Thank you for your interest in Gigwalk, Inc. a Delaware corporation (“Gigwalk,” “we,” or “us“). Gigwalk provides its solutions via software programs downloaded to a mobile device (the “Mobile Application“) and/or delivered via software-as-a-service delivery and available through our website located at http://www.gigwalk.com (the “Website“) (together, the “Software“). Gigwalk Software allows its customers (“Gigwalk Customers“) to execute project tasks, and to collect, validate and take action on field data using Gigwalk’s network of mobile-enabled independent contractors (“Gigwalkers“) or Customer’s employees.
Please read this User Agreement (“Agreement”) in its entirety if you wish to use the Software as a Gigwalker or as an employee of a Gigwalk Customer.
THIS AGREEMENT IS AN ELECTRONIC CONTRACT THAT SETS OUT THE LEGALLY BINDING TERMS OF RELATIONSHIP BETWEEN GIGWALK AND YOU. BY SUBMITTING AN APPLICATION TO USE THE SOFTWARE ON THE WEBSITE OR VIA THE GIGWALK MOBILE APPLICATION, AND BY CLICKING ON THE “I AGREE” BUTTON, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY.
Use of the Software is permitted only by individuals who can form legally binding contracts under applicable Law. Without limiting the foregoing, you must be at least 18 years old in order to accept this Agreement and use the Software.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Gig” means a specific project request entered into the Software by Gigwalk Customer or by Gigwalk per Gigwalk Customer request that will be performed either by Customer’s employees or by Gigwalkers. The Gig shall include instructions to complete the Gig, a description of the Gig Deliverables, the date by which the Gig must be completed (the “Gig Completion Date“) and the fee associated with the Gig (the “Fee“), if any.
1.2 “Gig Deliverables” means the information, including photos or responses uploaded by Customer’s employees or Gigwalkers to the Software in the course of performing a Gig.
2.1 Performing a Gig. By accepting a Gig, you agree to use your best efforts, skills and abilities to perform such Gig in a professional and workmanlike manner, and to provide the Gig Deliverables as requested by Gigwalk Customers and described in the Gig. Once you have accepted a Gig, the Gig will no longer be visible to others. By accepting a Gig, you are entering into a binding legal agreement with Gigwalk to provide the Gig Deliverables to the Gigwalk Customers via the Software, for the Fee specified in the Gig. Do not accept a Gig unless you are sure that you understand what you are being asked to deliver. You have the right to decline to perform the Gig.
2.2 Evaluation of Gig Deliverables. When you have completed and delivered a Gig Deliverable on or prior to the Gig Completion Date, Gigwalk and the Gigwalk Customer may evaluate the Gig Deliverable(s) to determine, in their sole discretion, whether they comply with the requirements of this Agreement and the applicable Gig. If there are discrepancies with the Gig Deliverables relative to the description of requirements in the Gig, the Gigwalker or Customer employee will not receive the Fee for the Gig, if any.
3. PAYMENT TO GIGWALKERS
The Fee to Gigwalkers, less any payment processing fees, will be remitted by our third party payment processor, PayPal, for each Gig within fifteen (15) days after the Gigwalk Customer accepts the satisfactorily completed Gig Deliverables associated with the Gig, provided that the total amount due to you is at least $35 (the “Minimum“). For any month in which the total amount due to you is less than the Minimum, the balance may be carried over to the following month. Unless otherwise stated, all Fees are quoted in U.S. Dollars. You are responsible for paying all applicable taxes and for all expenses incurred by you in connection with performing the Gigs or otherwise performing your obligations under this Agreement. We may be obligated by law to obtain tax information from you. If we request tax information from you and you do not provide it, we may (in addition to any other rights or remedies available to us) withhold your Fees until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
THIS IS A CONTRACT FOR PAY FOR PERFORMANCE. IF A GIGWALK CUSTOMER REASONABLY REJECTS THE GIG DELIVERABLES PROVIDED BY A GIGWALKER, THE GIGWALKER WILL NOT RECEIVE THE FEE FOR THE APPLICABLE GIG (A “FAILED GIG“). IN THE EVENT OF A FAILED GIG, YOU, AS A GIGWALKER, AGREE TO AND FOREVER WAIVE, RELEASE AND FOREGO ANY AND ALL CLAIMS AGAINST GIGWALK REGARDING ANY FEES RELATED TO THE FAILED GIG.
4. GIGWALKER INDEPENDENT CONTRACTOR RELATIONSHIP
For Gigwalkers, it is understood and agreed that your relationship with Gigwalk is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, employment agency, or employer-employee relationship between Gigwalk and you or between the Gigwalk Customer and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Gigwalk that is inconsistent with your being an independent contractor (and not an employee) of Gigwalk. You are not the agent of Gigwalk or the Gigwalk Customer and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of Gigwalk or the Gigwalk Customer. Without limiting the generality of the foregoing:
4.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that Gigwalk may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Gigwalk will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Gigwalk, or any affiliate of Gigwalk, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, you hereby elect not to participate in, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by Gigwalk.
4.2 Taxes. Since you are an independent contractor and not an employee of Gigwalk, we do not withhold income or employment taxes or any other amounts from any Fees paid to you under this Agreement. You are solely responsible for filing all tax returns and paying all amounts required by any federal, state, local, or foreign tax authority arising from the payment of Fees to you under this Agreement, and you agree to do so in a timely manner. Because all Gigwalk Fees are remitted through PayPal, the issuance of a Form 1099-K to you (and the filing of a copy of that Form with the Internal Revenue Service), if any, will be done by PayPal. Please be advised that, in general, all Fees paid to you under this Agreement are considered taxable income, even if you do not receive a Form 1099-K from PayPal, or the amount reported on any such Form 1099-K is less than total Fees paid to you under this Agreement. We recommend that you consult your own tax advisor for information on your personal tax situation.
4.3 Compliance with Law. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions.
5. GIG DELIVERABLES
5.1 Delivery. You agree that you will use the Software to provide the Gig Deliverables to Gigwalk on or before the applicable Gig Completion Date. You acknowledge and agree that this is a payment for performance agreement (i.e. you will be paid based on the delivery of accepted Gig Deliverables), and the amount of time you devote to each Gig in order to satisfactorily provide the Gig Deliverables is immaterial for the purposes of the Fees and will be in your sole discretion.
5.2 Ownership. By uploading the Gig Deliverable to Software, you hereby grant Gigwalk an irrevocable, perpetual, royalty-free, fully-paid up, worldwide right and license to reproduce, create derivatives of, publicly display, publicly perform, distribute, digitally transmit, use and otherwise exploit the Gig Deliverable for Gigwalk’s internal business purposes. Upon acceptance of the Gig Deliverable by the Gigwalk Customer and payment of the Fee to you, you shall and hereby do irrevocably and unconditionally assign to Gigwalk all right, title and interest worldwide in and to the Gig Deliverable and all intellectual property rights thereto, including but not limited to all copyrights, and proprietary rights of every kind and nature. If any intellectual property rights, including moral rights, cannot (as a matter of law) be assigned by you to Gigwalk, then you unconditionally and irrevocably waive the enforcement of such rights and all claims and causes of action of any kind against Gigwalk with respect to such rights.
6.1 Use and Disclosure. During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Gigwalk’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Gigwalk’s or any Gigwalk Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Gigwalk Customers) that Gigwalk considers to be confidential or proprietary or Gigwalk has a duty to treat as confidential.
6.2 Standard of Care. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.
6.3 Reverse Engineering. You will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of the Gigwalk Mobile Application, any other software, products, models, prototypes, or other items provided by Gigwalk that use, embody, or contain Confidential Information.
6.4 Exceptions. Your obligations under Sections 6.1 and 6.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Gigwalk’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by Gigwalk, or is required by law or court order, provided that you immediately notify Gigwalk in writing of such required disclosure and cooperate with Gigwalk, at Gigwalk’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
6.5 Removal; Return. Upon Gigwalk’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Gigwalk or, if so directed by Gigwalk, destroy all tangible embodiments of the Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Gigwalk in writing that you have fully complied with the foregoing obligations.
7. NO CONFLICTS
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Gig, or that is otherwise inconsistent with this Agreement, or any Gig.
8. REPRESENTTIONS AND WARRANTIES
8.1 General. You represent, warrant, and covenant that:
(a) You will not, in the course of performing any Gig, infringe or misappropriate, and neither the Gig Deliverables nor any element thereof will infringe or misappropriate, any intellectual property right of any other person;
(b) All Gig Deliverables and all elements thereof are your original works and you have all rights necessary to grant the rights set forth in this Agreement;
(c) Neither the Gig Deliverables nor any element thereof will be subject to any restriction, mortgage, lien, claim, pledge, security interest, or encumbrance when delivered by you to Gigwalk;
(d) You will not grant, directly or indirectly, any right or interest in any Gig Deliverable to any other person;
(e) You have full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers);
(f) The Gig Deliverables will fully conform to the specifications, requirements, and other terms in the applicable Gig Engagement and this Agreement, and will be of a professional and workmanlike quality. In the event of a breach of this warranty, without limiting any other rights or remedies Gigwalk may have, you will promptly replace the Gig Deliverables at no additional charge to Gigwalk.
8.2 Indemnification. You will indemnify and hold harmless Gigwalk and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any breach of any representation, warranty, covenant, or obligation in this Agreement, or any Gig, by you or any intentional misconduct or negligence by you in performing any Gig. In the event of any third-party claim, demand, suit, or action (a “Claim“) for which Gigwalk (or any of its affiliates, employees, or agents) is or may be entitled to indemnification hereunder, Gigwalk may, at its option, require you to defend such Claim at your sole expense. You may not agree to settle any such Claim without Gigwalk’s express prior written consent. You further acknowledge and agree that Gigwalk is not responsible for any liabilities, losses, damages, bodily harm or injury, costs, or other expenses incurred by you in performing Gigs and that you are solely responsible for all such costs and expenses.
8.3 Automobile Insurance. You agree to maintain Comprehensive Automobile Insurance in an amount equal to the minimum amount required by law and agree that neither Gigwalk nor its insurance carriers shall have any responsibility or liability for any damage, injury or death involving an accident by Gigwalk or by anyone operating a non-Gigwalk owned or Gigwalk leased vehicle.
9. LIMITATIONS OF LIABILITIES
IN NO EVENT WILL GIGWALK BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT. GIGWALK’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES OWED BY GIGWALK FOR GIGS PERFORMED UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT.
10.1 Termination by Gigwalk. If you fail to meet any of your contractual obligations under this Agreement, or if you fail to meet the Gigwalk Customers’ standards for Gigs, Gigwalk may terminate this Agreement, in whole or in part, at any time with or without cause for its convenience, effective upon one (1) day notice to you, in which case Gigwalk is obligated to pay you Fees earned by you through the effective date of termination or expiration. Gigwalk may withdraw any Gig at any time prior to your acceptance thereof pursuant to Section 2.
10.2 Termination by You. Effective upon one (1) day prior written notice to Gigwalk, you may terminate this Agreement, or any Gig, at any time.
10.3 Survival. Sections 3, 4, 5, 6, 8, 9, 10.3, and 11 will survive any termination or expiration of this Agreement. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.
11. GENERAL PROVISIONS
11.1 Governing Law; Venue. This Agreement is governed by the laws of the State of California without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in Santa Clara County, California for any suit or action arising from or related to this Agreement that may not be subject to Arbitration, as set forth below, and waive any right you may have to object to the venue of such courts.
11.2 Agreement to Arbitrate. To ensure the rapid and economical resolution of any dispute, controversy, claim, cause of action, including but not limited to statutory claims, that may arise between the parties from, under, out of, or in relation to this Agreement, including any dispute concerning the formation, construction, interpretation, enforcement, or breach of this Agreement or a party’s performance of its obligations hereunder (“Dispute“), the parties both agree to pursue the alternative dispute resolution steps set forth below. If the Dispute cannot be resolved in either of the first two steps described in Sections 11.2.1 and 11.2.2, the parties agree that the Dispute will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration conducted as set forth in Section 11.2.3 below. Both you and Gigwalk acknowledge that by agreeing to this arbitration procedure, you each waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding.
11.2.1 Mutual Good Faith Consultation. The parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation. If the Dispute is not resolved in this manner within forty-five (45) days of a party’s notice of a Dispute, then any party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows:
11.2.2 Non-Appearance-Based Arbitration. Any Dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider“) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
11.2.3 JAMS Arbitration. Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules“) and shall be administered by the San Jose, California office of JAMS (the “Administrator“). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be San Jose, California USA. The Dispute(s) shall be submitted to a single arbitrator (” Arbitrator“) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorneys’ fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. THE PARTIES AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in this Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
11.2.4 Exceptions. Notwithstanding the foregoing, either party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4 No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Gigwalk’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Gigwalk may assign this Agreement or any of its rights under this Agreement to any third party with or without your consent.
11.5 Notices. Gigwalk may give any notice required by this Agreement by means of a general notice on the Website, electronic mail to your email address on record with Gigwalk, or by written communication sent by first class mail or pre-paid post to your address on record with Gigwalk. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email) or posting the general notice to the Website. You may give notice to Gigwalk, addressed to the attention of the Gigwalk Legal Department. Such notice shall be deemed given when received by Gigwalk by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address: 539 Bryant Street, San Francisco CA 94107.
11.6 Remedies. Gigwalk’s remedies for any breach of this Agreement by you will include damages, injunctive relief, specific performance, and restitution. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Gigwalk for which monetary damages would not be an adequate remedy and, therefore, Gigwalk will be entitled to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
11.7 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.8 Time Is of the Essence. Time is of the essence in the performance of the Gigs and your other obligations under this Agreement.
11.9 Entire Agreement; Amendments. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.
11.10 Feedback. In the event that you provide Gigwalk with any feedback regarding the Website, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the Website (“Feedback“), you hereby assign to Gigwalk all rights in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate.
11.11 Modifications to Website. Gigwalk reserves the right at any time to modify or discontinue, temporarily or permanently, all or part of the Software with or without notice. You agree that Gigwalk shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Software.
12. APP STORES.
In the event you download the Mobile Application from an App Store (as defined below), the following terms and conditions will apply to you.
12.1 Mobile App License. Subject to the terms and conditions of this Agreement, Gigwalk grants you a non-exclusive, non-transferable, revocable, limited license to download, install and use a copy of the Mobile Application on a single mobile device that you own or control solely for your own personal use or internal business purposes. Furthermore with respect to any Mobile Application that you download though an App Store, you agree to comply with all applicable third party terms of the relevant App Store, such as the Apple App Store’s “Usage Rules”.
12.2 App Stores. You acknowledge and agree that the availability of the Mobile Application is dependent on the mobile application marketplace (e.g. the Apple App Store, Google Chrome Store, or Google Play Marketplace) (each, an “App Store“) from which you received the Mobile Application. You acknowledge that this Agreement is between you and Gigwalk and not with the App Store. The App Store is not responsible for the Mobile Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Store in connection with Mobile Application (if any). You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
12.3 Accessing and Downloading the Mobile Application from the App Stores. You acknowledge and agree that (1) this Agreement is concluded between you and Gigwalk only, and not the App Store and (2) Gigwalk, not the App Store, is solely responsible for the Software and content thereof. Your use of the Mobile Application must comply with the applicable App Store’s terms of service governing the use of such App Store.
You acknowledge that the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Application.
In the event of any failure of the Mobile Application to conform to any applicable warranty, you may notify the applicable App Store and the App Store will refund the purchase price for the Mobile Application to you. To the maximum extent permitted by applicable law, the App Store will not have any other warranty obligation whatsoever with respect to the Mobile Application. As between Gigwalk and the App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Gigwalk.
You and Gigwalk acknowledge that, as between Gigwalk and the App Store, the App Store is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile Application or your possession and use of the Mobile Application, including, but not limited to: (1) product liability claims; (2) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
You and Gigwalk acknowledge that, in the event of any third party claim that the Mobile Application or your possession and use of that Mobile Application infringes that third party’s intellectual property rights, as between Gigwalk and the App Store, Gigwalk, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You and Gigwalk acknowledge and agree that the App Store is a third party beneficiary of this Agreement, and has the right to enforce this Agreement as related to your license of the Mobile Application against you as a third party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the Mobile Application.
TBY SIGNING THE APPLICABLE ORDER FORM, CUSTOMER AGREES TO ABIDE BY THE TERMS AND CONDITIONS SET FORTH IN THIS MASTER AGREEMENT AND ALL ORDER FORMS AND ACKNOWLEDGES THAT THE TERMS OF THE MASTER AGREEMENT MAY BE AMENDED FROM TIME TO TIME ON GIGWALK’S WEBSITE.
1. DEFINED TERMS
1.1 “Documentation” means the user guides, training materials and specifications (in any form) for describing the use and operation of the Software provided by Gigwalk.
1.2 “Gig” means a specific project request entered into the Software by Customer or by Gigwalk per Customer request that will be performed either by Customer’s employees or by Gigwalkers.
1.3 “Gig Deliverables” means the information and content, including photos or responses uploaded by Customer’s employees or Gigwalkers to the Software in the course of performing a Gig. For the purposes of clarity, Gig Deliverables do not include the Software or Documentation.
1.4 “Gigwalkers” means the mobile-enabled independent contractors who perform Gigs.
1.5 “Order Form” means the document, either physical or electronic, signed by the parties by which Customer orders the Software or Gigs. Each Order Form incorporates the terms of this Agreement.
1.6 “Software” means the software programs delivered on-demand via Software-as-a-Service delivery and identified in an Order Forms a hosted service by Gigwalk or its third party provider and any associated user interfaces and related technology that Gigwalk makes available pursuant to this Agreement.
1.7 “User” means any individual designated by Customer by an Order Form who is authorized to access and use the Software and has been supplied a user identification and password by Customer (or by Gigwalk at Customer’s request).
2.1 Gigs and Gig Deliverables. If the professional services that Customer wishes to request are for Gigwalkers or Customer’s employees to perform Gigs, then Customer may from time to time submit a Gig via the Software. Gigwalk hereby grants Customer an irrevocable, perpetual, royalty-free, fully-paid up, transferable, sublicensable right and license toreproduce, create derivative works of, distribute, publicly perform, publicly display and otherwise use the Gig Deliverables for Customer’s personal use or internal business purposes.
2.2 Completion of Gigs. Customer may view Gig status and Gig Deliverables in the Software. Each Gig performed by Gigwalkers will be deemed accepted upon completion (“Completion”) unless Customer provides Gigwalk with written notice that Customer has rejected such Gig for the Gigwalkers’ failure to conform to the specifications set forth in the applicable Gig (a “Nonconformity”) within four (4) business days after Completion of such Gig. Such written notice must include a description of the Nonconformity.
2.3 Gigbuilding. Upon Customer request, Gigwalk will help Customer design and structure Gig(s) (“Gigbuilding”). Customer agrees to pay applicable fees for the Gigbuilding.
2.4 Gigwalkers. Customer hereby acknowledges that Gigwalkers are independent contractors who register to perform Gigs. The Software connects Customer with Gigwalkers, however Gigwalk does not control nor supervise the Gigwalkers, and the Gigwalkers are not employees of Gigwalk. As such, Gigwalk disclaims all liability for any act or omission by any Gigwalker other than a Nonconformity (as defined above).
3. OWNERSHIP OF INTELLECTUAL PROPERTY.
Gigwalk retains all right, title and interest in and to the Software, and Documentation and to all intellectual property shared with Customer other than Gigwalk Deliverables. Any rights not expressly granted herein shall be retained by Gigwalk.
4. LICENSE; USER ADMINISTRATION.
4.1 License. Subject to the terms and conditions of the Agreement, during the term set forth in the applicable Order Form, Gigwalk hereby grants to Customer a personal, non-exclusive, non-sublicensable and non-transferable license for Customer (a) to remotely access and use the functions and features of the Software and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Software.
4.2 Restrictions. Except as otherwise expressly set forth in this Agreement, Customer agrees that: (i) it will not, and will not permit any User or other party, without the prior written consent of Gigwalk, to directly or indirectly (a) transfer, assign, lease, loan, resell, distribute or otherwise grant any rights in the Software, or Documentation, s in any form to any third party, including commercial time-sharing, rental or service bureau use; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software; (c) copy, modify, translate, or create derivative works based on, the Software or Documentation, ; (d) not remove any trademark or copyright notice in the Software or Documentation; (e) disclose or transmit any data contained in the Software to any individual other than a User, except as expressly allowed herein; or (f) permit any third party to access or use the Software or Documentation, other than the Users authorized under this Agreement.
4.3 Administration of User IDs. Customer may permit any Users to access and use the features and functions of the Software as contemplated by this Agreement. Customer is solely responsible for the transmission of data through the Software, and for the administration, authorization and termination of all unique User identifications and passwords to access and use the Software by Customer and its Users. Customer shall provide Gigwalk with accurate, complete and updated registration information of its Users. Gigwalk shall have the right, in its reasonable discretion, to refuse registration of, or to suspend or cancel a User’s access to the Software. Customer shall be solely responsible for the security of its access to the Software and the security of each User’s identification(s) and password(s). Customer shall ensure that Users comply with the applicable Customer obligations and restrictions under this Agreement. Customer hereby agrees that any action or inaction by Users that, had such action or inaction been undertaken by Customer, would constitute a breach of the Agreement and shall be deemed a material breach by Customer.
5.GIGWALK WARRANTIES AND DISCLAIMER.
5.1 Software Warranty. Gigwalk warrants that during the term of an applicable Order Form (“Warranty Period”), the Software will perform substantially in accordance with the Documentation. Customer’s sole and exclusive remedy for the breach of the warranty set forth in this Section during the Warranty Period is that Gigwalk will, at its sole discretion, either repair or replace the portion of the Software that do not comply with this warranty, or refund the amount paid by Customer for the nonconforming portion of the Software.
5.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, AND DOCUMENTATION ARE PROVIDED “AS IS”, AND GIGWALK DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS OF A PARTICULAR PURPOSE. GIGWALK DOES NOT WARRANT THAT ALL ERROR CAN BE CORRECTED, OR THAT THE OPERATION OF THE SOFTWARE SHALL BE UNINTERRUPTED, SECURE OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
6. FEES; PAYMENT TERMS; TAXES.
6.1 Fees. Customer will pay all fees due according to the terms set forth in an Order Form or on the Website, for services ordered via the Website. In the event Customer wishes to increase the number of Users beyond the maximum number of Users for which fees have been paid, Customer shall be required to pay additional fees associated with the increased number of Users, prorated for the remainder of the term. Except as otherwise provided in an Order Form, all fees for Software are due and payable to Gigwalk in advance. Gigwalk shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
6.2 Disputed Amounts. In the event that Customer has a good faith dispute with an invoice, then Customer must notify Gigwalk in writing and set out the basis of the dispute before the payment due date. In the event that Customer does not submit a dispute with such period, then the invoice will be deemed accepted and shall be due and payable.
6.3 Taxes. All fees charged by Gigwalk are exclusive of all taxes, duties and similar fees now in force or enacted in the future.
7. CONFIDENTIAL INFORMATION.
7.1 Confidential Information. “Confidential Information” means any information that is marked or otherwise designated in writing as confidential at the time of disclosure or that a reasonable person would consider confidential based on the circumstances of the disclosure and the content of the disclosure, and which is disclosed by a party to the other party pursuant to this Agreement; provided that Confidential Information does not include information that: (i) is or becomes known to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (ii) is or becomes publicly known or otherwise ceases to be confidential, except through a breach of this Agreement by the receiving party; or (iii) is independently developed by the receiving party by employees and contractors of the receiving party who had no access to Confidential Information of the disclosing party. The Software, Documentation, and all enhancement and improvements thereto and pricing set forth in an Order Form shall be deemed Gigwalk Confidential Information. Except as is necessary to achieve the purpose of this Agreement, each receiving party agrees not to use or disclose the other party’s Confidential Information. The receiving party will protect the Confidential Information of the disclosing party from any unauthorized use, access or disclosure in the same manner that it protects its own confidential information of a similar nature, but in no event with less than reasonable care. Notwithstanding anything to the contrary herein, the receiving party may disclose Confidential Information if required by a governmental agency or applicable law, provided that it gives the disclosing party reasonable advance written notice sufficient to permit it to contest such disclosure, at the disclosing party’s expense.
7.2 Analytics. Gigwalk may use and disclose aggregate data and information (including analyses thereof), from Customer’s use of the Software and Gigs (“Analytics”), provided that Gigwalk shall not use the Analytics in any manner that identifies Customer. Gigwalk may also use the Analytics to enhance Gigwalk’s business.
8. LIMITATION OF LIABILITY.
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER GIGWALK NOR ITS THIRD PARTY PROVIDERS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER UNDER THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, DELAY OR INTERRUPTION OF BUSINESS, OR LOST GOODWILL; (II) FOR ANY COST OF PROCUREMENT OR OF SUBSTITUTE GOODS, SOFTWARE OR SERVICES; (III) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (IV) FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. GIGWALK’S AND ITS THIRD PARTY PROVIDERS’ MAXIMUM AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID TO GIGWALK DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY OR $1000, WHICHEVER AMOUNT IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. TERM; TERMINATION.
9.1 Term. This Agreement is effective as of the Effective Date and shall remain in place until terminated by either party in accordance with Section 9.2. Each Order Form may have its own effective date, term and termination provision. The termination of any Order Form, in whole or in part, will not affect Customer’s payment obligations under any other Order Form(s) then in effect.
9.2 Termination. Either party may terminate this Agreement at any time upon written notice in the event that the other party breaches a material provision of this Agreement and does not cure such breach within thirty (30) days after the initial written notice setting forth the breach in reasonable detail.
9.3 Effect of Termination. Upon termination of this Agreement, the defined terms and the rights and obligations in the following provisions will survive: Sections 3, 5, 6, 7, 8, 9.3 and 10. Upon termination of this Agreement: (a) neither party will have any further obligations under any Order Form, except as otherwise set forth in this Section; (b) each party will destroy (within thirty (30) days after receipt of the other party’s written request) all Confidential Information of the other party in its possession received under this Agreement and will not make or retain any copies of such Confidential Information except as required to comply with any applicable law or as necessary for accounting purposes; and (c) all amounts owed by Customer under any applicable Order Form(s) shall become immediately due and payable.
10. MISCELLANEOUS PROVISIONS.
10.1 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
10.2 Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control.
10.3 Governing Law; Venue. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California, excluding its body of law relating to conflicts of law and the United Nations Convention on Contracts for the Sale of Goods.
10.4 Severability; Waiver. In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default by the waiving party.
10.5 Assignment. Customer may not assign, delegate or otherwise transfer its rights or duties under this Agreement without the prior written consent of Gigwalk, and any attempted assignment or transfer without such consent will be void.
10.6 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, overnight courier, email or confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the signature page hereto or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
10.7 Relationship of Parties. Gigwalk and Customer are independent contractors and this Agreement will not establish any relationship of partnership, employer-employee, joint employer, employment agency, joint venture, franchise or agency between the parties.
10.8 Entire Agreement; Counterparts; Amendment. This Agreement, including any documents expressly incorporated herein by reference, constitutes the complete agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous agreements, written and oral, regarding such subject matter. The terms of this Agreement shall supersede the terms in any Customer purchase order or other ordering document. Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by Gigwalk without need of further notice of objection, and shall be of no effect or in any way binding upon Gigwalk. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of both Gigwalk and Customer in accordance with this Section.
10.9 Order Form. In the event of a conflict between the terms of this Agreement and the terms set forth in the Order Form, then the terms in the Order Form shall supersede to the extent they actually conflict with the terms of this Agreement.
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