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Online Services Agreement for Partners

This Online Services Agreement ("Agreement") constitutes a legal agreement between you ("Partner," "you," or "your") and: (i) Garuda Labs, Inc. d/b/a Instawork, a corporation incorporated under the laws of Delaware (“Instawork”), if you are engaging with Instawork’s network of geographically distributed independent contractors in the United States of America and its territorial possessions (each a "Contractor Professional") in connection with the Instawork Platform, and/or (ii) Advantage Workforce Services, LLC (“AWS”), a limited liability company organized under the laws of California (“AWS”), if you are engaging with AWS and/or its employees (each an "Employee Professional") in connection with the Instawork Platform or otherwise. For the purposes of this Agreement, Instawork and AWS may each be referenced as an “Instawork Company,” and are referred to collectively as "Instawork" or "we," and Contractor Professionals and Employee Professionals are referred to collectively as “Professionals”. This Agreement governs your use of and access to the Instawork Platform and related content, products, and services (collectively, the "Services"), including without limitation, if and as applicable, services performed either by Contractor Professionals or by Employee Professionals.

PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY IF YOU WISH TO BECOME A CUSTOMER AND/OR BEFORE ACCESSING OR USING THE SERVICES.

PLEASE NOTE: SECTION 11 OF THIS AGREEMENT (THE “MUTUAL ARBITRATION PROVISION”) AFFECTS HOW DISPUTES BETWEEN YOU AND THE INSTAWORK ARBITRATING PARTIES (AS DEFINED BELOW) ARE RESOLVED. THE MUTUAL ARBITRATION PROVISION REQUIRES DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS AND PROHIBITS CLASS ACTION CLAIMS. BY ACCEPTING THE      TERMS OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THAT MUTUAL ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.

ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT

This Agreement is a contract that sets out the legally binding terms of the relationship between Instawork and you. By accepting, and/or acknowledging acceptance of this Agreement, and/or by using the Instawork Platform in connection with the Services, you represent that: (1) you have read, understand, and agree to be bound by this Agreement; and (2) you have the authority to enter into this Agreement personally or on behalf of the entity you have named as the Partner, and to bind that entity to these terms. The terms "you," "your," and "Partner" refer to you and the entity you have identified as the Partner. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.

You agree and understand that certain services and/or 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. With the exception of the Mutual Arbitration Provision set forth in Section 11, we reserve the right to modify or amend any other terms of this Agreement from time to time without notice, and your continued use of the Instawork Platform following the posting of such modifications or amendments shall constitute your acceptance of such changes. You are responsible for regularly reviewing this Agreement and any updates, modifications, and amendments. Instawork does not and will not assume any obligation to notify you, Contractor Professionals, or Employee Professionals of any changes to this Agreement, or the creation or modification of any additional terms.

1. DEFINITIONS

Capitalized terms are defined as set forth below or elsewhere in the Agreement.

Partner Request” means a request by a Partner for, as applicable, Services provided by a Contractor Professional or Employee Professional, and will typically include a description of the work to be performed, the date and time by which the work must be completed, and the payment rate for the Professional who performs the work.

"Instawork Notice" means a notice created or provided by Instawork to one or more Professionals using the Instawork Platform or otherwise (whether by phone, push notifications, SMS text message notifications, in person or otherwise), which includes a description of a Partner Request.

"Instawork Platform" or the "Platform" means, collectively, the technology platform and software that enables users (including both Professionals and Partners) 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 Partner Requests and Instawork Notices, and otherwise obtain services from Professional(s).

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) any content, information and related materials that may be made available through the Services, in each case solely in connection with your permitted use of the Services. Any rights not expressly granted herein are reserved by Instawork and Instawork’s licensors.

2.2 Partner Requests. Partner may from time to time submit a Partner Request to an Instawork Company via the Instawork Platform or otherwise. Each such Partner Request may be posted on the Platform (including on Instawork’s mobile applications or websites) or used in or as an Instawork Notice. Once a Professional accepts the terms of a Partner Request, the Partner Request will become a "Partner Engagement." An Instawork Company has discretion to reject Partner Requests, including for violating 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 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 this Agreement 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 a Professional 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 text (SMS) messages, including 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 the Services. For example, 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 support@instawork.com. 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, 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, in a lawful manner, and pursuant to reasonable limitations; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (e.g., 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 this Agreement.

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.

2.8 Third Party Services and Content. The Services or Instawork Platform may be made available or accessed in connection with third party services and content that Instawork does not control, including but not limited to payment processing services such as those provided by Stripe and various advertising services. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. Instawork has no control over and does not endorse such third-party services and content and in no event shall Instawork be responsible or liable for any interactions you may have with or any products or services you may receive from such third-party providers.

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. AWS SERVICES

In the case of Partner Requests and Partner Engagements performed by Employee Professionals, the provisions of this Section 3 shall apply. You also understand that additional agreements may be required by AWS in connection with such Partner Requests and Partner Engagements, and You agree to enter into such agreements as a condition of such Partner Requests and Partner Engagements.

3.1      PARTNER RESPONSIBILITY FOR EMPLOYEE PROFESSIONALS

If a Partner Request for Employee Professional(s) is agreed upon by the Partner and AWS and accepted by Employee Professional(s) (and becomes a Partner Engagement), subject to any agreed upon terms and conditions, AWS will assign the Employee Professional(s) to work for Partner.  Partner is exclusively responsible for the supervision, direction, and control of the day-to-day activities of the Employee Professional(s) in connection with the Partner Engagement. Employee Professional(s) are responsible for performing the agreed-upon work for Partner.  

3.2 HIRING REPRESENTATIONS, DISCLAIMERS AND LIMITATIONS

Partner acknowledges and agrees that Partner has selected to utilize Employee Professional(s) based upon Partner’s determination that the nature of the work requires an Employee Professional(s), or for other factors determined exclusively by Partner. Neither Instawork, nor AWS, nor any of their affiliates makes any representations or warranties as to the skills, experience, background or education of any Employee Professional.

3.3 PAYROLL AND ADMINISTRATIVE SERVICES

The following are the services provided by AWS in respect of Employee Professional(s) assigned to Partner: (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, as applicable; (iii) administration and collection of wages associated with wage garnishments; (iv) workers’ compensation coverage; and (v) collection of mandated government documents and other forms for the purposes of effectuating the foregoing services. In addition, AWS may, at its sole discretion, provide health, dental or disability insurance, retirement benefits or other benefits as determined by AWS.

3.4 EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT

At all times, the Partner will maintain the exclusive supervision, direction and control of the day-to-day activities of each Employee Professional. The Partner shall be responsible for the implementation and enforcement of any and all workplace laws, rules, policies, and regulations, and of any procedures that exist for the purpose of preventing the misappropriation, theft or embezzlement of the Partner’s property, including without limitation intellectual property.

Partner acknowledges and agrees that Employee Professionals are employees of AWS only for purposes of payroll processing and, in some cases, the provision of certain employee benefits, but neither Instawork, nor AWS, nor any of their affiliates assumes any responsibility for the working conditions or the workplace in which Employee Professional(s) will perform work for a Partner, the projects and work assigned to Employee Professional(s), and/or Partner’s decision to use Employee Professional(s).

Partner further acknowledges and agrees that Employee Professionals, if assigned by AWS, are not employees or consultants of Instawork, and that Instawork maintains no control over any Employee Professional, supervision of Employee Professionals, payroll practices or other terms and conditions of the working relationship described herein.

3.5 EQUAL EMPLOYMENT OPPORTUNITY, WORKPLACE LAWS

AWS is an equal opportunity employer and does not unlawfully discriminate against any race, color, religion, sex, sexual orientation, gender expression or gender identity, 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. Partner and Employee Professionals are required to comply with all federal, state, and local laws that prohibit unlawful discrimination, harassment, or retaliation.

3.6 REQUIRED NOTIFICATIONS

The Partner will send all written notices and payroll communications to AWS in accordance with any requirements specified by AWS. Partner will provide AWS with written notice within 24 hours of learning about any work-related accident or injury involving Employee Professionals. Partner will provide AWS with written notice within 24 hours of learning about any garnishment orders, involuntary deduction orders, notices of liens and other forms of legal process affecting the payment of wages to an Employee Professional.  

3.7 CHANGE OF PAYROLL COMPANY

AWS may designate a third-party payroll company ("New Company"), at any time in AWS’s sole discretion, to perform some or all of its obligations under this Agreement, including payroll administration for Employee Professionals. Upon such designation, or at any other time as directed by AWS, Partner shall cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of the Services.

4. FEES AND PAYMENT

4.1 Engagement Fees. Regardless of whether a Partner Engagement involves Employee Professionals or Contractor Professionals, in consideration of Instawork’s provision of the Services and Platform for Partner’s use and benefit hereunder, Partner agrees to pay the applicable Instawork Company a fee for each Partner Engagement (each an "Engagement Fee"), the amount of which may be communicated to Partner during Partner’s submission of a Partner Request or after Partner has submitted a Partner 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 Professionals used. Generally, you will be billed Engagement Fees by Instawork for each day on which Partner Engagements have been arranged and/or completed. Instawork reserves the right to establish, remove and/or revise Engagement Fees for any or all Partner Engagements obtained through the use of the Services at any time in Instawork’s sole discretion. Continued use of the Services or Instawork Platform after any such change in the Engagement Fees calculation shall constitute your consent to such change.

4.2 Contractor Payments. In the case of a Partner Engagement performed by one or more Contractor Professionals, as part of the Engagement Fee, Instawork will facilitate your payment of the applicable fees payable to the Contractor Professional(s) for the Partner Engagement (the “Contractor Payment”) on behalf of such Contractor Professional(s) as limited payment collection agent for such Contractor Professional(s). The payment of the applicable Contractor Payment in such manner shall be considered the same as payment made directly by you to the Contractor Professional. After collection of the Contractor Payment for a completed Partner Engagement from you, Instawork will pay the applicable Contractor Professional, and Partner 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 Professional (including any Contractor Services Agreement). Instawork may from time to time provide certain partners or Contractor Professionals 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 Professional for services received by you from such Contractor Professional under a Partner Engagement at the time you receive such services. Instawork will respond accordingly to any request from a Contractor Professional to modify the Contractor Payment for a particular Partner Engagement.

4.3 Late Cancellation Fee. In the event that Partner cancels a Partner Engagement within 24 hours before the start time of the Partner Engagement, Partner will be required and agrees to pay the total cost of the Partner Engagement, including the Engagement Fee and, if applicable, any Contractor Payment for any Contractor Professional paid to Instawork. In the event that Partner cancels a Partner Engagement between 72 and 24 hours before the start time of the Partner Engagement, Partner will be required and agrees to pay fifty percent (50%) of the total cost of the Partner Engagement, including any Contractor Payment for any Contractor Professional and the Engagement Fee paid to Instawork.

4.4 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"). Partner and, as applicable, Contractor Professionals, 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 Partner is responsible under this section, the appropriate amount shall be invoiced to and paid by Partner. Charges paid by you are final and non-refundable, unless otherwise determined by Instawork.

4.5 Gratuity. Engagement Fees and Contractor Payments (if applicable) are intended to fully compensate the applicable Professional for each completed Partner Engagement. Instawork does not designate any portion of the Engagement Fee (or Contractor Payment, if applicable) as a tip or gratuity to the Professional(s). You understand and agree that, while you are free to provide additional payment as a gratuity to any Professional who performs work for you obtained through the Services, you are under no obligation to do so, and such gratuities are voluntary. Notwithstanding the foregoing, in the event that any patron or customer of Partner provides a tip or gratuity for the work performed by a Professional in connection with a Partner Engagement, 100% of such tip or gratuity must be provided to such Professional (subject to any statutory deductions or withholdings), even if the tip or gratuity is paid by the patron or customer to the Partner rather than the Professional directly. After you have received work from a Professional and a Partner Engagement is completed, you will have the opportunity to rate your experience and leave additional feedback.

4.6 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 (on its own behalf or as the Contractor Professional'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 (18% per annum) on such outstanding balances, plus all expenses of collection, including reasonable legal fees.

4.7 Direct Hire Fee. In the event Partner or any affiliate of Partner, or any of the directors, officers, or employees of Partner or any affiliate of Partner (collectively, "Partner Personnel") desire to hire or otherwise engage a Professional (whether Contractor Professional or Employee Professional) directly through Partner or any affiliate of Partner, at any time during the twelve-month period beginning on the day on which such Professional last performed work for Partner, Partner will notify the applicable Instawork Company, and subsequently Partner 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 Professional (the "Direct Hire Fee"). Such Direct Hire Fee shall be charged regardless of whether: (a) Professional contacts Partner or an affiliate of Partner or Professional applies to Partner or an affiliate of Partner independently or otherwise through a public job posting or other job board; (b) different Partner Personnel are involved in the direct hire of the Professional and previous engagement of the Professional through the Instawork Platform or Services; or (c) Partner notifies Instawork of such direct hire or engagement of the Professional. Any engagement where the Professional receives any compensation from Partner or any affiliates of Partner 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 or employment.

5. IP OWNERSHIP

5.1 Instawork IP. Partner acknowledges that all the intellectual property rights in the Instawork Platform, the Services and any metadata or other information generated by or on behalf of Instawork are owned by Instawork or Instawork’s licensors or suppliers (the "Instawork IP"). Partner has not been granted and 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 Partner 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. Partner 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.

5.2 Suggestions. Partner 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 Partner related to the Instawork IP.

6. CONFIDENTIALITY

6.1 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.

6.2 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.

6.3 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.

6.4 Information Included in Partner Requests and Partner Engagements. Notwithstanding the foregoing, Partner acknowledges and agrees that some of the information that it provides in Partner Requests and subsequent Instawork Notices will be sent to Professionals (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 Partner Request, Partner is requesting, and expressly consents to have details of the Partner Request and (if applicable) subsequent Instawork Notice sent to Professionals as Instawork deems appropriate. Partner agrees that all information that Partner provides will be accurate, current and truthful to the best of its knowledge.

7. DISCLAIMERS

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 PARTNER’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 PARTNER REQUEST OR INSTAWORK NOTICE AND A PROFESSIONAL, OR THAT THERE ARE PROFESSIONALS IN EACH GEOGRAPHIC AREA REQUESTED BY PARTNER WHO ARE WILLING TO FULFILL THE PARTNER REQUEST OR INSTAWORK NOTICE AT THE TIME AND PLACE REQUESTED. PARTNER ACKNOWLEDGES AND AGREES THAT INSTAWORK HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY PROFESSIONAL. PARTNER ACKNOWLEDGES AND AGREES THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN INSTAWORK AND CONTRACTOR PROFESSIONALS. INSTAWORK DOES NOT GUARANTEE OR WARRANT PROFESSIONALS’ PERFORMANCE OF THE PARTNER ENGAGEMENT OR THE OUTCOME OR QUALITY OF THE SERVICES PROVIDED.

8. LIMITATION OF LIABILITY

IN NO EVENT SHALL INSTAWORK BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM PARTNER’S USE OF THE INSTAWORK IP OR THE SERVICES, EVEN IF INSTAWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, INSTAWORK’S LIABILITY TO PARTNER FOR ANY DAMAGES ARISING FROM OR RELATED TO PARTNER’S USE OF THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES PARTNER PAID TO INSTAWORK IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.

9. INDEMNIFICATION; RELATIONSHIPS BETWEEN  INSTAWORK, PROFESSIONALS AND THE PARTNERS; INSURANCE; HEALTH AND SAFETY

9.1 Indemnification. Partner agrees to indemnify, hold harmless and defend Instawork, AWS, and their affiliates, and all of their respective directors, officers, agents and employees (collectively, the “Indemnified Parties”), from and against any and all suits, proceedings, claims, demands or actions (“Claims”) arising out of or related to Partner’s use of the Services or a Partner Engagement, and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any of them as a result of any such Claim or in the investigation, settlement or defense thereof. Without limiting the generality of the forgoing, Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) any actual or alleged misuse of the Services (including the Platform) by Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, (ii) any actual or alleged violation of applicable law or regulation (including without limitation privacy and anti-spam laws) by Partner, its affiliates, or its or their respective employees, agents, or contractors, or by any Professional(s) in the course or in connection with of a Partner Engagement, (iii) any negligent, reckless, or willful misconduct of Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, (iv) any breach by Partner of any representation, warranty, covenant, or obligation in this Agreement, (v) any negligent or intentional act or omission committed by Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, which act or omission gives rise to any claim for damages against an Indemnified Party, (vi)  any violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right by Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, and (vii) any dispute or issue between Partner and any third party, including any worker, business, or other third-party; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any of them as a result of any such Claim or in the investigation, settlement or defense thereof. Instawork reserves the right (but not the obligation) to assume the exclusive defense and control of any matter otherwise subject to indemnification by Partner (without limiting Partner indemnification obligations) and Partner agrees to cooperate with Instawork’s defense of that Claim. If the defense or settlement of a Claim is assumed by Partner, Instawork may at any time thereafter elect to take over control of the defense and settlement of the Claim. Partner must not settle any Claim that it is defending on behalf of any Indemnified Party without Instawork’s prior written consent.

9.2 Contractor Professionals. You acknowledge and agree that your arranging and obtaining of services from a Contractor Professional creates a direct business relationship between you and that Contractor Professional, and your interactions and dealings with such Contractor Professional are solely between you and such Contractor Professional. Contractor Professionals are independent third parties and are not employees, partners, representatives, agents, joint venturers, service providers, or franchisees of Instawork. Instawork’s services are limited to providing a platform for connecting its customers to its network of Contractor Professionals, and AWS’s services are limited to Employee Professionals and do not relate to the use of Contractor Professionals. Instawork is not responsible or liable for the actions or inactions of any Contractor Professional in relation to any services they perform.

9.3 Instawork and Partner Relationship. Partner expressly agrees that no joint venture, co-employer, joint employer, franchise, partnership, employment, or agency agreement exists between Instawork and Partner as a result of this Agreement or any use of the Services, including the Instawork Platform.

9.4 Professional Classification and Work. Partner assumes all liability for proper classification of Contractor Professionals as independent contractors based on applicable law. Partner expressly agrees that this Agreement does not create any joint venture, co-employer, joint employer, franchise, partnership, employment, or agency relationship between Partner and a Contractor Professional.

Professionals do not have authority to enter into written or oral (whether implied or express) contracts on behalf of Instawork. Partner acknowledges and agrees that, unless otherwise agreed in writing by Partner and Instawork, Instawork does not, and will not in any way supervise, manage, monitor, direct, or control any Professional’s work or services performed in any respect for Partner. Instawork does not set any Professional’s work hours and location of work. Instawork will not provide any Professional with training or any equipment, labor or materials needed for a particular Partner Engagement. Instawork makes no representations or warranties that the services performed by Professionals will be performed in any particular manner or at any particular standard or quality of service, nor does Instawork make any representations or warranties with respect to any Professional’s skill, ability, fitness for a particular purpose, or compliance with any statute, regulation or other law.

With regard to Contractor Professionals, Instawork will not deduct any amount for withholding, unemployment, Social Security, or other federal, state, or local taxes as it would in the case of an employee. Partner and each Contractor Professional will be solely responsible for all tax returns and payments required to be made or filed, including any applicable employment insurance contributions, pension contributions, or other amounts, to any federal, state, or local government authority, in any nation, with respect to Contractor Professional’s performance of Partner Engagements and any related services.

A Professional is free at all times to perform Partner Engagements, and to be employed by or otherwise engage with persons or businesses other than Partner, including any competitor of Partner. Without limiting the generality of Section 9.1, Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) claims that a Contractor Professional was misclassified as an independent contractor, (ii) any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Contractor Professional was misclassified (including, but not limited to, wages, taxes, penalties, interest and legal fees), (iii) any claims that Instawork was an employer, co-employer or joint employer of a Contractor Professional (iv) any claims under any employment-related laws in respect of a Contractor Professional, such as those relating to employment standards, occupational health and safety, workers’ compensation, pay equity, 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, workers’ compensation benefits, unemployment benefits, or any other employee benefits, and (v) any claims arising out of the failure by Instawork and/or the Partner to withhold or remit any taxes, premiums, contributions, payments, benefit overpayments, levies or other amounts from all or any part of any amounts paid to a Contractor Professional; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any Indemnified Party as a result of any such Claim or in the investigation, settlement or defense thereof.

9.5 Insurance. Except as required by law, unless otherwise expressly agreed herein or elsewhere in writing, Instawork is not responsible for insurance coverage of Professionals. Specifically, in the event that a Professional is injured or becomes ill while or as a result of working a Partner Engagement, Partner acknowledges and understands that the Professional may not be covered by any workers’ compensation insurance that Instawork may otherwise provide to its employees. Partner represents and warrants that, unless otherwise expressly agreed herein or elsewhere in writing, any Professionals performing a Partner Engagement of the Partner will be covered by the Partner’s workers’ compensation insurance. Further, in the event that a Professional’s actions cause an injury to a third party while the Professional is working in the course and scope of performing a Partner Engagement or otherwise, Partner acknowledges and agrees that the Professional may 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, compensate and/or indemnify the Partner or Professional in such circumstances, and specifically denies such obligation.

9.6 Health and Safety, Damage to Property. Partner shall comply with applicable health and safety laws, and hereby agrees to indemnify and hold harmless Instawork, its affiliates, directors, officers, agents and employees from and against any and all claims, demands, suits, losses, fines, surcharges, damages, costs and expenses arising out of the Partner’s failure to comply with such laws. Without limiting the generality of Section 9.1, Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) the injury or death of any person, damage to or destruction of any property, which is directly or indirectly caused by any act or omission on the part of any Professional (or personnel employed or engaged by the Professional) engaged in performing any Partner Engagement to the Partner or any related service, or (ii) the injury or death of the Professional, or any personnel employed or engaged by the Professional, if such injury or death occurs while the Professional (or personnel employed or engaged by the Professional) is located at Partner’s location, is otherwise engaged in performing any Partner Engagement to the Partner or any related service, or if the injury or death is in any way connected to the Partner Engagement or any related services; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any Indemnified Party as a result of any such Claim or in the investigation, settlement or defense thereof.

10. TERMINATION

10.1 Termination With or Without Cause. Either party may terminate this Agreement at any time, for any reason upon thirty (30) days written notice to the other. Notwithstanding the forgoing, either party may terminate this Agreement at any time without prior notice, for fraud, dishonesty, willful neglect, misconduct, or any material breach of the terms hereof by the other party.

10.2 Surviving Provisions. The sections which expressly or by their nature are intended to survive termination, including without limitation Sections 4 ("Fees and Payment"), 5 ("IP Ownership"), 6 ("Confidentiality"), 7 ("Disclaimers"), 8 ("Limitation of Liability"), 9 (“Indemnification; Relationships Between Instawork, Professionals and The Partners; Insurance; Health And Safety”), 10.2 ("Surviving Provisions"), 11 (“Mutual Arbitration and Dispute Resolution”) and 12 ("Miscellaneous"), shall survive any termination of this Agreement.

11. MUTUAL ARBITRATION AND DISPUTE RESOLUTION

11.1 Arbitration of Disputes. Instawork, AWS, and their corporate parents and subsidiaries and all of their directors and officers (together, the “Instawork Arbitrating Parties”) and you mutually agree to this arbitration agreement, pursuant to which you and the Instawork Arbitrating Parties (each, an “Arbitrating Party,” and together, the “Arbitrating Parties”) agree to resolve any and all disputes arising out of or relating to this Agreement or any related agreement (each, a “Dispute”) exclusively through final, binding, arbitration, in accordance with this Mutual Arbitration Provision.

11.2 CLASS ACTION WAIVER.  The Arbitrating Parties further agree that by entering into this Agreement, they waive the right to have any Dispute brought, heard, administered or resolved as a class action, collective action, or a group action, or to otherwise participate in a class action (the “Class Action Waiver”). Notwithstanding the foregoing, this subsection shall not apply to the extent that applicable consumer protection or other legislation expressly preserves such an entitlement in the context of the particular Dispute. For greater certainty, by entering into this Agreement, the Arbitrating Parties are each agreeing not to commence or participate in a class proceeding or other aggregate action in respect of any Dispute. However, this subsection does not prevent you or Instawork from participating in a classwide settlement that would resolve or release the relevant Dispute. Except as provided for in this Mutual Arbitration Provision, the arbitrator may not consolidate an arbitration conducted under this Mutual Arbitration Provision with any other arbitration.

11.3 Informal Dispute Resolution. Before commencing arbitration, the Arbitrating Parties must engage in a good-faith effort to resolve any Dispute through an informal telephonic dispute resolution conference. The informal telephonic dispute resolution conference shall be individualized such that a separate conference must be held each time either Arbitrating Party intends to commence individual arbitration. The Arbitrating Party seeking resolution of a Dispute must give notice to the other Arbitrating Party in writing (a “Dispute Notice”), and the informal telephonic dispute resolution conference shall occur within thirty (30) days of the Dispute Notice being delivered, unless all Arbitrating Parties involved in the Dispute agree in writing to extend the time period for such telephonic dispute resolution conference to occur. In the interval between the Arbitrating Party receiving such notice and the informal telephonic dispute resolution conference (“Negotiation Period”), nothing in this Arbitration Agreement shall prohibit the Arbitrating Parties from engaging in informal communications to resolve the initiating Party’s claims. Engaging in an informal telephonic dispute resolution conference is a condition precedent that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the informal dispute resolution process required by this paragraph.

11.4 Arbitration Governed by FAA.  The Arbitrating Parties expressly agree that this Section 11 (the “Mutual Arbitration Provision”) is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”). The Arbitrating Parties expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Mutual Arbitration Provision, and that the FAA shall apply to any and all Disputes between the Arbitrating Parties. The Arbitrating Parties expressly agree that the Mutual Arbitration Provision shall be governed by the FAA even in the event any Arbitrating Party is otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator.  In the event, but only in the event, the arbitrator determines the FAA does not apply, the state law governing the enforcement and interpretation of arbitration agreements in the state of California shall apply, irrespective of choice-of-law rules or principles.  

11.5 Delegation.  Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision, including without limitation any dispute concerning arbitrability.  However, the preceding clause shall not apply to any dispute relating to or arising out of the Class Action Waiver —including, but not limited to, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, illegal, void, or voidable, or that a breach of either such Waiver has occurred, including all disputes relating to or arising out of the payment of arbitration fees, and/or disputes relating to whether either party has satisfied the condition precedent of engaging in the pre-arbitration informal telephonic dispute resolution conference—which must proceed in a court of competent jurisdiction and cannot be heard or arbitrated by an arbitrator. The Parties agree that any and all due dates for arbitration fees shall be tolled while the Parties resolve a dispute relating to or arising out of the Class Action Waiver, the payment of arbitration fees, and/or the pre-arbitration informal telephonic dispute resolution conference.

11.6 Initiating Arbitration. Only after the Arbitrating Parties have engaged in a good-faith effort to resolve the Dispute through an informal telephonic dispute resolution conference, and only if those efforts fail, either Arbitrating Party may initiate arbitration by notifying the other Arbitrating Party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name, telephone number, mailing address, and email address of the Arbitrating Party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; and (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); (4) the original personal signature of the Arbitrating Party seeking arbitration; and (5) the Arbitrating Party’s portion of any applicable filing fee. If the Arbitrating Party seeking arbitration is represented by counsel, counsel must also provide an original personal signature on the demand for arbitration. By signing the demand for arbitration, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that (1) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

11.7 Arbitration Proceedings. Any arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures (and in accordance with the Expedited Procedures in those Rules where agreed upon by both parties) (“JAMS Rules”), except as follows: (1) Unless applicable law provides otherwise, as determined by the arbitrator, the Arbitrating Parties shall equally share (a) filing fees and other similar and usual administrative costs, that are commonly shared in both court and administrative proceedings, such as court reporter costs and transcript fees, and (b) any administrative costs that are uniquely associated with arbitration, including arbitrator’s fees, room rental, and any other JAMS administrative fees; (2) If an Arbitrating Party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other Arbitrating Party finally obtains is not more favorable than the unaccepted offer, then the other Arbitrating Party shall pay the costs, including filing fees, incurred after the offer was made; (3) Both Arbitrating Parties agree not to oppose or interfere with any negotiations or agreements between the other Arbitrating Party and the arbitration administrator, or individual arbitrator, relating to an Arbitrating Party&rsqursquo;s portion of the fees. The arbitrator, however, may disallow any private agreement between an administrator, on the one hand, and the negotiating party, on the other hand, if the arbitrator believes that the private agreement undermines his or her neutrality as arbitrator; (4) The arbitrator may issue orders (including subpoenas to third-parties) allowing the Arbitrating Parties to conduct discovery sufficient to allow each Arbitrating Party to prepare that Arbitrating Party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (5) Except as provided in the Class Action Waiver, the arbitrator may award all remedies to which an Arbitrating Party is entitled under applicable law and which would otherwise be available in a court of law, including but not limited to the imposition of sanctions under the Federal Rules of Civil Procedure, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable to the claims asserted in arbitration; (6) The arbitrator may hear motions to dismiss and/or motions for summary judgment. An arbitrator may not permit the filing of a motion for summary judgment until after the Arbitrating Parties have conducted discovery to support their claims and defenses. Any motion to dismiss and/or motion for summary judgment shall otherwise be governed by the standards of the Federal Rules of Civil Procedure governing such motions; (7) The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law; (8) Any finding that a claim or counterclaim was filed for purposes of harassment or is frivolous shall entitle the other Arbitrating Party to recover its, his, or her attorneys’ fees, costs, and expenses; (9) Either Arbitrating Party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Arbitration Agreement may be rendered ineffectual or on any grounds set forth in Section 11.10; and (10) The arbitrator may consider, but under no circumstances is the arbitrator bound by, decisions reached in separate arbitrations. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either Arbitrating Party may seek to enjoin the arbitration proceeding in a court of competent jurisdiction, and the arbitration shall automatically be stayed pending the outcome of that proceeding. The Arbitrating Parties acknowledge that they (or any of them) are or may become counterparties or intended beneficiaries to other agreements (and/or arbitration agreements), and, where there is a dispute under any other such agreement concurrent with and/or related to a Dispute hereunder, the parties hereby consent and agree that such dispute(s) will proceed as a single arbitration (or if applicable, will be consolidated into a single arbitration) with any Dispute covered by this Mutual Arbitration Provision.

11.8 Confidentiality. The Dispute and the arbitration proceedings, including all materials submitted or generated in connection therewith and any award resulting therefrom, will be handled in a private and confidential manner and will not be disclosed to any non-party to the arbitration, except: (i) as required by law; (ii) to the extent that disclosure is reasonably necessary for the purposes of obtaining professional advice; or (iii) to the extent disclosure is necessary to enforce an award made by an arbitrator. The Arbitrating Parties agree not to make, or assist others in making, any public comments or statements, including any statements to any news media entity or through social media, concerning the Dispute or the proceedings.  

11.9 Agency Investigations. Regardless of any other terms of this Agreement, nothing prevents any Arbitrating Party from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs or other federal or state administrative agency (“government agency”), and nothing in this Agreement or Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim, or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent federal or state administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this Mutual Arbitration Provision, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses an Arbitrating Party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law or as required under this Agreement before bringing a claim in arbitration. For the avoidance of any doubt, administrative agencies do not include state, federal or other courts. Neither Arbitrating Party will retaliate against the other Arbitrating Party for filing a claim with an administrative agency or for exercising rights in respect of any matter before any administrative agency.

11.10 Injunctive and Other Relief. Regardless of any other terms of this Mutual Arbitration Provision, or any terms of the Instawork Terms of Use, to the extent that either Arbitrating 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 Arbitrating Parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought, including from a court of competent jurisdiction.

11.11 Right To Consult With Legal Counsel. You have the right to consult with private legal counsel of your choice, at your own expense, with respect to any aspect of, or any claim that may be subject to this Mutual Arbitration Provision.

11.12 Severability. In the event any section, subsection, or portion of this Mutual Arbitration Provision is deemed unenforceable, it shall be severed from the Agreement such that the remainder of this Mutual Arbitration Provision shall be enforceable to the fullest extent permitted by law. If any provision of the Class Action Waiver in Section 11.2 is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Arbitration Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on this Mutual Arbitration Provision or the requirement that any arbitrable claims be arbitrated on an individual basis pursuant to the Mutual Arbitration Provision; and (iii) any such class, collective, mass action, or representative claims must be litigated in a civil court of competent jurisdiction and not in arbitration (except to the extent that any portion of the Class Action Waiver is found to be valid and enforceable, in which case, such valid portion(s) of the Class Action Waiver shall be enforced in arbitration). To the extent that any class, collective, mass action, or representative claims must be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the Class Action Waiver is unenforceable with respect to those claims, the Arbitrating Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

12 MISCELLANEOUS

12.1 Law. Except as otherwise set forth in Section 11, this Agreement 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.

12.2 Severability. Except as otherwise set forth in Section 11, 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.

12.3 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.

12.4 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). 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, 548 Market Street, PMB 63152, San Francisco, California 94104, or by email at support@Instawork.com.

12.5 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.

12.6 Entire Agreement. Your acceptance of this Agreement includes your agreement to the Instawork Privacy Policy (located online at https://www.instawork.com/legal/instawork-privacy-policy), Instawork Terms of Use (located online at https://www.instawork.com/legal/instawork-terms-of-use), and all other policies, rules, guidelines, terms and conditions established for the Services as set forth therein and otherwise referenced in this Agreement (each a "policy" and collectively, "policies"), which are incorporated herein by reference. Instawork may amend such policies from time to time and any amendments to such policies will be effective upon Instawork’s posting of such updated policies on its websites or through the Services (including the Platform). Partner’s continued access or use of the Services after such posting confirms Partners consent to be bound by the polices, as amended, and such amended policies are incorporated herein by reference. In the event of a conflict between any term of this Agreement and a term of an Instawork policy, this Agreement shall control with respect to such conflict. This Agreement (including the policies) constitute 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 with respect to the subject matter hereof. Notwithstanding the forgoing, if you enter into or have entered into a Platform Service Agreement or Staffing Service Agreement with Instawork or AWS that remains in effect, nothing herein shall render such Platform Service Agreement or Staffing Service Agreement null or void, and to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and such Platform Service Agreement or Staffing Service Agreement, the terms of the Platform Service Agreement or Staffing Service Agreement shall prevail. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and expressly agreed upon by all parties.

12.7 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.

13. CONTACTING INSTAWORK

If you wish to report a violation of this Agreement, have any questions or need assistance, please contact Instawork at support@instawork.com.