Effective Date: 25 May 2021
Last Updated Date: 25 May 2021
PLEASE BE AWARE THAT SECTION 18 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT THAT WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT-OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM, OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE PLATFORM WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
- BOOKING JOBS ON THE PLATFORM MARKETPLACE
The Platform includes a marketplace (the “Marketplace Services”) that allows Companies to connect and contract with Freelancers for Freelancers to perform Jobs for the Company as a contractor of the Company.
- “Booking” means a bid to perform a Job that is submitted by the Freelancer to the Company via the Platform;
- “Booking Confirmation” means a reply to a Booking delivered by the Company to the Freelancer consisting of an offer to contract for the performance of a Job and containing the specific details of and the terms, including Booking Fees, applicable to the Freelancer Services corresponding to the Job for which Freelancer submitted a Booking;
- “Booking Contract” means an agreement governing the relationship between a Freelancer and a Company pertaining to Freelancer Services to be performed by such Freelancer for such Company consisting of Default Booking Contract Terms set forth in Appendix 1 as may be amended, superseded, or supplemented between the applicable Freelancer and Company (except as expressly prohibited hereunder) and documented on the Platform.
- “Booking Fees” means the fees payable by Company to Freelancer for Freelancer Services as identified in a Booking Confirmation;
- “Company” means the entity or individual user that posts or may post a Job on the Marketplace Services and engages Freelancers via the Marketplace Services for the performance of such Jobs;
- “Freelancer” means a user of the Marketplace Services that performs, intends to perform or seeks to perform Jobs whether as a self-employed individual or through a legal entity;
- “Freelancer Services” means the services set forth in the Booking Contract to be provided to or for Company;
- “Job” means a project, assignment, or services that Freelancers are solicited to perform via posts made by a Company the Platform;
- “Personnel” means any personnel of the Freelancer and includes any substitute and/or sub-contractor utilized in the performance of Freelancer Services;
- “Platform Fees” means fees owed to or collected by Worksome for use of the Platform; and
- “Worksome”, “we”, “us”, or “our” means Worksome USA, Inc. and its affiliates.
By submitting a Booking via the Platform, the Freelancer is making a bid to transact for the requested Booking. When a Booking Confirmation is submitted by the Company, the Company is submitting an offer for Freelancer to perform the Job on the terms and in accordance with the specifications set forth in the Booking Confirmation. In connection with submitting a Booking or a Booking Confirmation, the Freelancer and Company may negotiate the terms of the applicable Booking. Once the Freelancer and Company execute or otherwise mutually agree to the terms of a Booking Contract, Company agrees to pay the Booking Fee and Platform Fee corresponding to the Booking Contract and Freelancer agrees to perform the Freelancers Services in accordance with the Booking Contract and pay any Platform Fees corresponding to the Booking Contract. A Booking or Booking Confirmation may be withdrawn or otherwise canceled prior to the corresponding Booking Contract being entered into by the parties via the Platform. Upon entering into the Booking Contract, the Booking Contract will be available on the Platform, other than any other terms agreed between the parties outside of the Platform.
- Booking Contracts
- By entering into a Booking Contract, you agree to be bound by the terms and conditions of the applicable Booking Contract. You agree that, except where we are acting as an agent on behalf of a third party that has contracted us to hire Freelancers on such entity’s behalf (in the context of such relationship, we are referred to as the “Enterprise Client Agent”), Worksome is not a party to any Booking Contract and the formation of a Booking Contract will not, under any circumstance, create an employment relationship between you and the other user.
- Booking Contracts are solely between the Freelancer and the Company. We are not a party to any Booking Contract unless we are explicitly the Company under a Booking Contract in connection with our role as an Enterprise Client Agent. You acknowledge and agree that you, and not Worksome, will be responsible for performing your obligations under any Booking Contract you enter into, and that, with the exception of its payment collection obligations below, Worksome disclaims all liability arising from or related to any Booking Contracts. You understand and agree that, except where we are expressly acting as the Enterprise Client Agent, we do not: (i) hire Freelancers or have any responsibility related to hiring Freelancers, perform Freelancer Services, or have any responsibility for performing Freelancer Services; (ii) take part in the interaction between users of the Platform; (iii) have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by users, the performance of Freelancer Services, calculation of Booking Fees, authorization to release Booking Fees, or of the integrity, responsibility, or any actions of any users. Although Worksome may seek to verify a user’s identity, we cannot confirm that each user is who they claim to be. Worksome does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Platform. You represent and warrant that you will not, and will not attempt to, supersede any terms of this Agreement or limit, reduce, or restrict Worksome’s rights or your obligations under this Agreement via any Booking Contract.
- USE OF THE PLATFORM
- Access to the Platform
Subject to your compliance with this Agreement, Worksome grants you the non-exclusive, limited right to access and use the Platform for your internal business purposes.
You understand that the Platform is evolving. As a result, Worksome may update, add, improve, or remove any or all parts of the Platform and require you to accept updates to the Platform that you have installed on your mobile device. You acknowledge and agree that Worksome may update the Platform with or without notifying you. You may need to update third-party software from time to time in order to use the Platform.
- Certain Restrictions
You agree that you will not: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform or any portion of thereof; (b) frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Platform (including images, text, page layout or form); (c) use any metatags or other “hidden text” using Worksome’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Platform in order to build a similar or competitive website, application, or service; (g) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Platform; and (h) remove or destroy any copyright notices or other proprietary markings contained on or in the Platform. Any future release, update, or other addition to the Platform shall be subject to this Agreement. Worksome, its suppliers, and service providers reserve all rights not granted in this Agreement. The rights granted to you hereunder are subject to your compliance with this Section 2.3. Any unauthorized use of the Platform terminates the licenses and rights granted to you by Worksome pursuant to this Agreement.
- USER CONDUCT
While accessing or using the Platform you agree that you will not, under any circumstances:
- breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
- interfere with or damage the Platform, including, without limitation, through the use of viruses, cancelbots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
- take any action that may undermine our feedback or rating systems;
- transfer your Account or username to another party without our consent;
- bypass our robot exclusion headers, interfere with the working of the Platform, or impose an unreasonable or disproportionately large load on our infrastructure;
- make Available (as defined below) any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- use the Platform or the Platform to collect, harvest, transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card, or account numbers; or
- Make Available any Content (as defined below) that: (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities.
- Registering Your Account
In order to access certain features of the Platform, you may be required to register an account on the Platform (“Account”).
- Access through an SNS
If you access the Platform through a social networking service (“SNS”), such as LinkedIn, as part of the functionality of the Platform, you may link your Account with the SNS account through which you connect to the Platform (each such account, a “Third-Party Account”), by allowing Worksome to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Worksome and/or grant Worksome access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Worksome to pay any fees or making Worksome subject to any usage limitations imposed by such third-party service providers. By granting Worksome access to any Third-Party Accounts, you understand that Worksome may access, make available, and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials accessible through the Platform (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Platform via your Account. Unless otherwise specified in this Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 7.1) for all purposes of this Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Platform. Please note that if a Third-Party Account or associated service becomes unavailable or Worksome’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Platform. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WORKSOME DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Worksome makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Worksome is not responsible for any SNS Content.
- Registration Data
In registering for an Account on the Platform, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the Platform’s registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You may not share your Account or password with anyone, and you agree to notify Worksome immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Worksome has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Worksome has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof). You agree not to create an Account using a false identity or any false information, or on behalf of someone other than yourself. Worksome may require you to participate in any additional registration checks as it deems necessary in its sole discretion. Worksome reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Platform if you have been previously removed by Worksome, or if you have been previously banned.
- Electronic Communications
By providing your cellphone number and using the Platform, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Platform. Worksome will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt-out of receiving text messages from us by emailing firstname.lastname@example.org.
- TERMS APPLICABLE TO COMPANIES
This Section applies solely to the extent that you access and use the Marketplace Services as a Company.
- Company’s use of Marketplace Services
You agree that:
- you are responsible for the accuracy and content of your Job postings;
- you will pay all fees payable under Booking Contracts via the Platform at the rates agreed to by the parties to the applicable Booking Contract;
- you will comply with the Booking Contract and this Agreement during the engagement, performance, and completion of a Freelancer Services;
- you will ensure the safety of the Freelancer and its Personnel in connection with Freelancer Services performed at your premises and that you have adequate insurance in place for any third-party injury or death occurring at your premises.
- you will refrain from interacting with a Freelancer and any Personnel on any basis other than as an independent professional contractor, and will not seek to or otherwise integrate the Freelancer or any Personnel into your own workforce by its actions, or seek to or otherwise supervise, manage and/or control any Freelancer or any Personnel.
- Payment for Freelancer Services
You agree to pay all Booking Fees under a Booking Contract. Upon a Freelancer’s submission of a statement of performance of Freelancer Services for which Booking Fees are owed, an invoice will issue to you. If the Company intends to dispute any Bill (as defined below) submitted by a Freelancer, it must raise such dispute with the Freelancer within 72 hours of receipt of the invoice (the “Bill Acceptance Period”). If Company fails to dispute a Bill within the Bill Acceptance Period, the Bill will be deemed accepted and the applicable Booking Fees will be due and payable in accordance with the terms of the Booking Contract. If Booking Fees are paid in arrears, and the Company fails to raise any dispute within the Bill Acceptance Period, the Company shall be deemed to have accepted the Freelancer Services to which the invoice relates. If the Company wishes to dispute an invoice and within the Bill Acceptance Period, it must provide the Freelancer with detailed feedback via the Platform regarding what aspects of the Bill it is disputing and why. The Company and Freelancer shall use all reasonable endeavors to resolve any dispute raised by the Company. Following your acceptance of a Bill, Worksome will submit an invoice for payment of the applicable Booking Fees plus any applicable Platform Fees payable by you. Unless otherwise set forth in the Booking Contract, all Booking Fees will be due within 30 days after you have received an invoice for such Booking Fees via the Platform. In the event that you have provided a Payment Method (as defined below), Worksome or its third party payment service provider will charge, and you authorize Worksome or its third party payment service provider to charge your Payment Method, for all Booking Fees at the end of the applicable Bill Acceptance Period (unless you have provided notice that you have disputed the applicable invoice in accordance with this Section 4.2). Your payment obligation to a Freelancer for Booking Fees remains in force until the Booking Fees have been invoiced to you and you have paid the invoice via the Platform. Accordingly, you understand that you will not be released from your payment obligations to the Freelancer until Worksome receives payment of the applicable invoice from you.
- Platform Fees Payable by Company
In consideration of your use of the Platform and unless a supplementary agreement supersedes this one, Worksome is entitled to charge a Platform Fee of 4% of each Booking Fee, which may be modified in the future without affecting any Booking Contract then in effect. Unless otherwise agreed by us in writing, such Platform Fees are due and payable at the same time as the Booking Fees on which the Platform Fees are calculated. Additionally, you agree to pay any amounts that would have otherwise been payable by you to Worksome in connection with a Booking Contract: (a) had you provided true and accurate information prior to entering into the Booking Contract; or (b) if a change in the applicable information after payment of the Platform Fees would have resulted in a greater amount of Platform Fees had such information been true and accurate at the time that the Platform Fees were paid. You represent and warrant that any information provided by you, based upon which any Platform Fees are calculated, is true, complete, and accurate and will be kept true complete and accurate at all times.
- You understand and accept as a Company that you will make all payments via ACH transfer or credit card; provided that Worksome reserves the right, and you agree to pay any transaction fees in connection with payment via credit card.
- TERMS APPLICABLE TO FREELANCERS
This Section applies solely to the extent you access and use the Marketplace Services as a Freelancer.
- Freedom to Operate
You acknowledge and agree that:
- you decide when to log into the Platform and whether to submit Bookings;
- you are responsible for determining and negotiating with each Company the price and terms for any Freelancer Services;
- you are permitted to maintain your independent business and other Companies without using the Platform;
- you are not restricted from using competitive services or technology platforms;
- you assume complete responsibility for all Freelancer Services you perform or commit to performing, including, but not limited to, possessing the requisite skills, credentials, and training to perform Freelancer Services that you accept hereunder, and for compliance with all laws, regulations, and professional ethical guidelines and standards pertaining to Freelancer Services;
- subject to any agreement to the contrary between you and a Company, you retain the right to hire Personnel in performing Freelancer Services, and acknowledges that your Personnel will possess the licensing, skill and ability to provide Freelancer Services; provided that: (i) all Personnel sign an agreement with you containing terms and conditions substantially similar to the Booking Contract; and (ii) you shall remain fully liable for the due performance of your obligations under the Booking Contract;
- you have not and will not develop, maintain, or otherwise operate the Platform; rather, you use the Platform to acquire opportunities to perform Jobs;
- you solely control the amount of your investment in the Freelancer Services;
- you are solely responsible for paying and will pay all taxes on the Freelancer Services you perform and on any income you receive hereunder;
- except, and solely to the extent Worksome is Company under a Booking Contract in connection with its role as an Enterprise Client Agent, you do not receive supervision from or performance evaluations by Worksome; and
- Worksome does not require you to perform any particular volume of Freelancer Services for any particular period as a condition of using the Platform and nothing will guarantee you a particular volume of business for you for any particular period.
- Freelancer Use of Marketplace Services
By accessing and using the Marketplace Services as a Freelancer, you represent and warrant that:
- you will provide complete, up-to-date, and accurate information as is reasonably requested (and whether requested before, during, or after any Booking) as to your prior projects and the work history of any Personnel and other information relating to the Job or any Booking as may be required in order for Worksome or Company to comply with any applicable laws or its contractual obligations;
- all information provided by you on or through the Platform is accurate and complies with relevant law, and you will immediately notify Worksome of any change in any such information;
- you and your Personnel have the legal right to work in the jurisdiction in which the Freelancer Services for each Booking will be performed and to carry out the Freelancer Services for each Booking;
- you have and the Personnel has the necessary skills, technical ability, and experience to perform the Freelancer Services;
- as a condition of doing business with Worksome, you maintain current insurance, in amounts and of types required by law to provide the Freelancer Services, at your own expense; and
- you are not subject to any suit, action, claim, arbitration or legal, administrative or other proceedings, or government or professional investigation, pending or threatened or affecting your ability to perform Freelancer Services, and will immediately inform Worksome of any such action.
- Booking Fees
You will earn Booking Fees as set forth in Booking Contracts less any Platform Fees payable by you. In order to receive Booking Fees under a Booking Contract, you must submit a bill to the applicable Company via the Platform setting forth the applicable Booking Fees in accordance with the Booking Contract (a “Bill”). Booking Fees payable to you will be paid to your Payment Method within 2 business days of our receipt from the Company of the applicable Booking Fees. You, as a Freelancer, accept that you shall only receive payment of Booking Fees in respect of any Freelancer Services set out in the Booking Contract and in accordance with the payment terms set forth in the Booking Contract.
- Platform Fees Payable by Freelancer
In consideration of your use of the Platform and unless a superseding agreement exists between you and the Company, Worksome is entitled to charge a Platform Fee of 4% of each Booking Fee, which may be modified in future without effect to any Booking Contract then in effect. You acknowledge and agree that Worksome may set off any Platform Fees payable by you hereunder with any Booking Fees payable to you and, as such, Worksome may deduct any Platform Fees payable by you in connection with any Booking Contract from any Booking Fees payable to you in connection with that Booking Contract. Additionally, you agree to pay any amounts that would have otherwise been payable by you to Worksome in connection with a Booking Contract: (a) had you provided true and accurate information prior to entering into the Booking Contract; or (b) if a change in the applicable information after payment of the Platform Fees would have resulted in a greater amount of Platform Fees had such information been true and accurate at the time that the Platform Fees were paid. You represent and warrant that any information provided by you, based upon which any Platform Fees are calculated is true, complete, and accurate, and will be kept true complete and accurate at all times.
- No Employment Relationship; No Legal or Other Advice
Neither this Agreement nor your performance under this Agreement shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between Worksome or its affiliates and you, or between Worksome or its affiliates and your employees and agents. Worksome and you agree that you and your employees and agents will receive no Worksome-sponsored benefits from Worksome or its affiliates where benefits include, but are not limited to, paid vacation, sick leave, medical insurance, and 401k participation. If you or your employees or agents are reclassified by a state or federal agency or court as Worksome’s employee, you or your employees or agents, as applicable, will become a reclassified employee and will receive no benefits from Worksome or its affiliates, except those mandated by state or federal law, even if by this Agreement of Worksome’s benefit plans or programs of Worksome in effect at the time of such reclassification, you or your employees or agents, as applicable, would otherwise be eligible for such benefits. You acknowledge your sole responsibility for complying with all federal, state, and local tax filing and payment obligations that pertain to any remuneration received from users or as facilitated by Worksome (or its affiliates or agents) in connection with this Agreement, including your sole responsibility for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits. You acknowledge that Worksome is not rendering legal, tax, or investment advice, nor is Worksome a fiduciary of you. Accordingly, you acknowledge that you may seek advice from an appropriate professional to comply with any and all applicable federal, state, and local laws or ordinances.
- FEES AND PAYMENT POLICY
In order to access and use certain features of the Platform, you may be required to provide credit card information or account information necessary to facilitate payments hereunder (“Payment Method”). You agree to keep all Payment Method information true, accurate, and complete at all times. We may change our fees from time to time by posting the changes on the Platform fourteen (14) days in advance. If you are a Company you hereby authorize Worksome or its third-party payment service provider to charge your Payment Method for any Booking Fees or Platform Fees upon such Booking Fees or Platform Fees becoming due and payable. Worksome retains the right, in its sole discretion, to place a hold on funds via your Payment Method for any payments for completed Freelancer Services or Platform Fees.
Except as expressly set forth herein, Worksome has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Worksome, in each case in Worksome’s sole discretion.
The payments required under this Agreement do not include any Sales Tax that may be due in connection with any products or services provided under this Agreement. If Worksome determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Worksome shall collect such Sales Tax in addition to the payments required under this Agreement. If any services or products, or payments for any services or products under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Worksome, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Worksome for any liability or expense Worksome may incur in connection with such Sales Taxes. Upon Worksome’s request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- Payment Accounts. In connection with your use of any Marketplace Services, you understand and agree that:
- The transmission of funds for fees payable under a Booking Contract in the manner described herein is not a separate and discrete service that Worksome provides in addition to the Platform. Rather, the transmission of funds in an auditable manner is an integral part of the Marketplace Services that Worksome provides;
- Worksome acts as an agent of each user and not as a trustee or fiduciary with respect to payments received through Worksome;
- Worksome holds funds delivered to it in a commingled account at a bank (each, a “Pooled Account”), and may include in the titling of a Pooled Account “Worksome, for the benefit of others” or similar words, and Worksome maintains records at Worksome that should, in the event of a bank failure, allow the FDIC to determine which funds are payable to which user;
- Worksome will not voluntarily make your funds available to its creditors in the event of bankruptcy;
- Worksome has sole discretion over the establishment and maintenance of any Pooled Account;
- you will not receive interest or other earnings on the funds that Worksome handles as your agent and places in a Pooled Account; and
- in consideration for your use of the Platform, you irrevocably transfer and assign to Worksome any ownership right that you may have in any interest that may accrue on funds held in a Pooled Account. This assignment applies only to interest earned on your funds, and nothing in this Agreement grants Worksome any ownership right to the principal of the funds you maintain with Worksome. In addition to or instead of earning interest on Pooled Accounts, Worksome may receive a reduction in fees or expenses charged for banking services by the banks that hold your funds.
- CONTENT ON THE PLATFORM.
- Types of Content
You acknowledge that all Content contained in the Platform is the sole responsibility of the party from whom such Content originated. This means that you, and not Worksome, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Platform (“Your Content”), and other users of the Platform, and not Worksome, are similarly responsible for all Content they Make Available through the Platform (“User Content”).
- No Obligation to Pre-Screen Content
You acknowledge that Worksome has no obligation to pre-screen Content (including, but not limited to, Your Content or any other User Content), although Worksome reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Worksome pre-screens, refuses or removes any Content, you acknowledge that Worksome will do so for Worksome’s benefit, not yours. Without limiting the foregoing, Worksome shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. Worksome is not responsible for and does not control User Content. Worksome does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content at your own risk.
Unless expressly agreed to by Worksome in writing elsewhere, Worksome has no obligation to store any of Your Content that you Make Available on the Platform. Worksome has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving the use of the Platform. Certain features of the Platform may enable you to specify the level at which the Platform restricts access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Worksome retains the right to create reasonable limits on Worksome’s use and storage of Content, including Your Content.
- Ownership of the Platform
Except with respect to Your Content, you agree that Worksome and its licensors own all rights, title, and interest in the Platform (including, but not limited to, any computer code, themes, objects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Platform.
- Your Content
Worksome does not claim ownership of Your Content. However, when you Make Available Your Content on or through the Platform, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the purpose of providing the Platform.
- License to Your Content
Subject to any applicable Account settings that you select, you grant Worksome a fully-paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Platform to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Platform.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Platform, you hereby expressly permit Worksome to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
- Your Account
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Worksome.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Worksome through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Worksome has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Worksome a fully-paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, reformat, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Platform.
The Platform hosts Content that is related to reviews of certain users. Such reviews are opinions and are not the opinion of Worksome, have not been verified by Worksome, and each user should undertake his or her own research to be satisfied concerning any specific user. You agree that Worksome is not liable for any such Content.
- INTERACTIONS WITH OTHER USERS.
- User Responsibility
You are solely responsible for your interactions with other users of the Platform and any other parties with whom you interact through the Platform; provided, however, that Worksome reserves the right, but has no obligation, to intercede in such disputes.
All issues, concerns, and/or inquiries relating to a Booking or a Booking Contract and any disputes in relation to a Booking or a Booking Contract must be raised directly with the other of Company or Freelancer as applicable. Worksome may, but is under no obligation to assist the Freelancer and the Company if they have not been able to resolve any issues or concerns that they have with the other or in relation to a Booking Contract on an informal basis. However, Worksome does not guarantee any outcome or resolution as a result of any such assistance.
Notwithstanding anything else contained herein or in the Booking Contract, you represent and warrant that all payments under a Booking Contract to which you are a party will be made through the Platform in accordance with the payment terms set forth below. You acknowledge and agree that a substantial portion of the compensation Worksome receives for making the Platform available to you is collected through the Platform Fees described in Section 4.3. Worksome only receives Platform Fees for the Platform when a Company and a Freelancer pay and receive payment via the Platform. Therefore, for the greater of 24 months from the time you first interact with any user through the Platform or the duration of the initial Booking Contract with another user (the “Non-Circumvention Period”), you agree to use the Platform as your exclusive method to request, make, and receive all payments with that user for Freelancer Services or otherwise arising out of your relationship with that user. For the avoidance of doubt, if you did not identify or were not identified by another user through the Platform, such as if you and another user have worked together before meeting on the Platform, then the Non-Circumvention Period does not apply; provided that any payment of Booking Fees for Jobs contracted for through the Platform must be made through the Platform. You agree not to circumvent the payment methods offered by the Platform. By way of illustration and not in limitation of the foregoing, you agree not to:
- submit proposals or solicit parties identified through the Platform to contract, hire, work with, or pay outside the Platform;
- accept proposals or solicit parties identified through the Platform to contract, invoice, or receive payment outside the Platform;
- report on the Platform any payment amounts lower than that actually agreed between users; or
- refer a User you identified on the Platform to a third-party who is not a user of the Platform for purposes of making or receiving payments that should otherwise be made or received through the Platform.
You agree to notify Worksome immediately if a user suggests making or receiving payments outside of the Platform in violation of this Section 8.3.
Worksome expressly disclaims any liability that may arise between users of the Platform. In the event that you have a dispute with one or more users, including with respect to the performance of or failure to perform any Freelancer Services, the amount or sufficiency of any Booking Fees, or the authorization to release or failure to authorize the release of any Booking Fees, you hereby release Worksome (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Worksome may, but is not obligated to, monitor or review the Platform and Content at any time. Although Worksome does not generally monitor user activity occurring in connection with the Platform or Content, if Worksome becomes aware of any possible violations by you of any provision of this Agreement, Worksome reserves the right to investigate such violations, and Worksome may, at its sole discretion, immediately terminate your license to use the Platform, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
You agree to indemnify and hold Worksome, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “Worksome Parties”) harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of: (1) Your Content; (2) your use of, or inability to use, the Platform; (3) your violation of this Agreement; (4) your violation of any rights of another party, including any users; (5) the actual or alleged negligence or intentional wrongdoing of you or persons under your control; (6) any liability for your payment or non-payment of federal, state, or local taxes, or other withholdings; (7) Booking Contracts to which you are a party or your interactions with other users; or (8) your violation of any applicable laws, rules or regulations. Worksome reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Worksome in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, this Agreement, or your access to the Platform.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK, AND THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WORKSOME PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- WORKSOME PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (iv) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE PLATFORM MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. WORKSOME MAKES NO WARRANTY, REPRESENTATION, OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WORKSOME OR THROUGH THE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- FROM TIME TO TIME, WORKSOME MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND AND MAY BE MODIFIED OR DISCONTINUED AT WORKSOME’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- No Liability for Conduct of Third Parties
YOU ACKNOWLEDGE AND AGREE THAT WORKSOME PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD WORKSOME PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES OR OTHER USERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- WORKSOME MAKES NO WARRANTY THAT THE PLATFORM PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WORKSOME MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE PLATFORM.
- WE ARE NOT INVOLVED IN THE SERVICE CONTRACTS BETWEEN FREELANCERS AND COMPANIES. WHILE WE MAY HELP FACILITATE THE RESOLUTION OF DISPUTES THROUGH VARIOUS PROGRAMS, WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY OF FREELANCER SERVICES, THE TRUTH OR ACCURACY OF USER CONTENT OR JOBS, THE PHYSICAL OR LEGAL ABILITY OF FREELANCERS TO PERFORM FREELANCER SERVICES, THE ABILITY OF COMPANIES TO PAY FOR FREELANCER SERVICES, OR THAT FREELANCER WILL ACTUALLY COMPLETE ANY FREELANCER SERVICES.
- WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE PLATFORM AND OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. ACCORDINGLY, TO THE EXTENT LEGALLY PERMITTED, WE EXCLUDE ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS.
- LIMITATION OF LIABILITY
- Disclaimer of Certain Damages
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WORKSOME PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WORKSOME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM, ON ANY THEORY OF LIABILITY.
- Cap on Liability
UNDER NO CIRCUMSTANCES WILL WORKSOME PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY WORKSOME AS A RESULT OF YOUR USE OF THE PLATFORM. IF YOU HAVE NOT PAID WORKSOME ANY AMOUNTS WORKSOME’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
- Exclusion of Damages
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Basis of the Bargain
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WORKSOME AND YOU.
- PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
It is Worksome’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Worksome by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Platform of the material that you claim is infringing; (4) your address, telephone number, and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Worksome’s Copyright Agent for notice of claims of copyright infringement is as follows: Mr. Morten Bruun, Worksome USA Inc., 148 Lafayette St., Floor 3, New York, NY 10013.
- TERMINATION AND SUSPENSION
Worksome may terminate or suspend this Agreement or your right to access and use the Platform at any time for any or no reason. We may modify or discontinue the Platform. Without limitation, Worksome may terminate or suspend your right to use the Platform if: (1) you breach any provision of this Agreement or any policy of Worksome posted through the Platform from time to time; (2) Worksome otherwise finds that you have engaged in inappropriate and/or offensive behavior; (3) Worksome believes you are creating problems or possible legal liabilities for Worksome; (4) Worksome believes such action will improve the security of our community or reduce another user’s exposure to financial liabilities if Worksome believes you are infringing the rights of third parties; (5) Worksome believes you are acting inconsistently with the spirit of this Agreement; (6) despite our reasonable endeavors, Worksome is unable to verify or authenticate any information you provide; or (7) you fail to pay all fees due for use of the Platform by the payment due date. In addition to terminating or suspending your Account, Worksome reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Platform is terminated or suspended, this Agreement will remain enforceable against you. You may terminate your Account at any time via the Platform; provided that any Booking Contract that is in effect at the time of such termination shall survive, and this Agreement shall survive for so long as such Booking Contracts remain in effect. Any provisions of this Agreement that by their nature should survive any termination of this Agreement will survive.
If Worksome becomes aware of any possible violations by you of this Agreement, Worksome reserves the right to investigate such violations. If, as a result of the investigation, Worksome believes that criminal activity has occurred, Worksome reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Worksome is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Platform, including Your Content, in Worksome’s possession in connection with your use of the Platform, to: (i) comply with applicable laws, legal process or governmental request; (ii) enforce this Agreement; (iii) respond to any claims that Your Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Worksome, its users or the public, and all enforcement or other government officials, as Worksome in its sole discretion believes to be necessary or appropriate.
- INTERNATIONAL USERS
The Platform can be accessed from countries around the world and may contain references to features, functionality, and Content that are not available in your country. These references do not imply that Worksome intends to announce such features, functionality, or Content in your country. Worksome makes no representations that the Platform is appropriate or available for use in any jurisdiction. Those who access or use the Platform from any jurisdiction pursuant to this Agreement outside the United States of America do so at their own volition and are responsible for compliance with local law.
- DISPUTE RESOLUTION
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires any users subject to this Agreement to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify, and (b) you or Company may seek equitable relief in court for infringement or other misuses of Intellectual Property Rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
- Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Mr. Morten Bruun, Worksome USA Inc., 148 Lafayette St., Floor 3, New York, NY 10013. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing, and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed on location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator
The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial
YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Other Non-Individualized Relief
ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes claims, or requests for relief shall be arbitrated.
- 30-Day Right to Opt-Out
You have the right to opt-out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt-out to: email@example.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt-out of this Arbitration Agreement. If you opt-out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Except as provided in Section 18.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement
This Arbitration Agreement will survive the termination of your relationship with Company.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: Worksome USA Inc., 148 Lafayette St., Floor 3, New York, NY 10013.
- GENERAL PROVISIONS
- Electronic Communications
The communications between you and Worksome use electronic means, whether you visit the Platform or send Worksome e-mails, or whether Worksome posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Worksome in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Worksome provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Worksome’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Verification checks
Worksome shall be permitted to conduct background checks on the Freelancer (at least once annually) to verify the Freelancers legitimacy to deliver a Booking Contract. Worksome may enlist the services of specialist third-party suppliers to perform these checks and could involve Freelancer ID checks, right to work, and/or work history, but this list is not exhaustive.
- Force Majeure
Worksome shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims
If you have any questions, complaints, or claims with respect to the Platform, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Limitations Period
YOU AND WORKSOME AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PLATFORM, OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Governing Law
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the international sale of goods does not apply to this Agreement.
Where Worksome requires that you provide an e-mail address, you are responsible for providing Worksome with your most current e-mail address. In the event that the last e-mail address you provided to Worksome is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Worksome’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Worksome at the following address: Worksome USA Inc., 148 Lafayette St., Floor 3, New York, NY 10013. Such notice shall be deemed given when received by Worksome by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
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.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Export Control
You may not use, export, import, or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Platform, and any other applicable laws. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Platform for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by Worksome are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Worksome products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Default Booking Contract Terms
In the absence of a Superseding Agreement, the terms and conditions applicable to a Booking Confirmation (this “Booking Contract”) consist of: (i) these Default Booking Contract Terms; (ii) any terms and conditions agreed between the parties (“Agreed Terms”); and (iii) and any applicable Supplemental Terms. In the event of a conflict between the component parts of this Booking Contract, the following order of precedence shall apply: (a) Agreed Terms; (b) Supplemental Terms; and (c) these Default Booking Contract Terms. This Booking Contract is entered into by and between the Freelancer and the Company identified in a Booking Confirmation and is effective as of the date of the Booking Confirmation. Notwithstanding the foregoing, in no event will any terms and conditions of the Booking Contract result in payments hereunder being made outside of the Platform or any other restriction or limitation on the rights or remedies of Worksome under the TOU, and Freelancer and Company agree that any such terms and conditions shall be null and void.
- SERVICES AND CHANGES
- Freelancer Services
Freelancer will: (i) perform the Freelancer Services set forth in the applicable Booking Confirmation in a professional and workmanlike manner consistent with industry standards; and (ii) deliver any deliverables or work product to be delivered pursuant to a Booking Confirmation in accordance with the requirements set forth in the Booking Confirmation.
- Changes to the Freelancer Services
Freelancer and Company, may, upon mutual agreement, modify the Booking Confirmation to change the scope or quantity of Freelancer Services to be provided, including any deliverables or work product to be provided in connection with the Freelancer Services under the Booking Contract, and the Booking Fees. No changes to the Booking Confirmation will be of any force or effect until mutually agreed between the Freelancer and the Company.
- PERFORMANCE OF THE SERVICES
- Performance Standard
Freelancer will diligently perform the Freelancer Services set forth in the Booking Confirmation in accordance with the applicable Booking Confirmation, including any specifications in the Booking Confirmation. Freelancer will complete the Freelancer Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the Booking Confirmation.
- Company Policies
Freelancer will adhere and ensure its Personnel adheres to any policies provided by Company with respect to the access and use of Company Facilities, Company Materials, or Company Systems while accessing and using the same.
Freelancer may use any Personnel to deliver the Freelancer Services pursuant to a Booking Confirmation (as applicable) and may change any Personnel already delivering the Freelancer Services or subcontract any Freelancer Services at any time, provided that:
- the Freelancer gives reasonable notice of any changes or subcontractor to the Company;
- the substitute meets any existing security clearance requirements of the Company (if applicable and where already applied to the Freelancer);
- there is continuity of Freelancer Services with minimum disruption to the Company and Freelancer ensures it conducts any handover between its Personnel in support;
- there is no additional cost to the Company or any other impact on the agreed Booking Fees;
- The Freelancer will remain responsible for the execution of and all costs and expense arising in connection with such substitute (including any handover between the Personnel) and shall be responsible for engaging and paying the substitute for any Freelancer Services performed by the substitute during the Booking; and
- The Freelancer will continue to be responsible for requesting payment of Booking Fees on behalf of any substitute or subcontractor via the Platform in accordance with the TOU and will remain responsible for any substitute as it is responsible for itself and any of its Personnel.
- Before Personnel performs any Freelancer Services under this Booking Contract, such Personnel will have executed an agreement that is, in substance, at least as protective of Company’s rights, Company Materials, Company Facilities, Company Systems, and Confidential Information as the terms of this Booking Contract.
If payments of Booking Fees hereunder are made in arrears and the Company fails to raise any dispute within the Bill Acceptance Period, the Company shall be deemed to have accepted the Freelancer Services to which the invoice relates. If payments of Booking Fees hereunder are made in advance and the Company fails to raise any dispute within 72 hours after completion of the Freelancer Services, the Company shall be deemed to have accepted the Freelancer Services. If the Company wishes to dispute an invoice and within the Bill Acceptance Period, it must provide the Freelancer with detailed feedback via the Platform regarding what aspects of the invoice it is disputing and why. The Company and Freelancer shall use all reasonable endeavors to resolve any dispute raised by the Company. Payment of any invoice for Booking Fees will be deemed acceptance by the Company that the Freelancer Services have been provided to and to the satisfaction of the Company.
- COMPANY OBLIGATIONS
In connection with Freelancer’s performance of the Freelancer Services, Company will:
- cooperate in all matters relating to the Freelancer Services;
- not request or require Freelancer to undertake Freelancer Services which are outside of the Booking Confirmation, unless a variation to the Booking Confirmation is otherwise agreed with the Freelancer;
- provide at no charge, access to Company’s premises, office accommodation, equipment, and other facilities (“Company Facilities”) as reasonably required by the Freelancer including any such access as is specified in the Booking Confirmation;
- provide in a timely manner all documents, information, items, and materials in any form (whether owned by you or a third party) (“Company Materials”) that are reasonably requested by Freelancer in connection with the Freelancer Services;
- provide access to any software, VPN, IT systems, and internet connectivity (“Company Systems”) reasonably required by the Freelancer in connection with the Freelancer Services or specified in the Booking Confirmation; and
- ensure that, to the extent the Freelancer is required to utilize Company Facilities, such Company Facilities are in good working order and suitable for the purposes for which they are intended to be used
The Company agrees to pay the Booking Fees agreed upon in the Booking Confirmation in accordance with the TOU. The Company agrees that it will not unreasonably withhold or otherwise delay payment of any invoice. Freelancer will submit invoices for Booking Fees payable via the Platform in accordance with the TOU.
- TERM AND TERMINATION
This Booking Contract will automatically end upon the earlier of: (i) applicable Freelancer Services having been completed and all deliverables having been delivered in accordance with the Booking Confirmation; (ii) any estimated completion date set out in the Booking Confirmation; and (iii) Booking Fees meeting or exceeding any cap on Booking Fees agreed in the Booking Confirmation, whichever occurs earlier.
This Booking Contract may be terminated by either party at any time on giving the other party such period of notice specified in the Booking Confirmation, or in the absence of any period of notice, immediate notice of termination, in writing via the Platform.
- Effect of Termination
In the event of any termination of this Booking Contract: (i) Company will be obligated to pay for Freelancer Services actually rendered prior to termination; (ii) Freelancer will promptly return, or at Company’s option destroy, all Confidential Information and Company Materials in its possession, and cease all use of the Company Facilities and Company Systems; (iii) Freelancer will promptly deliver any deliverables or work product that is then in progress; and (iii) those provisions, which by their nature should survive any expiration or termination of this Booking Contract will survive.
- INTELLECTUAL PROPERTY RIGHTS
- Assignment of Inventions
Freelancer agrees that all right, title, and interest in and to any works of authorship, notes, records, drawings, logos, methods, designs, inventions, improvements, developments, discoveries, information, know-how, or technology conceived, discovered, authored, invented, developed, or reduced to practice by or on behalf of Freelancer, solely or in collaboration with others in connection with, performing the Freelancer Services under this Booking Contract (collectively, “Inventions”) and all Intellectual Property Rights (as defined below) relating to such Inventions, are the sole property of Company. Freelancer hereby irrevocably and unconditionally assigns all rights, titles, and interests, including all Intellectual Property Rights in and to all Inventions to Company. Freelancer agrees to promptly make full written disclosure of and deliver to the Company of all Inventions.
- Intellectual Property Rights
“Intellectual Property Rights” means all common law and statutory proprietary and intellectual property rights anywhere in the world, including those rights arising under or associated with: (i) patents and patent applications, or any inventions, methods, designs, or discoveries; (ii) trademarks, trade names, service marks, and trade dress, or any symbols, logos or words used to identify a source, including, without limitation all goodwill therein; (iii) confidential information and trade and industrial secrets, know-how or any information that derives independent value from not being known to the general public or readily ascertainable; (iv) copyrights, copyrightable material including works of authorship, literary works, artistic works, software, programming codes, object code, source code, executable code, “moral” rights, and any other rights of authors; (v) domain names, internet resource locators, and other internet properties; (vi) computer database rights, design rights, utility models, record, documents, papers, notes, technical and technological information and data; drawings; flowcharts; methods; ideas; concepts and concept notes; processes; (vii) applications for, registrations of, and divisions, continuations, reissuances, renewals, extensions, restorations and reversions of the foregoing (as applicable); and (viii) all other similar or equivalent intellectual property or proprietary rights anywhere in the world; including the right to edit, copy, modify, adapt, translate, commercialize or otherwise deal with such intellectual property in any manner whatsoever; in any medium, mode, form or format, now existing or discovered in future including but not limited to digital, physical, electronic, cloud computing, analog, etc.
- Pre-Existing Materials
Freelancer will not, without Company’s prior written consent, include with or incorporate in any deliverable or work product delivered to Company hereunder any pre-existing invention, discovery, works of authorship, software, designs, images, developments, improvements, trade secrets, concepts, materials, or other proprietary information conceived, discovered, authored, invented, developed or reduced to practice by or on behalf of Freelancer prior to this Booking Contract or independent of performing the Freelancer Services under this Booking Contract (“Pre-Existing Materials”) or of any third party, including without limitation any free software or open-source software (“Third Party Materials”) without Company’s prior written approval. Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit Pre-Existing Materials or Third Party Materials incorporated into any deliverable or any work product delivered to Company hereunder without restriction, including, without limitation, in connection with the use and exploitation of any Invention or deliverable, and to practice any method related thereto.
- Moral Rights
Any assignment to Company of Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”) therein or thereto. To the extent that Moral Rights cannot be assigned under applicable law, Freelancer hereby waives and agrees not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.
- Maintenance of Records
Freelancer agrees to keep and maintain adequate, current, accurate, and authentic written records of all Inventions made by Freelancer (solely or jointly with others) during the term of this Booking Contract, and for a period of three (3) years thereafter. The records will be in the form of notes, sketches, drawings, electronic files, reports, or any other format that is customary in the applicable industry and/or otherwise specified by the Company. Such records are and remain the sole property of the Company at all times and upon Company’s request, Freelancer shall deliver (or cause to be delivered) the same to Company.
- Further Assurances
Freelancer agrees to assist Company, or its designee, at the Company’s expense, in every proper way to effect the assignment and conveyance to Company, its successors, assigns and nominees the sole and exclusive right, title, and interest, including all Intellectual Property Rights in and to all Inventions and to secure and defend Company’s rights in Inventions in any and all countries, including disclosing to the Company all pertinent information and data with respect thereto, executing all applications, specifications, registrations, oaths, assignments and all other instruments that the Company may deem necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and testifying in a suit or other proceeding relating to such Inventions. Freelancer further agrees that Freelancer’s obligations under this Section 7.6 shall continue after the termination of this Booking Contract.
- Company Materials
Any Company Materials provided by Company to Freelancer are to be used solely to perform the Freelancer Services. As between Company and Freelancer, Company will own all right, title, and interest in Company Materials, as well as any derivatives or improvements of these materials, developed or derived by Freelancer, which shall constitute Company Materials for purposes of this Booking Contract, including all Intellectual Property Rights therein and Freelancer hereby assigns all rights it may have or obtain in and to any Company Materials to Company. Freelancer will treat the Company Materials as Confidential Information (as defined in Section 8.1).
“Confidential Information” means any and all confidential commercial, financial, marketing, technical, or other information or data of whatever nature relating to the Company and their business or affairs (including but not limited to data, records, reports, agreements, research, and development, manufacturing, marketing strategies, and tactics, production or design secrets, specifications, know-how, trade secrets, Inventions and other information concerning the Job) in any form or medium, whether in writing, orally or by any other means, together with any reproductions of such information in any form or medium or any part(s) of such information.
- Non-Use and Non-Disclosure
Freelancer will not, and will ensure that its Personnel will not (except in the proper course of the performance of the Freelancer Services), either during the performance of Freelancer Services or at any time thereafter (a) use, publish or disclose to any third party (and will use their best endeavors to prevent the publication and disclosure of) any Confidential Information and/or (b) copy any Confidential Information or make any copy, abstract, or summary of any material or documentation of the Company. This obligation does not apply to any use or disclosure authorized by the Company or required by law and/or any information that is already or comes to be, publicly known or generally available other than through Freelancer’s unauthorized disclosure or that of its Personnel. The Freelancer shall not use any Confidential Information for any purpose other than to exercise its rights and perform Freelancer’s obligations under or in connection with the Freelancer Services.
As applicable, if Freelancer uses the services of sub-contractors as Personnel to perform part of the Freelancer Services, Freelancer shall promptly and diligently ensure that such sub-contractors sign a written undertaking agreeing to abide by conditions of confidentiality similar to those set out in Services Contract and shall deliver evidence of the same upon request by the Company. You will (and will ensure any Personnel will) enter into any additional confidentiality undertakings that may be required by the Company taking into account the nature of the Freelancer Services for a Booking.
- Personally Identifiable Information
Freelancer will (and will ensure any Personnel will) comply with applicable law with respect to any personal information or data that Freelancer may have access to during the provision of the Freelancer Services and will only process the same upon the instructions of the person authorizing access to and the processing of such personal information or data. Freelancer will immediately notify the Company of any personal data breach relating to such personal information which it discovers or becomes aware of during the course of any Freelancer Services and will provide such assistance, support, and cooperation as may be required by the Company and/or Worksome in their investigation of, remedy of, and/or steps to mitigate such personal data breach. Freelancer will maintain accurate records required under applicable law with respect to the processing of personal information and hereby consents to any inspection and/or audit of such records as reasonably required by the Company at any time during the Booking Contract and for a period of six years thereafter.
Freelancer will not, and will not authorize, or assist another to, originate, produce, issue, or release any written publicity, news release, marketing collateral, or other publication or public announcement, relating to or in any way connected to this Services Contract and/or the provision of the Freelancer Services, without the prior written consent of the Company such consent may be unreasonably withheld.
- REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES
Each of Freelancer and Company represents and warrants that: (i) it has full power and authority to enter into and perform its respective obligations hereunder; (ii) this Booking Contract has been duly authorized, executed, and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against such party in accordance with its terms; (iii) entering into and performing its respective obligations pursuant to this Booking Contract will not result in any breach of, or constitute a default under, any other agreement to which it is a party; and (iv) it is not the subject of any material claim, investigation or inquiry by any party, regulator, or government body, whether arising in respect of any breach or alleged breach of any applicable laws.
- Representations and Warranties of Freelancer
Freelancer represents and warrants to Company that:
- Freelancer and Personnel have the necessary skills, technical ability, and experience to perform the Freelancer Services
- Freelancer and its Personnel have the legal right to work in the jurisdiction in which the Freelancer Services are to be performed and to carry out the Freelancer Services under this Booking Contract.
- the Freelancer Services will be performed in accordance with all applicable laws (whether local, national and international);
- Freelancer is not prevented by any other contract or arrangement or any statute from fulfilling its obligations under this Booking Contract; and
- Freelancer will provide complete, up-to-date, and accurate information reasonably requested by Company as may be required in order for the Company to comply with any applicable laws.
- Independent Contractor; Benefits
It is the express intention of the parties that the Freelancer perform the Freelancer Services as an independent contractor. As neither the Freelancer nor Personnel are the Company’s employees, Company will not provide Personnel with any benefits or commitments inconsistent with any of the benefits or commitments provided by Freelancer. Likewise, Company will not take any action with respect to Personnel inconsistent with any action taken by Freelancer. In particular and without limiting the foregoing: (i)Company will not withhold FICA (Social Security) from Freelancer’s payments; (ii) Company will not make state or federal unemployment insurance contributions on behalf of Freelancer or Personnel; (iii) Company will not withhold state and federal income tax from payment to Freelancer; (iv) Company will not make disability insurance contributions on behalf of Freelancer; (v) Company will not obtain workers’ compensation insurance on behalf of Freelancer or Personnel.
All rights and licenses granted under or pursuant to this Booking Contract by Freelancer to Company are, and will otherwise be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101(56) of the United States Bankruptcy Code. The Company, as a licensee of the rights under this Booking Contract, will retain and may fully exercise all of its rights and elections under the Bankruptcy Code. If a bankruptcy proceeding is commenced by or against Freelancer under the Bankruptcy Code, Company will be entitled to a complete duplicate of (or complete access to, as appropriate) any licensed intellectual property and all embodiments of the intellectual property, including without limitation all source code. Freelancer will promptly deliver to Company the previous items upon Company’s request. Notwithstanding the foregoing, nothing shall prevent a party from employing an employee of the other party who: (i) responds to a general employment advertisement when such solicitation is not specifically directed at that individual; (ii) is directed to the individual by employment search firms where such employment search firms are not directed to initiate discussions with respect to the prospective employment of that individual; or (iii) contacts the individual on his or her own initiative without any direct or indirect solicitation. Because the breach or anticipated breach of this section by a party may result in immediate and irreparable injury to the other party for which such other party may not have an adequate remedy at law such other party shall be entitled to, in addition to all other available remedies, sue in equity to enjoin such breach or anticipated breach of this Section and to seek any and all legal and equitable remedies to which such other party may be entitled.
If any term, condition, or provision in this Booking Contract is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Booking Contract. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Booking Contract, which will continue to be valid and enforceable to the fullest extent permitted by law.
This Booking Contract, including the Booking Confirmation, and any Supplemental Terms, all of which are hereby incorporated herein by reference, contains the entire agreement of Freelancer and Company with respect to the subject matter of this Booking Contract and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the said subject matter. This Booking Contract may not be amended and no provision of this Booking Contract may be waived, except by a writing signed by both parties.