All Affiliates will be emailed a docusign of the Dealer Training Source Affiliate Agreement. Feel free to read through it prior to receiving the Docusign.
This Dealer Training Source Affiliate Agreement(“Agreement”) is made effective as of [Effective Date] by and between Dealer Training Source, LLC doing business as Dealer Training Source, and its subsidiaries, representatives, affiliates, officers, and directors (collectively, “Dealer Training Source” “we”, “us,” or “our”), and [Legal First & Last name ], an individual (“Contractor,” “Affiliate”, “you,” or “your”), and Dealer Training Source, LLC, doing business as Dealer Training Source, and its subsidiaries, representatives, affiliates, officers, and directors (collectively, “Dealer Training Source” “we”, “us,” or “our”).
IMPORTANT: YOU ACKNOWLEDGE AT THE OUTSET THAT, FOR THE PURPOSES OF CARRYING OUT THIS AGREEMENT, YOU AGREE TO ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. INCLUDING SECTION 9, WHICH SETS FORTH THAT WITH CERTAIN EXCEPTIONS YOU AND DEALER TRAINING SOURCE MUTUALLY AGREE TO ARBITRATE ANY LEGAL DISPUTES OR CLAIMS THAT MIGHT ARISE BETWEEN YOU. SECTION 9 REQUIRES THAT, EXCEPT AS PROHIBITED BY LAW OR UNLESS YOU OPT-OUT OF THE ARBITRATION PROVISION (AS SET FORTH IN SECTION 9.10), THE PARTIES WILL RESOLVE COVERED DISPUTES OR CLAIMS ON AN INDIVIDUAL BASIS IN AN ARBITRATION PROCEEDING.
1.1 Dealer Training Source, LLC is a technology company that provides online and in person training as well as video production to dealerships and their employees around the world via an online platform, (the “Dealer Training Source Platform”).
1.2 You are an independent provider, “Affiliate” who will be paid to reffer the Dealer Training Source Platform and it’s services to dealership employees and business owners through word of mouth, emails and phone calls. As the Dealer Training Source platform is not available to children (persons under the age of 18), you represent and warrant that you, in your capacity as an individual and/or sole proprietor or in your capacity as an individual owner of a corporate entity, are at least 18 years old and that you have the right, authority, and capacity to enter into and abide by the terms of this Agreement. You are in lawful possession of all equipment (i.e. phone, computer, etc) necessary to perform the referral services contemplated by this Agreement in accordance with all applicable laws. You desire to enter into this Agreement for the purpose of using the Dealer Training Source Platform to obtain business opportunities to perform referrals and earn a referral fee.
1.3 Dealer Training Source is constantly modifying and improving the Dealer Training Source Platform. Dealer Training Source may introduce new features, change existing features, or remove features from the Dealer Training Source Platform at any time and without notice, subject to the terms of this Agreement. If you provide Dealer Training Source with any feedback on or comments regarding the Dealer Training Source Platform or your provision of Services under this Agreement, you grant Dealer Training Source the right to use such feedback or comments for any purpose without restriction or payment to you.
1.4 The Parties agree that they will act in accordance with the terms of this Agreement.
2.1 Dealer Training Source provides you with the opportunity to refer a dealer or business to the Dealer Training Source Platform on behalf of dealerships or business owners. If you create a referral opportunity, you agree to use the Dealer Training Source Platform to refer the dealer or business to enroll in the training.
Dealer Training Source will issue you a username and password so that you can access the Dealer Training Source Platform to get familiar with the services. You agree that only you will use the username and password, as you are the sole authorized user. Nothing in this Agreement should be construed as precluding you from engaging personnel to assist in the provision of Services, as set forth in further detail in Section 4 below.
2.2 You acknowledge that Dealer Training Source does not impose any minimum or maximum amount of Services that you are required to provide. Moreover, you are under no obligation to create any particular Referral Opportunity. If, however, you do create a Referral Opportunity, then you are expected to follow through with it by offering the dealer a free trial or a chance to sign up (enroll) in the training program.
2.3 You agree that there is no minimum or maximum number of Referral Opportunities that Dealer Training Source expects you to create. It is totally up to you to gain as many referrals as you can as time permits. You further agree that Dealer Training Source does not dictate the time of the performance of the Services.
2.4 If Dealer Training Source desires to hire you for any purposes other than or in addition to the services of referring dealers to enroll in the online training platform, and if you agree to such an additional engagement, you and Dealer Training Source shall agree upon the specific terms and conditions. However, such terms and conditions shall govern that additional engagement only and shall not modify the terms and conditions governing the Services as set forth in this Agreement. Any disputes or claims arising out of or related to the provision of such additional engagement shall be governed by the Arbitration Provision (including the opt-out option) in Section 9 of this Agreement.
2.5 The Parties acknowledge that the term of this Agreement does not reflect an uninterrupted service arrangement. Each Referral Opportunity you create shall be treated as a separate contractual engagement, with no continuing obligation to provide Services. No Services will be performed without the Parties’ mutual agreement.
3.1 Dealer Training Source agrees to pay you for your Services within 7 days of a dealer enrolling in the training platform and each month for a total of twelve months. The pay structure is as follows:
You will receive $200 every time a dealer enrolls in the Dealer Training Source Platform and a $200 residual per month as long as the dealership remains on the Dealer Training Source platform. In month 12, you will receive a final payout of $300 which totals $2,500 for each store (rooftop).
Here is an example of a pay structure for one successful referral:
Month 1 = $200
Month 2 = $200
Month 3 = $200
Month 4 = $200
Month 5 = $200
Month 6 = $200
Month 7 = $200
Month 8 = $200
Month 9 = $200
Month 10 = $200
Month 11 = $200
Month 12 = $300
Total = $2,500
The maximum yearly payout per dealership is $2,500 per year. After the twelfth month there will be no other compensation.
Our intention is to use Stripe,Inc. a financial services company and their automated payment system so that the Dealer Training Source Affiliates receive payments on the same day that the referred dealership enrolls. Dealer Training Source reserves the right to change the rates, payouts and any bonuses that may be offered for payment of referral at any time, and Dealer Training Source will provide you with a 30 day notice of the changes in advance and before you creating new Referral Opportunities. Any referral that was created during the preceding rate, payouts or bonus structure will be grandfathered in and will not be affected for its twelve month payout calendar. Dealer Training Source does not pay earnings by salary or by an hourly rate.
3.2 As a condition of receiving payment, you agree that you will receive a IRS form 1099. You shall be responsible for all costs and expenses incurred or necessary in the performance of the Services, including but not limited to phone, internet access, parking, vehicle, insurance, and travel expenses.
3.3 You may request that Dealer Training Source make earnings payable in your name or in your capacity as a sole proprietorship, trade, or other corporate or business entity.
4.1 Subject to compliance with this Agreement, you will have sole discretion over whether to engage subcontractors or use employees, assistants or helpers (collectively “Personnel”) to assist in the provision of Services, and you will be solely responsible for the direction and control of your Personnel. Notwithstanding the foregoing, you remain liable for the performance of the Services by your Personnel, and the engagement of Personnel will not release you from any of your obligations under this Agreement.
4.2 You will require all Personnel performing the Services hereunder to comply with all eligibility requirements set forth in Sections 1 and 2 above.
4.3 Payment for Referral Opportunities accepted by you that are performed by your Personnel will be payable to you. You assume full responsibility, and Dealer Training Source will not be responsible, for the payment of any compensation, benefits and/or expenses to your Personnel (which will be determined in your sole discretion) or for any payment from your Personnel to you, and for any required state and federal income tax withholdings, unemployment insurance, and social security taxes related to subcontractors. Unless required by law, Dealer Training Source will not have any withholding obligations with respect to compensation of your Personnel.
4.4 As a condition of performing the Services hereunder, any Personnel performing the Services must execute a separate acknowledgment representing, warranting and agreeing to comply with this Agreement. You agree to provide a copy of such acknowledgement and/or contract between you and your Personnel to Dealer Training Source for verification.
4.5 As further set forth in Section 7 below, you agree to indemnify, defend, and hold harmless Dealer Training Source,LLC and Dealer Training Source’s officers, directors, shareholders, employees and agents, and its or their successors and assigns, from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable legal fees and costs, that any of your Personnel may assert against Dealer Training Source that result from, or are related to the performance of the Services, by you or your Personnel, including claims for unpaid wages, benefits and/or expenses, whether brought under federal, state or local law.
5.1 You may terminate this Agreement at any time upon written (including email) notice to Dealer Training Source. If your termination of this Agreement results in your failure to complete an accepted Referral Opportunity in accordance with the terms set forth in this Agreement, you will not receive an compensation for that referral.
5.2 Dealer Training Source may immediately terminate this Agreement, upon written (including email) notice to you in the event you engage in a material breach of the terms of this Agreement, including, but not limited to, any act that violates Dealer Training Source’s Guidelines.
5.3 Dealer Training Source reserves the right to modify the terms of the Dealer Training Source Affiliate Agreement from time to time when Dealer Training Source determines, in its reasonable and good faith business judgment, it is necessary to do so to ensure the safe and reliable operation of the Dealer Training Source platform. Any such modifications shall be effective upon posting on the Dealer Training Source Platform, through the Dealer Training Source website. Your continued use of the Dealer Training Source Platform or performance of Services after any such changes are posted shall constitute your consent to such modifications.
5.4 Notwithstanding anything to the contrary, Dealer Training Source may stop providing access to the Dealer Training Source Platform, services, or features to you or to users of the Dealer Training Source Platform generally when Dealer Training Source determines, in its reasonable and good faith business judgment, it is necessary to do so to ensure the safe and reliable operation of the Dealer Training Source platform. Additionally, the Parties agree that the contract terminates with no written notice required if either: you do not provide any Services under the Agreement within 365 consecutive days of executing it; or, after you have started to perform Services, you do not provide Services for 365 consecutive days. You understand that upon termination of the Agreement, there is no guarantee of a presentation of a new contract.
6.1 You enter into this Agreement as an independent contractor (Affiliate) with a business relationship between you and Dealer Training Source. You acknowledge and agree that you operate a business separate and distinct from Dealer Training Source, and that both you and Dealer Training Source are able to operate your respective businesses without the other. It is understood that in agreeing to provide Services under this Agreement, Contractor shall be acting and shall act at all times as an independent contractor, and not as an employee of Dealer Training Source for any purpose whatsoever, including without limitation, for purposes relating to taxes, payments required by statute, or any other withholdings or remittances to any governmental agency or authority. Under no circumstances shall you look to Dealer Training Source as your employer, partner, joint venturer, agent, or principal, nor shall this Agreement be construed to establish any such relationship. YOU SHALL NOT BE ENTITLED TO ANY EMPLOYEE BENEFITS ACCORDED TO DEALER TRAINING SOURCE’S EMPLOYEES, INCLUDING BUT NOT LIMITED TO, WORKERS’ COMPENSATION, DISABILITY INSURANCE, HEALTH INSURANCE, VACATION, OR SICK PAY. You further acknowledge that this Agreement does not create any employer-employee relationship between a third party retailer and yourself, and that you are not entitled to any benefits, including but not limited to, Workers’ Compensation coverage, afforded to any employees of a third party retailer.
6.2 Dealer Training Source is interested only in the results to be achieved by you under this Agreement. You shall be solely responsible for determining the manner and method of performing all Services under this Agreement, and achieving the desired results, in a lawful and safe manner. Dealer Training Source shall have no right to control, oversee, or supervise you in the performance of the Services under this Agreement. Nor shall Dealer Training Source have a right to control, oversee, or supervise any Personnel you engage to assist you in the provision of the Services under this Agreement. You acknowledge that Dealer Training Source does not provide or require training as to the performance of the Services under this Agreement.
6.3 ON A CONTINUING BASIS, YOU SHALL BE SOLELY RESPONSIBLE FOR, AND TO THE EXTENT REQUIRED BY LAW:
Dealer Training Source shall not be liable for any penalties, levies, fines and/or fees, which may be imposed if such taxes and/or other contributions are not paid by you. You further agree that you shall defend, indemnify, and hold Dealer Training Source and its affiliates, and their respective officers, directors, shareholders, employees, agents, successors and permitted assigns thereof harmless for any and all judgments, levies, fines, costs, penalties, assessments or fees associated with such required payments, or with respect to any demand or claim related in any way to any failure to declare, collect, remit, and/or pay on a timely basis all such taxes and related amounts.
6.4 You have no authority to make promises, agreements, or otherwise make commitments on Dealer Training Source’s behalf.
6.5 Nothing herein will preclude you from providing services to any other business, excluding a business directly competing with Dealer Training Source. You may represent, perform services for, or be employed by, any third persons or companies as you see fit, provided that such services do not compete with Dealer Training Source or hinder the performance of the Services under this Agreement. It is also an express violation of the terms of this Agreement to sign up for the Dealer Training Source Platform for the purpose of providing information about Dealer Training Source’s Platform or its operations to any of Dealer Training Source’s competitors or for the purpose of providing Dealer Training Source’s competitors with a competitive advantage against Dealer Training Source in any way.
6.6 Dealer Training Source does not guarantee the availability of the Dealer Training Source Platform. You understand that the Dealer Training Source Platform may be unavailable at any time and for any reason. The Dealer Training Source Platform may be subject to delays, and Dealer Training Source is not responsible for any delays, damages, or losses resulting from the delays.
7.1 You represent and warrant that:
7.2 You agree that you shall and do hereby indemnify, defend, and hold harmless Dealer Training Source, LLC and Dealer Training Source’s officers, directors, shareholders, employees and agents, and its or their successors and assigns, from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable legal fees and costs, that any of the foregoing persons or any other persons may incur or suffer and that result from, or are related to: (a) the performance of the Services, including by you or your Personnel; (b) any breach or failure by you or your Personnel to perform or abide by any of the representations, warranties, and agreements set forth in this Agreement or incorporated by reference; (c) your or your Personnel’s violation of any law or the rights of a third party, including a customer, retail partner, or any individual associated with a retail partner, as a result of your own or your Personnel’s interaction with such third party; (d) any allegation that any materials that you or your Personnel use in carrying out the Services infringe or otherwise violate the copyright, trademark, trade secret, or other rights of any third party; (e) your or your Personnel’s ownership, use or operation of a motor vehicle or passenger vehicle, including during your or your Personnel’s provision of Services; and/or (f) any other activities in connection with the Services or the actions of your Personnel. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person. You agree that Dealer Training Source is not responsible for any loss, damage or depreciation that may occur to your or your Personnel’s equipment, including but not limited to your or your Personnel’s vehicle.
7.3 You will be solely responsible for procuring all equipment, supplies, tools, and/or instrumentalities that are necessary to perform the Services and obligations under this Agreement.
7.4 You agree that you will perform the Services in a competent, safe, and professional manner, in accordance with industry standards, recognizing that the Services are personal to the customer, in order to maximize customer satisfaction and to achieve the results represented to the customer. You understand that the Services you provide to the customer create a direct business relationship between you and the customer. You also agree that repeated cancellation of your commitments to provide the Services results in abuse of the Dealer Training Source Platform and constitutes a material breach of this Agreement that may result in termination of the Agreement. You agree to comply with any laws and regulations applicable to the performance of the Services. You further recognize and agree that customer satisfaction in the Services provided to the customer are measured, and repeated customer complaints or feedback is a reason to terminate the Agreement under Section 5, above.
7.5 You agree that you will not use customer information in any manner that is inconsistent with the Dealer Training Source Privacy Policy, and that failure to abide by provision constitutes a material breach of this agreement. Moreover, you recognize and agree that customer information is Confidential Information governed by Section 8 of this agreement.
7.6 You agree to accept communications from Dealer Training Source via SMS, text message, email, and/or by telephone, and you agree that such communications do not violate the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), any implementing regulations of the TCPA or TSR, or any similar state laws or regulations. You consent to have Dealer Training Source call or text message you on any day (inclusive of weekends and holidays) and at any time at the phone number(s) you have directly or indirectly provided to Dealer Training Source, and to the use of an autodialer or a prerecorded or artificial voice to deliver a message, in connection with your use of the Dealer Training Source Platform. In addition, you consent to have Dealer Training Source call or text message you on the wireless telephone that you have elected to use and to the use of an autodialer or a prerecorded or artificial voice to deliver a message for any purpose. You agree that telephone calls between you and Dealer Training Source or its agents or partners may be recorded and that you hereby consent to any such recording. You agree not to use Dealer Training Source customer contact information for any purpose other than provision of the Services. You further agree to comply with the TCPA, TSR, and any implementing regulations of the TCPA and TSR, as well as any similar state laws in communicating with Dealer Training Source customers.
8.1 During the course of your relationship with Dealer Training Source, you may have access to and/or become acquainted with confidential, proprietary, and/or trade secret information of Dealer Training Source and/or its customers (collectively, “Confidential Information”), which is valuable to Dealer Training Source. Confidential Information includes any and all information relating in any manner to the business, including but not limited to aspects of its technology platform, which includes the Dealer Training Source website and/or mobile app. Confidential Information further includes any and all information relating in any manner to the business of Dealer Training Source’s clients, as applicable, and its and their consultants, customers, clients, and business associates, which is not known generally to the public. Confidential Information also includes, but is not limited to, Dealer Training Source’s business practices or operations, trade secrets, client or vendor lists, client information, customer lists, and customer information (including but not limited to the identity, address, and contact information of dealerships or customers), contracts, agreements, accounting or financial information, pricing information, business plans and data, formulae, technical know-how, processes, methods, techniques, procedures, software, databases, marketing strategies and data, pending projects and proposals, programs, designs, drawings, diagrams, test data, research and other such information of a confidential nature regardless of whether furnished before or after the date of execution of this Agreement, whether oral or written, and regardless of the form of communication or the manner in which it is furnished and all analyses, compilations, data, studies, notes, interpretations, memoranda, extracts, or other documents prepared by Dealer Training Source, LLC containing or based in whole or in part on any such furnished information. You specifically agree that all Confidential Information shall be treated as confidential without regard to whether any specific item of information or material has been labeled “Confidential,” “Secret,” or “Trade Secret,” or any similar designation. Confidential Information does not include, however, information that you can show by documentary evidence: (i) is or has become generally available to the public through no wrongful act of your own; or (ii) has been independently acquired or developed by you without violating any of your obligations under any agreement with Dealer Training Source, any agreement with a third party, or applicable law.
8.2 You: (I) will hold and maintain all Confidential Information in the strictest confidence; (ii) agree not to copy, reproduce, or create derivative works relating in any way to Dealer Training Source’s technology platform, including its website at http://www.DealerTrainingSource.com and any other websites associated with Dealer Training Source including http://www.LarryPickett.com ; (iii) except as reasonably necessary to perform the Services or as authorized in writing by Dealer Training Source, will not at any time, whether during or subsequent to the term of this Agreement, in any fashion, form or manner, either directly or indirectly, use, divulge, disclose, or communicate any Confidential Information to any person, firm, corporation, or entity in any manner whatsoever; and (iv) shall require, and ensure that its directors, officers, employees, agents, and permitted subcontractors who may receive Confidential Information maintain the same in strict confidence and not use or disclose the information except as permitted under this Agreement. You further agree specifically that you will keep secret from any person or entity all Confidential Information learned, transmitted, or otherwise obtained by you, including but not limited to Confidential Information about Dealer Training Source and its operations. You acknowledge that further customer-specific compliance requirements may be applicable and enforceable against you. Except for the purpose of providing the Services, at no time will you turn over your username or password to the Dealer Training Source platform to anyone.
8.3 You agree that all drawings, memorandums, invoices, diaries, project books, notebooks, sketches, reports, manuals, computer programs, computer files, screenshots, and any other materials in any manner and in any medium affecting, recording, or relating to Dealer Training Source’s Confidential Information shall at all times be and remain Dealer Training Source’s sole property, and shall not be removed from Dealer Training Source’s premises under any circumstances whatsoever without Dealer Training Source’s prior written consent, except when (and only for the period) necessary to carry out the Services hereunder, and if removed shall be immediately returned to Dealer Training Source upon termination of this Agreement, and no copies shall be kept by you. Upon Dealer Training Source’s request, you will provide a truthful declaration to Dealer Training Source certifying that all Confidential Information and all copies thereof have been delivered to Dealer Training Source, and deleted from your computers, laptops, telephones, or other electronic or recording device.
8.4 If you are required by applicable law or regulation or by legal process to disclose any Confidential Information, you will immediately notify Dealer Training Source in writing prior to making any such disclosure and assist Dealer Training Source in seeking a protective order or other appropriate remedy. You further agree that if Dealer Training Source is not successful in precluding the requesting legal body from reviewing the Confidential Information, you will furnish only that portion of the Confidential Information that is legally required and will exercise your best efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
8.5 The restrictions placed upon you in this Section will survive the termination of this Agreement and continue in perpetuity. You agree that any breach of any term of this Section is a material breach of this Agreement.
8.6 You acknowledge that Dealer Training Source protects information of its Contractors.
9.1 Intent to Arbitrate. You and Dealer Training Source agree to first attempt to resolve any disputes or claims amicably by providing 30 days written notice prior to filing any such dispute or claim. If the dispute or claim is not resolved amicably, and except as otherwise provided in this Arbitration Provision, you and Dealer Training Source agree that to the fullest extent permitted by law, ANY AND ALL DISPUTES OR CLAIMS BETWEEN YOU AND DEALER TRAINING SOURCE shall be exclusively resolved by final and binding arbitration by a neutral arbitrator, including without limitation any and all disputes or claims BETWEEN YOU AND DEALER TRAINING SOURCE, whether in contract, tort, or otherwise, relating to the formation (including unconscionability and invalidity), existence, breach, termination, interpretation, enforcement, validity, scope, and applicability of the Agreement, or the Services agreed to herein, or any claim on any basis under federal, state, or local law, which could otherwise be heard before any court of competent jurisdiction. By signing this Agreement, and unless otherwise stated in this Arbitration Provision, you and Dealer Training Source hereby waive their right to have any covered dispute, claim, or controversy decided by a judge or jury in a court. You and Dealer Training Source also understand and agree that Dealer Training Source’s business and your Services involve commerce under the Federal Arbitration Act. You and Dealer Training Source expressly agree that this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) even in the event Dealer Training Source and/or you are otherwise exempted from the FAA. Any disputes or claims in this regard shall be resolved exclusively by an arbitrator. In the event, but only in the event, there is a final determination by a court of competent jurisdiction that the FAA does not apply, the state law governing arbitration agreements in the state in which you provide the majority of your Services shall apply. You and Dealer Training Source, LLC anticipate that by entering into this Arbitration Provision, they will gain the benefits of a speedy and less expensive dispute resolution procedure. This Arbitration Provision shall encompass all disputes and claims that Dealer Training Source may have against you, or that you may have against Dealer Training Source and/or any of its officers, directors, employees, owners, agents, representatives, benefit plans, sponsors, fiduciaries, parents, subsidiaries, or affiliated entities (each of which may enforce this Arbitration Provision as a third party beneficiary) arising out of or relating to this Agreement, your classification as an independent contractor, or the Services performed by you. Subject to the limitations set forth in Section 9.6, you and Dealer Training Source agree that the third party retailers at or in whose premises the Services under this Agreement may be performed, as well as any consumer reporting agency responsible for providing background check services of you, are intended third party beneficiaries of this Arbitration Provision. For additional clarity, by signing this Agreement, you and Dealer Training Source hereby expressly waive, to the extent permitted by applicable law, their right to have any dispute or claim resolved by a court unless specifically set out herein.
9.2 Delegation. Except as this Arbitration Provision otherwise provides, the arbitrability of any dispute between you and Dealer Training Source, LLC, including whether or to what extent all or part of this Arbitration Provision is invalid, unconscionable, or otherwise unenforceable, and whether a dispute, claim, or controversy is subject to arbitration, is a decision that will be submitted exclusively to the arbitrator, and will not be decided by any federal or state court. You and Dealer Training Source intend this delegation clause to be clear and unmistakable evidence of your and Dealer Training Source’s agreement to delegate these issues to the arbitrator, subject to the exceptions stated in the Sections 9.4 and 9.5, which set forth that this delegation clause shall not apply to the Waiver of Class Action Claims and Waiver of Representative Action Claims.
9.3 Covered Claims. Except as otherwise provided in this Arbitration Provision, the disputes and claims covered by this Arbitration Provision include any and all disputes and claims BETWEEN YOU AND DEALER TRAINING SOURCE arising out of or relating to this Agreement, your classification as an independent contractor, “Affiliate”, or the Services performed under this Agreement, which could otherwise be heard before a court of competent jurisdiction (a “Claim”), including but not limited to disputes or claims related to allegations of wrongful termination; breach of any contract or covenant, express or implied; breach of any duty owed to you by Dealer Training Source or to Dealer Training Source by you; personal, physical or emotional injury (excluding benefit claims covered under the Workers’ Compensation Act); fraud, misrepresentation, defamation, and any other tort claims; wages or other compensation due; penalties; benefits; reimbursement of expenses; discrimination or harassment, including but not limited to discrimination or harassment based on race, sex, color, pregnancy, religion, national origin, ancestry, age, marital status, physical disability, mental disability, medical condition, or sexual orientation; retaliation; violation of any local, state, or federal constitution, statute, law, ordinance or regulation (as originally enacted and as amended), including but not limited to Fair Credit Reporting Act, Defend Trade Secrets Act, 42 U.S.C. §1981, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, the Pregnancy Discrimination Act, Equal Pay Act, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Americans With Disabilities Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by Dealer Training Source and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Immigration Reform and Control Act, Consolidated Omnibus Budget Reconciliation Act, Family and Medical Leave Act, False Claims Act, California Fair Employment and Housing Act, California Family Rights Act, California Labor Code, California Civil Code, and the California Wage Orders, and all other federal, state or local statutory and legal claims arising out of or relating to your relationship with Dealer Training Source (including without limitation misclassification claims) or the termination of that relationship (including without limitation torts and post-termination defamation or retaliation).
This includes all claims that arose before the signing of this or any prior Agreement and any claims that may arise after the signing or termination of this Agreement, except as otherwise provided in Section 9.6.
A Claim under this Section also includes all claims or disputes between you and any third party retailer arising out of or related to the Services performed under this Agreement that may be brought against third party retailer at or in whose premises the Services under this Agreement may be performed. A Claim also includes all claims or disputes between you and a third party concerning the provision of any background check of you by a consumer reporting agency. Any disputes or claims in this regard shall be resolved exclusively by an arbitrator.
A Claim arising under any law that requires resort to an administrative agency shall be brought before such agency as required by law, and that after exhaustion of administrative remedies, the Claim must be pursued through this binding arbitration procedure to the fullest extent permitted by law.
9.4 Waiver of Class Action Claims. By signing this Agreement, Dealer Training Source and you agree that each may bring and pursue claims against the other only in their individual capacities, and may not bring, pursue or act as a plaintiff, class representative, or class member in any purported class or collective proceeding or action. Notwithstanding any other provision of this Arbitration Provision or the applicable arbitration rules under the International Institute for Conflict Prevention and Resolution (“CPR”) or ADR Services, Inc. (as described below): (1) Any claim that all or part of this Waiver of Class Action Claims is unenforceable, unconscionable, void, or voidable shall be determined only by a court of competent jurisdiction and not by an arbitrator; and (2) If the waiver set forth in this Section is found to be unenforceable, any class or collective action claims will be litigated in a court of competent jurisdiction and not as a class or collective arbitration.
9.5 Waiver of Representative Action Claims. By signing this Agreement, Dealer Training Source, LLC and you agree that each may bring and pursue claims against the other only in their individual capacities, and may not bring, pursue or act as a plaintiff or representative in any purported representative proceeding or action or otherwise participate in any such representative proceeding or action. Notwithstanding any other provision of this Agreement or the applicable arbitration rules under CPR or ADR Services, Inc. (as described below): (1) Any claim that all or part of this Waiver of Representative Action Claims is unenforceable, unconscionable, void, or voidable shall be determined only by a court of competent jurisdiction and not by an arbitrator; and (2) If the waiver set forth in this Section is found to be unenforceable, any representative action claims will be litigated in a court of competent jurisdiction and not as a representative arbitration.
9.6 Claims Not Covered. This Arbitration Provision does not apply to litigation between you (as a party or class member) and Dealer Training Source pending in a state or federal court or arbitration as of the date of your receipt of this Agreement. Claims not covered by this Agreement are claims for workers’ compensation benefits, unemployment compensation benefits, or any other claims that as a matter of controlling law cannot be arbitrated. Nothing in this Agreement prohibits you from exercising rights protected under the National Labor Relations Act or from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Agreement prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Disputes or claims between Dealer Training Source and any third party beneficiaries are not covered by the terms of this Arbitration Provision.
9.7 Arbitration Procedures and Location. Except as described below for Contractors providing services in California, by signing this Agreement, you and Dealer Training Source further agree that any arbitration shall be conducted before one neutral arbitrator selected by the Parties as provided by the CPR Administered Arbitration Rules and, if applicable, the CPR Employment-Related Mass-Claims Protocol (collectively, the “CPR Rules”). The arbitration shall be conducted under the CPR Rules then in effect. You may obtain a copy of the CPR Rules by requesting a copy from Dealer Training Source or by accessing CPR’s website at www.cpradr.org and searching, or using other websites to search, for “CPR Administered Arbitration Rules” and “CPR Employment-Related Mass-Claims Protocol.” By signing this Agreement, you acknowledge that you have had an opportunity to review the CPR Rules before signing this Agreement. If CPR is not available to hear the matter in dispute, you and Dealer Training Source shall confer and agree upon a mutually agreeable arbitral forum. The unavailability of CPR or any other arbitral forum shall not be a basis to invalidate the Parties’ agreement to arbitrate. If for any reason you and Dealer Training Source cannot agree to an arbitral forum, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
California Contractor Arbitration Rules: For any Contractor providing services in California, the Contractor and Dealer Training Source agree any arbitration shall be conducted before one neutral arbitrator selected by the Parties as provided by ADR Services, Inc.’s (“ADR Services Rules”). The arbitration shall be administered by ADR Services, Inc. and shall be conducted under the ADR Services Rules then in effect. You may obtain a copy of the ADR Services Rules by requesting a copy from Dealer Training Source or by accessing the ADR Services, Inc.’s website at https://www.adrservices.com/services/arbitration-rules. By signing this Agreement, you acknowledge that you have had an opportunity to review the ADR Services Rules before signing this Agreement. If ADR Services is not available to hear the matter in dispute, you and Dealer Training Source shall confer and agree upon a mutually agreeable arbitral forum. The unavailability of ADR Services or any other arbitral forum shall not be a basis to invalidate the Parties’ agreement to arbitrate. If for any reason you and Dealer Training Source cannot agree to an arbitral forum, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
The arbitration shall be held in the United States county where you live or perform Services or in any other location you and Dealer Training Source mutually agree upon in writing.
9.8 Arbitration Fees, Attorney’s Fees, and Costs. You and Dealer Training Source shall follow the CPR Rules or ADR Services Rules applicable to initial filing fees, but in no event will you 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. After you pay your portion of any initial filing fee, Dealer Training Source shall pay any remaining portion of the initial fee and will also pay all costs and expenses unique to arbitration, including, without limitation, the arbitrator’s fees and any CPR or ADR Services Inc.’s arbitration administrative expenses. Payment of all filing, administration, and arbitrator fees (collectively, “arbitration fees”) will be governed by the applicable CPR Rules or ADR Services Rules and the laws of the jurisdiction in which you performed Services. In all cases required by law, Dealer Training Source will pay the full amount of the arbitration fees. Any disputes in that regard will be resolved by the arbitrator as soon as practicable after the arbitrator is selected, and Dealer Training Source shall bear all of the arbitration fees until such time as the arbitrator resolves any such dispute. You may be represented by counsel during any arbitration proceeding. Each party shall pay its own costs and attorney’s fees, subject to the arbitrator’s ability, described in Section 9.9, to award costs and attorney’s fees to the extent such a remedy would have been available to the parties had the matter been heard in a court.
9.9 Awards. The arbitrator is authorized to award only those remedies or relief available under applicable law and that the arbitrator deems just and equitable, including any remedy or relief that would have been available to the Parties had the matter been heard in a court, except that this Section does not encompass, permit or authorize any remedy or relief awarded on a class-wide, collective or representative basis. The decision of the arbitrator shall be in writing and shall provide the findings of act and conclusions of law supporting the award unless you and Dealer Training Source agree otherwise. You or Dealer Training Source may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
This Agreement is intended to bind and inure to the benefit of and be enforceable by Dealer Training Source, you, and our respective heirs, successors and assigns, except that you may not assign your rights or delegate your duties or obligations hereunder (including, without limitation, pursuant to any subcontract) without the prior written consent of Dealer Training Source. This should not be construed as precluding you from hiring individuals to assist in the provision of Services.
Except as explicitly set forth in Section 9.4 and 9.5, in the event that any provision of this Agreement is held to be illegal, invalid, void, null, or unenforceable, the remainder of the Agreement shall remain in full force and effect. In cases where some claims are arbitrable under the Arbitration Provision but other claims are not arbitrable, the claims that are not arbitrable shall be stayed in a court of competent jurisdiction pending the outcome of the arbitration of the arbitrable claims.
12.1 The Agreement can only be revoked or modified in writing signed by both Parties that specifically states an intent to revoke or modify this Agreement. This Agreement shall constitute the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, unless as permitted herein, shall not be modified, altered, changed, or amended in any respect, unless in writing and signed by both Parties. Before accepting any modifications, alterations, changes, or amendments, you shall have the right to discuss any proposed changes with Dealer Training Source and consider whether to continue your contractual relationship with Dealer Training Source. Unless otherwise stated in this Agreement, THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE DEALER TRAINING SOURCE PLATFORM. No waiver by any Party to this Agreement of any provision hereof shall be deemed to be a waiver of any other provision of this Agreement, or of any subsequent breach of such provision, or a waiver of any other provision of this Agreement by any other.
12.2 Dealer Training Source also reserves the right to modify any information referenced in the hyperlinks included in this Agreement from time to time in its reasonable and good faith business judgment. Any such modifications shall become effective upon posting. Continued use of the Dealer Training Source Platform or performance of Services after any such changes are posted shall constitute your consent to such changes. Unless material changes are made to the Arbitration Provision herein, you agree that modification of this Agreement and/or the hyperlinks included in this Agreement does not create a renewed opportunity to opt-out of arbitration (if applicable). As set forth in Section 9.10, a renewed opportunity to opt-out of the arbitration will not relieve you of any prior and/or other arbitration agreement(s) with Dealer Training Source to which you may be bound.
By executing this Agreement, the Parties represent that they have been given the opportunity to fully review, comprehend, and negotiate the terms of this Agreement. The Parties understand the terms of this Agreement and freely and voluntarily sign this Agreement. If you have any questions about this Agreement, you may wish to consult an attorney and are free to do so.
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina; however, the Parties agree that Arbitration Provision is governed by the Federal Arbitration Act as provided in Section 9.1. The language in all parts of this Agreement shall in all cases be construed according to its fair meaning and not strictly for or against either Party.
This Agreement supersedes any and all other agreements between you and Dealer Training Source, LLC whether oral or in writing, and contains all of the covenants and agreements between you and Dealer Training Source with respect to your Services. You and Dealer Training Source each acknowledge that no representations, inducements, promises, or agreements, originally or otherwise, have been made to either Party to the other, or by anyone acting on behalf of either Party, which are not embodied herein.
The Effective Date of this Agreement is the date upon which you sign.