GigSmart Managed Services Agreement
Last Revised: 06/15/20
THIS MANAGED SERVICES AGREEMENT (this “Agreement”) contains the terms of the agreement between a Company and GigSmart (referred to individually as a “Party” or jointly as “Parties”), as evidenced by a Statement of Work executed by GigSmart and the Company.
1. Definitions. Unless elsewhere defined in this Agreement, capitalized words have the meanings set forth below in this Section 1.
1.1 “Gig Contractor” means an individual engaged by GigSmart as part of its on-demand, independent contractor labor force to execute all or part of the Services as set forth in the Agreement and SOW.
1.2 “GigSmart Platform” means GigSmart’s digital websites, digital smartphone applications, internal communications App, software, or other processes that facilitate the provision of Services by Gig Contractors who offer to provide Services.
1.3 “Service(s)” means the work/labor required by the Company and performed by the Gig Contractors.
1.4 “SOW” means the Statement of Work to be separately executed by the Parties, which shall set forth the specific Services and payment terms for such Services.
2. SCOPE OF SERVICES.
2.1 Engagement. The Company has engaged GigSmart to operate the GigSmart Platform on behalf of the Company and in accordance with the SOW. The Parties expressly agree that the SOW is incorporated by reference herein. The Services described herein and in the SOW may be amended from time to time, in writing, and signed by the Parties. GigSmart reserves the right to reject any such agreement or proposed Services that are not appropriate, that violates this Agreement or that GigSmart believes in good faith to be inconsistent with the business interests of GigSmart or the integrity of the GigSmart Platform.
2.2 GigSmart Services. The services provided by GigSmart to the Company under this Agreement may include some or all of the following:
2.2.1 Advertising posts on the GigSmart Platform for workers to perform the requisite Services for the Company.
2.2.2 Onboard on-demand Gig Contractors onto the GigSmart Platform.
2.2.3 Identify Gig Contractors who meet the Company provided criteria.
2.2.4 Disseminate the Company’s training materials (when provided) to identified Gig Contractors.
2.2.5 Notify the identified Gig Contractors who have been accepted and provide instructions as to where and when the work is to be performed.
2.2.6 Track Gig Contractors time.
2.2.7 Calculate Gig Contractors pay.
2.2.8 Pay Gig Contractors on behalf of the Company and invoice the Company for such payments.
3. STANDARDS AND SERVICE LEVELS.
3.1 Technical Standards and Service Levels. GigSmart will be responsible for maintaining the GigSmart Platform. GigSmart reserves the right in its sole discretion to review and improve the GigSmart Platform and/or any features, information, materials and content.
3.2 Root cause analysis and remediation. If GigSmart fails to maintain the GigSmart Platform or provide the applicable GigSmart services, GigSmart will conduct an analysis to identify the root cause thereof. GigSmart will share the outcomes of the analysis with the Company. GigSmart will also be responsible for developing a remediation plan to address and resolve the identified issues to the extent such issues are caused by factors within GigSmart’s control. The Company will be responsible for resolving identified issues to the extent such issues are caused by factors within the Company’s control. Such remediation plan must be reviewed and agreed to by the Company and GigSmart.
3.3 Failure to meet standards. If GigSmart or the Company fail to comply with the remediation plan, such party will be deemed to have materially breached this Agreement. If GigSmart or the Company does not cure the material breach within thirty (30) calendar days of receiving written notice thereof from the other Party, this Agreement may be terminated.
3.4 Features of GigSmart Platform. The GigSmart Platform merely offers tools, resources, and a venue to the Company which enable it to engage Gig Contractors. The Company understands and agrees that GigSmart: (A) does not employ, recommend or endorse any Gig Contractors and has no control over their acts or omissions; (B) is not responsible or liable in any manner for the performance or conduct of any Gig Contractors or other third parties online or offline; (C) makes no representations or warranties about the quality of the Services provided by any Gig Contractors or about the Company’s interactions or dealings with them; and (D) does not automatically screen Gig Contractors or conduct any kind of identity verification or background checks (unless otherwise stated in the SOW). The Company acknowledges and agrees that it is solely responsible for the actions and inactions of the Gig Contractors performing services.
4. FEES AND PAYMENT.
4.1 Fees. GigSmart charges fees and collects payment for each Service as set forth in the SOW.
4.2 Taxes. GigSmart’s fees 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”). Company is responsible for paying all Taxes associated with its purchases hereunder. If GigSmart has the legal obligation to pay or collect Taxes for which Company is responsible under this section, the appropriate amount shall be invoiced to and paid by Company. The parties agree to make any related tax filings and payments in accordance with applicable law.
4.3 Direct Hire Fee. In the event Company or any Company director, officer, or employee (collectively, “Company Personnel”) desires to Hire or otherwise directly engage a Gig Contractor outside of the GigSmart Platform in the twelve (12) months following Company’s or any Company Personnel’s last contact with Gig Contractor, Company will notify GigSmart and subsequently Company will be billed and Company agrees to pay a placement fee of $250 per each Gig Contractor hired (“Direct Hire Fee”). In the event Company does not notify GigSmart within fifteen (15) days that it has hired a Gig Contractor, Company shall be obligated to immediately pay to GigSmart as the Direct Hire Fee, $2,500 for each Gig Contractor Hired. The amounts described in both instances (i.e., with or without notice from Company) shall be referred to as the “Direct Hiring Fee.” Company shall pay to GigSmart any Direct Hire Fee owed on the same schedule as the payment of all other fees or invoices from GigSmart.
Such Direct Hire Fee shall be charged regardless of whether: (a) Gig Contractor contacts Company or applies to Company independently or otherwise through a public job posting or other job board; (b) different Company Personnel are involved in the direct Hire of the Gig Contractor and previous engagement of the Gig Contractor through the GigSmart Platform; or (c) Company notifies GigSmart of such direct Hire or engagement of the Gig Contractor. Any hire or engagement of the Gig Contractor by Company set forth above 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 where Gig Contractor receives any compensation from Company. In addition, “Hire” also shall include any situation where Company who had contact with Gig Contractor through the GigSmart Platform provides any information regarding Gig Contractor to a third party and that third party hires Gig Contractor within the twelve (12) month period, in any capacity, whether a full time hire, part time hire, independent contractor hire, intern hire, or any other such engagement or relationship where Gig Contractor receives any compensation, directly or indirectly, from Company and/or the third party.
4.4 Late Cancellation Fee. Except as otherwise set forth in the SOW, in the event that Company cancels or substantially modifies a project or a Service less than twelve (12) hours before the performance of the service is to begin, the Company will be required to pay half of the cost of the Services, in addition to any other fees or costs due for such Service. The cost includes both the payment to the Gig Contractor and the fee paid to GigSmart.
5. IP OWNERSHIP.
Company acknowledges that all the intellectual property rights in the GigSmart Platform, the Service, and any metadata or other information generated or submitted to GigSmart by a Gig Contractor in the course of performing a Service, including any and all personal identifying information of a Gig Contractor, are owned by GigSmart (the “GigSmart IP”). Company shall not obtain, by this Agreement, any right, title or interest in the trademarks of GigSmart or affiliates, nor shall this Agreement give Company the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of GigSmart or affiliates. Company agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the GigSmart IP, or (b) rent, lease, loan, or sell access to the GigSmart IP, including but not limited to personal identifying information of Gig Contractors.
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, including, but not limited to personally identifiable information of any and all Gig Contractors. 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 these 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 these Agreement.
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 Services. Notwithstanding the foregoing, Company acknowledges and agrees that some of the information that it provides in or in furtherance of the Managed Services Agreement will be sent to Gig Contractors who will need this information to respond to requests to perform one or more Services. By entering this Agreement, Company is requesting, and expressly consents to have details of the Service, including training materials, sent to Gig Contractors that provide like or similar services to those sought through the GigSmart requests. Company agrees that all information that Company provides will be accurate, current and truthful to the best of its knowledge.
7. TERM AND TERMINATION.
7.1 Term. Unless otherwise specified in the SOW the term of this Agreement shall begin on the Effective Date and continue in effect for a period of one (1) year and shall automatically renew for subsequent one (1) year periods.
7.2 Termination. Either Party may terminate this Agreement at any time by providing the non-terminating Party thirty (30) days written notice.
7.3 Effect of Termination. In the event that the Company terminates this Agreement, it shall have the option to terminate any Services then in effect. In the event that GigSmart terminates this Agreement, any Service then in effect at the time of termination shall remain in effect until either: (i) the natural expiration of such Service(s); or (ii) at a time mutually agreed upon by the Parties.
8. INDEPENDENT PARTIES.
GigSmart provides the GigSmart Platform through which companies and Gig Contractors can buy and sell Services online. Under this Agreement (and GigSmart’s service agreement with Gig Contractors), GigSmart provides services to both companies and Gig Contractors, including the provision of the GigSmart Platform, aimed at facilitating the formation of contracts between companies and Gig Contractors and management of payments between companies and Gig Contractors. The Parties expressly agree that no joint venture, partnership, employment, or agency agreement exists between them as a result of this Agreement or any use of the GigSmart Platform. The employees, methods, facilities, and equipment of each Party shall at all times be under the exclusive direction and control of that Party.
The Company will maintain a minimum of $1,000,000 of general liability insurance. GigSmart does not provide coverage for any damages created by the Gig Contractor or any injuries to the Gig Contractor or others while the Gig Contractor is engaged by the Company. Any damage to the Company property, the Gig Contractor’s property, the property of the clients of the Company that Gig Contractors are assigned to, and any injury to third parties caused by the Gig Contractor while engaged by the Company are covered by Company’s general liability insurance. All Gig Contractors are required to purchase Occupational Accident Insurance (OAI) through the GigSmart Platform (additional information on OAI can be found here (https://gigsmart.com/workers/occupational-accident-insurance/).
THE SERVICE(S) AND THE DELIVERABLES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” GIGSMART EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. GIGSMART MAKES NO WARRANTY THAT (A) THE SERVICE OR DELIVERABLES WILL MEET COMPANY’S REQUIREMENTS; (B) THE SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR DELIVERABLES WILL BE ACCURATE OR RELIABLE; OR (D) THE GIG CONTRACTORS ARE RELIABLE, SUITABLE OR HAVE BEEN SCREENED IN ANY WAY BY GIGSMART IN ORDER TO PERFORM THE SERVICES REQUESTED (UNLESS OTHERWISE STATED IN THE SOW). GIGSMART DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH SERVICE REQUEST AND A GIG CONTRACTOR OR THAT THERE ARE GIG CONTRACTORS IN EACH GEOGRAPHIC AREA REQUESTED BY COMPANY WHO ARE WILLING TO FULFILL THE GIGSMART REQUEST AT THE TIME AND PLACE REQUESTED. COMPANY ACKNOWLEDGES AND AGREES THAT GIGSMART HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY GIG CONTRACTOR AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN GIGSMART AND THE GIG CONTRACTOR. GIGSMART DOES NOT GUARANTEE OR WARRANT THE GIG CONTRACTORS’ PERFORMANCE OF THE GIGSMART REQUESTS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.
11. LIMITATION OF LIABILITY: INDEMNIFICATION.
IN NO EVENT SHALL GIGSMART BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM COMPANY’S USE OF THE GIGSMART PLATFORM OR THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, GIGSMART’S LIABILITY TO COMPANY FOR ANY DAMAGES ARISING FROM OR RELATED TO COMPANY’S USE OF THE GIGSMART PLATFORM OR THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES COMPANY PAID TO GIGSMART IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
Company further agrees to indemnify, defend, and hold harmless GigSmart and its parents, affiliates, owners, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs) arising from or relating to: (1) a breach by Company of any representation, warranty, covenant, or obligation in these Agreement; (2) any negligent or intentional act or omission committed by Company, in connection with the performance of these Agreement, which act or omission gives rise to any claim for damages against Company, GigSmart and/or its parents, affiliates, employees or agents; (3) Company’s violation of applicable law; (4) any third party claims made against GigSmart arising from any negligent or intentional act or omission committed by the Company or Gig Contractor in connection with the performance of any Service performed. GigSmart specifically denies any obligation to defend and/or indemnify Company from and against any third party claims made against Company arising from any negligent or intentional act or omission committed by Company or a Gig Contractor in connection with the performance of any GigSmart Service performed.
12. RELATIONSHIP BETWEEN GIGSMART, GIG CONTRACTORS AND THE COMPANY.
Gig Contractor does not have authority to enter into written or oral contracts on behalf of Company or GigSmart. Company acknowledges that GigSmart does not, in any way, supervise, direct, or control Gig Contractor’s work or Services performed in any manner. GigSmart does not set Gig Contractor’s work hours and location of work, nor is GigSmart involved in determining the type or manner compensation to be paid for any Service. GigSmart will not provide Gig Contractor with training or any equipment, labor or materials needed for a particular Service, except as explicitly set forth in the SOW and provided by Company in advance. GigSmart will not deduct any amount for withholding, unemployment, Social Security, or other taxes. A Gig Contractor is classified as independent contractor and is free at all times to perform Services, be employed by or otherwise engage with persons or businesses other than Company, including any competitor of Company. Company agrees to indemnify, hold harmless and defend GigSmart from any and all claims arising out of or related to the Services, including but not limited to claims that Gig Contractor was misclassified as an independent contractor, any liabilities arising from a determination that Gig Contractor was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that GigSmart was an employer or joint employer of Gig Contractor, as well as claims under any employment-related laws.
Any controversy or claim arising out of or relating to this Agreement or the breach thereof will be settled by binding arbitration conducted before a single arbitrator who is knowledgeable in the field of law, business or technology that is the subject of this Agreement. The site of any such arbitration will be Cincinnati, Ohio. The arbitration will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party will bear its own costs and expenses, including fees and expenses of counsel, associated with the arbitration. Notwithstanding the foregoing to the contrary, in the event any controversy or claim includes a claim by or against a Gig Contractor named in such claim or controversy, all such disputes shall be settled in accordance with the arbitration provisions found in Section 11 of the GigSmart Agreement of Use and End User License Agreement governing Gig Contractors located at gigsmart.com/terms, which may be amended from time to time.
14.1 Entire Agreement; Amendment. This Agreement and the SOW, which is incorporated into this Agreement by reference, constitutes the entire agreement between the Parties relating to the subject matter hereof, supersedes any other business forms of either Party, and all prior agreements, correspondence, discussions, negotiations and understandings of the Parties (whether oral or written) are merged herein, made a part hereof, and superseded hereby. Any different or additional terms of any purchase order acknowledgement, invoice, or similar document of either Party, heretofore or hereafter provided to the other Party will be of no effect, except to the extent expressly provided by this Agreement. No amendment, waiver, or modification of this Agreement shall be valid unless made in writing and signed by both Parties.
14.2 Severability. The Parties hereby acknowledge and agree that if any provision of this Agreement shall under any circumstances be deemed invalid or inoperative, this Agreement shall be construed with the invalid or inoperative provision deleted and all rights and obligations of the Parties shall be construed and enforced accordingly.
14.3 Force Majeure. Other than payment obligations, neither party shall be liable to the other for any delay or failure in performance under this Agreement arising out of a cause beyond its control and without its fault or negligence. Such causes may include but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, national disasters, or national or global pandemics.
14.4 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors, permitted assigns and legal representatives.
14.5 Waiver of Breach. Waiver by either Party of nonperformance or any breach of this Agreement does not constitute a waiver of any subsequent nonperformance or other breach of the same or any other provision.
14.6 Applicable Law. This Agreement shall be construed according to and governed by the laws of the State of Ohio, without regards to any conflicts of law provisions.
14.7 Headings. Headings contained in this Agreement are inserted for purposes of convenience of reference only and shall not constitute a part of this Agreement.
14.8 Statute of Limitations. Company agree that regardless of any statute or law to the contrary, any claim arising out of or related to the SOW, this Agreement, the Platform or the Services offered therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
14.9 No Assignment. This Agreement and Company’s rights and obligations under these Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by Company without GigSmart’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. GigSmart may assign these Agreement or any of its rights under these Agreement to any third party.
14.10 Modifications to GigSmart Platform. GigSmart reserves the right at any time to modify or discontinue, temporarily or permanently, the GigSmart Platform or the Service (or any part thereof) with or without notice. Company agree that GigSmart shall not be liable to Company or to any third party for any modification, suspension or discontinuance of the GigSmart Platform or the Service(s).
14.11 Surviving Provisions. This Agreement survives any termination of the SOW.
14.12. Interpretation. If there is any inconsistency between the SOW and this Agreement, the terms in the SOW shall control.