This Independent Contractor Services Agreement (the “Agreement”) sets out the legally binding terms between GigSurf Inc (“GigSurf”) and you (“Contractor”, “you”). This Agreement shall become effective (the “Effective Date”) upon the date this Agreement is signed by both GigSurf and Contractor.
GigSurf owns and operates an internet application and provides a service that allows customers ("Customers") to access GigSurf's network of independent contractors (“GigSurfers”) in order to meet their intermittent needs for services, and enables GigSurfers to be connected to service requests by Customers. The services offered by GigSurf include a website – GigSurf.com (“Website”), a concierge gig booking service using email, mobile SMS and software (“Application”), and other features or content, as now offered and/or may be offered in the future, in connection with the Website or the Application (collectively referred to as the “Services”).
PLEASE READ THIS INDEPENDENT CONTRACTOR SERVICES AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1.1. Acknowledgment and Acceptance of Independent Contractor Services Agreement
This Agreement is an electronic contract that sets out the legally binding terms of the relationship between GigSurf and you. By submitting an application to become a GigSurfer, confirming a GigSurf Request, OR showing up to a GigSurf Engagement to engage in Gig Services with a Customer, you accept and agree to be bound by the terms of this Agreement. Please read it carefully. By accessing the Application, or becoming a GigSurfer, you accept this Agreement and agree to the terms, conditions and notices contained and/or referenced herein.
Use of the Application is permitted only by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, you must be at least 18 years old and legally authorized to work in the United States to become a GigSurfer. If you do not qualify, you may not submit an application to become a GigSurfer.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.2.1. “GigSurf Request” means a notice provided through the Application to one or more GigSurfers, with the notice including a description of the services to be provided by GigSurfers (“Gig Services”), the time by which the GigSurf Request must be completed, and the rate of payment associated with the GigSurf Request (the “Payment”).
1.2.2. “Open Request” means a GigSurf Request that has not yet been filled. GigSurfers can use the Application to review Open Requests and to indicate their availability for Open Requests.
1.2.3. “GigSurf Engagement” means a GigSurf Request that has been accepted by a GigSurfer and confirmed by GigSurf pursuant to Section 2.
1.3. Eligibility to Use the Services
Use of the Application and accepting or performing gigs through GigSurf is permitted only by individuals who can form legally binding contracts under applicable law. If you do not qualify, you may not submit an application to become a GigSurfer. By using the Services or accepting an Open Request through GigSurf, you represent that: a) you are eighteen (18) years of age or older; b) your use of the Services does not violate any applicable law or regulation; c) all required information that you submit or post in order to use the Services is accurate and you will maintain the accuracy of such information; d) you are using the Services for personal, non-commercial use. If GigSurf is informed or has reason to believe that you are not eligible to use the Services or that you become ineligible, your use may be terminated without notice and your account may be deleted. You do not have any right to use the Services for commercial use and if you wish to use the Services for commercial use, you must first contact GigSurf (at: email@example.com) to receive prior written approval.
1.4. Modifications to the Agreement
GigSurf reserves the right to change this Agreement, and add additional terms at any time, effective upon making the modified provisions available on the Application or by notifying GigSurfers directly. You are responsible for regularly reviewing this Agreement. Accepting an Open Request from GigSurf or continued use of the Services after any such changes are made to this Agreement shall constitute your consent to such changes. GigSurf does not assume any obligation to notify GigSurfers of any changes to this Agreement.
1.5. Changes in the Services
GigSurf reserves the right to suspend, discontinue, delete, modify, or remove any content or service offered from time to time, without prior notice, without reason or liability, and/or to offer certain services only in various versions or in selected times, in GigSurf’s sole discretion. In addition, GigSurf reserves the right, at any time in its sole discretion, to decide that the use of the Services, or any part thereof (including services which are currently available for free), shall be subject to the payment of any fees. GigSurf shall notify you of the implementation of any payment as aforesaid, and upon such notification such implementation shall be binding and you shall be obligated to pay such payment unless you cease using the relevant Services. GigSurf may also offer, in the future, services for commercial users or other services which will require entering into separate agreement with GigSurf (for more information contact: firstname.lastname@example.org).
By accepting a GigSurf Request, you agree to use your best efforts to perform the GigSurf Engagement such that the Gig Services are satisfactory to the Customer, for whom the Open Request was created. Once a GigSurfer has accepted a GigSurf Request, the Open Request will no longer be available for performance by other GigSurfers who received the Open Request. By accepting an Open Request, you are entering into a binding legal agreement to provide the Gig Services for the Payment specified in the Open Request. Do not accept an Open Request unless you are sure that you understand what you are being asked to deliver, can get to and from the GigSurf Engagement location, and can deliver the Gig Services in the requested time period.
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between GigSurf and you or between the Customer and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving GigSurf that is inconsistent with your being an independent contractor (and not an employee) of GigSurf. You are not the agent of GigSurf or the Customer, and you are not authorized and must not represent to any third party that you are authorized to make any commitment or otherwise act on behalf of GigSurf or the Customer. As an independent contractor, you are solely responsible for determining which Open Requests you will choose to accept, how, when and where you will provide the requested services. Without limiting the generality of the foregoing:
3.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that GigSurf, its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, GigSurf will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of GigSurf, or any affiliate of GigSurf (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Customer and its parents, subsidiaries, affiliates or related entities or by GigSurf, its parents, subsidiaries, affiliates or other related entities.
3.2 Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from the payment of Payments to you under this Agreement, and you agree to do so in a timely manner. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS, GigSurf will report the Payments paid to you for services rendered as part of GigSurf Engagements by filing Form 1099-MISC with IRS. You agree to indemnify GigSurf for the cost of any tax liabilities incurred by GigSurf as a result of your failure to pay all applicable taxes in a timely manner.
4.1 Use and Disclosure. From time to time, you may be given access to confidential information in the course of performing engagements that you receive through GigSurf. During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining GigSurf’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to GigSurf or any Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Customers) that GigSurf and/or the Customer considers to be confidential or proprietary or GigSurf has a duty to treat as confidential.
4.2 Standard of Care. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.
4.3 Exceptions. Your obligations under Sections 4.1 and 4.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to GigSurf’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by GigSurf, or is required by law or court order, provided that you immediately notify GigSurf in writing of such required disclosure and cooperate with GigSurf, at GigSurf’s reasonable request, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
4.4 Removal; Return. Upon GigSurf’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to GigSurf or, if so directed by GigSurf, destroy all Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to GigSurf in writing that you have fully complied with these obligations.
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any GigSurf Engagement, or that is otherwise inconsistent with this Agreement or any GigSurf Engagement.
6.1 General. You represent, warrant, and covenant that:
(a) You have full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers);
(b) will fully conform to the specifications, requirements, and other terms in the applicable GigSurf Engagement and this Agreement, and will be of a professional quality.
6.2. Indemnification. You will indemnify and hold harmless GigSurf and its parents, affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) arising from or relating to a breach by you of any representation, warranty, covenant, or obligation in this Agreement, or arising from or relating to any negligent or intentional act or omission committed by you, in connection with the performance of any GigSurf Engagement, which act or omission gives rise to any claim for damages against you, GigSurf and/or its parents, affiliates, employees or agents. GigSurf specifically denies any obligation to defend and/or indemnify you from and against any third party claims made against you arising from any negligent or intentional act or omission committed by you in connection with the performance of any GigSurf Engagement.
6.3 Insurance. You acknowledge that you are an independent contractor, not an employee of GigSurf. As such, you are not covered by any insurance that may be provided by GigSurf to its employees, including, without limitation, health insurance, workers’ compensation insurance, general liability insurance, and automobile liability insurance. As an independent contractor, you are solely and exclusively responsible for your own insurance. Specifically, in the event that you are injured while working in the course and scope of a GigSurf Engagement, you acknowledge and understand that you will not be covered by any workers’ compensation insurance coverage that GigSurf may provide to its employees. Further, in the event that your actions cause an injury to a third party while you are working in the course and scope of a GigSurf Engagement, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that GigSurf may have, and that GigSurf is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.
As a condition of using the Services, you must carry an adequate Occupational Accident Insurance policy with minimum coverage levels specified by GigSurf, as may be updated from time to time. Alternatively, you must carry workers’ compensation insurance as required by all applicable laws. You agree to maintain and provide to GigSurf sufficient evidence of your insurance policy, and to update such evidence over time as applicable. If you do not carry sufficient insurance, you agree to immediately halt and discontinue any engagement in Gig Services for any GigSurf Engagement until such time that you have obtained sufficient insurance.
To obtain an adequate insurance policy, you may enroll in Occupational Accident Insurance through policies made available through GigSurf. To request additional information on coverage limits and pricing for the Occupational Accident Insurance policies available through GigSurf, you may request this information by writing email@example.com. You may opt-out of the Occupational Accident Insurance policy at any time in writing by emailing firstname.lastname@example.org with your request to discontinue enrollment. You understand and acknowledge that you are an INDEPENDENT CONTRACTOR, and that as such, the cost of this insurance is your sole obligation and responsibility. Shall you elect to purchase Occupational Accident Insurance through GigSurf, by signing this Independent Contractor Services Agreement, you are authorizing payment for such Occupational Accident Insurance to be deducted from any payments due to you for GigSurf Engagements. In providing you access to Occupational Accident Insurance through GigSurf, GigSurf does not assume and shall not have any responsibility whatsoever for any legal requirement or obligation that you may have to obtain such coverages. By enrolling in the Occupational Accident Insurance policy available through GigSurf, you hereby acknowledge and agree that you meet the eligibility requirements of this policy, and that you are not an employee of any company for which you perform services through GigSurf. You further understand and acknowledge that the Occupational Accident Insurance policy available for purchase through GigSurf is NOT WORKERS’ COMPENSATION INSURANCE.
6.4 Warranty Disclaimer. The Application is provided “as is”, as available and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). We disclaim all and make no representations or warranties, of any kind, either express or implied, as to the quality, identity or reliability of any third party, or as to the accuracy of the postings made on the Application by any third party. Some states and jurisdictions do not allow for all the foregoing limitations on implied warranties, so to that extent, if any, some or all of the above limitations may not apply to you.
IN NO EVENT WILL GIGSURF BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GIGSURF'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS OWED BY GIGSURF FOR GIGSURF ENGAGEMENTS PERFORMED UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8.1 Termination by GigSurf. GigSurf reserves the right to terminate your access to the Services if you have not performed a GigSurf Engagement during the previous four calendar months, if you are in material breach of the Agreement, or if you have otherwise engaged in conduct in using the Services that GigSurf, in its sole discretion, believes in good faith to be detrimental to its business interests.
8.2 Survival. Sections 3 (“Independent Contractor Relationship”), 4 (“Confidentiality”), 5 (“No Conflicts”), 6 (“Representations and Warranties”), 7 (“Limitation of Liability”), 8.2 (“Survival”), and 9 (“General Provisions”) will survive any termination or expiration of this Agreement. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.
9.1 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 Delaware regardless of your country of origin or where you access Services, and notwithstanding any conflicts of law principles.
9.2 Mandatory Binding Arbitration and Class Action Waiver. The Company and Contractor mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and shall apply to any and all claims arising out of or relating to this Contract, the Contractor’s classification as an independent contractor, Contractor’s provision of services to the Company or its Customers, the payments received by Contractor for providing services to the Company or its Customers, the termination of this Contract, and all other aspects of the Contractor’s relationship with the Company , past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Contractor’s relationship or the termination of that relationship with the Company. However, this Agreement does not apply to litigation between you Contractor and the Company pending in a state or federal court as of the date of your Contractor’s receipt of this Agreement, nor does it apply to any claim that may not be arbitrated as provided by an Act of Congress or lawful, enforceable Executive Order.
(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Contractor must be delivered by email to email@example.com
(b) Class Action Waiver. The Company and Contractor mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, representative or private attorney general action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, representative and/or private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
(c) Contractor agrees and acknowledges that entering into this arbitration agreement does not change Contractor’s status as an independent contractor in fact and in law, that Contractor is not an employee of the Company or the Company’s Customer and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
(d) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), except as follows:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which Contractor performed his contractual duties for The Company.
(3) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that the Company shall pay all of the Arbitrator’s fees and costs.
(4) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(6) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(7) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law.
(8) Either the Company or Contractor may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
(e) Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Equal Employment Opportunity Commission, or U.S. Department of Labor) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.
(f) The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.google.com or www.yahoo.com or by asking firstname.lastname@example.org to provide a copy.
(g) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. Except In addition to as stated with regard to the Class Action Waiver, above, in the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable.
(h) You have the right to reject this agreement to arbitrate if you notify GigSurf no later than 60 days after the Effective Date. You must do so in writing by stating that you reject this agreement to arbitrate and include your full name, email address, physical address and personal signature. Your notice must be mailed to: GigSurf, Attn: Legal, 540 Howard St, San Francisco, CA 94105. Rejection notices sent to any other address, or sent by electronic mail or communicated orally, will not be accepted or effective.
(i) GigSurf reserves the right to change this section 9.2 (“Mandatory Binding Arbitration and Class Action Waiver”), but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if GigSurf changes this section 9.2 after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing GigSurf written notice of such rejection by mail to: GigSurf, Attn: Legal, 540 Howard St, San Francisco, CA 94105 within 30 days of the date such change became effective. In order to be effective, the notice must include your full name, email address, physical address, personal signature, and clearly indicate your intent to reject changes to this Mandatory Binding Arbitration and Class Action Waiver section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and GigSurf in accordance with the provisions of this section 9.2 as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
9.3 Modifications to Application. GigSurf reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Services (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 Services.
TIME RECORD KEEPING
By accepting an Open Request or confirming your engagement in Gig Services, you agree to keep a detailed time record while you are working in the course and scope of any GigSurf Engagement by sending an SMS to the GigSurf phone number with your full name followed by the time you begin to work at the GigSurf Engagement location. In addition, you agree to send an SMS to the GigSurf phone number with your full name and the time you stopped performing work at the GigSurf Engagement location. Finally, you agree to sign a written time log approved by the Customer, with the log including the time you started and ended your services.
Updated: August 28, 2018