This Online Services Agreement ("Agreement") constitutes a legal agreement between you ("Customer," "you," or "your") and Garuda Labs, Inc. d/b/a Instawork ("Instawork" or "we"), and governs your use and access of the Instawork Platform (as defined below), and related content, products and services (collectively, the "Services"), that allow its customers to connect with Instawork’s network of geographically distributed independent contractors (each an "Contractor" and collectively "Contractors") to obtain service providers for various short term assignments.
PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY IF YOU WISH TO BECOME A CUSTOMER AND BEFORE ACCESSING OR USING THE SERVICES.
PLEASE NOTE: SECTION 10.2-10.3 OF THIS AGREEMENT AFFECTS HOW DISPUTES BETWEEN YOU AND THE COMPANY ARE RESOLVED. SECTIONs 10.2 and 10.3 CONTAIN ARBITRATION PROVISIONS THAT REQUIRE DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS AND PROHIBIT CLASS ACTION CLAIMS. BY ACCEPTING THESE TERMS OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THAT ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
You agree and understand that certain features of the Instawork Platform may be subject to additional terms and conditions or registration requirements. You agree to abide by these additional terms and you further agree that a violation of those terms shall constitute a breach of this Agreement. This Agreement expressly supersedes prior agreements with you. With the exception of the mutual obligation to arbitrate disputes, we reserve the right to modify or amend any other terms of this Agreement from time to time without notice; your continued use of the Application following the posting of changes to the terms shall constitute your acceptance of such changes. You are responsible for regularly reviewing this Agreement. Continued use of the Instawork Platform or Services after any such changes are made to this Agreement shall constitute your consent to such changes. Instawork does not and will not assume any obligation to notify Contractors of any changes to this Agreement, or the creation or modification of any additional terms.
You desire to enter into this Agreement for the purpose of accessing and using the Services for purposes of arranging and obtaining services from Contractors who have been approved by Instawork and are subject to Instawork’s Contractor Services Agreement. BY ACCEPTING THESE TERMS, ACCESSING AND USING THE SERVICES, OR BY CLICKING TO ACCEPT OR AGREE TO THIS AGREEMENT WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER TO THE TERMS AND CONDITIONS HEREIN. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
Supplemental terms may apply to certain services provided by Instawork with the Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you and you must accept such supplemental terms in order to receive the applicable services. Such supplemental terms are in addition to, and shall be deemed a part of, this Agreement for the purposes of those services. Such supplemental terms shall prevail over any terms in this Agreement in the event of a conflict with respect to those applicable services.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 "Instawork Notice" means a notice created or provided by Instawork to one or more Contractors on the Instawork Platform or otherwise (whether by phone, push notifications, SMS text message notifications, in person or otherwise), which includes a description of a Work Request (including services to be provided by the Contractor), the date and time (as applicable) by which the Work Request must be completed, and the payment rate for the Contractor who performs the Work Request (the "Contractor Payment").
1.2 "Instawork Platform" or the "Platform" means, collectively, the technology platform and software that enables users (including both Contractors and customers) of Instawork’s SMS text messaging platform, mobile applications, and websites (including http://www.instawork.com/) provided as part of the Services to create, view, arrange, schedule, and submit Work Requests and Instawork Notices, and otherwise obtain services from Contractors, as applicable.
1.3 "Work Request" means a request for Services or work by Customer which includes a description of the services for which you wish to engage Contractors.
2. THE SERVICES
2.1 Grant of Access and Use. Subject to your compliance with the terms and conditions of this Agreement, Instawork grants you a limited, non-exclusive, non-sub licensable, revocable, non-transferrable right to access and use: (i) the Services, including access to and use of the Instawork Platform; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely in connection with your use of the Services. Any rights not expressly granted herein are reserved by Instawork and Instawork’s licensors.
2.2 Work Requests. Customer may from time to time submit a Work Request to Instawork via the Instawork Platform or otherwise. Each such Work Request may be posted on the Instawork Platform (including on Instawork’s mobile applications or websites) or used in or as an Instawork Notice. Once Customer and a Contractor have been matched and have agreed upon the terms of a Work Request (as provided in an Instawork Notice or otherwise), the Work Request will become a "Services Engagement." Instawork can reject any Work Request that is not appropriate or that violates the terms of this Agreement or Instawork’s policies.
2.3 Accounts. In order to use most aspects of the Services, you must register for and maintain an active Services account ("Account") with Instawork. Account registration requires you to submit to Instawork certain personal information, such as your name, company or restaurant name, street address, email address, and phone number, as well as valid credit cards. You agree to maintain accurate, complete, and up-to-date information in your Account, including billing information. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services and the Instawork Platform, or Instawork’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Instawork in writing, you may only possess one Account.
2.4 Account Requirements and Conduct. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services and you may only use the Services for lawful purposes. You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Contractor or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
2.5 Text Messaging. By creating an Account, you agree that Instawork may send you informational text (SMS) messages as part of the normal business operation of your use of the Services and the Instawork Platform, and that use of SMS may be necessary to utilize certain features of Services. When you create an Account, we will send you an SMS message to confirm your registration. You can cancel the SMS service at any time by replying "STOP" in the text message you received. After you send the SMS message "STOP" to Instawork, we will send you an SMS message to confirm that you have been unsubscribed. It may take a few days for Instawork to process your request. After this, you will no longer receive SMS messages from Instawork. If for any reason you continue getting text messages or need additional help, please email Instawork’s support team at firstname.lastname@example.org. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
2.6 Promotional Codes. Instawork may, in Instawork’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Contractor's services, subject to any additional terms that Instawork establishes on a per promotional code basis ("Promo Codes"). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted in writing by Instawork; (iii) may be disabled by Instawork at any time for any reason without liability to Instawork; (iv) may only be used pursuant to the specific terms that Instawork establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Instawork reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Instawork determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
2.7 Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services or Instawork Platform; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Instawork Platform except as expressly permitted by Instawork; (iii) decompile, reverse engineer or disassemble the Services or Instawork Platform except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services or Instawork Platform; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or Instawork Platform, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services or Instawork Platform; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services, the Instawork Platform, or related systems or networks.
2.9 Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services and Instawork Platform. Your mobile network's data and messaging rates and fees may apply if you access or use the Services or Instawork Platform from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and the Instawork Platform and any updates thereto. Instawork does not guarantee, warrant or represent that the Services, the Instawork Platform or any portion thereof will function on any particular hardware or devices. In addition, the Services or Instawork Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
3. FEES AND PAYMENT
3.1 Engagement Fees. In consideration of Instawork’s provision of the Instawork Services and Instawork Platform for Customer’s use and benefit hereunder, Customer agrees to pay Instawork a fee for each Services Engagement (each an "Engagement Fee"), the amount of which may be based on the total amount of the Contractor Payment, and which may be provided to Customer during Customer’s submission of a Work Request or after Customer has submitted a Work Request (via the Instawork Platform or otherwise). Engagement Fees may also be based in part on the type of engagement, overall demand, and the geographic location of the Contractor. Generally, you will be billed Engagement Fees by Instawork each day on which Services Engagements have been arranged and/or completed. Instawork reserves the right to establish, remove and/or revise Engagement Fees for any or all Services Engagements obtained through the use of the Services at any time in Instawork’s sole discretion. Continued use of the Instawork Services or Instawork Platform after any such change in the Engagement Fees calculation shall constitute your consent to such change.
3.2 Contractor Payments. Once a Services Engagement is completed by a Contractor, Instawork will facilitate your payment of the applicable Contractor Payment on behalf of the Contractor, as such Contractor's limited payment collection agent. A Services Engagement shall be considered complete once the services have been performed by the applicable Contractor. The payment of the applicable Contractor Payment in such manner shall be considered the same as payment made directly by you to the Contractor. After collection of the Contractor Payment for a completed Services Engagement from you, Instawork will pay the applicable Contractor, and Customer acknowledges and agrees that such payment may be subject to a fee set forth in or determined by the agreement(s) between Instawork and such Contractor (including any Contractor Services Agreement). Instawork may from time to time provide certain customers or Contractors with promotional offers, discounts, or Promo Codes that may result in different amounts charged for the same or similar services obtained through the use of the Services or the Instawork Platform, and you agree that such promotional offers, discounts or Promo Codes, unless also made available to you, shall have no bearing on your use of the Services or the Charges (as defined below) applied to you. You retain the right to negotiate the Contractor Payment with a Contractor for services received by you from such Contractor under a Services Engagement at the time you receive such services. Instawork will respond accordingly to any request from a Contractor to modify the Contractor Payment for a particular Services Engagement.
3.3 Late Cancellation Fee. In the event that Customer cancels a Services Engagement within 24 hours before the start time of the Services Engagement, Customer will be required and agrees to pay the total cost of the Services Engagement, including both the Contractor Payment for the Contractor and the Engagement Fee paid to Instawork. In the event that Customer cancels a Services Engagement between 72 and 24 hours before the start time of the Services Engagement, Customer will be required and agrees to pay fifty percent (50%) of the total cost of the Services Engagement, including both the Contractor Payment for the Contractor and the Engagement Fee paid to Instawork.
3.4 Taxes; General. Engagement Fees and Contractor Payments (collectively, "Charges") do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer and, as applicable, Contractors, are responsible for paying all Taxes associated with Charges and purchases hereunder. If Instawork has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer. Charges paid by you are final and non-refundable, unless otherwise determined by Instawork.
3.5 Gratuity. Contractor Payments are intended to fully compensate the applicable Contractor for each completed Services Engagement. Instawork does not designate any portion of the Contractor Payment as a tip or gratuity to the Contractor. You understand and agree that, while you are free to provide additional payment as a gratuity to any Contractor who provides you with services obtained through the Services, you are under no obligation to do so. Gratuities are voluntary. After you have received services from a Contractor and a Services Engagement is completed, you will have the opportunity to rate your experience and leave additional feedback about the applicable Contractor.
3.6 Payment Method. All Charges are due immediately and payment will be facilitated by Instawork using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Instawork may, as the Contractor's limited payment collection agent, use a secondary payment method in your Account, if available. In the event that there are unpaid or past due amounts for Charges associated with your Account, you must pay a finance charge of the lesser of 1.5% per month or the maximum amount permitted by law on such outstanding balances, plus all expenses of collection, including reasonable attorneys’ fees.
3.7 Direct Hire Fee. In the event Customer or any Customer director, officer, or employee (collectively, "Customer Personnel") desires to hire or otherwise engage a Contractor directly through Customer in the twelve (12) months following Customer’s or any Customer Personnel’s last contact with the Contractor, Customer will notify Instawork and subsequently Customer will be billed a fee in the amount set forth here https://help.instawork.com/instawork-partners-faq/can-i-hire-an-instawork-professional-for-a-permanent-position for such direct hire or other engagement of the Contractor (the "Direct Hire Fee"). Such Direct Hire Fee shall be charged regardless of whether: (a) Contractor contacts Customer or applies to Customer independently or otherwise through a public job posting or other job board; (b) different Customer Personnel are involved in the direct hire of the Contractor and previous engagement of the Contractor through the Instawork Platform or Services; or (c) Customer notifies Instawork of such direct hire or engagement of the Contractor. Any engagement where the Contractor receives any compensation from Customer shall be defined as a "hire" and shall trigger the Direct Hire Fee, including a full-time hire, part-time hire, independent contractor hire, intern hire, or any other such engagement. In addition, a "hire" shall include any situation where Customer provides any information regarding the Contractor to a third party and that third party hires the Contractor, in any capacity, whether a full-time hire, part-time hire, independent contractor hire, intern hire, or any other such engagement or relationship where Contractor receives any compensation, directly or indirectly, from Customer and/or the third party.
4. IP OWNERSHIP
4.1 Instawork IP. Customer acknowledges that all the intellectual property rights in the Instawork Platform, the Services and any metadata or other information generated or submitted to Instawork by a Contractor in the course of performing an Instawork Request are owned by Instawork or Instawork’s licensors or suppliers (the "Instawork IP"). Customer shall not obtain, by this Agreement, any right, title or interest in the trademarks of Instawork or Instawork’s licensors, affiliates or suppliers, nor shall this Agreement give Customer the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of Instawork or Instawork’s licensors, affiliates or suppliers. Customer agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Instawork IP, or (b) rent, lease, loan, or sell access to the Instawork IP.
4.2 Suggestions. Customer hereby grants to Instawork a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Instawork IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Customer related to the Instawork IP.
5.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
5.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.4 Information Included in Work Requests and Services Engagements. Notwithstanding the foregoing, Customer acknowledges and agrees that some of the information that it provides in Work Requests and subsequent Instawork Notices will be sent to Contractors (as part of Instawork Notices or otherwise) who will need this information to determine if they want to perform the requested services. By submitting a Work Request, Customer is requesting, and expressly consents to have details of the Work Request and subsequent Instawork Notice sent to Contractors that Instawork deems qualified to perform the requested services. Customer agrees that all information that Customer provides will be accurate, current and truthful to the best of is knowledge.
THE SERVICES AND INSTAWORK PLATFORM (INCLUDING INSTAWORK’S MOBILE APPLICATIONS AND WEBSITES) ARE PROVIDED "AS-IS" AND "AS-AVAILABLE." INSTAWORK EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. INSTAWORK MAKES NO WARRANTY THAT (A) THE SERVICES AND THE INSTAWORK PLATFORM (INCLUDING INSTAWORK’S MOBILE APPLICATIONS AND WEBSITES) WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. INSTAWORK DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH WORK REQUEST OR INSTAWORK NOTICE AND AN INSTAWORKER PRO, OR THAT THERE ARE INSTAWORKER PROS IN EACH GEOGRAPHIC AREA REQUESTED BY CUSTOMER WHO ARE WILLING TO FULFILL THE WORK REQUEST OR INSTAWORK NOTICE AT THE TIME AND PLACE REQUESTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT INSTAWORK HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY CONTRACTOR AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN INSTAWORK AND THE INSTAWORKERS. INSTAWORK DOES NOT GUARANTEE OR WARRANT THE INSTAWORKERS’ PERFORMANCE OF THE INSTAWORK REQUESTS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL INSTAWORK BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM CUSTOMER’S USE OF THE INSTAWORK IP OR THE DELIVERABLES, EVEN IF INSTAWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, INSTAWORK’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE INSTAWORK IP OR THE DELIVERABLES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES CUSTOMER PAID TO INSTAWORK IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
8. RELATIONSHIPS BETWEEN INSTAWORK, CONTRACTORS AND THE CUSTOMERS; INSURANCE
8.1 Contractors. You acknowledge and agree that your arranging and obtaining of services from a Contractor creates a direct business relationship between you and that Contractor, and your interactions and dealings with such Contractor are solely between you and such Contractor. Contractors are independent third parties and are not employees of Instawork. Instawork is not responsible or liable for the actions or inactions of any Contractor in relation to any services they perform.
8.2 Instawork and Customer Relationship. The parties expressly agree that no joint venture, partnership, employment, or agency agreement exists between Instawork and Customer as a result of this Agreement or any use of the Services, including the Instawork Platform.
8.3 Contractor Classification. Customer assumes all liability for proper classification of Contractors as independent contractors based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Customer and a Contractor, or between Customer and Instawork. Contractor does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Instawork. Customer acknowledges and agrees that Instawork does not, and will not in any way supervise, direct, or control any Contractor’s work or services performed in any manner for Customer. Instawork does not set any Contractor’s work hours and location of work, nor is Instawork involved in determining the type or manner compensation to be paid for any Work Request or Services Engagement. Instawork will not provide any Contractor with training or any equipment, labor or materials needed for a particular Services Engagement. Instawork will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Customer and each Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Contractor’s performance of Services Engagements and any related services. A Contractor is free at all times to perform Services Engagements, be employed by or otherwise engage with persons or businesses other than Customer, including any competitor of Customer. Customer agrees to indemnify, hold harmless and defend Instawork from any and all claims arising out of or related to a Services Engagement, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified (including, but not limited to, wages, taxes, penalties, interest and attorney’s fees), any claim that Instawork was an employer or joint employer of a Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for unpaid wages, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
8.4 Insurance. Instawork is not responsible for insurance coverage of Contractors, as they perform no work for Instawork. Specifically, in the event that a Contractor is injured while working in the course and scope of an engagement sourced through the Services, Customer acknowledges and understands that the Contractor will not be covered by any workers compensation insurance that Instawork may otherwise provide to its employees. Further, in the event that a Contractor’s actions cause an injury to a third party while the Contractor is working in the course and scope of performing a Services Engagement or otherwise, Customer acknowledges and agrees that the Contractor is not and will not be covered by any general liability or automobile liability insurance coverage that Instawork may have, and that Instawork is not making any commitment to defend and/or indemnify the Contractor in such circumstances, and specifically denies such obligation.
9.1 Termination Without Cause. Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, at any time when there are no outstanding Services Engagements or unpaid Charges or balances due hereunder.
9.2 Surviving Provisions. Sections 3 ("Fees and Payment"), 5 ("IP Ownership"), 6 ("Confidentiality"), 7 ("Disclaimers"), 8 ("Limitation of Liability"), 9.2 ("Surviving Provisions") and 10 ("Miscellaneous") shall survive any termination of this Agreement.
10.1 Law. This Agreement or any claim, cause of action, dispute or proceeding ("Claim") arising out of or related to this Agreement, with the exception of the agreement to arbitrate disputes, which shall be governed under the Federal Arbitration Act, shall be governed by the laws of the State of California regardless of your country of origin or where you access Instawork, and notwithstanding any conflicts of law principles.
10.2 Arbitration. You agree that THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE INSTAWORK PLATFORM AND/OR THE SERVICES PROVIDED (INCLUDING YOUR USE OF AND ACCESS TO INSTAWORK’S MOBILE APPLICATIONS AND WEBSITES) SHALL BE FINAL AND BINDING ARBITRATION, except that to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s intellectual property rights, or you have otherwise violated any of your obligations under Sections 2.1, 2.4 and 2.7 above, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought. You acknowledge and agree that Customer and Instawork are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding.
Unless both you and Instawork otherwise agree in writing, to the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER CUSTOMER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any Claim by you related in any way to the Services or the Instawork Platform (including Instawork’s mobile applications and websites) be instituted more than three (3) years after the cause of action arose.
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first inform Instawork of your complaint and seek resolution. This notice of dispute must include: your name, relevant Account information, a brief description of your dispute, and contact information, so that Instawork may evaluate the dispute and the parties can attempt to informally resolve the dispute. Instawork will have sixty (60) days from the date of your original complaint to informally resolve the dispute, which, if successful, will avoid the need for further action.
10.3 Arbitration Procedures. In the unlikely event that you and Instawork end up in a legal dispute and have not been able to resolve it within 60 (sixty) days of your original notice of dispute, you and Instawork agree to the following:
(a) All Claims (excluding claims for injunctive or other equitable relief) must be resolved through binding arbitration before a JAMS, Inc. ("JAMS") arbitrator located in or closest to the City and County of San Francisco, California under the Comprehensive Arbitration Rules and Procedures then in effect for JAMS ("JAMS Rules"), except as provided herein. All arbitrations hereunder shall be heard before a single arbitrator, and any disputes as to the applicable rules and procedures shall be resolved by the JAMS arbitrator, provided such resolution is not inconsistent with the terms of this Arbitration Agreement.
(b) The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a Claim, you will submit the demand by certified mail to Instawork at Instawork
PO Box 77714 San Francisco, CA 94107, ATTN: Legal. If Instawork initiates a claim, Instawork will serve a demand for arbitration upon you by email to the email address on file with Instawork, and may send a copy by certified mail to your last known address (or to another address specified by you in your notice of dispute of your informal claim). Both You and the Company agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought.
(c) Customer and Instawork agree that the JAMS arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers. The arbitrator shall also have the authority to decide issues of arbitrability or enforceability of this Agreement, with the exception of the validity or enforceability of the class action waiver, the validity of which may only be decided in a court of law. As such, and notwithstanding any contrary terms in the JAMS Rules, the arbitrator will not have the authority to determine whether claims may be arbitrated on a class, collective, or representative basis. Customer and Instawork also agree that the arbitrator shall have the power to award any remedies available under applicable law, and that the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law.
(d) Customer and Instawork agree that this Agreement and its validity, construction, and performance shall be governed by the U. S. Federal Arbitration Act (9 U.S.C. §§ 1-16). However, if despite the parties’ agreement in the preceding sentence the Federal Arbitration Act is found not to apply, this arbitration agreement will be governed by the laws of the state of California.
(e) Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as otherwise provided by an Act of Congress are excluded from the coverage of this Agreement.
(f) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(g) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the applicable substantive law governing such motions.
(h) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
(i) A party 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.
(j) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable.
(k) This arbitration agreement may be acknowledged and agreed to electronically, and its validity shall not be affected thereby. A copy of this agreement may be used in lieu of an original for any purpose.
10.4 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.
10.5 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 Instawork’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. Instawork may assign this Agreement or any of its rights under this Agreement to any third party with or without your written consent.
10.6 Notices. Instawork may give any notice required by this Agreement by means of a general notice on the Instawork Platform, electronic mail to your email address on record with Instawork, or by written communication sent by first class mail or pre-paid post to your address on record with Instawork. 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 upon sending (if sent by email). Except as set forth in Section 10.3 above, you may give notice to Instawork, addressed to the attention of Legal. Such notice shall be deemed given when received by Instawork by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail to Instawork
PO Box 77714 San Francisco, CA 94107, or by email at support@Instawork.com.
10.7 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.
10.9 Modifications to the Instawork Platform. Instawork reserves the right at any time to modify or discontinue, temporarily or permanently, the Instawork Platform or the Services (or any part thereof) with or without notice. You agree that Instawork shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Instawork Platform or the Services.
11. PAYROLL SERVICES AGREEMENT
For engagements where Customer has determined that the nature of the work to be performed precludes the use of Contractors and requires employees ("Payroll Engagements"), Customer may engage such workers through the Instawork Platform consistent with the terms of this Payroll Services Agreement ("Services Agreement"). Customer acknowledges and agrees that this Services Agreement is a binding legal agreement between and among Customer, Instawork, and Advantage Workforce Services, LLC, ("Advantage"). By using the Instawork Platform for Payroll Engagements, you signify that you have read, understand, accept and agree to be bound by this Services Agreement. You also understand that additional agreements may be required by Advantage and agree to enter into such agreements for Payroll Engagements.
11.1 EMPLOYMENT RELATIONSHIP AND EMPLOYER OF RECORD
Upon initiating a request from Customer for a Payroll Engagement, Instawork will refer such request to Advantage which will assign the worker to work for Customer, and Customer is responsible for supervising the worker who is, for purposes of that assignment, the Payroll Employee.
Except as otherwise stated in this Services Agreement, Advantage is responsible for managing payroll, taxes, government documents, benefits (if applicable) and insurance for Payroll Employee. Customer is responsible for the supervision, direction and control of the day-to-day activities of each Payroll Employee. Payroll Employee is responsible for performing the agreed-upon work for Customer.
11.2 HIRING REPRESENTATIONS, DISCLAIMERS AND LIMITATIONS
Customer acknowledges and agrees that Customer has selected to utilize Payroll Employee(s) based upon Customer’s determination that the nature of the work requires a Payroll Employee, or for other factors determined exclusively by Customer. Neither Instawork, nor Advantage makes any representations or warranties as to the skills, experience, background or education of any Payroll Employee.
Neither Instawork nor Advantage assumes any responsibility for, and shall exert no control over, the projects and work assigned to Payroll Employee(s), nor has Instawork or Advantage had any role in Customer’s decision to engage a Payroll Employee. Neither Instawork nor Advantage shall have the right or ability to direct the work of or supervise (to any degree, directly or indirectly) Payroll Employees, nor shall Instawork or Advantage determine any terms and conditions of Payroll Employee’s employment relationship with Payroll Company or Customer (including but not limited to rate of pay, performance evaluation, discipline and/or termination). Advantage, through the Instawork Platform, merely provides the platform for Customer to request Payroll Employees to accept certain work assignments, and then separately facilitates the administration of payroll and other legal obligations of Customer with regard to Payroll Employees. These facts, alone or in combination, do not make Instawork or Advantage an employer or co-employer/joint employer with Customer.
11.3 PAYROLL SERVICES
The following are the services provided by the Advantage for Payroll Employees assigned to Customer: (i) calculation and payment of wages (including overtime wages) based upon submitted timesheets or electronic records; (ii) collection, payment and reporting of all federal, state and local taxes on such wages; (iii) administration and management of unemployment claims; (iv) administration and collection of wages associated with wage garnishments; (v) workers’ compensation coverage. In addition, Advantage provides for any health or disability insurance, retirement benefits or other welfare or pension benefits (if any) to which such personnel may be entitled based on eligibility and applicable law.
11.4 CONTROL OF WORKPLACE
Customer acknowledged and agreed that the neither Instawork, nor Advantage will control the working conditions or the workplace in which a Payroll Employee will perform services for a Customer.
11.5 PAYROLL EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT
At all times, the Customer will maintain the exclusive supervision, direction and control of the day-to-day activities of each Payroll Employee. The Customer shall be responsible for the implementation and enforcement of any and all workplace laws, rules, regulations and for any procedures that exist for the purpose of preventing the misappropriation, theft or embezzlement of the Customer’s property, including without limitation intellectual property.
Customer acknowledges and agrees that Payroll Employees are not employees or consultants of Instawork, and that Instawork maintains no control over any Payroll Engagement, supervision of Payroll Employees, payroll practices or other terms and conditions of the working relationship described herein. Customer further acknowledges and agrees that Payroll Employees are employees of Advantage for purposes of payroll processing and, in some cases, the provision of certain statutorily required employee benefits, but that Advantage maintains no control over the work assignments, supervision, or other terms and conditions of the working relationship except as described in this Services Agreement.
11.6 EQUAL EMPLOYMENT OPPORTUNITY, WORKPLACE LAWS
Advantage is an equal opportunity employer and does not discriminate against any candidate, applicant, employee, independent contractor or Payroll Employee on the basis of race, color, religion, sex, national origin, age, creed, ancestry, veteran or military status, disability unrelated to the essential functions of a job, or any other basis prohibited by federal, state or local law. Customer and Payroll Employee shall comply with all federal, state, and local laws that prohibit unlawful discrimination or harassment.
11.7 REQUIRED NOTIFICATIONS
The Customer will send all written notices and payroll communications to Advantage in accordance with the requirements of the Terms of Service.
Customer will provide Advantage with written notice within three (3) days of its own receipt of any notice of a work-related accident or injury, and within three (3) days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices of IRS liens and other forms of legal process affecting the payment of wages to a Payroll Employee.
11.8 CHANGE OF PAYROLL COMPANY
Advantage may designate a third party payroll company ("New Company"), at any time in Advantage’s sole discretion, to perform Payroll Services. Upon such designation, or at any other time as directed by Advantage, Customer shall: (i) cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of the Payroll Services; or if directed by Advantage (ii) immediately assume all federal, state and local obligations of an employer to the Payroll Employees and immediately assume full responsibility for providing payroll services and workers’ compensation coverage until such time as a New Company takes over such duties from The Payroll Company.
12. CONTACTING INSTAWORK
If you wish to report a violation of the Customer Agreement, have any questions or need assistance, please contact Instawork at email@example.com.