Thank you for your interest in GigTracks, Inc. (" GigTracks," " we ," or " us "). GigTracks provides its solutions via software programs downloaded to a mobile device (the " Mobile Application ") and/or delivered via software-as-a-service delivery and available through our website located at http://gigtracks.com (the " Website ") (together, the " Software"). GigTracks Software allows its customers ("GigTracks Customers ") to execute project tasks, and to collect, validate and take action on field data using GigTracks's network of mobile-enabled independent contractors (" GigTrackers ") or Customer's employees.
THIS AGREEMENT IS AN ELECTRONIC CONTRACT THAT SETS OUT THE LEGALLY BINDING TERMS OF RELATIONSHIP BETWEEN GIGTRACKS AND YOU. BY SUBMITTING AN APPLICATION TO USE THE SOFTWARE ON THE WEBSITE OR VIA THE GIGTRACKS MOBILE APPLICATION, AND BY CLICKING ON THE "I AGREE" BUTTON, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY.
Use of the Software 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 in order to accept this Agreement and use the Software.
1.1 "Job" means a specific project request entered into the Software by GigTracks Customer or by GigTracks per GigTracks Customer request that will be performed either by Customer's employees or by GigTrackers. The Job shall include instructions to complete the Job, a description of the Job Deliverables, the date by which the Job must be completed (the " Job Completion Date ") and the fee associated with the Job (the " Fee "), if any.
2.1 Performing a Job . By accepting a Job, you agree to use your best efforts, skills and abilities to perform such Job in a professional and workmanlike manner, and to provide the Job Deliverables as requested by GigTracks Customers and described in the Job. Once you have accepted a Job, the Job will no longer be visible to others. By accepting a Job, you are entering into a binding legal agreement with GigTracks to provide the Job Deliverables to the GigTracks Customers via the Software, for the Fee specified in the Job. Do not accept a Job unless you are sure that you understand what you are being asked to deliver. You have the right to decline to perform the Job.
2.2 Evaluation of Job Deliverables . When you have completed and delivered a Job Deliverable on or prior to the Job Completion Date, GigTracks and the GigTracks Customer may evaluate the Job Deliverable(s) to determine, in their sole discretion, whether they comply with the requirements of this Agreement and the applicable Job. If there are discrepancies with the Job Deliverables relative to the description of requirements in the Job, the GigTracker or Customer employee will not receive the Fee for the Job, if any.
The Fee to GigTrackers, less any payment processing fees, will be remitted by our third party payment processor, PayPal, for each Job within fifteen (15) days after the GigTracks Customer accepts the satisfactorily completed Job Deliverables associated with the Job, provided that the total amount due to you is at least $35 (the " Minimum "). For any month in which the total amount due to you is less than the Minimum, the balance may be carried over to the following month. Unless otherwise stated, all Fees are quoted in U.S. Dollars. You are responsible for paying all applicable taxes and for all expenses incurred by you in connection with performing the Jobs or otherwise performing your obligations under this Agreement. We may be obligated by law to obtain tax information from you. If we request tax information from you and you do not provide it, we may (in addition to any other rights or remedies available to us) withhold your Fees until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
THIS IS A CONTRACT FOR PAY FOR PERFORMANCE. IF A GIGTRACKS CUSTOMER REASONABLY REJECTS THE JOB DELIVERABLES PROVIDED BY A GIGTRACKER, THE GIGTRACKER WILL NOT RECEIVE THE FEE FOR THE APPLICABLE JOB (A " FAILED JOB "). IN THE EVENT OF A FAILED JOB, YOU, AS A GIGTRACKER, AGREE TO AND FOREVER WAIVE, RELEASE AND FOREGO ANY AND ALL CLAIMS AGAINST GIGTRACKS REGARDING ANY FEES RELATED TO THE FAILED JOB.
For GigTrackers, it is understood and agreed that your relationship with GigTracks is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, employment agency, or employer-employee relationship between GigTracks and you or between the GigTracks 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 GigTracks that is inconsistent with your being an independent contractor (and not an employee) of GigTracks. You are not the agent of GigTracks or the GigTracks 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 GigTracks or the GigTracks Customer. Without limiting the generality of the foregoing:
4.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that GigTracks may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, GigTracks 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 GigTracks, or any affiliate of GigTracks, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, you hereby elect not to participate in, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by GigTracks.
4.2 Taxes. Since you are an independent contractor and not an employee of GigTracks, we do not withhold income or employment taxes or any other amounts from any Fees paid to you under this Agreement. You are solely responsible for filing all tax returns and paying all amounts required by any federal, state, local, or foreign tax authority arising from the payment of Fees to you under this Agreement, and you agree to do so in a timely manner. Because all GigTracks Fees are remitted through PayPal, the issuance of a Form 1099-K to you (and the filing of a copy of that Form with the Internal Revenue Service), if any, will be done by PayPal. Please be advised that, in general, all Fees paid to you under this Agreement are considered taxable income, even if you do not receive a Form 1099-K from PayPal, or the amount reported on any such Form 1099-K is less than total Fees paid to you under this Agreement. We recommend that you consult your own tax advisor for information on your personal tax situation.
4.3 Compliance with Law. 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.
5.1 Delivery. You agree that you will use the Software to provide the Job Deliverables to GigTracks on or before the applicable Job Completion Date. You acknowledge and agree that this is a payment for performance agreement (i.e. you will be paid based on the delivery of accepted Job Deliverables), and the amount of time you devote to each Job in order to satisfactorily provide the Job Deliverables is immaterial for the purposes of the Fees and will be in your sole discretion.
5.2 Ownership. By uploading the Job Deliverable to Software, you hereby grant GigTracks an irrevocable, perpetual, royalty-free, fully-paid up, worldwide right and license to reproduce, create derivatives of, publicly display, publicly perform, distribute, digitally transmit, use and otherwise exploit the Job Deliverable for GigTracks's internal business purposes. Upon acceptance of the Job Deliverable by the GigTracks Customer and payment of the Fee to you, you shall and hereby do irrevocably and unconditionally assign to GigTracks all right, title and interest worldwide in and to the Job Deliverable and all intellectual property rights thereto, including but not limited to all copyrights, and proprietary rights of every kind and nature. If any intellectual property rights, including moral rights, cannot (as a matter of law) be assigned by you to GigTracks, then you unconditionally and irrevocably waive the enforcement of such rights and all claims and causes of action of any kind against GigTracks with respect to such rights.
6.1 Use and Disclosure. 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 GigTracks's express prior written consent on a case-by-case basis. " Confidential Information " means any and all information related to GigTracks's or any GigTracks 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 GigTracks Customers) that GigTracks considers to be confidential or proprietary or GigTracks has a duty to treat as confidential.
6.2 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.
6.3 Reverse Engineering. You will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of the GigTracks Mobile Application, any other software, products, models, prototypes, or other items provided by GigTracks that use, embody, or contain Confidential Information.
6.4 Exceptions. Your obligations under Sections 6.1 and 6.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to GigTracks'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 GigTracks, or is required by law or court order, provided that you immediately notify GigTracks in writing of such required disclosure and cooperate with GigTracks, at GigTrack's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
6.5 Removal; Return. Upon GigTrack's request and upon any termination or expiration of this Agreement, you will promptly (a) return to GigTracks or, if so directed by GigTracks, destroy all tangible embodiments of the Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to GigTracks in writing that you have fully complied with the foregoing 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 Job, or that is otherwise inconsistent with this Agreement, or any Job.
(a) You will not, in the course of performing any Job, infringe or misappropriate, and neither the Job Deliverables nor any element thereof will infringe or misappropriate, any intellectual property right of any other person;
(f) The Job Deliverables will fully conform to the specifications, requirements, and other terms in the applicable Job Engagement and this Agreement, and will be of a professional and workmanlike quality. In the event of a breach of this warranty, without limiting any other rights or remedies GigTracks may have, you will promptly replace the Job Deliverables at no additional charge to GigTracks.
8.2 Indemnification. You will indemnify and hold harmless GigTracks and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys' and expert witnesses' costs and fees) arising from or relating to any breach of any representation, warranty, covenant, or obligation in this Agreement, or any Job, by you or any intentional misconduct or negligence by you in performing any Job. In the event of any third-party claim, demand, suit, or action (a " Claim ") for which GigTracks (or any of its affiliates, employees, or agents) is or may be entitled to indemnification hereunder, GigTracks may, at its option, require you to defend such Claim at your sole expense. You may not agree to settle any such Claim without GigTrack's express prior written consent. You further acknowledge and agree that GigTracks is not responsible for any liabilities, losses, damages, bodily harm or injury, costs, or other expenses incurred by you in performing Jobs and that you are solely responsible for all such costs and expenses.
8.3 Automobile Insurance. You agree to maintain Comprehensive Automobile Insurance in an amount equal to the minimum amount required by law and agree that neither GigTracks nor its insurance carriers shall have any responsibility or liability for any damage, injury or death involving an accident by GigTracks or by anyone operating a non-GigTracks owned or GigTracks leased vehicle.
IN NO EVENT WILL GIGTRACKS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT. GIGTRACK'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES OWED BY GIGTRACKS FOR JOBS 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.
10.1 Termination by GigTracks. If you fail to meet any of your contractual obligations under this Agreement, or if you fail to meet the GigTracks Customers' standards for Jobs, GigTracks may terminate this Agreement, in whole or in part, at any time with or without cause for its convenience, effective upon one (1) day notice to you, in which case GigTracks is obligated to pay you Fees earned by you through the effective date of termination or expiration. GigTracks may withdraw any Job at any time prior to your acceptance thereof pursuant to Section 2.
10.3 Survival. Sections 3, 4, 5, 6, 8, 9, 10.3, and 11 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.
11.1 Governing Law; Venue. This Agreement is governed by the laws of the State of California without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in Santa Clara County, California for any suit or action arising from or related to this Agreement that may not be subject to Arbitration, as set forth below, and waive any right you may have to object to the venue of such courts.
11.2 Agreement to Arbitrate. To ensure the rapid and economical resolution of any dispute, controversy, claim, cause of action, including but not limited to statutory claims, that may arise between the parties from, under, out of, or in relation to this Agreement, including any dispute concerning the formation, construction, interpretation, enforcement, or breach of this Agreement or a party's performance of its obligations hereunder (" Dispute "), the parties both agree to pursue the alternative dispute resolution steps set forth below. If the Dispute cannot be resolved in either of the first two steps described in Sections 11.2.1 and 11.2.2, the parties agree that the Dispute will be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law, by final, binding and confidential arbitration conducted as set forth in Section 11.2.3 below. Both you and GigTracks acknowledge that by agreeing to this arbitration procedure, you each waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding .
11.2.1 Mutual Good Faith Consultation. The parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation. If the Dispute is not resolved in this manner within forty-five (45) days of a party's notice of a Dispute, then any party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows:
11.2.2 Non-Appearance-Based Arbitration. Any Dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (" ADR Provider ") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
11.2.3 JAMS Arbitration. Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the " Rules ") and shall be administered by the San Jose, California office of JAMS (the " Administrator "). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be San Jose, California USA. The Dispute(s) shall be submitted to a single arbitrator (" Arbitrator ") chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorneys' fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys' fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. THE PARTIES AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in this Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
11.2.4 Exceptions. Notwithstanding the foregoing, either party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief.
11.3 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.
11.4 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 GigTrack's express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. GigTracks may assign this Agreement or any of its rights under this Agreement to any third party with or without your consent.
11.5 Notices. GigTracks may give any notice required by this Agreement by means of a general notice on the Website, electronic mail to your email address on record with GigTracks, or by written communication sent by first class mail or pre-paid post to your address on record with GigTracks. 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 twelve (12) hours after sending (if sent by email) or posting the general notice to the Website. You may give notice to GigTracks, addressed to the attention of the GigTracks Legal Department. Such notice shall be deemed given when received by GigTracks by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address: 539 Bryant Street, San Francisco CA 94107.
11.6 Remedies. GigTrack's remedies for any breach of this Agreement by you will include damages, injunctive relief, specific performance, and restitution. You acknowledge that any breach of this Agreement by you would cause irreparable injury to GigTracks for which monetary damages would not be an adequate remedy and, therefore, GigTracks will be entitled to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
11.7 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.
11.9 Entire Agreement; Amendments. 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 of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.
11.10 Feedback. In the event that you provide GigTracks with any feedback regarding the Website, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the Website (" Feedback "), you hereby assign to GigTracks all rights in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate.
11.11 Modifications to Website. GigTracks reserves the right at any time to modify or discontinue, temporarily or permanently, all or part of the Software with or without notice. You agree that GigTracks shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Software.
12.1 Mobile App License . Subject to the terms and conditions of this Agreement, GigTracks grants you a non-exclusive, non-transferable, revocable, limited license to download, install and use a copy of the Mobile Application on a single mobile device that you own or control solely for your own personal use or internal business purposes. Furthermore with respect to any Mobile Application that you download though an App Store, you agree to comply with all applicable third party terms of the relevant App Store, such as the Apple App Store's "Usage Rules".
12.2 App Stores . You acknowledge and agree that the availability of the Mobile Application is dependent on the mobile application marketplace (e.g. the Apple App Store, Google Chrome Store, or Google Play Marketplace) (each, an " App Store ") from which you received the Mobile Application. You acknowledge that this Agreement is between you and GigTracks and not with the App Store. The App Store is not responsible for the Mobile Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Store in connection with Mobile Application (if any). You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
12.3 Accessing and Downloading the Mobile Application from the App Stores. You acknowledge and agree that (1) this Agreement is concluded between you and GigTracks only, and not the App Store and (2) GigTracks, not the App Store, is solely responsible for the Software and content thereof. Your use of the Mobile Application must comply with the applicable App Store's terms of service governing the use of such App Store.
In the event of any failure of the Mobile Application to conform to any applicable warranty, you may notify the applicable App Store and the App Store will refund the purchase price for the Mobile Application to you. To the maximum extent permitted by applicable law, the App Store will not have any other warranty obligation whatsoever with respect to the Mobile Application. As between GigTracks and the App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of GigTracks.
You and GigTracks acknowledge that, as between GigTracks and the App Store, the App Store is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile Application or your possession and use of the Mobile Application, including, but not limited to: (1) product liability claims; (2) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
You and GigTracks acknowledge that, in the event of any third party claim that the Mobile Application or your possession and use of that Mobile Application infringes that third party's intellectual property rights, as between GigTracks and the App Store, GigTracks, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You and GigTracks acknowledge and agree that the App Store is a third party beneficiary of this Agreement, and has the right to enforce this Agreement as related to your license of the Mobile Application against you as a third party beneficiary thereof.