INDEPENDENT CONTRACTOR SERVICES AGREEMENT
Updated: November 14, 2019
The Gig Assist Mobile Application is an internet application (“Gig Assist Mobile Application” or the “Application”) owned and operated by Gig Assist (“Gig Assist,” “we,” or “us”). Gig Assist provides a service (the “Service”) that allows its customers (“Customers”) to access Gig Assists network of Requestors (“Pros” or “you” or “Requestor”) to identify local providers to meet intermittent needs for services. The Pros have access to the Application to receive and review requests for services from Customers and to determine their interest in and availability to respond to such requests.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JUDGE OR JURY TRIALS.
Acknowledgment and Acceptance of Independent Contractor Services Agreement
Notwithstanding the previous paragraph or any contrary language in this Agreement, the Arbitration Agreement in Section 9 of this Agreement may not be modified or terminated absent a writing signed (electronically or otherwise) by the Company and You.
You acknowledge that you are able to electronically receive, download, and print this Agreement, any other terms, notices, forms (including IRS Form 1099-MISC) and any other notices or documents required by, or incorporated into, this Agreement by reference, any amendments to this Agreement, or any other items required by regulation or law. Further, you agree to keep the contact information in your Account current at all times including, but not limited to, your email address, physical address, and phone number.
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 [or the age of legal majority in the jurisdiction in which you work] and legally authorized to work in the United States. If you do not meet these criteria, you may not register on Gig Assist.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Services” means the services described in a Gig Assist Request for services by a Pro to a Requestor.
1.2 “Gig Request” means a notice provided, through the Application, to one or more Pros, which includes a description of the services to be provided by the Pros, the time by which the Requestors request must be completed (the “Gig Completion Date”) and the fee associated with the Gig Request (the “Payment”). An open request is a request for services that have not yet been accepted by a Pro (“Open Request”). Pros can use the Application to review Open Requests and to indicate their availability for Open Requests. Once a Pro has accepted a Requestors Request pursuant to Section 2, the Pro Request will become a “Gig Engagement”. Each Gig Engagement constitutes a new contract between Gig Assist and the Pro, and between the Pro and Requestor.
1.3 “Gig Assist Mobile Application” or “Application” means the software application used by Gig Assist in connection with the Services.
2.1 Customer Conditional Offer Requirements and Privacy Information. Some customers may require completion of certain steps or requirements after you accept a Gig Request before you perform the Requestors Request (“Conditional Offer Requirements”). Any Conditional Offer Requirements will be explained after you accept the Gig Request. Failure to complete such Conditional Offer Requirements to the satisfaction of the Customer will result in your inability to perform accepted Gig Requests. Please note that some of the Conditional Offer Requirements will require Gig Assist or a designated third-party provider to ask for your social security number and share it with entities who require the information to facilitate the Conditional Offer Requirements. Gig Assist may also share your social security number with our payment vendor, Stripe, in order to verify your payment account to ensure the safety of your account.
2.2 Best Efforts. By registering to become a Gig Assist user and accepting an Open Request, you agree to use your best efforts to perform the Requestors Services and meet the requirements and specifications of the Customer, for whom the Open Request was created. Once a Pro has accepted a Requestors Request, the Open Request will no longer be available for performance by other Pros who received the Open Request. By accepting an Open Request, you are entering into a binding legal agreement to provide the Services for the Payment specified in the Open Request. Do not accept an Open Request unless you are sure that: (1) you understand what you are being asked to deliver; (2) you can perform the Services identified in the Open Request; (3) you can deliver the Services in the requested time period; and if required, you can get to and from the Customer’s location. Failure to timely deliver the Services consistent with the Customer’s requirements and specifications will constitute a breach, resulting in non-payment. Further, in the event of such a breach, you will be responsible for payment of any additional fees (e.g., rush fees) or costs incurred as a result of your failure to timely complete the Open Request in accordance with the Customer requirements. You agree to not possess, sell, receive, or operate under the influence of any drugs or alcohol while performing any Gig Assist Engagement.
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Gig Assist 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 Gig Assist that is inconsistent with your being an independent contractor (and not an employee) of Gig Assist. You are not the agent of Gig Assist 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 Gig Assist or the Customer.
As an independent contractor, you are solely responsible for determining which Open Requests you will choose to accept and how, when and where you will provide the Services under this Agreement.
Gig Assist does not restrict the Pro right to provide services through other parties, including competitors of the Gig Assist Mobile Application; Gig Assist expects the individual performing services as a Pro will provide services for other parties;
Pros acknowledge and represents Pros can earn income from other sources; Gig Assist does not guarantee the Pro any minimum amount of Gig Assist Engagements;
Gig Assist does not provide a performance assessment for Pros and does not oversee the actual work or instruct the individual as to how the work will be performed, or the method or process the Pro uses to perform services;
Gig Assist does not pay a salary or hourly rate but rather facilitates Requestor’s payment of the rate set by the Requestor;
Gig Assist does not terminate the work during the term of this Agreement unless the Pro violates the terms of this Agreement or fails to produce a result that meets the specifications of the Agreement;
Gig Assist does not provide training, tools, equipment, benefits, or expense reimbursement to the Pro;
Gig Assist does not dictate the time of performance;
Gig Assist does not combine its business operations in any way with the Pros business, but instead maintains such operations as separate and distinct. Pro’s shall have no legal authority to enter into contracts on Gig Assists behalf or otherwise bind Gig Assist in any way.
Pro’s are responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the services Pro’s renders.
For purposes of New York City Local Law 140 only, to the extent it is deemed to apply, the “value” of the services performed pursuant to this Agreement is equal to the total amount paid by the Requestor for each service.
Without limiting the generality of the foregoing:
3.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that Gig Assist, 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, Gig Assist 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 Gig Assist, or any affiliate of Gig Assist (“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 Gig Assist, 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, Gig Assist will report the Payments paid to you for services rendered as part of Gig Assists engagements by filing Form 1099-MISC with IRS. You consent to electronic delivery of Form 1099-MISC, if such form is required or filed. You agree to indemnify Gig Assist for the cost of any tax liabilities incurred by Gig Assist as a result of your failure to pay all applicable taxes in a timely manner.
3.3 Third Party Payment Processing Services. Payment processing services for Gig Assist are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). These documents can be found at the provided links or by using a search engine (such as Google or Bing) to seek the terms “Stripe Connected Account Agreement” or “Stripe Terms of Service,” respectively.” By agreeing to these terms or continuing to operate as a Pro on Gig Assist, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Gig Assist enabling payment processing services through Stripe, you agree to provide Gig Assist accurate and complete information about you and your business, and you authorize Gig Assist to share it and transaction information related to your use of the payment processing services provided by Stripe.
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 Gig Assist. 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 Gig Assist’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Gig Assist 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 Gig Assist and/or the Customer considers to be confidential or proprietary or which Gig Assist 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 Gig Assist’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 Gig Assist, or is required by law or court order, provided that you immediately notify Gig Assist in writing of such required disclosure and cooperate with Gig Assist, at Gig Assist’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.
4.4 Removal; Return. Upon Gig Assist’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Gig Assist or, if so directed by Gig Assist, 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 Gig Assist 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 Gig Engagement, or that is otherwise inconsistent with this Agreement or any Gig Engagement.
6.1 General. You represent, warrant, and covenant that:
(a) You have full right, power, and authority to enter into and perform under this Agreement without the consent of any third party (including any of your current or former employers);
(b) You will comply with all of the terms of this Agreement;
(c) You will fully conform to the Customer specifications, requirements, and other terms of any Gig Request that you accept, and the Services delivered will be of professional and workmanlike quality;
(d) You will comply with all applicable laws, rules, and regulations in connection with performance of the Services under this Agreement;
(e) Any workers that you may employ, engage or otherwise retain to assist with the performance of Services under this Agreement are properly classified and treated under any applicable laws and will assist with the performance of Services in a safe, lawful and workmanlike manner.
(f) You are not providing and will not provide labor or services to Gig Assist for remuneration, but rather, you can use the Application to find and, if you wish, accept Gig Requests posted by Requestors.
(g) You will at all points remain free from the control and direction of Gig Assist in connection with your use of the Application and the Service, including during your consideration and acceptance of any Gig Requests and during the performance of any Requestors Engagements.
(h) You recognize that Gig Assist is an on-demand software-driven staffing platform and agree that Gig Requests posted by Requestors are for work that is outside the usual course of Gig Assist’s business.
6.2. Indemnification. You will indemnify and hold harmless Gig Assist 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 Gig engagement, which act or omission gives rise to any claim for damages against you, Gig Assist and/or its parents, affiliates, employees or agents. Gig Assist 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 Gig engagement.
6.3 Insurance. You acknowledge that you are an independent contractor, not an employee of Gig Assist. As such, you acknowledge and understand that you are not covered by any insurance that may be provided by Gig Assist to its employees, including, without limitation, health insurance, workers compensation insurance, general liability insurance, and automobile liability insurance. Gig Assist requires that, as an independent contractor, you maintain workers’ compensation or occupational accident insurance for which you are solely and exclusively responsible for. Specifically, in the event that you are injured while working in the course and scope of an engagement for Gig Assist, you acknowledge and understand that you will not be covered by any workers compensation insurance coverage that Gig Assist 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 performing a Gig Engagement or the Services, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that Gig Assist may have, and that Gig Assist is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.
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 GIG ASSIST 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. GIG ASSISTS 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 GIG ASSIST FOR GIG 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 OF THE FOREGOING EXCLUSIONS AND LIMITATIONS OF CERTAIN TYPES OF DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8.1 Term; Termination by Gig Assist. This Agreement is for a term of 60 days, and is automatically and continuously renewed for additional 60-day terms with continued use. In the event more than 60 days passes without the Pro using the Gig Assist Mobile Application, then the Pros next use constitutes a renewal of this Agreement. Gig Assist reserves the right to terminate your access to the Application if you have not accepted a Gig Engagement in the previous twelve calendar months, if you materially breach the Agreement or any Gig Engagement, if you violate the law in connection with your use of the Application (or in connection with the performance of the Services) or if you have otherwise engage in conduct in using the Application that Gig Assist, 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 and/or any modification or termination of the Application. 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. Except for the “Mandatory Binding Individual Arbitration And Class Action Waiver” below, which is governed by the Federal Arbitration Act, 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 in which the Pro resides regardless of your country of origin or where you access Gig Assist, and notwithstanding any conflicts of law principles.
9.2 Mandatory Binding Individual Arbitration and Class Action Waiver (“Arbitration Agreement”). 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, except as otherwise provided in this Arbitration Agreement, 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, claims based on a joint employment or misclassification theory, 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. The agreement by Contractor and the Company to mutually arbitrate disputes provides consideration for this Arbitration Agreement. This Arbitration Agreement applies to claims and disputes that the Company may have against Contractor and/or that Contractor may have against the Company, and (1) its affiliates and partners (2) its officers, directors, employees, or agents in their capacity as such or otherwise, and/or (3) all successors and assigns of any of them; any and all of which may enforce this Arbitration Agreement.
To the fullest extent permitted by law, the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the formation, interpretation, applicability, enforceability or alleged waiver of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.
This Arbitration Agreement does not apply to any claim that may not be arbitrated as provided by governing law. This Arbitration Agreement also does not apply to Private Attorney General Action claims under California law, which may only be brought in a court of law—not in arbitration.
(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 may be delivered to Gig Assist at email@example.com so long as the details set forth in the previous sentence are presented in the demand for arbitration.
(b) Class Action Waiver. The Company and Contractor mutually agree that by entering into this Arbitration Agreement, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”). In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction (if at all), 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 Arbitration Agreement.
(d) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), although the parties may stipulate that the arbitration shall be governed by the American Arbitration Association Employment Arbitration Rules, depending on the claims at issue. In addition to and to the extent inconsistent with the foregoing AAA Rules, the following rules shall apply to any arbitration conducted pursuant to this Arbitration Agreement, unless the parties stipulate otherwise:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge 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; however, if Contractor initiates arbitration, then Contractor must bear the extent of such costs (if any) as Contractor would be required to bear in bringing and maintaining a comparable legal proceeding outside of arbitration.
(4) The Arbitrator shall be empowered to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, 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. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
(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; provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the temporary or preliminary injunctive relief shall not constitute a waiver of rights under this agreement to arbitrate.
(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, Occupational Safety and Health Administration, Equal Employment Opportunity Commission, the U.S. Department of Labor, or similar state or local administrative agencies) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.
(f) The AAA Rules may be found at https://www.adr.org/Rules or by searching for “AAA Commercial Arbitration Rules” (or if applicable, “AAA Employment Arbitration Rules”) using a service such as www.Google.com or www.Bing.com
(g) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. Therefore, terms of this Arbitration Agreement shall be severed, to the smallest extent possible, if required to uphold the enforceability of this Arbitration Agreement. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims; therefore any statements in any Company handbooks or policies that otherwise disclaim contracts do not apply to this Arbitration Agreement.
9.3 Modifications to Application. Gig Assist 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. However, as stated above in Section 8.2 above, Section 9 (“General Provisions”), which contains the Arbitration Agreement, will survive any termination or expiration of this Agreement and/or any modification or termination of the Application or the Service. You agree that Gig Assist shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Services.