Effective December 01, 2018
PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
Subject to the conditions set forth herein, Coworkly may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. Coworkly will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Coworkly, Coworkly will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR Client, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR Client, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR Client TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR Client TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR CLIENT.
1. COWORKLY ACCOUNTS
Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY
Coworkly offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Freelance Services; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES
As described in this Section, there are a number of different Account types. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”). Each User under a Client Account (“Team Member”) can be given different permissions to act on behalf of the Client Account.
1.4.2 MEMBER, CLIENT, AND CLIENT MEMBER ACCOUNT
Once an explicit invitation is sent by Coworkly, you can register for an Account or add an Account type to use the Site and Site Services as a Member (a “Member Account”). Another type of Account you can add is a “Client Account”, the owner of which is referred to as a “Client”. A Client Account allows permissions to be granted to Users under the Client Account which can be given different permissions to act on behalf of the Client Company (each, a “Client User”) .
You acknowledge and agree that the Client is solely responsible, and assumes all liability, for (a) the classification of your Client Users as employees or independent contractors; and (b) paying your Client Members in accordance with applicable law for work performed on behalf of the Client for Projects.
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Client User, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site. Upon closure of an Account, Coworkly may close any or all related Accounts.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Coworkly. You authorize Coworkly, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business.
1.7 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize Coworkly to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
2. PURPOSE OF COWORKLY
Section 2 discusses what Coworkly does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Member or Client, as detailed below.
The Site is a creative brokerage platform where Clients identify creative services required for a specific creative project and are connected to Members once an SOW is agreed upon. Subject to the Terms of Service, Coworkly provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, providing project management and invoicing software, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH COWORKLY
Coworkly makes the Site and Site Services available to enable Members and Clients to find and transact directly with each other. In addition, Coworkly introduces Members to Clients, finds Projects for Members, and finds Members for Clients. Through the Site and Site Services, Members may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Members that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or Member on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Coworkly is not a party to that Service Contract.
You acknowledge, agree, and understand that Coworkly is not a party to any Service Agreements between Client and Member. Without limitation, Users are solely responsible for (a) ensuring the accuracy and legality of any User Content, (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts, (d) performing Member Services, or (e) paying for Service Contracts or Member Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information (defined below).
Coworkly does not make any representations about or guarantee the truth or accuracy of any Member’s or Client’s listings or other User Content on the Site; and does not vet or otherwise perform background checks on Clients specifically. You acknowledge, agree, and understand that Coworkly is not, in any way, responsible for any Project, Project terms or Work Product. Coworkly makes no representations about and does not guarantee, and you agree not to hold Coworkly responsible for, the quality, safety, or legality of Member Services; the qualifications, background, or identities of Users; the ability of Members to deliver Member Services; the ability of Clients to pay for Member Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or Member to actually complete a transaction.
You also acknowledge, agree, and understand that Members are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Member Services; the type of services they provide; and the price they charge for their services or how that pricing is determined before submitting price to Coworkly brokers, advisors, or representatives. You further acknowledge, agree, and understand that: (i) you are not an employee of Coworkly, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Coworkly will not have any liability or obligations under or related to Service Contracts and/or Member Services for any acts or omissions by you or other Users; (iii) Coworkly does not, in any way, supervise, direct, or control any Member or Member Services; does not impose quality standards or a deadline for completion of any Member Services; and does not dictate the performance, methods or process Member uses to perform services; (iv) Member is free to determine when and if to perform Member Services, including the days worked and time periods of work, and Coworkly does not set or have any control over Member’s pricing, work hours, work schedules, or work location; (v) Member will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Coworkly does not, in any way, provide or guarantee Member a regular salary or any minimum, regular payment; (vi) Coworkly does not provide Members with training or any equipment, labor, tools, or materials related to any Service Contract; and (vii) Coworkly does not provide the premises at which Members will perform the work. Members are free to use subcontractors or employees to perform Member Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Member’s subcontractor(s) or employee(s). If a Member uses subcontractors or employees, Member further agrees and acknowledges that this paragraph applies to Coworkly’s relationship, if any, with Member’s subcontractors and employees as well and Member is solely responsible for Member’s subcontractors and employees.
Without limiting the foregoing paragraph, if you are an Client or Client Member, you expressly acknowledge, agree, and understand that: (s) the Client is solely responsible for paying its Client Members for work performed on behalf of the Client and that such payments will not be made through the Site; (t) Coworkly is not a party to any agreement between the Client and its Client Members and does not have any liability or obligations under or related to any such agreement, even if the Client or Client Member defaults; (u) neither Agencies nor Client Members are employees or agents of Coworkly, and Coworkly does not, in any way, supervise, direct, or control the Client or Client Member or services performed by the Client or Client Member; (v) Coworkly does not, in any way, supervise, direct, or control the Client or Client Members; (w) Coworkly does not set Agencies’ or Client Members’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work; (x) Coworkly does not provide Agencies or Client Members with training or any equipment, labor, tools, or materials needed for any Service Contract; (y) Coworkly does not provide the premises at which the Client or Client Members will perform the work; and (z) Coworkly makes no representations as to the reliability, capability, or qualifications of any Client or Client Member or the ability or willingness of any Client to make payments to or fulfill any other obligations to Client Members, and Coworkly disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
2.2 TAXES AND BENEFITS
Member acknowledges and agrees that Member is solely responsible (a) for all tax liability associated with payments received from Member’s Clients and through Coworkly, and that Coworkly will not withhold any taxes from payments to Member; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Member is not covered by or eligible for any insurance from Coworkly; (c) for determining whether Member is required by applicable law to issue any particular invoices for the Member Fees and for issuing any invoices so required; (d) for determining whether Member is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Member Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if Coworkly is required by applicable law to withhold any amount of the Member Fees and for notifying Coworkly of any such requirement and indemnifying Coworkly for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Coworkly, Member agrees to promptly cooperate with Coworkly and provide copies of Member’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Member is engaging in an independent business as represented to Coworkly.
2.3 PLATFORM FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Coworkly to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Members or Clients voluntarily submit to Coworkly and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Coworkly; Coworkly provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the platform, all Users, and the efficiency of the Site and you specifically request that Coworkly post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site.
Coworkly does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. Coworkly is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Coworkly reserves the right (but is under no obligation) to remove posted feedback or information that, in Coworkly’s sole judgment, violates the Terms of Service or negatively affects our platform, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Coworkly. You acknowledge and agree that you will notify Coworkly of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Coworkly may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND MEMBER
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1 SERVICE CONTRACTS
Coworkly generates Service Contracts as a service to Users. If a Client and Member decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Member. Client and Member have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the amendments of terms of any Service Contract. You acknowledge, agree, and understand that Coworkly is not a party to any Service Contracts, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Coworkly and any Member or a partnership or joint venture between Coworkly and any User.
In addition to any Service Contract generated by Coworkly, Clients and Members may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Coworkly’s rights and obligations under the Terms of Service, including this Agreement. The parties to a Service Contract can, if the parties prefer, agree to the Optional Service Contract Terms in whole or in part, in addition to or instead of other such agreements.
Users are responsible for complying with any local requirements. Coworkly does not assume any responsibility for any consequence of using the Coworkly Service Contract Terms. The Coworkly Service Contract Terms are not intended to and do not (a) constitute legal advice, (b) create an attorney-client relationship, (c) or constitute advertising or a solicitation of any type. Each situation is highly fact specific and requirements vary by situation and jurisdiction and therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions. Coworkly expressly disclaims any and all liability with respect to actions or omissions based on the Coworkly Service Contract Terms.
3.2 DISPUTES AMONG USERS
For disputes arising between Clients and Members, you agree to abide by the dispute process that is explained in the Contract Dispute Instructions that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Coworkly will not and is not obligated to provide any dispute assistance.
If Member or Client intends to obtain an order from any arbitrator or any court that might direct Coworkly to take or refrain from taking any action with respect to a Service Agreement, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Coworkly, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
3.3 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Coworkly Service Contract Terms. If and to the extent that the Users do not articulate any different agreement, then they agree that this Section 3.3 (Confidentiality) applies.
To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
3.4 THIRD-PARTY BENEFICIARIES
It is the intent of the Parties to this Agreement that Users who have entered into Service Contracts or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
4. WORKER CLASSIFICATION AND COWORKLY PAYROLL
Section 4 discusses what you agree to concerning whether a Member is an employee or independent contractor and when you agree to use Coworkly Payroll, as detailed below.
4.1 WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Coworkly and a User.
Coworkly will have no input into, or involvement in, worker classification as between Client and Member and Users agree that Coworkly has no involvement in and will have no liability arising from or relating to the classification of a Member generally or with regard to a particular Project.
5. COWORKLY FEES
Section 5 describes what fees you agree to pay to Coworkly in exchange for Coworkly providing the Site and Site Services to you and what taxes Coworkly may collect, as detailed below.
5.1 MEMBERSHIP FEES
Clients pay Coworkly a membership fee if they subscribe for a paid membership. Clients may subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described in and subject to the terms of the Client Membership Agreement.
5.2 PAYMENT CREATIVE FEES AND ADMINISTRATION FEES
Clients pay Coworkly a fee for payment processing and creative services fee related to services provided before and during a Coworkly project, as described in the Fee and ACH Authorization Agreement. This fee is 5% of an estimate for a project, depending on Client’s User type.
5.3 VAT AND OTHER TAXES
Coworkly may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g. GST, we’ll just refer to VAT, GST and any local sales taxes collectively as “VAT”) in the jurisdiction of the Member (the "Taxes"). In such instances, any amounts Coworkly is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Coworkly under the Terms of Service.
6.1 PAYMENT AGREEMENTS AND INSTRUCTIONS
Coworkly will use and release funds deposited by the Client only in accordance with this Service Agreement. You acknowledge and agree that Coworkly acts merely as an Internet brokerage agent. Coworkly has fully delivered the Services to you if Coworkly provides the Services described in this Agreement and the applicable Instructions. Coworkly is only obligated to perform those duties expressly described in this Agreement and any applicable Instructions. If you authorize or instruct Coworkly to release or make a payment of funds from an Account associated with you, Coworkly may release or pay those funds as instructed in reliance on your authorization, this Agreement, and the applicable Instructions.
Fixed-Price Projects. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and Coworkly will follow, the Fixed-Price Payment Instructions.
Hourly Projects, Bonus Payments, or Expense Payments. If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and Coworkly will follow, the Hourly, Bonus and Expense Payment Agreement with Instructions.
6.1.1 NO INTEREST
You agree that you will not receive interest or other earnings on the funds held for you by Coworkly. Coworkly may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services they provide.
6.2 CLIENT PAYMENTS ON SERVICE CONTRACTS
Client acknowledges and agrees that for both Hourly Contracts and Fixed-Price Contracts failure to decline or dispute an Hourly Invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Instructions. When Client authorizes the payment of the Member Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Coworkly to charge Client’s Payment Method for the Member Fees. When Client approves an Hourly Invoice for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Coworkly to charge Client’s Payment Method for the Member Fees.
6.3 DISBURSEMENTS TO MEMBERS
Under the relevant Payment Instructions, Coworkly disburses funds that are available and payable to a Member upon Member’s request. A Member can request disbursement of available funds any time on a one-time basis or by setting up an automatic disbursement schedule. If Member does not request a disbursement, Coworkly will automatically disburse available funds no more than 90 days after the Member Fees are released to the Member Account.
Notwithstanding any other provision of the Terms of Service or the Payment Instructions, and except as prohibited by applicable law, if we believe, in our sole discretion, that you have violated the conditions and restrictions of the Site or the Terms of Service, including by committing or attempting to commit fraud or other illicit acts on or through the Site, Coworkly may refuse to process or may hold the disbursement of the Member Fees and take such other actions with respect to the Account as we deem appropriate in our sole discretion and in accordance with applicable law. Without limiting the foregoing, Coworkly, in its sole discretion and to the extent permitted by applicable law, may also refuse to process or may hold the disbursement of the Member Fees or any other amounts and offset amounts owed to us if: (a) we require additional information, such as Member’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Member Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Member Fees is no longer necessary, Coworkly will release such hold as soon as practicable.
In addition, notwithstanding any other provision of the Terms of Service or the Payment Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Member, despite our provision of the Site Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Coworkly to (and Coworkly will have the right to) charge the applicable Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account.
If Client is in “default”, meaning the Client fails to pay the Member Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Coworkly), Coworkly will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Member Fees when due, (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days, an account current after a credit or debit card is declined or expires, (c) Client fails to pay an invoice issued to the Client by Coworkly within the time period agreed or, if none, within 30 days, (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Coworkly for Member Fees or such other amount due being reversed to the Client, or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, Coworkly may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Site and Site Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Member Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Coworkly upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
Coworkly, at our discretion and to the extent permitted by applicable law, may set off amounts due against other amounts received from Client or held by Coworkly for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
6.5 NO RETURN OF FUNDS
Client acknowledges and agrees that Coworkly will charge Client’s designated Payment Method for the Member Fees incurred as described in the applicable Payment Instructions and that once Coworkly charges or debits the Client’s designated Payment Method for the Member Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Member Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Coworkly or Coworkly may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
6.6 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Payment Methods will be charged by Coworkly in most countries.
By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Coworkly; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Because the use of any Payment Method may be limited by applicable law or by written agreement with your financial institution, Coworkly is not liable to any User if Coworkly does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Coworkly will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Payment Instructions.
6.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION
The Site and the Site Services operate in U.S. Dollars. If Client’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Site may display foreign currency conversion rates that Coworkly or our Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion and risk, may authorize the charge or debit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and either Coworkly or our Affiliates does not support the foreign currency or Client does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, Coworkly or one of our Affiliate will charge or debit Client’s Payment Method in U.S. Dollars and Client’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. Client’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at Client’s sole risk. Coworkly and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Coworkly and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse to and from the Client Account.
Section 7 discusses your agreement to make and receive payments only through Coworkly for two years from the date you first meet your Client or Member on the Site, unless you pay an Opt-Out-Fee, as detailed below.
7.1 MAKING PAYMENTS THROUGH COWORKLY
You acknowledge and agree that a substantial portion of the compensation Coworkly receives for making the Site available to you is collected through the Creative Service Fee described in Section 5.1. Coworkly only receives this Service Fee when a Client and a Member pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Coworkly Relationship”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another party through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business when acting in that capacity with respect to the other User.
Except if you pay the Opt-Out Fee (see Section 7.2), you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you agree not to:
You agree to notify Coworkly immediately if a person suggests to you making or receiving payments outside of the Site in violation of this Section 7.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Coworkly by sending an email message to: [email protected]
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
7.2 OPTING OUT
You may opt-out of the obligation in Section 7.1 with respect to each Coworkly Relationship only if the Client or prospective Client or Member pays Coworkly an opt-out fee for each such relationship (the “Opt-Out Fee”).
The Opt-Out Fee is computed as follows
(i) 3,500 for salary-based employment of Member; or
(ii) $5000 for project-based circumvention
To pay the Opt-Out Fee, you must request instructions by sending an email message to [email protected]. If you choose to circumvent or enter an outside relationship between Member and Client users without sending an email or contacting Coworkly directly, those users will be considered to be in violation of the Terms of Service.
If Coworkly determines, in its sole discretion, that you have violated Section 7, Coworkly or its Affiliates may, to the maximum extent permitted by law (x) charge your Payment Method the Opt-Out Fee (including interest) if permitted by law or send you an invoice for the Opt-Out Fee (including interest), which you agree to pay within 30 days, (y) close your Account and revoke your authorization to use the Site and Site Services, and/or (z) charge you for all losses and costs (including any and all time of Coworkly’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
8. RECORDS OF COMPLIANCE
Section 8 discusses your agreement to make and keep all required records, as detailed below.
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to Coworkly upon request. Nothing in this subsection requires or will be construed as requiring Coworkly to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Coworkly’s part to store, backup, retain, or grant access to any information or data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses your agreement and understanding that the Site and Site Services may not always be available or work perfectly, as detailed below.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Coworkly MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COWORKLY DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST COWORKLY WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. LIMITATION OF LIABILITY
Section 10 discusses your agreement that Coworkly usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you $2,500, as detailed below.
Coworkly is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
ADDITIONALLY, IN NO EVENT WILL Coworkly, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF Coworkly, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY COWORKLY WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR Member DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Section 11 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that Coworkly is not a party to any contract between Users, you hereby release Coworkly, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Member Services provided to Client by a Member and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Payment Instructions.
This release will not apply to a claim that Coworkly failed to meet our obligations under the Terms of Service.
Section 12 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless Coworkly, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Member as an independent contractor; the classification of Coworkly as an employer or joint employer of Member; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
13. AGREEMENT TERM AND TERMINATION
Section 13 discusses your and Coworkly’s agreement about when and how long this Agreement will last, when and how either you or Coworkly can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and Coworkly expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to [email protected] In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Coworkly is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree (a) you hereby instruct Coworkly to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site; (c) Coworkly will continue to perform those Site Services necessary to complete any open Project or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Coworkly for any Site Services or such other amounts owed under the Terms of Service and to any Members for any Member Services.
Without limiting Coworkly’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Coworkly or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Coworkly’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF Coworkly DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, Coworkly HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT Coworkly WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and that that any closure of your Account may involve deletion of any content stored in your Account for which Coworkly will have no liability whatsoever. Coworkly, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or Coworkly from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
14. DISPUTES BETWEEN YOU AND COWORKLY
Section 14 discusses your agreement with Coworkly and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally, as detailed below.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Coworkly or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, Coworkly, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Coworkly (including without limitation any claimed employment with Coworkly or one of our Affiliates or successors), the termination of your relationship with Coworkly, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Terms of Service, any Service Contract, payments or agreements, any payments or monies you claim are due to you from Coworkly or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Coworkly or the termination of that relationship.
Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
14.2 CHOICE OF LAW
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Coworkly agree to first notify each other of the Claim. You agree to notify Coworkly of the Claim at Attn: Legal, 791 Tremont Street, W108, Boston, MA 02118 or by email to [email protected], and Coworkly agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Coworkly then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Coworkly, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Coworkly will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Arbitration Provision applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Coworkly, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Coworkly ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service and the Coworkly Payroll Agreement. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Suffolk County, Massachusetts in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Members that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where Member is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and Coworkly will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Member will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Coworkly to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with Coworkly to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Coworkly and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government Client, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government Client of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Coworkly will not retaliate against you for filing a claim with an administrative Client or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and Coworkly agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14.4.3. CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the Massachusetts Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Coworkly agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You and Coworkly agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, Coworkly may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Coworkly in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Coworkly at Attn: Legal, 791 Tremont Street, W108, Boston, MA 02118 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to [email protected] Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section 14.4.4, continuing your relationship with Coworkly constitutes mutual acceptance of the terms of this Arbitration Provision by you and Coworkly. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
14.4.5. Enforcement of this Arbitration Provision.
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and Coworkly agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
Section 15 discusses additional terms of the agreement between you and Coworkly, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
15.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Coworkly relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Coworkly drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Coworkly because of the authorship of any provision of the Terms of Service.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Coworkly unless in a written instrument signed by a duly authorized representative of Coworkly or posted on the Site by Coworkly. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Coworkly’s prior written consent in the form of a written instrument signed by a duly authorized representative of Coworkly. Coworkly may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Coworkly makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
Section 16 gives you some definitions of capitalized terms that appear in the Terms of Service but other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Member or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Payment Instructions” means the Fixed-Price Instructions or the Hourly, Bonus, and Expense Payment Agreement with Payment Instructions.
“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Member, prior to the commencement of a Service Contract, for the completion of all Member Services contracted by Client for such Service Contract.
“Member Fees” means: (a) for an Hourly Contract, the amount reflected in the Hourly Invoice (the number of hours invoiced by Member, multiplied by the hourly rate charged by Member); (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Member; and (c) any bonuses or other payments made by a Client to a Member.
“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate charged by Member.
“Hourly Invoice” means the report of hours invoiced for a stated period by a Member for Member Services performed for a Client.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Coworkly, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Coworkly may accept from time to time in our sole discretion.
“Project” means an engagement for Member Services that a Member provides to a Client under a Service Contract on the Site.
“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Member governing the Member Services to be performed by a Member for Client for a Project; or (b) if you use Coworkly Payroll, the contractual provisions between Member and the Staffing Provider for the provision of services to Client, if any.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Coworkly App” means the online platform accessed using Coworkly’s downloaded application or other software that enables time tracking and invoicing, project management, chat, and document sharing with other Users.
“Work Product” means any tangible or intangible results or deliverables that Member agrees to create for, or actually delivers to, Client as a result of performing the Member Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.