CUSTOMER AGREEMENT FOR GIGSURF SERVICE


GigSurf Inc. provides a service (the “Service”) that allows its customers to connect with GigSurf’s network of geographically distributed contractors (“GigSurfers”) to obtain service providers for various short term assignments. Please read this Customer Agreement (“Agreement”) in its entirety if you wish to become a customer.

ACKNOWLEDGMENT AND ACCEPTANCE OF CUSTOMER AGREEMENT

This Agreement is a contract that sets out the legally binding terms of the relationship between GigSurf and you. By signing this Agreement, contacting GigSurf to request GigSurfers via email, and/or by using the Application or the GigSurf Mobile Application in connection with the Service, 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 company you have named as the Customer, and to bind that company to these terms. The terms “you” and “Customer” refer to you or the legal entity which you work for or represent. This agreement includes GigSurf’s Privacy Policy.

You agree and understand that certain features of the Application 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. GigSurf reserves the right to change this Agreement, and any additional terms at any time, effective upon making the modified provisions available on the Application or by notifying you directly. You are responsible for regularly reviewing this Agreement. Continued use of the Application, the Service, and/or the GigSurf Mobile Application after any such changes are made to this Agreement shall constitute your consent to such changes. Furthermore, continued engagement with GigSurf in connection with Service using either email, phone, or sms after any such changes are made to this Agreement shall constitute your consent to such changes. GigSurf does not and will not assume any obligation to notify GigSurfers 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.

1.1 “Deliverables” means the deliverables specified in a GigSurf Request for delivery by a GigSurfer to you.

1.2 “GigSurf Request” means a notice provided by GigSurf to one or more GigSurfers, which includes a description of the services to be provided by the GigSurfers and the associated Deliverables, the date by which the GigSurf Request must be completed and the payment rate for the GigSurfer who performs the GigSurf Request (the “Payment”). The Payment will be subject to an additional charge to compensate GigSurf for creating, hosting, administering and providing the Application and the Service (the “Convenience Fee”).

1.3 “GigSurf Mobile Application” or the “Application” means the software or communications channels used by GigSurf in connection with the Service.

1.4 “Service Request” means a request for Service or work by you which includes a description of the Deliverables for which you wish to engage GigSurfers. Once the parties have been matched and have agreed upon the terms of a Service Request pursuant to Section 2, the Service Request will become a “Service Engagement”.

2. SERVICE REQUEST

Customer may from time to time submit a Service Request to GigSurf via the Application or by email. We can reject any Service Request that is not appropriate or that violates the terms of service or use.

3. FEES AND PAYMENT

3.1 Fees. GigSurf charges fees and collects payment for each Service Engagement. You agree to provide GigSurf with complete and accurate billing and contact information, including but not limited to, Customer’s legal name, street address, e-mail address, and the name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, GigSurf reserves the right to terminate your access to the Service, and any outstanding Service Engagement, in addition to any legal remedies. Generally, you will be billed within five business days for services provided that day. Special arrangements may be made. The Convenience Fee for engaging a GigSurfer as an independent contractor totals 15% of the Payment amount and is generally for creating, hosting, administering, maintaining and providing the Application and various communication’s-related technology. A Service Request shall be considered complete once the Deliverables have been accepted by Customer in accordance with Section 4. Both Customer and GigSurf agree to review and make any necessary changes to an invoice within five businesses days following the Service Engagement. Customer agrees to send payment in full to GigSurf, either electronically or through a nationally recognized delivery service, within ten business days following the Service Engagement. In the event that Customer sends payment later than ten business days following the Service Engagement, Customer agrees to pay a late fee of $25 per GigSurfer utilized during the Service Engagement in addition to a monthly interest rate of 1.5% on the total invoice amount (collectively, “Late Fee”) accrued thereafter.

3.2 Taxes. GigSurf’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”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If GigSurf has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer.

3.3 Direct Hire Fee. In the event Customer desires to hire or otherwise engage a GigSurfer directly through Customer, Customer will notify GigSurf and subsequently Customer will be billed twenty-three hundred dollars ($2,300) for such direct hiring or engagement of the GigSurfer. Such Direct Hire Fee shall be charged regardless of whether Customer notifies GigSurf of such direct hiring or engagement of the GigSurfer.

4. IP OWNERSHIP

4.1 GigSurf IP. Customer acknowledges that all the intellectual property rights in the Application, the Service, the GigSurf Mobile Application, and any metadata or other information generated or submitted to GigSurf by a GigSurfer in the course of performing a GigSurf Request are owned by GigSurf or GigSurf’s licensors or suppliers (the “GigSurf IP”). Customer shall not obtain, by this Agreement, any right, title or interest in the trademarks of GigSurf or GigSurf’s licensors, affiliates or suppliers, nor shall this Agreement give Customer the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of GigSurf or GigSurf’s licensors, affiliates or suppliers. Customer agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the GigSurf IP, or (b) rent, lease, loan, or sell access to the GigSurf IP.

4.2 Suggestions. Customer hereby grants to GigSurf a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the GigSurf IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Customer related to the GigSurf IP.

5. CONFIDENTIALITY

5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.

5.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

5.4 Information Included in Service Engagements. Notwithstanding the foregoing, Customer acknowledges and agrees that some of the information that it provides in Service Engagements will be sent to GigSurfers who will need this information to respond to requests to perform one or more GigSurf Requests. By submitting a Service Request, Customer is requesting, and expressly consents to have details of the Service Engagement sent to GigSurfers that GigSurf deems qualified to perform the GigSurf Requests. Customer agrees that all information that Customer provides will be accurate, current and truthful to the best of is knowledge.

6. DISCLAIMERS

THE SERVICE AND THE DELIVERABLES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” GIGSURF 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. GIGSURF MAKES NO WARRANTY THAT (A) THE SERVICE OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICE 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 SERVICE OR DELIVERABLES WILL BE ACCURATE OR RELIABLE. GIGSURF DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH GIGSURF REQUEST AND A GIGSURFER OR THAT THERE ARE GIGSURFERS IN EACH GEOGRAPHIC AREA REQUESTED BY CUSTOMER WHO ARE WILLING TO FULFILL THE GIGSURF REQUEST AT THE TIME AND PLACE REQUESTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT GIGSURF HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY GIGSURFER AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN GIGSURF AND THE GIGSURFERS. GIGSURF DOES NOT GUARANTEE OR WARRANT THE GIGSURFERS’ PERFORMANCE OF THE GIGSURF REQUESTS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.

7. LIMITATION OF LIABILITY

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

8. RELATIONSHIPS BETWEEN GIGSURF, GIGSURFERS AND THE CUSTOMERS

8.1 GigSurf matches Customers and GigSurfers so they can buy and sell Services online. Under this Agreement, GigSurf provides services to both Customers and GigSurfers, including facilitating the formation of contracts between Customers and GigSurfers and managing disputes related to those contracts. Customers can make Service Requests using either the Application or email and request that GigSurfers be notified of the Service Request. If a Customer and GigSurfer agree on terms, including how a GigSurfer will be classified, a Contract is formed directly between such Customer and GigSurfer.

8.2 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 Application or the Service.

8.3 Worker classification. Customer assumes all liability for proper classification of GigSurfers as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Customer and GigSurfer. GigSurfer does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Customer. GigSurfer acknowledges that GigSurf does not, in any way, supervise, direct, or control GigSurfer’s work or Services performed in any manner. GigSurf does not set GigSurfer’s work hours and location of work. GigSurf will not provide GigSurfer with training or any equipment, labor or materials needed for a particular Request. GigSurf will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Customer and GigSurfer will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to GigSurfer’s performance of Service Requests. For Contracts classified as independent contractor relationships, Customer may not require an exclusive relationship between Customer and GigSurfer. A GigSurfer classified as independent contractor is free at all times to perform Requests, be employed by or otherwise engage with persons or businesses other than Customer, including any competitor of Customer. Customer and GigSurfer agree to indemnify, hold harmless and defend GigSurf from any and all claims arising out of or related to their Service Request, including but not limited to claims that GigSurfer was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that GigSurfer was misclassified (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that GigSurf was an employer or joint employer of GigSurfer, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.

9. TERMINATION

9.1 Termination Without Cause. Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, at any time when there are no outstanding Service Engagements or unpaid balances due hereunder.

9.2 Surviving Provisions. Sections 3 (“Fees and Payment”), 5 (“IP Ownership”), 6 (“Confidentiality”), 7 (“Disclaimers”), 8 (“Limitation of Liability”), 9.2 (“Surviving Provisions”) and 10 (“Miscellaneous”) shall survive any termination of this Agreement.

10. MISCELLANEOUS

10.1 Law. This Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement shall be governed by the laws of the State of California regardless of your country of origin or where you access GigSurf, and notwithstanding any conflicts of law principles.

10.2 Arbitration. You agree that THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF USE, THE APPLICATION AND/OR THE SERVICES PROVIDED (INCLUDING YOUR VISIT TO OR USE OF THE WEBSITE AND/OR THE SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, or you have otherwise violated any of the user conduct rules set forth above then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Application and/or the Service (including your visit to or use of the Application and/or the Service) be instituted more than three (3) years after the cause of action arose.

Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first inform GigSurf (hello@gigsurf.com) of your complaint and seek resolution. This notice of dispute must include: your name, relevant account information, a brief description of your dispute, and contact information, so that GigSurf may evaluate the dispute and attempt to informally resolve same. GigSurf will have 60 days from the date of your original complaint to informally resolve the dispute, which if successful will avoid the need for further action.

10.3 Arbitration Procedures. In the unlikely event that you and GigSurf end up in a legal dispute and have not been able to resolve it within 60 days of your original informal claim, you and GigSurf agree to the following:

All Claims (excluding claims for injunctive or other equitable relief) must be resolved through binding arbitration before an AAA arbitrator located in California under the commercial dispute resolution rules then in effect for AAA, except as provided herein. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) Any disputes as to the applicable rules and procedures shall be resolved by the AAA arbitrator.

The party wishing to initiate arbitration must submit a written demand for arbitration as specified in the AAA Rules. If you initiate a Claim, you will submit the demand by certified mail to GigSurf at 540 Howard St, San Francisco CA 94105, ATTN: GigSurf Inc. If GigSurf initiates a claim, GigSurf will serve a demand for arbitration upon you by email to the email address on file with GigSurf, and may send a copy by certified mail to your last known address (or to another address specified by you in your notice of dispute of your informal claim). You agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought.

10.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

10.5 No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without GigSurf’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. GigSurf may assign this Agreement or any of its rights under this Agreement to any third party with or without your written consent.

10.6 Notices. GigSurf may give any notice required by this Agreement by means of a general notice on the Application, electronic mail to your email address on record with GigSurf, or by written communication sent by first class mail or pre-paid post to your address on record with GigSurf. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). Except as set forth in Section 10.3 above, you may give notice to GigSurf, addressed to the attention of GigSurf Inc. Such notice shall be deemed given when received by GigSurf by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address: 540 Howard St, San Francisco CA 94105 or email to hello@gigsurf.com.

10.7 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.8 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Service Engagement, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation (excluding Service Engagements) shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.

10.9 Modifications to Application. GigSurf reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. You agree that GigSurf shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Service.

11. CONTACTING GIGSURF

If you wish to report a violation of the Customer Agreement, have any questions or need assistance, please contact Customer Support at hello@gigsurf.com.

 

Appendix


GENERAL PROVISIONS

Governing Law and Venue. The Services Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer and GigSurfer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California, or the county in which Customer’s principal place of business is located solely in the event of any lawsuit filed there against GigSurfer by Customer.

Severability. If any provision of the Services Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Services 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.

No Assignment. The Services Agreement, and the party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either party without the other’s prior written consent, and any attempted Job, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of the Services Agreement will be binding upon assignees.

Waiver. Any waiver or failure to enforce any provision of the Services Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Disclaimer. GigSurfer shall be solely responsible for the professional performance of GigSurfer’s work. GigSurfer shall be solely liable for its acts, omissions and negligence.