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 to deploy Gigwalk’s network of geographically distributed workers (the “Gigwalkers”) to collect and verify data requested by such Customers. Please read this Customer Agreement (“Agreement”) in its entirety if you wish to become a Customer.
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 customers 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 you of any changes to this Agreement, or the creation or modification of any additional terms.
1.1 “Deliverables” means the deliverables specified in a Service Engagement (e.g., photographs, answers to questions, etc.) for delivery by Gigwalk to you.
1.2 “Gig” means each request for one or more Deliverables related to a specific geographic location or other Customer defined parameter.
1.3 “Gigwalk Mobile Application” means the software used by Gigwalk in connection with the Service.
1.4 “Service Request” means a request for service or work by you which includes a description of each Gig and the associated Deliverables, for which you wish to hire Gigwalk to solicit Gigwalkers. Once the parties have agreed upon the terms of a Service Request pursuant to Section 2, the Service Request will become a “Service Engagement”.
Customer may from time to time submit a Service Request to Gigwalk via the Website or the Gigwalk Mobile Application. We can accept or reject each Service Request. Alternatively, we may contact you to obtain more information about the Service Request and then we may provide you with a modified version of the Service Request, in which case you must accept such modified Request for Service before we will proceed.
3.1 Fees. Gigwalk charges fees and collects payment in advance for each Service Engagement. You must provide Gigwalk with valid credit card or approved purchase order information as a condition to signing up for the Service. You agree to provide Gigwalk with complete and accurate billing and contact information, including but not limited to, Customer’s legal name, street address, e-mail address, and the name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Gigwalk reserves the right to terminate your access to the Service, and any outstanding Service Engagement, in addition to any legal remedies. Gigwalk will automatically bill your credit card or issue an invoice for the Fee set forth in each Service Engagement prior to commencing such Service Engagement. A Gig shall be considered complete once the Deliverables have been accepted by Customer in accordance with Section 4. If one or more Gigs is not completed, Gigwalk shall issue a credit to you equal to the Fees for such Gigs, which you may apply against future amounts owed by you to Gigwalk pursuant to this Agreement. If you believe that any invoice is incorrect, you must contact us in writing within sixty (60) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
3.2 Taxes. Gigwalk’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Gigwalk has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer. For clarity, Gigwalk is solely responsible for taxes assessable against it based on its income, property and employees.
Deliverables can be accessed by you at the Gigwalk.com Center (“Gig Center”). Each Deliverable will be deemed accepted at such time as Gigwalk notifies you that it is available for viewing at the Gig Center (“Delivery”) unless you provide Gigwalk with written notice that you have rejected such Deliverable for failure to conform to the specifications set forth in the applicable Service Engagement (a “Nonconformity”) within four (4) business days after Delivery of such Deliverable, which shall include a description of the Nonconformity. You will receive a credit equal to the Fee owed for the applicable Gig, which you can offset against any future amounts owed by you to Gigwalk pursuant to this Agreement.
5.1 Gigwalk IP. Customer acknowledges that all the intellectual property rights in the Website, the Service, the Gigwalk Application, and any metadata or other information generated or submitted to Gigwalk by a Gigwalker in the course of performing a Gig are owned by Gigwalk or Gigwalk’s licensors or suppliers (the “Gigwalk IP”). Customer agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Gigwalk IP, or (b) rent, lease, loan, or sell access to the Gigwalk IP.
5.2 Deliverables. Gigwalk represents that it will obtain ownership of the Deliverables from the Gigwalk Providers and that, upon payment in full for the Deliverables, Gigwalk hereby assigns to Customer all right, title and interest in such Deliverables. If Gigwalk has any rights to the Deliverables that cannot be assigned to Customer by Gigwalk, Gigwalk unconditionally and irrevocably grants to Customer during the term of such rights, an exclusive, even as to Gigwalk, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Gigwalk has any rights to the Deliverables that cannot be assigned or licensed to Customer, Gigwalk unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Customer with respect to such rights, and agrees, at Customer’s request and expense, to consent to and join in any action to enforce such rights.
5.3 Suggestions. Customer hereby grants to Gigwalk a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Gigwalk IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Customer related to the Gigwalk IP.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.4 Information Included in Service Engagements. Notwithstanding the foregoing, Customer acknowledges and agrees that some of the information that it provides in Service Engagements will be sent to Gigwalkers who will need this information to respond to requests to perform one or more Gigs. By submitting a Service Request, Customer is requesting, and expressly consents to have details of the Service Engagement sent to Gigwalkers that Gigwalk deems qualified to perform the Gigs. Customer agrees that all information that Customer provides will be accurate, current and truthful to the best of is knowledge.
THE SERVICE AND THE DELIVERABLES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” GIGWALK EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. GIGWALK MAKES NO WARRANTY THAT (A) THE SERVICE OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR DELIVERABLES WILL BE ACCURATE OR RELIABLE. GIGWALK DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH GIG AND A GIGWALKER OR THAT THERE ARE GIGWALKERS IN EACH GEOGRAPHIC AREA REQUESTED BY CUSTOMER WHO ARE WILLING TO FULFILL THE GIG AT THE TIME AND PLACE REQUESTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT GIGWALK HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY GIGWALKER AND THAT THERE IS NO (A) EMPLOYMENT, (B) PART-TIME EMPLOYMENT, (C) CONSULTING, (D) CONTRACTOR, (E) JOINT VENTURE, OR (F) AGENCY RELATIONSHIP BETWEEN GIGWALK AND THE GIGWALKERS. GIGWALK DOES NOT GUARANTEE OR WARRANT THE GIGWALKERS’ PERFORMANCE OF THE GIGS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.
IN NO EVENT SHALL GIGWALK BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM CUSTOMER’S USE OF THE GIGWALK IP OR THE DELIVERABLES, EVEN IF GIGWALK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, GIGWALK’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE GIGWALK IP OR THE DELIVERABLES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES CUSTOMER PAID TO GIGWALK IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
9.1 Termination Without Cause. Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, at any time when there are no outstanding Service Engagements or unpaid balances due hereunder.
9.3 Surviving Provisions. Sections 3 (“Fees and Payment”), 5 (“IP Ownership”), 6 (“Confidentiality”), 7 (“Disclaimers”), 8 (“Limitation of Liability”), 9.3 (“Surviving Provisions”) and 10 (“Miscellaneous”) shall survive any termination of this Agreement.
10.1 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.
10.2 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.
10.3 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 written consent.
10.4 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 upon sending (if sent by email). You may give notice to Gigwalk, addressed to the attention of Gigwalk Legal Counsel. 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: 539 Bryant St Suite 401, San Francisco, CA 94107.
10.5 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.
10.6 Entire Agreement. 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 or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Service Engagement, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation (excluding Service Engagements) shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.
10.7 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