Contractor Services Agreement
This contractor services agreement ("Agreement") is made and entered into by and between you (“You”) and Garuda Labs, Inc. d/b/a Instawork ("Instawork”), each of which may be referred to in this Agreement as a “Party” or together as the “Parties.” This Agreement is effective the date accepted by You, and by accepting this Agreement, You acknowledge that You have taken time and sought any assistance needed to comprehend and consider the consequences of this important business decision. You further acknowledge that You have read, understood, and voluntarily agreed to all of the terms in this Agreement, including the Mutual Arbitration and Dispute Resolution provision (“Mutual Arbitration Provision”) found in Section 11.
IMPORTANT: THE MUTUAL ARBITRATION PROVISION, IF ACCEPTED, REQUIRES THE PARTIES TO RESOLVE DISPUTES BETWEEN THEM THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO THE FULLEST EXTENT PERMITTED BY LAW.
In consideration of the mutual promises in this Agreement, and for other good and valuable consideration, You and Instawork agree as follows:
- “Account” means a profile created through the Application and used by a Professional to access the Platform.
- “Application” means the mobile software application (iOS and/or Android) through which a Professional accesses the Platform.
- “Partner” means a company using the Platform to request service providers to fill one-time and/or recurring local work opportunities.
- “Partner Request” means a request for Services posted on the Platform by a Partner.
- “Open Partner Request” means a Partner Request that has not been accepted by a Professional.
- “Partner Engagement” means a Partner Request that a Professional has accepted and for which the Professional has agreed to perform Services.
- “Platform” means the online and mobile platform developed and maintained by Instawork on which Partners connect with Professionals.
- “Professional” means a service provider operating an independent business, including You, who uses the Application to access the Platform in order to receive access to Partner Service Requests.
- “Services” means the work product and/or services provided by a Professional to a Partner pursuant to a Partner Engagement.
- This Agreement governs the entire relationship between the Parties and establishes their respective rights and obligations arising out of this relationship, including Your access to the Platform and/or use of the Instawork Application, which facilitates your provision of Services to Partners in response to Partner Requests.
- The Parties intend this Agreement to create the relationship of independently contracting parties and not that of employer and employee, joint venture, partners, or principal and agent; neither Party shall have the right to bind the other in contract (or otherwise) except as specifically provided in this Agreement.
- Nothing in this Agreement requires You to accept any Open Partner Request, and nothing in this Agreement shall guarantee You any particular volume of Partner Requests for any particular time period.
- This Agreement expressly supersedes prior agreements with you. Instawork reserves the right to amend, modify, and/or supplement from time to time and without notice any other terms in this Agreement, except that You will receive advance notice of material amendments to Section 11, Mutual Arbitration and Dispute Resolution.
The Instawork Platform
- Instawork is in the business of developing, maintaining, and distributing the software and logistics necessary to provide and support the Application and Platform.
- Instawork acts as a referral source enabling Partners and Professionals to connect with each other for Services; it does not provide workers (whether independent contractors or otherwise) to Partners or other third parties.
- You represent that you operate an independently established business providing the Services contemplated by this Agreement and satisfy all legal requirements, including having any licenses and/or permits necessary to perform any Services under this Agreement. You further agree to inform Instawork immediately in writing if You are no longer operating an independent business to provide Services under this Agreement.
- Nothing in this Agreement shall be deemed to restrict your ability to be engaged in or employed by any other business, trade, profession or other activity while providing Services under this Agreement.
- You possess and maintain at your own expense all equipment, tools, training, and vehicles, including those pertaining to health, safety, inspection, and operational capability (collectively “Equipment”) necessary to lawfully provide Services under this Agreement, and you acknowledge that you are responsible for any and all costs and expenses you may incur under this Agreement. Except as otherwise required by law, You assume all risk of damage or loss to Your Equipment.
- You are not entitled to or eligible for any benefits that Instawork, its parents, subsidiaries, affiliates including Partners, or other related entities may make available to its employees. Because you are an independent contractor, Instawork will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Instawork or any affiliate of Instawork by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor, or any other federal, state, local, or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by Instawork, its parents, subsidiaries, affiliates including Partners, or other related entities, or by any Partner for whom you provided Services under this Agreement.
- You must create and maintain an active Account to access the Platform and/or any features or functions made available therein. You agree to comply with all applicable laws when using the Application, and you may only use the Application for lawful purposes. You acknowledge and agree that You are solely responsible for all activity that occurs under Your Account.
- You are free to select the time(s) you wish to access the Platform, and you are free to accept, reject, or ignore any particular Open Partner Request made available to you on the Platform and/or through the Application.
- You agree to perform any Services contracted pursuant to this Agreement in a timely, safe, and lawful manner, and the Parties acknowledge that Instawork has no right to and shall not direct or control the manner and means by which you provide Services pursuant to a Partner Request.
- You are not required at any time to wear and/or use any clothing and/or equipment provided by or bearing Instawork’s name or logo. Similarly, You are not required to purchase, lease, or rent any products, equipment, or services from Instawork.
Contact by Instawork & Others
- CONSENT TO RECEIVE COMMUNICATIONS: You expressly consent to be contacted by, and to receive and accept communications from Instawork and authorized partners, representatives, and/or affiliates including Partners via different communication methods, including but not limited to email(s), SMS/text message(s), push notification(s), and/or phone call(s) to contact information, including telephone number(s), You provide to Instawork. By consenting to being contacted, You understand and agree that You may receive communications—including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems—sent by or on behalf of Instawork on various subjects, including but not limited to: (1) operational or transactional communications, such as those concerning Your user account, sign up progress to become a Professional, use of the Platform and/or the Application; (2) communications relating to Partner Requests and/or Services, including incentive offers; (3) promotions, advertising, and/or marketing; (4) news concerning Instawork and industry developments that affect Your relationship with Instawork; and (5) Account verification communications. Message and data rates may apply. By consenting to be contacted, You represent that the telephone number(s) that You have provided to Instawork are Your contact numbers, that You are permitted to receive calls at such telephone number(s), and that You will promptly alert Instawork whenever you stop using or change a particular telephone number.
- MARKETING COMMUNICATIONS & OPT-OUT: You agree that Instawork, its partners, affiliates including Partners, or representatives may contact You (including for marketing and promotional purposes from Instawork or our third-party partners where permitted by law) by email, phone, push notifications, SMS/text message(s), or by other comparable means (including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems) at the email address(es), phone(s), or phone number(s) You provide to Instawork. YOU CAN UNSUBSCRIBE FROM INSTAWORK’S MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING EMAILS, INSTAWORK MAY STILL SEND YOU EMAILS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN THE PARTIES. FURTHER, IF YOU WISH TO OPT OUT OF MARKETING TEXT OR SMS MESSAGES, IN RESPONSE TO SUCH A MESSAGE YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGE. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF PERFORMING SERVICES USING INSTAWORK.
- By creating an Account and accepting an Open Partner Request, You agree to use Your best efforts to provide Services that meet the requirements and specifications of the Partner as articulated in the Open Partner Request or otherwise.
- You understand and acknowledge that when You accept an Open Partner Request, the associated Partner Request will no longer be available for performance by other Professionals who received notice of the Open Partner Request.
- By accepting an Open Partner Request, You agree to enter into a binding legal agreement to provide the Services for the payment specified in the Open Partner Request. You further agree that You will not accept an Open Partner Request unless certain that: (1) You understand the nature of the Services requested by the Partner; and (2) You can perform these Services at the time and in the location requested by the Partner.
- You agree that if you fail to timely provide the Services consistent with the Partner’s requirements and specifications (a “Service Failure”), Instawork reserves the right to recover any costs or fees incurred by Instawork related to Your action(s) and/or omission(s).
Payment for Services
- Unless otherwise notified in writing by Instawork, you will receive payment in an amount consistent with the rate You accepted for a Partner Engagement for all undisputed time recorded and submitted to Instawork as worked for that Partner Engagement (“Contractual Remuneration”).
- You agree to provide Instawork with certain accurate and complete information, including identification and bank account/routing data (collectively “Banking Information”) to facilitate payment(s) to You.
- Instawork uses your Banking Information to process and pay Contractual Remuneration for Partner Engagements completed in the previous calendar week (Monday through Sunday) no less frequently than on a weekly basis. You are responsible for any applicable bank processing fees associated with such remittance, and You understand that You may incur and agree to pay transfer and/or transaction fees, as applicable, for such payments. Instawork reserves the right, at its sole discretion, to change the payment schedules at any time for any reason, and Your continued use of the Platform shall constitute Your consent to any change.
- Nothing in this Agreement prevents You from negotiating a different rate of pay with a Partner. You are also free to contact Instawork regarding the payment schedule, and are free to accept, reject, or ignore any Partner Request as a means to earn different rates of pay.
- Partners and/or other third parties can pay You a gratuity in cash or via other payment method(s). Nothing in this Agreement shall prevent You from retaining 100% of any gratuity. Instawork acknowledges it has no right to interfere with the amount of gratuity given to You.
- In the event of a Service Failure, You agree that You may forfeit all or a portion of the payment as described in this Section (depending on the extent to which the Service Failure results from Your act or omission). Any reduction of payment shall be based upon proof provided by the Partner, You, and/or any other party with information relevant to the dispute. Instawork shall make the initial determination as to what percentage of fault You bear, and You shall have the right to challenge Instawork’s determination as described in the Mutual Arbitration Provision (Section 11), below.
- If You earn the minimum income established by the Internal Revenue Service, Instawork shall report all payments made to You on a calendar-year basis by issuing You an IRS Form 1099. You agree that Instawork may fulfill tax-related obligations, including providing tax documents by electronic transmission to the email address associated with your Account.
- You agree that You are solely responsible for timely filing all tax returns and submitting all payments as required by the appropriate tax authorities.
- You shall comply at Your expense with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state, and local income tax laws, and all other applicable federal, state, and local laws, regulations and codes that govern your provision of Services under this Agreement. To the extent You engage any employees, independent contractors, helpers, assistants, or other workers (collectively “Subcontractors”), unless otherwise mandated by law, You assume full and sole responsibility for the payment of all amounts due or required to be withheld from such Subcontractor(s) for work performed under this Agreement, including but not limited to any wages, benefits, and expenses; state and federal income tax withholdings; unemployment insurance contributions; and/or social security taxes. You will ensure that Subcontractor(s) involved in the Services, if any, are bound in writing to the foregoing, and to all of Your obligations under any provision of this Agreement, for the benefit of Instawork and Partners.
- You agree that during the Term of this Agreement, You shall maintain, at your own expense, up-to-date insurance of the types, including but not limited to vehicle insurance and workers compensation insurance, and in amounts equal to or greater than the minimum requirements as required by law in the jurisdiction in which you provide Services under this Agreement.
- In the event You are injured while providing Services under this Agreement, You acknowledge and understand that You will not be covered by any workers compensation insurance coverage that Instawork may provide to its employees.
- In the event Your actions cause an injury to a third-party while You are providing Services under this Agreement, You acknowledge and understand that You will not be covered by any general liability or automobile liability insurance coverage that Instawork may have. You further acknowledge and understand that Instawork is not making any commitment to defend and/or indemnify You in such circumstances, and specifically denies such obligation.
- Notwithstanding any other provision of this Agreement, a portion of the hourly proceeds from each Partner Engagement will be applied toward coverage under an occupational accident insurance policy ("OAI") made available by Instawork. Additionally, a portion of the hourly proceeds from each Partner Engagement will be applied towards membership in the Independent Contractors Benefits Association Inc. (ICBA). By accessing and using the Application, or by clicking to accept this Agreement, you hereby apply for the OAI and membership in the ICBA (both made available by Instawork). You certify that you are an Independent Contractor and agree to support the purpose of the ICBA to educate and assist Association members on issues of importance to Independent Contractors. You authorize Instawork to pay on your behalf fees for the OAI and ICBA membership dues. Contractor may opt out of the OAI and ICBA membership by providing Instawork proof of existing workers’ compensation insurance coverage via email.
- You agree to indemnify, defend, and hold harmless Instawork, including all parent, subsidiary, and/or affiliated companies, as well at its and their past and present successors, assigns, officers, owners, directors, representatives, attorneys, employees, and agents (collectively “Indemnitees”) from: (i) any and all claims, demands, damages, lawsuits, losses, liabilities, and causes of action arising directly or indirectly from, as a result of, or in connection with the actions or omissions of You and/or any Subcontractor under this Agreement, including but not limited to personal injury to or death of any person (including You and/or any Subcontractor); (ii) any liability arising from Your failure to comply with the terms of this Agreement; (iii) any and all tax liabilities and responsibilities for payment of all federal, state, and/or local taxes, including but not limited to all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contributions imposed or required under federal, state, and/or local laws, that are owed by You with respect to Your and/or any Subcontractors using the Instawork Platform to provide Services; and (iv) all costs associated with Your business, including but not limited to the expense and responsibility for any and all applicable insurance, local, state, and/or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards, or municipalities, including assessments regarding the worker classification of You and/or Your Subcontractor(s), if any.
- You agree that Your obligations in this Section shall include the cost of defense, including attorneys’ fees, as well as the payment of any final judgment rendered against or settlement agreed upon by Instawork or any of the Indemnitees.
- You explicitly agree that, unless otherwise prohibited by law, Instawork may satisfy Your indemnity obligation (in whole or in part) by way of deduction from any payment due to You from Instawork.
Mutual Arbitration and Dispute Resolution
- Arbitration of Disputes. The Parties mutually agree to resolve any and all disputes between them or between You and Instawork or any of Instawork’s parents, subsidiaries, affiliates including Partners, successors, assigns, officers, directors, employees, and/or agents exclusively through final, binding, and individual arbitration instead of filing a lawsuit in court (except as otherwise provided below). However, this Mutual Arbitration Provision does not cover disputes that, as a matter of law, may not be subject to arbitration agreements.
- Arbitration Governed by the FAA. Instawork and You expressly agree that this Mutual Arbitration Provision is a licensing agreement governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”), evidences a transaction involving commerce, and is not a contract of employment involving any class of workers engaged in foreign or interstate commerce within the meaning of Section 1 of the FAA. Instawork and You expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Mutual Arbitration Provision, and that the FAA shall apply to any and all disputes between the Parties, including but not limited to those arising out of or relating to this Agreement, Your classification status as a worker or service provider (e.g., an alleged employment relationship), Your provision of Services under this Agreement, the remuneration received by You for providing Services, the termination of this Agreement, the suspension or deactivation of Your Instawork Account, and all other aspects of Your relationship with Instawork, past or present, whether arising under federal, state, or local law, including without limitation harassment, discrimination, and/or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans with Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes, ordinances, or regulations addressing the same or similar subject matters, and all other federal, state, and/or local claims arising out of or relating to Your relationship or termination of that relationship with Instawork. The Parties expressly agree that this Agreement shall be governed by the FAA even in the event You and/or Instawork are otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. In the event, but only in the event, the arbitrator determines the FAA does not apply, the state law governing arbitration agreements in the state in which You perform Services shall apply.
- Delegation. Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision, including without limitation any dispute concerning arbitrability. However, the preceding clause shall not apply to any dispute relating to or arising out of the Class Action Waiver and/or Representative PAGA Action Waiver (as defined below)—including, but not limited to, any claim that all or part of the Class Action Waiver and/or Representative PAGA Action Waiver is unenforceable, unconscionable, illegal, void, or voidable, or that a breach of either such Waiver has occurred, including all disputes relating to or arising out of the payment of arbitration fees, and/or disputes relating to whether either party has satisfied the condition precedent of engaging in the pre-arbitration informal telephonic dispute resolution conference—which must proceed in a court of competent jurisdiction and cannot be heard or arbitrated by an arbitrator. The Parties agree that any and all due dates for arbitration fees shall be tolled while the Parties resolve a dispute relating to or arising out of the Class Action Waiver, Representative PAGA Action Waiver, the payment of arbitration fees, and/or the pre-arbitration informal telephonic dispute resolution conference.
- Informal Dispute Resolution. Before commencing individual arbitration, the Parties must engage in a good-faith effort to resolve any claim covered by this Mutual Arbitration Provision through an informal telephonic dispute resolution conference between You and Instawork. The informal telephonic dispute resolution conference shall be individualized such that a separate conference must be held each time either Party intends to commence individual arbitration; multiple Professionals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either Party is represented by counsel, that Party's counsel may participate in the informal telephonic dispute resolution conference, but the Party also must appear at and participate in the conference. The Party initiating the claim must give notice to the other Party in writing of its, his, or her intent to initiate an informal telephonic dispute resolution conference, which shall occur between thirty (30) and sixty (60) days of the other Party receiving such notice, unless an extension is mutually agreed upon by the Parties. In the interval between the Party receiving such notice and the informal telephonic dispute resolution conference (“Negotiation Period”), nothing in either this Mutual Arbitration Provision specifically or this Agreement generally shall prohibit the Parties from engaging in informal communications to resolve the initiating Party’s claims. Engaging in an informal telephonic dispute resolution conference is a condition precedent that must be fulfilled before commencing individual arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the informal dispute resolution process required by this paragraph.
- Initiating Arbitration. Only after the Parties have engaged in a good-faith effort to resolve the dispute through an informal telephonic dispute resolution conference, and only if those efforts fail, either You or Instawork may initiate arbitration by notifying the other Party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name, telephone number, mailing address, and email address of the Party seeking arbitration (if You are seeking arbitration, the email address provided must be the email address associated with Your Instawork Account); (2) a statement of the legal claims being asserted and the factual bases of those claims; and (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); (4) the original personal signature of the Party seeking arbitration; and (5) the Party’s portion of any applicable filing fee. If the Party seeking arbitration is represented by counsel, counsel must also provide an original personal signature on the demand for arbitration (a digital, electronic, copied, or facsimile signature is not sufficient). By signing the demand for arbitration, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that (1) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Any demand for arbitration by You must be delivered to Instawork, Attn: Legal Department, 548 Market Street, PMB 63152, San Francisco, CA 94104-5401.
- CLASS ACTION WAIVER. Instawork and You mutually agree that any and all disputes or claims between the Parties will be resolved in individual arbitration. The Parties further agree that by entering into this Agreement, they waive the right to have any dispute or claim brought, heard, administered, resolved, or arbitrated as a class, collective, or mass action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective, and/or mass action, or to award relief to anyone but the individual in arbitration (“Class Action Waiver”). Instawork and You agree that the definition of a “class, collective, and/or mass action” includes, but is not limited to, instances in which You are represented by a law firm or collection of law firms that has filed more than 25 arbitration demands of a substantially similar nature against Instawork within 180 days of the arbitration demand filed on Your behalf, and the law firm or collective of law firms seeks to simultaneously or collectively administer and/or arbitrate all the arbitration demands. If more than 25 arbitration demands of a substantially similar nature are filed against Instawork by the same law firm or collection of law firms within 180 days of one another, each arbitration demand must be filed, administered, arbitrated, and resolved in an individual manner. This Class Action Waiver does not prevent You or Instawork from participating in a classwide settlement that would resolve or release the relevant claims. Notwithstanding the foregoing, this subsection shall not apply to representative or private attorneys general claims brought against Instawork, which are addressed separately below.
- REPRESENTATIVE PAGA ACTION WAIVER. Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) You and Instawork agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorneys general basis, including under the California PAGA, both you and Instawork agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or representative proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Action Waiver”). For the avoidance of doubt, notwithstanding any other provision of this Agreement or this Mutual Arbitration Agreement, disputes regarding the scope, applicability, enforceability, revocability or validity of this Representative PAGA Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this Representative PAGA Action Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Mutual Arbitration Agreement or the requirement that any remaining claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that any such claims must be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the Representative PAGA Action Waiver is unenforceable with respect to those claims, the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. This Representative PAGA Action Waiver does not prevent You or Instawork from participating in a classwide settlement that would resolve or release the relevant claims.
- Arbitration Proceedings. The Arbitrator shall be an attorney with experience in the law underlying the dispute. The Parties shall be required to meet and confer to select a neutral arbitrator or arbitration provider. If the Parties are unable to mutually agree upon an arbitrator or arbitration provider, then either Party may invoke 9 U.S.C. § 5 to request that a court of competent jurisdiction appoint an arbitration provider. As set forth in Section 11(B)(iii)-(iv), any arbitration provider appointed by a court under 9 U.S.C. § 5 shall conduct arbitration solely on an individualized basis. Once the Parties mutually agree upon a neutral arbitrator, or an arbitrator provider is appointed under 9 U.S.C. § 5, the ensuing arbitration shall commence pursuant to the rules of the designated arbitration provider, except that: (1) Unless applicable law provides otherwise, as determined by the arbitrator, Instawork and You shall equally share filing fees and other similar and usual administrative costs, that are commonly shared in both court and administrative proceedings, such as court reporter costs and transcript fees. Instawork shall pay any costs that are uniquely associated with arbitration, such as payment of the arbitrator and room rental; (2) If a Party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other Party finally obtains is not more favorable than the unaccepted offer, then the other Party shall pay the costs, including filing fees, incurred after the offer was made; (3) Both Parties agree not to oppose or interfere with any negotiations or agreements between the other Party and the arbitration administrator, or individual arbitrator, relating to a Party’s portion of the fees. The arbitrator, however, may disallow any private agreement between an administrator, on the one hand, and the negotiating party, on the other hand, if the arbitrator believes that the private agreement undermines his or her neutrality as arbitrator; (4) The arbitrator may issue orders (including subpoenas to third-parties) allowing the Parties to conduct discovery sufficient to allow each Party to prepare that Party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (5) Except as provided in the Class Action Waiver and Representative Action Waiver, the arbitrator may award all remedies to which a Party is entitled under applicable law and which would otherwise be available in a court of law, including but not limited to the imposition of sanctions under the Federal Rules of Civil Procedure, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable; (6) The arbitrator may hear motions to dismiss and/or motions for summary judgment. An arbitrator may not permit the filing of a motion for summary judgment until after the Parties have conducted discovery to support their claims and defenses. Any motion to dismiss and/or motion for summary judgment shall otherwise be governed by the standards of the Federal Rules of Civil Procedure governing such motions; (7) The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law; (8) Any finding that a claim or counterclaim was filed for purposes of harassment or is frivolous shall entitle the other Party to recover its, his, or her attorneys’ fees, costs, and expenses; (9) Either Instawork or You may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Section 11 may be rendered ineffectual; and (10) The arbitrator may consider, but under no circumstances is the arbitrator bound by, decisions reached in separate arbitrations. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Mutual Arbitration Provision, either Party may seek to enjoin the arbitration proceeding in a court of competent jurisdiction, and the arbitration shall automatically be stayed pending the outcome of that proceeding.
- Agency Investigations. Regardless of any other terms of this Agreement, nothing prevents You from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim, or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this Section 11, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a Party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law or as required under this Agreement before bringing a claim in arbitration. Instawork will not retaliate against You for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
- No Change To Worker Status. You agree and acknowledge that entering into this Mutual Arbitration Provision does not change Your status as an independent contractor in fact and/or in law. You further agree that when performing services pursuant to the terms of this Agreement, You are not doing so as an employee of Instawork or a Partner.
- Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Your contractual relationship with Instawork, and therefore You may opt out of this Mutual Arbitration Provision. In order to opt out, You must notify Instawork of Your intention to opt out by submitting to Instawork, via USPS Priority Mail or hand delivery to Instawork, Attn: Legal Department, 548 Market Street, PMB 63152, San Francisco, CA 94104-5401, a written notice identifying the email address and telephone number associated with Your Instawork account and stating that you are opting out of this Mutual Arbitration Provision. This written notice must be signed by You, and not any attorney, agent, or other representative of Yours. In order to be effective, Your opt-out notice must be postmarked or received by Instawork within thirty (30) days of Your acceptance of this Agreement. If You opt out as provided in this subparagraph, You will not be subject to any adverse action as a consequence of that decision and may pursue available legal remedies without regard to this Mutual Arbitration Provision. If You do not opt out within thirty (30) days of Your execution of this Agreement, Your failure to do so shall constitute mutual acceptance of the terms of this Mutual Arbitration Provision by Instawork and You.
- If You opt out of this Mutual Arbitration Provision and at the time of Your receipt of this Agreement You were bound by an existing agreement to arbitrate disputes arising out of or relating to Your use of the Platform, then that existing arbitration agreement shall remain in full force and effect, and, unless provided by the prior agreement, either Party may apply to a court under 9 U.S.C. § 5 for an order appointing an arbitrator or arbitration provider to resolve in individual arbitration the Parties’ disputes arising out of or relating to such existing agreement to arbitrate.
- You may only opt out on behalf of Yourself. A written notice submitted to Instawork indicating Your intention to opt out may apply, at most, to You. You (and Your agent or representative) may not effectuate an opt out on behalf of other Professionals.
- Your decision to opt out of this Mutual Arbitration Provision will relieve You only of Your obligation to arbitrate the disputes specified in this Mutual Arbitration Provision, and does not relieve You of any obligation to arbitrate disputes not specified in this Mutual Arbitration Provision that might arise under any Instawork Terms of Service to which You may be bound. Similarly, Your decision to opt out of another arbitration provision contained in any other agreement shall not relieve You of Your obligation to arbitrate disputes pursuant to this Mutual Arbitration Provision.
- Impact on Pending Litigation. This Mutual Arbitration Provision shall not affect your standing with respect to any litigation between Instawork and You that is already pending in a federal or state court or arbitration as of the date of Your receipt of this Mutual Arbitration Provision (“Pending Litigation”). This subsection shall not apply to any litigation between Instawork and You that is filed in a federal or state court or arbitration at any point after Your receipt of this Mutual Arbitration Provision; such actions shall be subject to mutual arbitration. Thus:
- If You are or previously were authorized to use the Platform, and at the time of Your receipt of this Mutual Arbitration Provision you were not bound by an existing arbitration agreement, You shall remain eligible to participate in any Pending Litigation to which you were a party or participant regardless of whether You opt out of this Mutual Arbitration Provision.
- If, at the time of Your receipt of this Mutual Arbitration Provision, You were bound by an existing arbitration agreement with Instawork, that arbitration agreement shall continue to apply to any Pending Litigation, even if You opt out of this Mutual Arbitration Provision.
- If, at the time of Your receipt of this Mutual Arbitration Provision, You were not previously a Professional authorized to use the Platform, then this Mutual Arbitration shall apply to all covered disputes and any Pending Litigation unless You timely opt out of this Mutual Arbitration Provision.
- Right To Consult With An Attorney: You have the right to consult with private counsel of Your choice, at Your own expense, with respect to any aspect of, or any claim that may be subject to this Mutual Arbitration Provision.
- Severability. In the event any section, subsection, or portion of this Mutual Arbitration Provision is deemed unenforceable, it shall be severed from the Agreement such that the remainder of this Mutual Arbitration Provision shall be enforceable to the fullest extent permitted by law. In any case in which (1) the dispute is filed as a class, collective, mass, or representative action, and (2) there is a final judicial determination that all or part of the Class Action Waiver and/or Representative PAGA Action Waiver is invalid or unenforceable, the class, collective, mass, or representative action to that extent must be severed and litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver and/or Representative PAGA Action Waiver that is valid and enforceable shall be enforced in arbitration. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the Class Action Waiver and/or Representative PAGA Action Waiver is unenforceable with respect to those claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual claims in arbitration.
Limitation on Liability
- IN NO EVENT WILL INSTAWORK, ITS PARENTS, SUBSIDIARIES, AFFILIATES INCLUDING PARTNERS, OR OTHER RELATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “INSTAWORK” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE INSTAWORK PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE INSTAWORK PLATFORM OR THIS AGREEMENT, HOWEVER ARISING, INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Intellectual Property Rights
- You agree that Instawork shall own all right, title and interest (including all intellectual property rights of any sort throughout the world) relating to any and all inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or for or on behalf of You during the term of this Agreement that relate to the subject matter of or arise out of or in connection with the Services or any Proprietary Information (as defined below) (collectively, "Inventions") and You will promptly disclose and provide all Inventions to Instawork. You hereby make all assignments necessary to accomplish the foregoing ownership, and you agree to assist Instawork, at Instawork’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. You hereby irrevocably designate and appoint Instawork as your agent and attorney-in-fact, coupled with an interest to act for and on Your behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by You and all other creators or owners of the applicable Invention.
- If any part of the Services or Inventions or information provided hereunder is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights owned by or licensed to You (or any person involved in the Services) and not assigned hereunder, You hereby grant Instawork and its successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and license to exploit and exercise all such technology and intellectual property rights in support of Instawork’s exercise or exploitation of the Services, Inventions, other work or information performed or provided hereunder, or any assigned rights (including any modifications, improvements and derivatives of any of them).
- To the extent allowed by law, any license granted Instawork hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights," "artist’s rights," "droit moral," or the like (collectively "Moral Rights"). Furthermore, You agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, Instawork may and is hereby authorized to (and to allow others to) use Your name in connection with promotion of its business, products or services. To the extent any of the foregoing is ineffective under applicable law, You hereby provide any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible and agree not to assert any Moral Rights with respect thereto. You will confirm any such ratifications and consents from time to time as requested by Instawork. If any other person is in any way involved in any Services, You will obtain the foregoing ratifications, consents and authorizations from such person for Instawork’s exclusive benefit.
Proprietary Information & Confidentiality
- You agree that all Inventions and all other business, technical and financial information (including, without limitation, the identity of and information relating to Partners or employees) developed, learned or obtained by or on behalf of You during the period that you provide the Services that relate to Instawork or Partners, or to the business or demonstrably anticipated business of Instawork or Partners, or in connection with the Services or that are received by or for Instawork or any Partner in confidence, constitute “Proprietary Information.” Proprietary information also includes information received in confidence by Instawork from its Partners, suppliers, or other third parties, but shall not include any information to the extent You can document: (a) is or becomes part of the public domain through no action or omission by You; or (b) was possessed by You without an obligation of confidentiality prior to its disclosure under this Agreement.
- You agree that You shall hold in confidence and not disclose or, except in performing the Services, use, or permit to be used, any Proprietary Information. Upon termination or as otherwise requested by Instawork, You will promptly provide to Instawork all items and copies containing or embodying Proprietary Information, except that You may keep Your personal copies of Your compensation records and this Agreement.
- You further agree that you have not brought and will not bring to Instawork or Partners, or use in the performance of the Services, any other party’s Proprietary Information or materials or documents of another party considered confidential unless You have first obtained written authorization from such party for the possession and use of such materials and have received Instawork’s prior written consent to use such materials.
- If You become legally compelled to disclose any Proprietary Information, other than pursuant to a confidentiality agreement, You will provide Instawork prompt written notice of such disclosure and will cooperate with Instawork should Instawork seek a protective order or another appropriate remedy. If Instawork waives Your compliance with this obligation or fails to obtain a protective order or other appropriate remedy, You will furnish only that portion of the Proprietary Information that is legally required to be disclosed; provided that any Proprietary Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
- You also recognize and agree that You have no expectation of privacy with respect to Instawork’s telecommunications, networking, or information processing systems (including, without limitation, stored computer files, email messages and voice messages), and that Your activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.
- As additional protection for Proprietary Information, You agree that during the period over which You provide Services under this Agreement, You will not encourage or solicit any employee or contractor of Instawork to leave Instawork for any reason.
Warranties and Other Obligations
- You represent, warrant, and covenant that:
- You will perform and/or cause to be performed all Services under this Agreement in a professional and workmanlike manner;
- None of such Services nor any part of this Agreement is or will be inconsistent with any obligation You may have to others;
- All work under this Agreement shall be Your original work and none of the Services or Inventions nor any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, You);
- You have the full right to provide Instawork with the assignments and rights provided for herein (and have written enforceable agreements with all persons necessary to give You the rights to do the foregoing and otherwise fully perform this Agreement);
- You shall comply with all applicable laws, Instawork safety rules, and the safety rules of Partners in the course of performing the Services; and
- If Your work requires a license, You have obtained that license and the license is in full force and effect.
- You represent, warrant, and covenant that there exist no actual or potential conflicts of interest concerning the Services to be performed under this Agreement, and that You will advise Instawork at such time as any activity of either Instawork or another business presents You with a conflict of interest or the appearance of a conflict of interest. You agree that in any such circumstance, You will take whatever action is requested by Instawork or Partners to resolve any conflict or appearance of conflict which it finds to exist.
- You further represent and warrant that You have full power and authority to enter into this Agreement and perform Your obligations hereunder.
Term and Termination
- This Agreement shall remain in full force and effect for a term of one (1) year (the “Term”) from the date it is accepted by You. At the end of each Term, this Agreement shall automatically renew for an additional Term of one (1) year. This Agreement may not be terminated early without penalty except as follows:
- On a date which the parties have mutually agreed in writing (electronic communication sufficient);
- By either party upon thirty (30) days written notice (electronic communication sufficient).
- If one Party has materially breached this Agreement, immediately upon written notice to the breaching Party (electronic communication sufficient), with such notice specifying the breaching conduct;
- The following acts and/or occurrences shall constitute a material breach of this Agreement:
- Failure by Instawork to remit Contractual Remuneration to you within thirty (30) days of completing a Partner Engagement for which such payment is owed;
- Any act by a Party that causes the other Party to violate its obligations under any applicable federal, state, or local law;
- Failure by You to maintain current insurance coverage in the amounts and types specified in this Agreement or as required by law;
- Failure to pass any legally authorized background check;
- Failure by you to maintain all licenses (including business licenses), permits, authorizations, registrations, and/or other prerequisites to provide any Services under this Agreement and/or as required by law;
- Conduct by You, documented by a Partner, employee of Instawork, or any other third-party, that a reasonable person as determined by Instawork in its sole discretion would violate our Community Standards, including without limitation conduct that is discriminatory, physically threatening, highly offensive, or harassing;
- Failure by You to reasonably cooperate with Instawork in the investigation of or respond to any claim (insurance, civil, or otherwise) arising out of or related to You and/or Your Subcontractor’s alleged or actual acts or omissions while using the Platform;
- Documented abuse or manipulation of promotions or referral programs offered by Instawork;
- Using or attempting to use more than one Account or an Account that was not created by You, including attempting to obtain multiple opportunities to opt out of this Agreement’s Section 11, above.
- Repeated Failure by You, as determined by Instawork in its sole discretion, to complete a Partner Engagement in the manner specified by the Partner without waiver of the obligation as communicated by Instawork;
- Failure by You to provide Your Services under this Agreement in a manner consistent with Instawork’s effective operation of the Instawork Platform.
- Upon termination of this Agreement, Instawork shall pay You all unpaid Contractor Remuneration due for Services completed prior to notice of such termination, and shall retain the full amount of any fee paid to Instawork by any Partner in connection with Your Partner Engagements. The portions of this Agreement intended to survive termination, including without limitation the Parties’ obligations regarding indemnity, mutual arbitration & dispute resolution, limitation on liability, assignment of invention, and proprietary information & confidentiality shall survive any termination or expiration.
- Assignment. This Agreement and the Services contemplated hereunder are personal to Contractor and Contractor shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Partner. Any attempt to do so shall be void. Partner may fully assign and transfer this Agreement in whole or part.
- Notice. All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice.
- Injunctive Relief. Any breach of Sections 13 (Intellectual Property Rights), 14 (Proprietary Information & Confidentiality), and/or 15 (Warranties and Other Obligations) or will cause irreparable harm to Partner for which damages would not be an adequate remedy, and therefore, Partner will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- Governing Law. Except for the Mutual Arbitration Provision, which is governed by the FAA, the choice of law for interpretation of this Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. Nothing in this Section, however, shall be construed to create new or additional substantive rights or obligations for the Parties, which otherwise would not be available or applicable to them in their respective place of residence or incorporation.
- Defend Trade Secrets Act of 2016; Other Notices. You understand that pursuant to the federal Defend Trade Secrets Act of 2016, You shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. You further understand that nothing contained in this Agreement limits Your ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to Instawork.
- Headings. Paragraph titles and headings are provided for reference only and do not affect the substantive provisions of this Agreement.
- Entire Agreement. This Agreement and the documents incorporated herein constitute the entire agreement between the parties and supersede all previous agreements or representations, written or oral, with respect to the subject matter hereof. You represent and warrant that You are not relying on any statement or representation not contained in this Agreement. To the extent any terms set forth in any exhibit or schedule conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly agreed by the Parties in such exhibit or schedule.