Thank you for your interest in Gigwalk, an internet platform (“Website”) owned and operated by Gigwalk, Inc., a Delaware corporation (“Gigwalk,” “we,” or “us”). Gigwalk provides a service (the “Service”) that allows its customers (“Gigwalk Customers”) to deploy Gigwalk’s network of geographically distributed workers (the “Gig Providers”) to collect and verify data requested by such customers. Please read this Gig Provider Agreement (“Agreement”) in its entirety if you wish to become a Gig Provider. If you perform Gigs (i.e. you are a Gigwalker) you are considered the Gig Provider
If you request and post Gigs you are considered a Gigwalk Customer.
Gigwalk Inc. is the company that runs the marketplace that brings these two parties together.
You agree and understand that certain features of the Website may be subject to additional terms and conditions or registration requirements. You agree to abide by these additional terms and you further agree that a violation of those terms shall constitute a breach of this Agreement. Gigwalk reserves the right to change this Agreement, and any additional terms at any time, effective upon making the modified provisions available on the Website or by notifying Gig Providers directly. You are responsible for regularly reviewing this Agreement. Continued use of the Website and/or the Gigwalk Mobile Application after any such changes are made to this Agreement shall constitute your consent to such changes. Gigwalk does not and will not assume any obligation to notify Gig Providers of any changes to this Agreement, or the creation or modification of any additional terms.
Use of the Website is permitted only by individuals who can form legally binding contracts under applicable Law. Without limiting the foregoing, you must be at least 18 years old to become a Gig Provider. If you do not qualify, please do not submit an application to become a Gig Provider.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Deliverables” means the deliverables specified in a Gig Request for delivery by a Gig Provider to Gigwalk.
1.2 “Gig Request” means a notice of a Gig provided by Gigwalk to one or more Gig Providers, which includes a description of the services to be provided by the Gig Providers and the associated Deliverables (the “Gig”), the date by which the Gig must be completed (the “Gig Completion Date”) and the fee associated with the Gig (the “Fee”). Once a Gig Provider has accepted a Gig Request pursuant to Section 2, the Gig Request will become a “Gig Engagement”.
1.3 “Gigwalk Mobile Application” means the software used by Gigwalk in connection with the Service.
By registering to become a Gig Provider and accepting a Gig Engagement, you agree to use your best efforts to perform the Gig such that the Deliverables are satisfactory to the Customers. Once a Gig Provider has accepted a Gig, the Gig Request will no longer be available for performance by other Gig Providers who received the Gig Request. By accepting a Gig Request, you are entering into a binding legal agreement with Gigwalk to provide the Deliverables for the Fee specified in the Gig Request. Do not accept a Gig Request unless you are sure that you understand what you are being asked to deliver.
Gigwalk shall pay the Fee, less any payment processing fees, for each Gig within fifteen (15) days after the Gigwalk Customer’s acceptance of the Deliverables associated with the Gig provided that the total amount due to you is at least $35 (the “Minimum”). Gigwalk will not pay you the Fee for a Gig if the Gigwalk Customer rejects the Deliverables associated with that Gig. For any month in which the total amount due to you is less than the Minimum, the balance will be carried over to the following month. Unless otherwise stated, all Fees are quoted in U.S. Dollars. You are responsible for paying all applicable taxes and for all expenses incurred by you in connection with performing the Gigs or otherwise performing your obligations under this Agreement. We may be obligated by law to obtain tax information from you. If we request tax information from you and you do not provide it, we may (in addition to any other rights or remedies available to us) withhold your Fees until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Gigwalk and you or between the Gigwalk Customer and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Gigwalk that is inconsistent with your being an independent contractor (and not an employee) of Gigwalk. You are not the agent of Gigwalk or the Gigwalk Customer and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of Gigwalk or the Gigwalk Customer. Without limiting the generality of the foregoing:
4.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that Gigwalk may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Gigwalk will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Gigwalk, or any affiliate of Gigwalk, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by Gigwalk.
4.2 Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from the payment of Fees to you under this Agreement, and you agree to do so in a timely manner. If applicable, Gigwalk will report the Fees paid to you under this Agreement by filing Form 1099-MISC with the Internal Revenue Service as required by law.
4.3 Compliance with Law. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions.
5.1 Delivery. You agree that you will use the Gigwalk Mobile Application to provide the Deliverables for each Gig to Gigwalk on or before the applicable Gig Completion Date.
5.2 Ownership. You agree that the Deliverables will be the sole and exclusive property of Gigwalk. You hereby irrevocably and unconditionally assign to Gigwalk all right, title and interest worldwide in and to the Deiverables and all intellectual property rights thereto, including but not limited to all copyrights, moral rights, and similar rights of every kind and nature. If any intellectual property rights, including moral rights, cannot (as a matter of law) be assigned by you to Gigwalk, then (a) you unconditionally and irrevocably waive the enforcement of such rights and all claims and causes of action of any kind against Gigwalk with respect to such rights, and (b) to the extent you cannot (as a matter of law) make such waiver, you unconditionally grant to Gigwalk an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sublicensees, under any and all such rights to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit and otherwise use the Deliverables in any medium or format, whether now known or hereafter discovered, and to exercise any and all other present or future rights in the Deliverables. At Gigwalk’s request, you will (i) cooperate and assist Gigwalk both during and after the term of this Agreement, in perfecting, maintaining, protecting and enforcing Gigwalk’s rights in the Deliverables, and (ii) execute and deliver to Gigwalk any document deemed necessary or appropriate by Gigwalk in its discretion to perfect, maintain, protect or enforce Gigwalk’s rights in the Deliverables or otherwise carry out the purposes of this Agreement. You hereby irrevocably designate and appoint Gigwalk and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to execute, deliver and file any and all documents with the same legal force and effect as if executed by you, if Gigwalk is unable for any reason to secure your signature on any document needed in connection with the actions described in this section. You acknowledge that this appointment is coupled with an interest.
6.1 Use and Disclosure. During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Gigwalk’s express prior written consent on a case-by-case basis. “Confidential Information” means any an all information related to Gigwalk’s or any Gigwalk Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Gigwalk Customers) that Gigwalk considers to be confidential or proprietary or Gigwalk has a duty to treat as confidential.
6.2 Standard of Care. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.
6.3 Reverse Engineering. You will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of the Gigwalk Mobile Application, any other software, products, models, prototypes, or other items provided by Gigwalk that use, embody, or contain Confidential Information.
6.4 Exceptions. Your obligations under Sections 6.1 and 6.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Gigwalk’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by Gigwalk, or is required by law or court order, provided that you immediately notify Gigwalk in writing of such required disclosure and cooperate with Gigwalk, at Gigwalk’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
6.5 Removal; Return. Upon Gigwalk’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Gigwalk or, if so directed by Gigwalk, destroy all tangible embodiments of the Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Gigwalk in writing that you have fully complied with the foregoing obligations.
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Gig Engagement, or that is otherwise inconsistent with this Agreement, or any Gig Engagement.
8.1 General. You represent, warrant, and covenant that:
(a) You will not, in the course of performing any Gig, infringe or misappropriate, and neither the Deliverables nor any element thereof will infringe or misappropriate, any intellectual property right of any other person;
(b) All Deliverables and all elements thereof are your original works and you have all rights necessary to grant the rights set forth in this Agreement;
(c) Neither the Deliverables nor any element thereof will be subject to any restriction, mortgage, lien, claim, pledge, security interest, or encumbrance when delivered by you to Gigwalk;
(d) You will not grant, directly or indirectly, any right or interest in any Deliverable to any other person;
(e) You have full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers);
(f) The Deliverables will fully conform to the specifications, requirements, and other terms in the applicable Gig Engagement and this Agreement, and will be of a professional and workmanlike quality. In the event of a breach of this warranty, without limiting any other rights or remedies Gigwalk may have, you will promptly replace the Deliverables at no additional charge to Gigwalk
8.2 Indemnification. You will indemnify and hold harmless Gigwalk and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any breach of any representation, warranty, covenant, or obligation in this Agreement, or any Gig Engagement, by you or any intentional misconduct or negligence by you in performing any Gig.
IN NO EVENT WILL GIGWALK BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT. GIGWALK’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES OWED BY GIGWALK FOR GIGS PERFORMED UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT.
10.1 Termination by Gigwalk. Gigwalk may terminate this Agreement, in whole or in part, at any time with or without cause for its convenience, effective upon one (1) day notice to you, in which case Gigwalk is obligated to pay you Fees earned by you through the effective date of termination or expiration. Gigwalk may withdraw any Gig Request at any time prior to your acceptance thereof pursuant to Section 2.
10.2 Termination by You. Effective upon fifteen (15) days prior written notice to Gigwalk, you may terminate this Agreement at any time if there are no unperformed Gigs as of the effective date of termination.
10.3 Survival. Sections 3, 4, 5.1, 6, 8, 9, 10.3, and 11 will survive any termination or expiration of this Agreement. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.
11.1 Governing Law; Venue. This Agreement is governed by the laws of the State of California without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in Santa Clara County, California for any suit or action arising from or related to this Agreement, and waive any right you may have to object to the venue of such courts. You further agree that these courts will have exclusive jurisdiction over any such suit or action initiated by you against Gigwalk.
11.2 Arbitration. If any dispute, controversy or claim arises between the parties under, out of, or in relation to this Agreement, including any dispute concerning the formation, construction, interpretation, or breach of this Agreement or a party’s performance of its obligations hereunder (“Dispute”), the parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation. If the Dispute is not resolved in this manner within forty-five (45) days of a party’s notice of a Dispute, then any party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows:
11.2.1 Any Dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
11.2.2 Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”) and shall be administered by the San Jose, California office of JAMS (the “Administrator”). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be San Jose, California USA. The Dispute(s) shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
11.2.3 Notwithstanding the foregoing, either party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4 No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Gigwalk’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Gigwalk may assign this Agreement or any of its rights under this Agreement to any third party with or without your consent.
11.5 Notices. Gigwalk may give any notice required by this Agreement by means of a general notice on the Website, electronic mail to your email address on record with Gigwalk, or by written communication sent by first class mail or pre-paid post to your address on record with Gigwalk. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Gigwalk, addressed to the attention of Ariel Seidman. Such notice shall be deemed given when received by Gigwalk by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address: 1931 Old Middlefield Way Suite 209 Mountain View CA 94043.
11.6 Remedies. Gigwalk’s remedies for any breach of this Agreement by you will include damages, injunctive relief, specific performance, and restitution. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Gigwalk for which monetary damages would not be an adequate remedy and, therefore, Gigwalk will be entitled to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
11.7 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.8 Time Is of the Essence. Time is of the essence in the performance of the Gigs and your other obligations under this Agreement.
11.9 Entire Agreement; Amendments. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.
11.10 Feedback. In the event that you provide Gigwalk with any feedback regarding the Service or the Website, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the Service or the Website (“Feedback”), you hereby assign to Gigwalk all rights in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate.
11.11 Modifications to Website. Gigwalk reserves the right at any time to modify or discontinue, temporarily or permanently, the Website or the Service (or any part thereof) with or without notice. You agree that Gigwalk shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website or the Service.
Last Updated: March 27, 2011