbitration of any such dispute without our consent, and to not commence any action against us by way of class proceedings.
7.1 Effect: This Agreement comes into effect upon your acceptance of this Agreement. This Agreement will continue in effect indefinitely unless terminated as provided herein.
7.2 Termination by You: You may terminate this Agreement at any time by providing notice to us through the App or by email or text message to us using addresses, numbers or contact information we have confirmed in writing are acceptable to us, provided there are no outstanding Statements of Work and no Fees are owed by you.
7.3 Suspension or Termination by Us: We may suspend or terminate this Agreement and/or your access to the App at any time without notice and without any liability to you whatsoever. We have the right, but not the obligation, to provide notice of suspension or termination to you through the App or by email or text message, whether or not any Statement of Work or Change Order is outstanding or incomplete. You undertake and agree to regularly monitor any email address, text message number, or other means of contacting you that you have provided us and that we have agreed to use.
8.1 Independent Contractors: You and we are both independent contractors, and MowSnowPro’s are independent contractors. Nothing in this Agreement constitutes either of us, or any MowSnowPro, as employees, partners, joint venturers or agents of the other. You have no authority to act as our agent or to otherwise contract on our behalf, nor does any MowSnowPro.
9.1 Your Obligation to Indemnify: You agree to indemnify, defend (at your own and sole expense) and forever save us harmless from and against any and all direct or indirect claims, actions, suits, demands, causes of action, proceedings, judgments, losses, or damages of any nature or kind arising out of:
a) Any claim arising out of your negligence (whether or not the same constitutes gross negligence), misconduct, malfeasance, tortious action or failure to take action, or criminal, illegal or unlawful conduct;
b) Any breach by you of this Agreement; and
c) Any claim against us, or against you and us, whether joint or several, by a MowSnowPro or any third party arising out of the foregoing. .
9.2 Application of Insurance: The foregoing indemnity shall apply regardless of whether you have obtained insurance coverage, or otherwise have, or do not have, insurance coverage.
9.3 Directors, Officers, etc.: The foregoing indemnity will also extend to our directors, officers, employees and agents.
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, PRODUCT LIABILITY, OR OTHERWISE, SHALL WE BE LIABLE TO YOU, OR ANYONE CLAIMING THROUGH YOU, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF OR DAMAGE TO PROPERTY, INCLUDING REAL PROPERTY AND PERSONAL PROPERTY, CHATTELS AND INTANGIBLE PROPERTY, ECONOMIC LOSS, LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER OR EQUIPMENT FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY STATEMENT OF WORK, THE ACTIONS, ERRORS OR OMISSIONS OF ANY MOWSNOWPRO, OR ANY CHANGE ORDER. UNDER NO CIRCUMSTANCES SHALL OUR TOTAL LIABILITY UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK, OR ANY CHANGE ORDER OR OTHERWISE EXCEED THE TOTAL OF ALL FEES ACTUALLY PAID BY YOU TO US UNDER STATEMENTS OF WORK APPLICABLE TO YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIMS. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE APP AND THE WEBSITE, ALL SERVICES, ALL STATEMENTS OF WORK, AND CHANGE ORDERS ARE PROVIDED STRICTLY “AS IS”, “WHERE IS” AND “AS AVAILABLE”. WE MAKE NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION.
11.1 Entire Agreement: This Agreement, and any other documents required to be delivered pursuant to this Agreement, including any applicable Statements of Work and Change Orders, constitute the entire agreement between you and us, and set out all of the covenants, promises, warranties, representations, conditions and agreements between you and us with respect to the rights granted and obligations assumed herein and therein and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, pre-contractual or otherwise. There are no covenants, promises, warranties, representations, conditions or other agreements, whether oral or written, pre-contractual or otherwise, express, implied or collateral, between you and us in connection with the subject matter of this Agreement except as specifically set forth in this Agreement and any document required to be delivered pursuant to this Agreement. In the event of any conflict or inconsistency between this Agreement and any Statement of Work, Change Order, or other document required to be delivered pursuant to this Agreement, the terms and conditions of this Agreement will prevail and take priority to full extent of any such conflict or inconsistency.
11.2 Waiver: No waiver by us of your performance, or any default in your performance of any provision, condition or requirement herein shall be a waiver of, or in any manner release you from performance of, such provision, condition or requirement unless such waiver is executed in writing by us, and such waiver shall not be, and shall not be considered to be, a waiver of any other default or provision, condition or requirement herein, nor shall any such waiver be a waiver of, or in any manner a release of, you from future performance of such provision, condition or requirement, unless it expressly so states. Any delay in exercising or failure to exercise any right, remedy, power or privilege hereunder on our part shall not operate as a waiver thereof nor impair the exercise of any such right, remedy, power or privilege or any other right, remedy, power or privilege accruing to us thereafter. Our failure to perform our obligations hereunder shall not release you from the performance of your obligations.
11.3 Severance: Each provision of this Agreement is intended to be severable. If, in any jurisdiction, any provision of this Agreement, or the application of such provision to any person, entity, or circumstance, is restricted or prohibited or is held illegal, invalid or unenforceable, the remainder of this Agreement, or the application of such provision to any person, entity, or circumstance other than those to which it is held to be illegal, invalid or unenforceable, shall not be affected thereby.
11.4 Amendment: No amendment, supplement, modification or waiver or termination of this Agreement and no consent or approval by us is binding unless executed in writing by us.
11.5 Assignment: This Agreement is personal to you and you are not permitted to assign or transfer this Agreement, or any of your obligations or benefits hereunder, whether by operation of law or otherwise. Any such assignment or purported assignment by you will be void.
11.6 Enurement: This Agreement shall enure to the benefit of and be binding upon you and us and our respective successors and permitted assigns.