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GigSmart Terms of Use and End User License Agreement for Requesters

Updated: 10/01/2024

IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.

YOU ACCEPT THESE TERMS BY DOWNLOADING THE GIGSMART APP OR BY ACCESSING, VIEWING, OR USING THE APP, OR ANY TOOLS AND SERVICES PROVIDED IN CONNECTION WITH THE APP OR THE GIGSMART WEBSITE (COLLECTIVELY THE APP, THE SITES, AND ALL RELATED TOOLS AND SERVICES ARE REFERRED TO AS THE PLATFORM). YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF USE.

These Terms of Use constitute a legally binding agreement (the “Terms” or “Agreement”) between You (“You”) and GigSmart, Inc., a Delaware corporation, its parents, subsidiaries, representatives, affiliates, officers, and directors (collectively “GigSmart”) governing Your use of the GigSmart application (the “Application”), websites (including www.GigSmart.com), software, and technology platform (collectively, the “Platform”). You and GigSmart may each be referenced in these Terms as a “Party” or together as the “Parties.”

By using any part of the Platform as a Requester, You agree to be bound by these Terms, our Direct Payment Policy, our Cancellation Policy and our Privacy Policy which are incorporated herein by reference. You further agree that You are at least eighteen (18) years old and have legal authority to accept these Terms. If You do not want to be bound by these Terms or if You do not agree to these Terms, then You cannot use or access our Platform.

In these Terms, “we,” “us,” “our” and “GigSmart” all refer to GigSmart. All references to “You” or “Your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform, in any manner, and each of Your heirs, assigns, and successors. If You use the Platform on behalf of an entity, organization, or company, You represent and warrant that You have the authority to bind that entity to these Terms. “You” or “Your” also refers to You as a “Requester” (an individual, a company or business using our Platform to request service providers to fill one-time and/or recurring work opportunities, either through Shift Gigs, Project Gigs or Job Board posting). Herein, a “Worker” is a service provider who uses the Platform in order to access work opportunities). These Terms govern Your use of and access to the Platform, as a Requester. Further, in order to use many aspects of the Platform, You must register for and maintain an active account (“Account”), and these Terms also govern Your Account and Your use of and access to Your Account.

We may amend these Terms from time to time. Any amendments will be effective upon GigSmart’s posting of such updated Terms on our websites or through our Platform (including our mobile applications). Your continued access or use of the Platform after such posting confirms Your consent to be bound by the Terms, as amended. See Section 13 for details.

 

1. ABOUT GIGSMART

GigSmart creates, develops and maintains technology products and solutions for workforce management customers and connects workers seeking work opportunities with businesses and other users in need of workers. The Platform includes wide-ranging product groups including full or part-time job boards, temporary shift-based work opportunities, residential projects and workforce management. Additional services include, but are not limited to facilitating communication, matching, payment and relevant background checks between workers and those seeking workers. For the purposes of this Agreement, a “Work Opportunity” is any opportunity found through the Platform in which a Worker connects with a Requester to perform services for such Requester.

 

2. YOUR RELATIONSHIP WITH GIGSMART

2.1 Your Account. To access some features of the Platform, You must register for an Account. When You register for an Account, You may be required to provide information about Yourself (such as Your name, e-mail address, tax identification number, phone number, profile image, or other contact information). You agree that the information You provide is accurate, current, and complete, and that You will keep it up-to-date at all times. When You register, You will be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password, and any password for any third-party login. You accept responsibility for all activities that occur under Your Account. If You have reason to believe that Your Account is no longer secure, You must immediately notify us via our support team. GigSmart will not be liable, and You may be liable for losses, damages, liability, expenses, and attorneys’ fees incurred by GigSmart or a third party arising from someone else using Your Account due to Your conduct regardless of whether You have notified us of such unauthorized use. You understand and agree that we may require You to provide information that may be used to confirm Your identity and help ensure the security of Your Account.

2.2 Workers’ Status with GigSmart. You acknowledge and agree that Workers You engage with for Work Opportunities are not employees or independent contractors of GigSmart. No Worker or Requester is authorized and shall not represent to any third party that it is authorized to make any commitment or other act on behalf of GigSmart. Unless You hire such Worker as Your own W2 employee, Workers are independent contractors of Requesters. Workers are solely responsible for determining which Work Opportunities to apply for and accept, and if they are qualified to perform the services requested in a Work Opportunity. GigSmart makes no verification or independent representation of Worker abilities, skills, availability, or suitability for any Work Opportunity. If You, as a Requester, wish that any Worker You may hire or engage have particular skills, licenses, or qualifications, You are solely responsible for listing those items in each Work Opportunity posted on the Platform, and for verifying the same.

2.3 Verified Workers. You may post the availability of a Work Opportunity as requiring a verification report, including, but not limited to background check, motor vehicle record check, drug screening or other type of pre-work screening. GigSmart offers, as a convenience, the opportunity for You to connect with third-party companies that perform services associated with background checks and screenings. GigSmart hereby expressly disclaims, and You hereby expressly release, GigSmart from any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm, or damages arising from, or in any way related to a verification report obtained through such third-party verification report service providers. This includes, but is not limited to, any inaccuracy, untimeliness, or incompleteness of such a report, or any misstatements or misrepresentations made therein. Services available from third party providers may include, but are not limited to, the following: SSN Trace, Address History, National Criminal Records Check, County Criminal Records Check, Sex Offender Registry Check, Federal Criminal Records Check, Global Watchlist Records Check, State Criminal Records Check, County and Federal Civil Records Check, Driver Check, National and International Employment Verifications, Personal or Professional Reference Checks, National and International Education Verifications, Drug Screenings, Credit Checks. You acknowledge and agree that the determination to verify a Worker for verified Work Opportunities is subject to certain jurisdictions’ laws and regulations on the use of verification reports, compliance with which is the responsibility of the third-party company and not GigSmart, including, but not limited to, California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, The District of Columbia, Austin, Baltimore, Buffalo, Chicago, Columbia (MO), DeSoto (TX), the District of Columbia, Kansas City (MO), Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, Seattle, Spokane (WA), St. Louis, Suffolk County (NY), Waterloo (IA), and Westchester County (NY). In some jurisdictions, Workers may still be eligible for Work Opportunities irrespective of items reported on a verification report. GigSmart shall not be liable for any determination made as to the verification of any Worker for a Work Opportunity, or the compliance with laws governing such verification.

 

3. PLATFORM GENERAL TERMS

3.1 License to Use.

3.1.1 GigSmart grants You a personal, nonexclusive, nontransferable license to use the Platform. Under this license, You may download/access and use the Platform on a device that You own or control, solely for Your use.

3.1.2 Except as expressly provided in these Terms, Your use shall not include: (A) any resale of the Service or of any GigSmart content; (B) modifying or otherwise making any derivative uses of the Platform or any GigSmart content; (C) use of any data mining, robots, or similar data gathering or extraction methods; (D) reproducing, distributing, publicly performing, or publicly displaying the Platform or the GigSmart content; (E) reverse engineering or otherwise attempting to discover any source code; or (F) any use of the Platform other than for its intended purpose. Any use of the Platform or the GigSmart content other than as specifically authorized herein, without the prior, written permission of GigSmart, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws, and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.

3.1.3 You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or its content, except as expressly permitted in these Terms. The Platform and its content are provided to You AS IS.

 

3.2 Prohibited Uses. The Use of the Platform in the following ways is prohibited:

    • Providing any User Content (defined below) that violates any laws, infringes the rights (including the intellectual property rights) of others, is defamatory or otherwise creates liability for us;
    • Copying our Platform or using our Platform to enable any service that is competitive with us;
    • Scraping, scanning or otherwise using our Service or any information or the metadata associated therewith to collect or compile data about other users (including Workers or Requesters);
    • Reselling any information obtained from us or while using our Platform;
    • Attempting to compromise the integrity or security of the Platform in any way;
    • Decompiling, reverse engineering or disassembling the Platform in any way;
    • Reproducing, modifying, preparing derivative works based upon, distributing, licensing, leasing, selling, reselling, transferring, publicly displaying, publicly performing, transmitting, streaming, broadcasting or otherwise exploiting the Platform in any way except as expressly permitted by GigSmart;
    • Accessing the Platform using any automated processes (such as robots, spiders, etc.) for any reason;
    • Harassing, defaming or discriminating against anyone or any entity;
    • Inappropriate behavior during or related to a Work Opportunity, including any actions that jeopardize the health, safety, or security of those around You;
    • Inappropriate use of the Platform to communicate in any ways that may be deemed indecent, harassment, discriminatory or violate the intended use of the Platform;
    • and/or engaging in conduct that violates GigSmart’s policies posted on its website.

Further, You agree that You will not use the Platform in any way that would violate any laws, infringe on any rights of others (including, without limitation, intellectual property rights and laws pertaining to non-discrimination, equal opportunity, and the Fair Credit Reporting Act), or otherwise create liability for GigSmart.

 

4. USER CONTENT ON THE PLATFORM

4.1 User Content Terms. The Platform may permit You to submit, upload, publish or otherwise make available on the Platform textual, audio, and/or visual content and information, including Worker or Requester profiles, communications, commentary and feedback related to the Platform and other third-party users, initiation of services-related or support requests, and submission of entries for promotions (“User Content“) (that may or may not be viewable by other users) through the Platform or through other communications with You, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages. GigSmart’s Platform include a communications platform that acts as a passive conduit for the exchange of User Content between third-party users.

You acknowledge and agree that Your receipt of, response to, use of, or reliance on any User Content through GigSmart’s Platform is at Your own risk. GigSmart does not contribute to, endorse, support, verify, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content. All User Content is the sole responsibility of the person who originated and/or posted such User Content.

We are not liable for any delays, errors, omissions, loss or damage incurred as a result of Your use of our Platform, including but not limited to Your submission of Your User Content or Your receipt of, response to, use of, or reliance on any other User Content. Under no circumstances will GigSmart be liable for denial of access to any content on our Platform. GigSmart is not responsible for incomplete, lost, late, undelivered or misdirected messages between users of our Platform (including between Workers and Requesters).

4.2 Content You Provide. You are responsible for any User Content that You provide, including compliance with applicable laws, rules and regulations. You have choices about Your User Content, including the information You include on Your profile, such as (but not limited to) Your background, education, work experience, skills, photograph(s) and/or location, and such User Content helps You to get more from our Platform, including matching You to opportunities. It’s Your choice whether to include sensitive information or User Content on Your profile. Our Privacy Policy describes in detail what information we capture and how we use it. You must use Your real name and all the information You give must be truthful and honest at all times. As stated above, we do not verify the accuracy or completeness of any information submitted to or through our Platform, and thus we cannot guarantee the identity of the other users You may communicate with. If You see any information about You that is inaccurate, You must report it to GigSmart.

4.3 Use of Your Content. You acknowledge that any User Content provided by You remains Your property. Further, You acknowledge that GigSmart does not provide any compensation for User Content that You post on or through the Platform. You agree that User Content that You post on or through the Platform shall be deemed to be non-confidential and non-proprietary, and GigSmart shall have no obligation of any kind with respect to such information. By providing Your User Content to GigSmart, You grant GigSmart a worldwide, perpetual, irrevocable, transferable, royalty-free, non-exclusive license, with the right to sublicense, to use, copy, reproduce, edit, adapt, translate, modify, create derivative works of, distribute, publicly display, publicly perform, sell, lease, transmit, communicate to the public, disassemble, publish and otherwise exploit in any manner such User Content in connection with GigSmart, or its partners’ or affiliates’ business, in whole or in part, in all formats and distribution channels now known or hereafter devised (including in connection with the Platform and GigSmart’s business and on third-party sites and services), for any purpose whatsoever, including without limitation for promoting or redistributing part or all of the Platform (and derivative works thereof) in any media formats and through media channels, without further notice to or consent from You, unless expressly agreed otherwise in writing, and without the requirement of payment to You or any other person or entity. Further, GigSmart shall be free to use any ideas, concepts, know-how or techniques contained in User Content for any purpose whatsoever in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to You, including but not limited to developing, manufacturing and marketing products incorporating such information. In the interest of clarity, the license granted to GigSmart shall survive termination of the Platform or Your account.

4.4 User Content Review. You acknowledge and agree that GigSmart and/or its designees may or may not (but do not assume any obligation to) review User Content on the Platform. You further acknowledge and agree that GigSmart reserves the right (but does not assume any obligation) in its sole discretion to reject, move, or remove any User Content on the Platform for any reason, including but not limited to its determination, in its sole discretion, that the User Content violates these Terms, our Privacy Policy, other policies and standards, or is otherwise objectionable. You acknowledge and agree that GigSmart does not verify, adopt, ratify, or sanction User Content, and You agree that You must evaluate and bear all risks associated with Your use of User Content or Your reliance on the accuracy, completeness, or usefulness of User Content.

4.5 Right to Use Name and Logo for Promotional Purposes. You hereby grant GigSmart a license to use, publish, and display Your name and logo on GigSmart’s website and other GigSmart company materials. At Your express written request, GigSmart shall cease using, publishing, and displaying the other party’s name and/or logo within fourteen (14) days of such request.

 

5. COMMUNICATIONS.

5.1 Consent To Receive Communications. By using the Platform, You agree and consent to be contacted by, and to receive and accept communications from GigSmart, Requesters, and authorized partners, representatives, and/or affiliates via different communication methods, including but not limited to email(s), SMS/text message(s), push notification(s), and/or phone call(s) to contact information, including telephone number(s), You provide to GigSmart. By consenting to being contacted, You understand and agree that You may receive communications—including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems—sent by or on behalf of GigSmart on various subjects, including but not limited to: (1) operational or transactional communications, such as those concerning Your Account, sign up progress to become a Worker or a Requester, use of the Platform and/or the application; (2) communications relating to the Platform, including incentive offers; (3) promotions, advertising, and/or marketing; (4) news concerning GigSmart and industry developments that affect Your relationship with GigSmart; and (5) Account verification communications. Message and data rates may apply. By consenting to be contacted, You represent that the telephone number(s) that You have provided to GigSmart are Your contact numbers, that You are permitted to receive calls at such telephone number(s), and that You will promptly alert GigSmart whenever You stop using or change a particular telephone number.

5.2 MARKETING COMMUNICATIONS & OPT-OUT: By using the Platform, You agree and consent that GigSmart, its partners, affiliates, or representatives may contact You (including for marketing and promotional purposes from GigSmart or our third-party partners where permitted by law) by email, phone, push notifications, SMS/text message(s), or by other comparable means (including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems) at the email address(es), phone(s), or phone number(s) You provide to GigSmart. YOU CAN UNSUBSCRIBE FROM GIGSMART’S MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF OR CONTACTING OUR SUPPORT TEAM AT SUPPORT@GIGSMART.COM. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING EMAILS, GIGSMART MAY STILL SEND YOU EMAILS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN THE PARTIES. FURTHER, IF YOU WISH TO OPT OUT OF MARKETING TEXT OR SMS MESSAGES, IN RESPONSE TO SUCH A MESSAGE YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGE. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF USING GIGSMART.

5.3 Location Information. The Platform may implement a location feature whereby they will automatically collect Your geolocation information. In such event, the Platform will use and share such location to enable Workers to determine what work opportunities are nearby and Requesters to determine what Workers are nearby and their status on work opportunities. GigSmart may also use location information to provide information and advertising to Users. If You want to stop the automatic collection of Your location information You may do so by using the privacy settings in the Platform and/or on Your device and/or by uninstalling the App.

 

6. PAYMENT AND FEES.

6.1 You agree to pay all applicable fees or charges based on the fee and billing terms then in effect, regardless of whether You have an active Account. Charges shall be made to Your credit card, Stripe or other payment method designated at the time You make a purchase or request a Service. If You do not pay on time or if GigSmart cannot charge a credit card, Stripe or other payment methods for any reason, GigSmart reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. You expressly acknowledge and agree that all communications regarding delinquent accounts or fees will be made by electronic mail or telephone. GigSmart may initiate these communications or may use a third party to do so, including, but not limited to, a third-party collection agency. If You cancel Your Account at any time, You will not receive any refund. If You have a balance due on any account, You agree that GigSmart may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees. You understand and agree that You are solely responsible for determining Your own tax reporting requirements in consultation with tax advisers and that we cannot and do not offer specific tax advice to Users. If payments are not made within 30 days after the due date, they are considered late and will bear interest at the rate equal to the lesser of 1.5% per month, or the highest rate allowed under applicable law.

6.2 GigSmart may use third party payment processing services to process credit card payments and information in connection with the payment of fees and other amounts payable in connection with the Platform. GigSmart hereby expressly disclaims, and You hereby expressly release GigSmart from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm and/or damages arising from and/or in any way related to GigSmart’s use of third-party payment processing services, including without limitation for any damage that may result should any such information be released to any third parties. For further information about GigSmart’s use of payment processing services, please contact GigSmart by email at support@gigsmart.com.

6.3 Cancellation Fees. You will be charged a fee if a job is cancelled prior to its start time. Cancellation fees vary based on when shifts are published, scheduled, and subsequently canceled, and are set forth in GigSmart’s Cancellation Policy, incorporated by reference herein and available here: https://gigsmart.com/shift-gig-cancellation-policy/.

6.4 Direct Payment Fees. If You provide compensation to a Worker outside of the GigSmart platform, with the exception of hiring such Worker as a w2 employee, You agree to pay a “Direct Payment Fee”. The full Direct Payment Policy can be found at: https://gigsmart.com/direct-payment-policy/ and is hereby incorporated by reference herein.

 

7. THIRD PARTIES.

During use of the Platform, You may interact with Workers or our other third party providers. Any such activity, and any interactions, disputes, terms, conditions, warranties or representations associated with that activity, is solely between You and the applicable third-party. GigSmart and its licensors shall have no liability, obligation or responsibility for any transaction between You and any third-party provider. In no event shall GigSmart be responsible for any content, products, services or other materials on or available from third-party sites or third-party providers. Certain third-party providers of goods and/or services may require Your agreement to additional or different terms and conditions prior to Your engagement, and GigSmart disclaims any and all responsibility or liability arising from such agreements between You and a third party.

 

8. DISCLAIMER OF WARRANTY.

YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY GIGSMART TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. GIGSMART MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM. GIGSMART DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; THAT THE PLATFORM OR ANY PRODUCTS OR MATERIALS OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

GIGSMART’S PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GIGSMART IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

GIGSMART DOES NOT REPRESENT OR WARRANT THAT INFORMATION ACCESSIBLE THROUGH THE PLATFORM, INCLUDING INFORMATION PROVIDED BY OTHER USERS OF THE PLATFORM, IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE PLATFORM IS SOLELY AT YOUR OWN RISK.

GIGSMART DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR PLATFORM ADVERTISED OR OFFERED BY A WORKER OR BUSINESS OR OTHER THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR THIRD-PARTY PLATFORM, AND GIGSMART WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN WORKERS, BUSINESSES, AND THIRD-PARTY PROVIDERS OF PRODUCTS OR PLATFORM.

GIGSMART MAKES NO WARRANTY THAT (A) THE SERVICES WILL BE AVAILABLE ON A TIMELY BASIS; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR DELIVERABLES WILL BE ACCURATE OR RELIABLE; OR (C) THE WORKERS ARE RELIABLE, SUITABLE OR HAVE BEEN SCREENED IN ANY WAY BY GIGSMART IN ORDER TO PERFORM THE SERVICES REQUESTED. GIGSMART DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH WORK OPPORTUNITY AND A WORKER OR THAT THERE ARE WORKERS IN EACH GEOGRAPHIC AREA REQUESTED BY YOU WHO ARE WILLING TO FULFILL THE WORK OPPORTUNITY AT THE TIME AND PLACE REQUESTED. YOU ACKNOWLEDGE AND AGREE THAT GIGSMART HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY WORKER AND THAT THERE IS NO EMPLOYMENT, INDEPENDENT CONTRACTOR, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN GIGSMART AND THE WORKER. GIGSMART DOES NOT GUARANTEE OR WARRANT THE WORKERS’ PERFORMANCE THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.

 

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL GIGSMART’S TOTAL AGGREGATE LIABILITY TO YOU EXCEED THE GREATER OF TWO HUNDRED DOLLARS ($200) OR THE ACTUAL AMOUNT OF MONEY RECEIVED BY US FROM YOU DURING THE SIX (6) MONTHS PRECEDING THE DATE OF YOUR CLAIM AGAINST US. IN NO EVENT SHALL GIGSMART OR ANY OF OUR PARTNERS, AGENTS, AFFILIATES, OFFICES, DIRECTORS, REPRESENTATIVES, EMPLOYEES, THIRD PARTY PROVIDERS OR CONTENT PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY FORM OF INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE), ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THE USE OF OUR PLATFORM, INCLUDING BUT NOT LIMITED TO THE RESULTS OF YOUR USE OF THE PLATFORM, EVEN IF WE AND/OR OUR LICENSORS WERE PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE PLATFORM CONNECTS WORKERS WITH REQUESTERS FOR THE PURPOSES OF FACILITATING COMPLETING WORK OPPORTUNITIES. EXCEPT AS MAY BE DONE BY THIRD PARTY PARTNERS OR AS FURTHER SET FORTH HEREIN, GIGSMART WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY WORKER, AND YOU EXPRESSLY WAIVE AND RELEASE GIGSMART FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE WORKERS OR REQUESTERS. GIGSMART WILL NOT ASSESS THE QUALITY, SAFETY, OR LEGALITY OF THE ITEMS OR WORK PRODUCT PROVIDED BY WORKERS OR REQUESTERS ON THE PLATFORM, AND YOU EXPRESSLY WAIVE AND RELEASE GIGSMART FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO WORKERS OR REQUESTERS. GIGSMART WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN WORKERS AND ANY REQUESTER. RESPONSIBILITY FOR THE DECISIONS WORKERS AND REQUESTERS MAKE REGARDING SERVICES OFFERED AND ENGAGED VIA THE PLATFORM (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH THE WORKER AND REQUESTER. IN ADDITION, WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTIES, AND YOU EXPRESSLY WAIVE AND RELEASE GIGSMART FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE PLATFORM, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE PLATFORM.

THE QUALITY OF THE WORKER PROVIDING SERVICES THROUGH THE USE OF THE PLATFORM ENTIRELY THE RESPONSIBILITY OF THE WORKER WHO ULTIMATELY PROVIDES OR ENGAGES THE SERVICES. YOU UNDERSTAND THAT BY USING THE PLATFORM, YOU MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE PLATFORM AT YOUR OWN RISK.

 

10. INDEMNIFICATION.

You are responsible for Your use of the Platform, and You agree to defend (at GigSmart’s option), indemnify, and hold harmless GigSmart and its officers, directors, employees, contractors, consultants, affiliates, investors, service providers, business partners, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:

    • Your violation of any of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation;
    • Your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or
    • Any dispute or issue between You and any third party, including any Worker, Requester, business, third-party verification provider, or other third-party, including but not limited to any assertion that GigSmart is an employer, co-employer, or joint employer of any Worker, any assertion that GigSmart has engaged any Worker as a consultant or independent contractor, or regarding a verification report or determination referenced in Section 2.3.

GigSmart reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations) and You agree to cooperate with our defense of that claim. If the defense or settlement is assumed by You, GigSmart may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim that You are defending on behalf of GigSmart without GigSmart’s prior written consent.

You agree that the provisions in this section will survive any termination of Your account, this Agreement, or Your access to the Platform.

11. INTELLECTUAL PROPERTY RIGHTS.

11.1 GigSmart’s Intellectual Property. GigSmart retains all rights and ownership in and to the Platform (including all intellectual property rights therein), except as otherwise expressly provided herein. These rights include, without limitation, database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. We always appreciate suggestions for enhancements and new features and functionality in our Platform (“Feedback”), but if You communicate those Feedback to us in any way, You hereby give ownership of and assign those Ideas to us completely and we can do what we like with them without owing You anything.
GigSmart and other GigSmart logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks, or trade dress of GigSmart in the United States and/or other countries (collectively, the “GigSmart Marks”). You acknowledge that GigSmart is the owner and licensor of the GigSmart Marks, including all goodwill associated therewith. Violation of any provision in this Section will be deemed a breach of these Terms.

11.2 Notice of Any Claimed Copyright Infringement (Digital Millennium Copyright Act Information). In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is the policy of GigSmart, in appropriate circumstances, to terminate the registration account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing. If You believe that Your work has been copied in a way that constitutes copyright infringement and is displayed on the Platform, please contact us at legal@gigsmart.com or GigSmart, Attn: Copyright Agent and include:

    • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
    • A description of Your copyrighted work or other intellectual property that You claim has been infringed;
    • A description of where the material You claim is infringing is located on the Platform (providing us with website URL is the quickest way to help us locate content quickly);
    • Your address, telephone number, and email address;
    • A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
    • A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Please note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT OUR COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS. For other inquiries or questions, please contact us via our Help Center. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

 

12. DISPUTE RESOLUTION

12.1 Arbitration Provision. Any controversy, claim, suit, injury, harm, loss or damage arising from or in any way related to the use or provision of the Platform or these Terms of Use shall only be resolved by binding arbitration and conducted in accordance with these Terms of Use and the Commercial Arbitration Rules and Arbitration Procedures of the American Arbitration Association (“AAA”) then in effect, which can be obtained at any AAA office, at www.adr.org, or by calling the AAA at 1-800-778-7879. If there is any inconsistency between the AAA Rules and this arbitration provision, the terms of the arbitration provision will control unless the arbitrator determines that the application of the inconsistent terms would result in a fundamentally unfair arbitration. This arbitration provision will be construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C.§1 et seq.

Arbitration shall be conducted before a single arbitrator chosen by GigSmart and You and both You and GigSmart expressly waive entitlement, if any, to have any controversy, claim, suit, injury, harm, loss or damage heard before a court or a jury. The arbitrator will base the decision on the evidence presented and in accordance with these Terms of Use and governing law, including statutory and judicial authority. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Use and applicable law. The arbitrator will issue a written decision, which will contain the essential findings and conclusions on which the decision is based. The arbitrator’s decision will be final and binding upon all parties.

GigSmart’s rights and obligations under this arbitration provision shall inure to the benefit of the consumer reporting agency regardless of whether the consumer reporting agency is named as a co-defendant with GigSmart or named individually in a claim that would otherwise be subject to this arbitration provision if brought against GigSmart.

Any such controversy, claim, suit, injury, harm, loss or damage shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any controversy, claim, suit, injury, harm, loss or damage of any other party. However, this representative action waiver may be severed if it would otherwise render these Terms of Use or this arbitration provision unenforceable.

The arbitration shall be conducted in Cincinnati, Ohio, or as otherwise agreed, and judgment of the arbitration award may be entered by any court having jurisdiction thereof. GigSmart may seek any interim or preliminary relief from a court of competent jurisdiction in Cincinnati, Ohio, necessary to protect its rights pending the completion of arbitration. You agree to submit Yourself to the personal jurisdiction of the State of Ohio.

Each party will pay its own attorneys’ fees, subject to any remedies to which that party may later be entitled under applicable law. You will bear only those costs of arbitration that You would have borne had You brought a claim covered by this arbitration provision in court. If You demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, GigSmart will pay as much of the arbitration fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

Notwithstanding anything to the contrary, disputes may be brought before an administrative agency to the extent applicable law requires access to an agency notwithstanding the existence of this arbitration provision. Nothing in this arbitration provision shall be construed to: (i) relieve any party of the duty to exhaust administrative remedies by filing a charge or complaint with an administrative agency and obtaining a right to sue notice, where otherwise required by law; or (ii) prevent either party from cooperating with a federal or state body as required by law. However, You understand that You are not entitled to a double recovery or eligible to receive any monetary benefit from any action brought by an administrative agency except as required by law.

To commence an arbitration against GigSmart, You must file a case with the AAA. Instructions for filing a case with the AAA can be found on its website, www.adr.org. You must send a copy of any filing to GigSmart.

For more information, see the AAA’s claim filing page, www.adr.org/fileacase, or by calling AAA at 1-800-778-7879

12.2 Class Action Waiver. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND GIGSMART AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason (i) the unenforceable provision shall be severed from this paragraph; and (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision in Section 12.1 or the requirement that any remaining claims be arbitrated on an individual basis pursuant to the Arbitration Provision.

12.3 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights.

12.4 30-day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address You use on GigSmart) a written notice of Your decision to opt out to legal@GigSmart.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT”. The notice must be sent within thirty (30) days of Your first use of the Platform, otherwise, You shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If You opt out of these arbitration provisions, GigSmart also will not be bound by them.

12.5 Changes to This Section. GigSmart will provide thirty (30) days’ notice of any changes to this section by posting on the Platform or sending You an email. Amendments will become effective thirty (30) days after they are posted on GigSmart.com or sent to You by email. Changes will apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after You began using the Platform.

12.6 Survival. This Arbitration and Class Action Waiver section shall survive any termination of Your Account or the Platform.

12.7 Venue and Governing Law. The Terms and the relationship between You and GigSmart shall be governed in all respects by the laws of the State of Ohio, without regard to its conflict of law provisions. You agree that any claim or dispute You may have against GigSmart that is not subject to arbitration must be resolved by a court located in Hamilton County, Cincinnati, Ohio, or a United States District Court, Southern District of Ohio, located in Cincinnati, Ohio, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within Hamilton County, Ohio or the United States District Court, Southern District of Ohio located in Cincinnati, Ohio, for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defenses otherwise available.

 

13. MODIFICATION OF TERMS

GigSmart reserves the right, in its sole discretion, to modify these Terms, and any other documents incorporated by reference herein, at any time and without prior notice, and such changes will be effective immediately upon posting, except as set forth herein. In the case of a material change to the Terms, including a material change to the Arbitration Provision, GigSmart will notify You of changes, such as by presenting a new version of this Agreement on the Platform or updating the effective date at the top of this Agreement. Such modifications will become effective after the earliest of: (a) the modification being posted on the Platform or GigSmart’s website; or (b) GigSmart’s transmission of a message to and/or otherwise notifying You about the modifications (collectively, the “Notice Period”). Your continued use of the Platform after the Notice Period shall constitute Your consent to the changes. If You do not agree, You cannot use the Platform.

 

14. General

14.1 Relationship of Parties. No joint venture, partnership, contractor, employment, or agency relationship exists between You, GigSmart or any third-party provider as a result of the Terms or use of the Platform.

14.2 Waiver and Severability. Except as explicitly described in the Dispute Resolution and Arbitration section, if any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of GigSmart to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by GigSmart in writing.

14.3 Entire Agreement. These Terms comprise the entire agreement between You and GigSmart and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained in these Terms.

14.4 Voluntary Nature of Agreement. You acknowledge and agree that You are executing this Agreement voluntarily and without any duress or undue influence by GigSmart or anyone else. You further acknowledge and agree that You have carefully read this Agreement and that You have asked any questions needed for You to understand the terms, consequences, and binding effect of this Agreement and fully understand it, including that You are waiving Your right to a jury trial. Finally, You agree that You have been provided an opportunity to seek the advice of any attorney of Your choice before signing this Agreement.

14.5 Assignment. You may not assign or transfer these Terms or Your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms in whole or in part at any time to any entity without Your notice or consent. Any purported assignment by You in violation of this section shall be void.

14.6 Term and Termination. These Terms are effective until terminated by You or GigSmart as described below. Your rights under these Terms will terminate automatically without notice from GigSmart if You fail to comply with any of these Terms (including by violating any license restriction contained in these Terms). In addition, GigSmart may terminate Your user account on the Service or suspend or terminate Your access to the Service at any time You have breached these Terms or any other GigSmart policy. We also reserve the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform) without notice to You. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of Your access to or use of the Platform. You may terminate these Terms at any time by closing Your account, uninstalling the App, and ceasing use of the Platform. The sections intended to survive termination, including Sections 8, 9, 10, 12, 14, and 15 survive termination of Your account or these Terms.

 

15. Notice

GigSmart may give notice by any means of communication reasonably anticipated to notify You of the information provided. You agree that all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that You have the ability to store such electronic communications such that they remain accessible to You in an unchanged form. By way of example only, such communication may be a general notice on the Platform or via email to the email address listed on Your GigSmart account. It is Your obligation to update Your account information so that we may contact You as may be necessary. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent via first class mail or pre-paid post) or upon dispatching (if sent via electronic communication). You may give notice to GigSmart, addressed to the attention of Legal, and such notice shall be deemed given when received by GigSmart by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail to GigSmart, Attn: Legal Department, 999 18th Street (STE 1750S), Denver, CO, 80202.