Terms Of Use Agreement

Work Market, Inc. (“Work Market”) allows certain individuals and entities to access and use the Work Market Platform under this Terms of Use Agreement. The Work Market Platform includes all web sites associated with Work Market (including all domains and sub-domains of www.workmarket.com, all APIs, and all applications and communication tools provided by Work Market). All clients who procure labor services (“Clients”) and all service providers who provide labor services (“Resources”) are collectively referred to as “Users”. A User may be a Client or a Resource, or both, but in all cases any person that logs into the Work Market Platform is a User. All Users accessing and using the Work Market Platform do so under the terms and conditions of this Agreement. By using the Work Market web site or signing up for its services, Users accept the terms and conditions of this Agreement as they may be changed by Work Market from time to time and agree as follows:

Nature of the Platform

Work Market has created a proprietary electronic platform to connect Clients and Resources. The Work Market Platform is a venue that creates efficiencies in managing and delivering labor and services by allowing Users to match their respective needs. Users are categorized as Internal Users or Employees (Employees of the Client paid by W2), and Vendors (Independent Contractors of the Client invited onto the Work Market Platform through the Work Market Invite Tool, Work Market Campaign Tool, or other possible means and Independent Contractors procured through the Work Market Platform, all paid by Work Market via 1099). Taken collectively, Internal Users, Employees, and Vendors are hereafter referred to as “the Resource Pool.” Work Market is not a service company and does not employ Resources. Work Market is not involved in the transaction between the Client and the Resource.

Eligibility, Representations and Warranties

By registering to use, and using the Work Market Platform, Users represent and warrant that they are at least 18 years of age, can form legally-binding contracts, and/or are the authorized representatives of businesses with the legal capacity and authority to contract. Users represent and warrant that the information provided in the course of registering to use the Work Market Platform and creating a User Profile, including, without limitation, name, email address, bank information and tax identification numbers are accurate, belong to the User, and are up to date, and will be updated promptly in the event of any change. Users represent and warrant that they will maintain at all times adequate insurance coverage (including general liability coverage and workers’ compensation coverage) as required by applicable law in the appropriate jurisdiction. Each User represents that he or she has all licenses, certifications, permits, insurance and skills necessary to perform any description of work accepted by the User. Such request, issued through the Work Market Platform, that includes a description of the services needed, a broad time when the services can be performed, a location where the services is to be rendered, in exchange for specified payment are hereinafter referred to as “Assignments”. Users represent and warrant that all information provided in any Assignment, Group, Invitation, Recruiting Campaign, Group Message, Note, Screening Tool or Test is accurate and up to date, and will make updates promptly in the event of any change. Users of the Work Market Platform represent and warrant that they are individuals or entities of good character possessing the skill sets, experience, and expertise provided in connection with their User Profile. Users represent and warrant that they are independent contractors and not employees of Work Market or any Client (other than Internal Users and Employees who are employees solely of the Client).

Proprietary Platform and Intellectual Property Rights

The Work Market Platform is proprietary to Work Market. Users agree that Work Market has sole and complete ownership of the Work Market Platform, all content thereon and all intellectual property rights. As such, Users agree not to create or operate any platform, site or business that is based in whole or in part on the processes or content on the Work Market Platform, without the express written consent of Work Market. Users agree not to copy, reproduce, modify, create derivative works, publish, distribute, transmit or publicly display or post on any other web site any content from the Work Market Platform without written consent from Work Market. Users agree not to share their user names or passwords to the Work Market web site with anyone. Users agree to notify Work Market immediately in the event they have reason to believe that their user name or password has been compromised. Work Market may rely on any use of its web site as authorized by the holder of the corresponding user name and password. Work Market has the right to use all data that does not personally identify and/or cannot be combined with readily available information to identify an individual User to Work Market for research and marketing, product enhancement and statistical analysis. Users grant Work Market a non-exclusive, perpetual, irrevocable right and license to use the information they provide. Users agree not to injure the Work Market Platform in any way, including through the creation or deployment of any virus or corrupted data or copying the Work Market web site or hindering the functioning of the Work Market Platform. Work Market has the right, but not the obligation, to edit, modify, refuse to post, reject, eliminate or remove any information existing on or transmitted to its Web Site that it, in its sole discretion, believes is unacceptable or in violation of these terms or may create liability or may cause Work Market to lose the services of its Internet Resources. Likewise, Work Market, shall have the right to terminate any User’s ability to access and use the Web Site at any time without notice.

No Warranty

Work Market does not make any representations and disclaims all warranties, express or implied, regarding the information contained in User profiles and the Assignments posted, including but not limited to their accuracy, legality, safety, completeness or quality, as well as the identities of Users. Work Market cannot and does not guarantee verification of each User’s identity and/or the information contained in any User profile, the suitability of any Resource to fulfill its obligations under an Assignment, or the ability or willingness of any Client to fulfill its obligations with respect to an Assignment including that Client’s ability to provide payment in a timely manner. Consequently, it is the User’s responsibility to verify the identity of any other User and that User’s suitability with respect to an Assignment including such User’s ability to provide payment in a timely manner. Work Market’s web site may contain links to web sites operated by third parties: These links are for convenience only and Work Market is not responsible for their content, privacy policies nor is the link an endorsement of material on them. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WORK MARKET PLATFORM, ITS SERVICES, ALL USER PROFILES, AND WORK ASSIGNMENTS ARE PROVIDED TO USERS HEREUNDER “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE WORK MARKET PLATFORM AND SERVICE RESIDES WITH THE USERS. ALL OTHER CONDITIONS OR WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Limitation of Liability

IN NO EVENT WILL WORK MARKET BE LIABLE FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE WORK MARKET PLATFORM OR SERVICES PROVIDED OR PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE OR OTHERWISE. USERS AGREE THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF WORK MARKET, THAT WORK MARKET’S LIABILITY SHALL BE LIMITED TO THE TOTAL SUM OF FEES FOR THE ASSIGNMENT, AND ONLY THAT ASSIGNMENT, THAT CAUSED SUCH LIABILITY.

Legal Compliance

Users agree to abide by all applicable laws, statutes, ordinances and regulations, including but not limited to, laws governing speech (e.g., defamation), copyright, personal privacy, confidentiality, discrimination and other individual rights in using the Work Market Platform. No User may post content on or communicate through the Work Market web site in violation of any applicable law, nor to require a User to violate any applicable law or agreement, including, without limitation any confidentiality or non-disclosure agreement.

Responsible Communications and Representations

All Users are required to communicate lawfully and professionally when using the Platform. All communications shall not be defamatory, threatening or harassing. All Users agree not to disclose any information concerning other Users that is not already contained in the public domain. Each User represents that the information provided by the User is accurate, including the information in the User’s profile. Users shall update current contact information continuously.

Fees, Payments, and Taxes

The Client will post an Assignment with a specific payment in U.S. Dollars associated with the accurate completion of the work stipulated in the Assignment. The Client may then request that various Resources, that the Client has added, invited, recruited or selected into their Resource Pool, view the Assignment. A Resource may choose to accept or reject the Assignment, negotiate the payment for the work in the Assignment, or negotiate the timing and means in which the work is completed. Once a Resource accepts an Assignment, the Resource may not reassign the Assignment to any other person, whether on the Work Market Platform or not. The Resource agrees to perform the work stipulated in the Assignment directly to the satisfaction of the Client. The Client is engaging a specific Resource to complete an Assignment and he or she may not engage anyone else to complete the work. Notwithstanding the foregoing, a Resource may reassign the work if that Resource is an “Administrator” (the User in charge of the Work Market Account for that Company) and the Administrator reassigns the work to an Employee resource in that Company. Work Market will provide payment to the Resource for Closed (where both the Resource and Client have agreed that the work stipulated has been done to their mutual satisfaction) Assignments, except that Work Market will not be responsible for payment to the Resource in cases where Client has not paid Work Market the amounts owed with respect to such Closed Assignments. Work Market will not reimburse Resources for expenses incurred while engaged in the performance of the Assignment.

The Client agrees to pay to Work Market a Fee (as defined below). A “Fee” shall be a percentage of the payment stipulated in the Assignment. Such Fee shall be earned by Work Market when the Client submits payment to the Resource for the Closed Assignment. Work Market’s standard charge to Users is nine percent of the Assignment value.

Work Market reserves the right to change Fees to Users at any time by posting notice of such changes on the Work Market Platform. Work Market’s changes are effective immediately upon their inclusion on the web site. Work Market may in its sole discretion change some or all of its services at any time, with or without notice. In the event Work Market introduces a new service, the fees for that service will be posted on the Work Market web site and effective at the launch of the service. In order to withdraw funds paid for services through the web site, a User must provide a valid routing number and account number with a bank that participates in the ACH system. As part of the registration process, where applicable, a User will be required to authorize such activity. If a User intends to make payments using a credit card, Work Market requires the User to provide a credit card authorization with his or her initial order. For your convenience Work Market may use this authorization to allow a User to charge his or her card for future services

Users are responsible for payment and reporting of any taxes. Other than in connection with 1099 services, Work Market is not obligated to determine the applicability of any taxes or to remit, collect or report any such applicable taxes. Resources are required to provide a completed US Tax Form W-9, to be updated annually, or upon any change in the Resources tax status. Resources will not be able to withdraw funds from their Work Market account unless there is a W9, that has been verified using the IRS database, on file with Work Market. Users are responsible for all applicable taxes as purchasers of services, including any VAT tax, use tax, and any governmental reporting obligations thereto. Users agree to accept electronic delivery of their IRS Form 1099. Each Users 1099 will be available after its publication, in the Users account. Once the 1099 is published in the Users account, the User may download it at anytime. Work Market will provide a hard copy of any User’s 1099 upon request as required under IRS guidelines.

Disputes

In the event of a dispute between or among a User and/or Work Market that the parties cannot resolve, those parties agree to mediation using The American Arbitration Association in New York City, and if the parties cannot voluntarily reach agreement, they consent to have the mediator decide the dispute, which decision shall be final and binding on them. All disputes are governed by the laws of the state of New York without any regard to the conflicts of law principles thereof. THE PARTIES WAIVE ANY RIGHTS TO TRIAL BY JURY REGARDING THE DISPUTE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, USERS RELEASE WORK MARKET, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO A DISPUTE WITH ONE OR MORE USERS. WHERE APPLICABLE, USERS WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION), WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

In regards to a dispute between a Client and a Resource over the work quality, equipment damage, or any other issue, Work Market will make an effort to help resolve the dispute, but the dispute is the responsibility of the Client and the Resource. If the Client and the Resource cannot resolve the dispute, those parties agree to mediation using The American Arbitration Association in New York City, and if the parties cannot voluntarily reach agreement, they consent to have the mediator decide the dispute, which decision shall be final and binding on them.

Independent Contractor Status and Relationship of the Parties

All parties to this Agreement are independent contractors and not joint venturers, franchisors or franchisees, partners, employees, agents or brokers of Work Market or Work Market Clients (other than Internal Users and Employees who are employees solely of the Client) or the recipient of the services on an Assignment (the “End Customer”). Resources (other than Internal Users and Employee) represent and acknowledge that they are not employees of Work Market, the Client or the End Customer. Resources are and shall identify themselves as independent contractors to any third party. As an independent contractor, the Resource represents that the Resource is an independently-established business which shall be treated as an independent contractor and not as an employee, partner or agent or joint venturer for federal, state and local tax purposes and for all other purposes. As independent contractors, Resources are solely responsible for any and all federal, state and local income tax and social security and unemployment taxes, any VAT tax, sales tax, use tax and any workers’ compensation contributions for itself and any of its employees. Resources will be responsible for maintaining all records and remitting any taxes to the appropriate taxing authorities and to submit any required documentation or filings. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE AS AN INDEPENDENT CONTRACTOR AND THIS IS AN ESSENTIAL TERM OF THIS AGREEMENT. As independent contractors, Resources bear all of the costs and risks of operating their own business including risks of loss. Resources agree to report the income received pursuant to this Agreement consistent with the reporting requirements of an independent contractor. As independent contractors, Resources retain the right to provide services to other Users as well as entities not on the Work Market Platform. In so doing, Resources shall not use or disclose any proprietary or confidential information with which they became familiar as a result of their access to the Work Market Platform.

As an independent contractor, the Resource has the right to:

• determine the manner in which the work stipulated in an Assignment will be performed subject to Client specifications and standards;
• determine when the work will be performed;
• determine what tools or equipment to use;
• reject any Assignment;
• determine where to purchase supplies and services;
• determine what work must be performed by a specified individual consistent with the Assignment; and
• determine what order or sequence to follow in performing the work.

The Resource agrees that as an independent contractor, the Resource is solely responsible for the materials, supplies, equipment and all other costs incurred in the performance of providing the service and that there shall be no reimbursement for any materials, supplies, equipment or operating costs by Work Market or the Client.

Non-Disclosure and Non-Circumvent

The Resource agrees that all information regarding an Assignment between the Resource and a Client who sent such Assignment, whether or not in writing, of a private, secret or confidential nature concerning the Client’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the Client. By way of illustration, but not limitation, Proprietary Information may include the contents of an Assignment, products, product improvements, product enhancements, processes, methods, techniques, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license agreement), customer, prospect and supplier lists, and contacts at or knowledge of customers or prospective customers of the Client. The Resource will not disclose any Proprietary Information to any person or entity other than the Client or use the same for any purposes (other than in the performance of his/her duties as stipulated in the Assignment) without written approval by an officer of the Client, unless and until such Proprietary Information has become public knowledge without fault by the Resource. While fulfiling the obligations of an Assignment for the Client, A Resource will use the his/her best efforts to prevent unauthorized publication or disclosure of any of the Client’s Proprietary Information. The Resource agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible material containing Proprietary Information, whether created by the Resource or others, which shall come into his/her custody or possession, shall be and are the exclusive property of the Client to be used by the Resource only in the performance of his/her duties for the Client and shall not be copied or removed from the Client premises except in the pursuit of the business of the Client as stipulated in an Assignment.

Resources understand and agree that the Assignment generated by a Client is between the Resource performing the service and the Client procuring that service. Unless the End Customer is also the User procuring the service, the Resource agrees that the only communication with the End Customer is to schedule and confirm appointments (if requested in the Assignment) and to deliver the service. The Resource is prohibited from directly or indirectly contacting End Customers after the completion of the service and shall not circumvent the Client or Work Market in any way. For example, the Resource may not leave business cards, flyers, web site addresses or other contact information with End Customer. All Users, at all times, understand and agree that contact with any other Work Market User, that you are introduced to through the Work Market Platform, in a manner not consistent with the Work Market Platform's intended purpose is strictly prohibited. This includes both online and offline methods of contact, such as email, phone, direct conversation, online platforms or any other methodology.

Assignments and Representations of Capabilities

Clients shall communicate Assignments in clear, simple language and with sufficient specificity to enable Resources to make informed decisions about whether or not to accept the Assignment. Clients shall provide a description, instructions and attach documents where necessary, as well as scheduling location and pricing information. A Client may create a test for Resources in which event the Client shall be responsible for ensuring that it is lawful in both content and as administered.

Resources shall provide adequate information about their capabilities to perform the Assignment requested. Resources shall not violate any non-disclosure or confidentiality agreements by disclosing or posting Assignments or other proprietary information in any form. Resources will accept only those Assignments that they are capable of completing in a timely fashion and in accordance with the Assignment specifications.

In the event a Resource or Client must cancel an Assignment, the one cancelling shall contact the other as soon as possible. Additionally, the User who cancels will be subject to a cancellation fee and/or other sanctions as follows: A Resource who cancels within 24 hours of the earliest start time of the Assignment may be deleted from Work Market Platform. A Client who cancels within 24 hours of the start of the Assignment shall pay an agreed upon Assignment Cancellation Fee to the Resource, unless the Resource has not followed the confirmation or other instructions as provided in the Assignment by the Client.

Modifications to Agreement

The terms of this Agreement may change from time to time. By using the Work Market Platform, Users acknowledge their acceptance of these terms, however they may change.

Fairness

The Work Market Platform is designed to be an interactive platform between Users. All Users are to conduct their business with the highest ethical standards, fairness and are to treat others respectfully.

Engagement and Solicitation

Users agree not to directly or indirectly solicit, recruit or engage as an employee or contractor any other User procured on the Work Market Platform. Users agree not to solicit End Customers as set forth in the Independent Contractor section above or circumvent the Work Market Platform in any way.

No Restriction

Users represent and warrant that their performance will not violate any agreement or restriction which would prevent or impair their ability to perform the Assignment.

Indemnification

Users agree that Work Market shall not be obligated to them for any claims, actions, demands, liabilities (“Claims”) arising directly or indirectly out of or from the Users’ acts or omissions in connection with the access or use of the Work Market Platform, or any violation of any term of this Agreement, or breach or violation of a right of any third party or of any law, statute, ordinance or regulation. Users agree to indemnify, defend and hold harmless Work Market, its officers, directors, employees, agents, representatives and corporate affiliates from any claims that arise directly or indirectly out of the matters described in this section, including but not limited to attorney’s fees.

Force Majeure

In the event Work Market’s delivery of its services (including the availability of the System) is delayed, prevented or otherwise made impracticable by reason of any acts of God, floods, earthquakes, or other natural catastrophes; national emergencies, strikes, lockouts or other labor difficulties; computer “hacking” attack or computer virus; any law, order, regulation or other action of any governing authority; or any other cause beyond Work Market’s reasonable control, Work Market shall be excused from such delivery to the extent that its delay is prevented by such cause.

User Account

To become a registered User and use the services available from the Work Market Platform, a prospective User must register for an account. A prospective User must provide true, accurate and complete information as prompted by the registration form, and update such information to maintain its truth, accuracy and completeness. A User must safeguard its identification for use of the Work Market Platform (the “User ID”) and the password the User uses to access the Work Market Platform. Work Market may rely on any use of the Work Market Platform with User ID and password as authorized by the User. A User’s User ID may not be transferred or sold to another party that is unrelated to the User. If a User registers as a business entity, it represents that it has the authority to bind the entity to these Terms.

Closing Account

At the request of the User, Work Market will close out the User account, disabling all future use of it. However, the User understands and agrees that Work Market will not delete any information, as it is required to report such information to third parties including (but not limited to) law enforcement authorities, the Internal Revenue Service or other federal, state or local taxing authority.

Legal Assignment

Work Market, has the right to transfer or assign this Agreement and the rights hereunder to any other person or entity without your consent. You do not have the right to assign or transfer this Agreement or any rights thereunder to any other person or entity without Work Market’s prior written consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the successors and permitted assigns of the parties hereto.

Voluntary Assignment

Users affirm that they have carefully read this Agreement, understand the contents, have had an opportunity to fully discuss and review the terms and conditions with legal counsel or other advisors and freely and voluntarily agree to all of the terms and conditions of this Agreement.

Notice

Please address all legal notices to Jeffrey Wald, Chief Operating Officer, Work Market, Inc. via email at jwald@workmarket.com.

Validity

Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement.

Entire Agreement

This Agreement contains the entire understanding between the parties and supersedes, replaces and takes precedence over any prior understanding or oral or written agreement between the parties respecting the subject matter of this Agreement. There are no representations, agreements, arrangements, nor understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement that are not fully expressed herein. Notwithstanding the above and for the avoidance of doubt, any Non-Disclosure Agreement between Work Market and a User entered into outside of this Agreement shall continue in full force and effect.

Consumer and Business Reports, Background Checks, Credit Scores and Drug Tests

As a service to its Users, the Work Market Platform includes links to vendors that provide consumer reports, business reports, background checks, credit scores, and/or drug testing, which a User may, in his or her sole discretion and at his or her sole expense, elect to acquire and include in his or her User Profile. Work Market does not require such information with respect to any User, and all such information included in User Profiles is self-reported. Work Market expressly disclaims any liability for the accuracy of any such information, or the relevance of any such information in connection with the Work Market Platform. Users acknowledge and agree that such information is self-reported by the relevant User, may vary significantly from time to time and depending upon the provider of such information, may or may not be a reliable predicator of a User’s abilities or performance. Work Market expressly disclaims any and all liability for a User’s posting of such information in his or her Profile, or for any other User’s reliance on such self-reported User Information, and Users expressly release Work Market for any liability associated with such posting and reliance.

Last updated Sept 14, 2011