Gudwork, DBA Folio INC. - TERMS OF SERVICE LAST UPDATED: MARCH, 27 2022
1. Gudwork ACCOUNTS Section 1 discusses what you must agree to before using the Platform and the different types of accounts that can be created on the Platform, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE By registering for an account to use the Platform (an “Account”), by using the Platform 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 Platform, you agree to abide by this Agreement and the other Terms of Service.To access and use certain portions of the Platform and the Platform Services, you must register for an Account. Subject to the Platform Terms of Service, certain portions of the Platform are available to Platform Visitors, including those portions before your Account registration is accepted. Gudwork reserves the right to decline a registration to join Gudwork or to add an Account type as a Company or Contractor, for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.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 this Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY Gudwork offers the Platform for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Platform, 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 Platform 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 Contractor 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 Platform, 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 Platform 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 We reserve the right to revoke the privileges of the Account or access to or use of the Platform, 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. Account types are collectively called (“Users”).
1.4.1 COMPANY ACCOUNT You can register for an Account or add an Account type to use the Platform as a Company (a “Company Account”). Each User under a Company Account (“Team Member”) can be given different permissions to act on behalf of the Company Account. Team Members can post projects on Gudwork and reach out to Contractors.
1.4.2 Contractor ACCOUNT You can register for an Account or add an Account type to use the Platform as a Contractor (a “Contractor Account”). In order to register for a ContractorAccount, you must be currently enrolled in an nationally accredited undergraduate or graduate degree program, or have explicit approval from Gudwork. Only Contractor Accounts can complete projects. Futhermore, Contractor must have all suitable hardware and or software licenses to complete commercial work.
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, 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 Engagements and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Platform. Upon closure of an Account, Gudwork 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 Gudwork. You authorize Gudwork, 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, which includes, but is not limited to, providing official government or legal documents.
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 Folio to assume that any person using the Platform 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 Platform if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
1.8 SOLICITATION & SUPPORT You agree not to directly contact users outside of the platform for issues related to the platform including technical difficulties or payment discrepancies. For issues and concerns, contact firstname.lastname@example.org.
2. PURPOSE OF Gudwork Section 2 discusses what Gudwork does and does not do when providing the Platform and some of your responsibilities when using the Platform to find or enter intoan engagement with a Contractor or Company, as detailed below.The Platform is a marketplace where Companies and Contractors can identify each other and advertise, buy, and sell Contractor Services online. Subject to the Terms of Service, Gudwork provides the Platform Services to Users, including hosting and maintaining the Platform, facilitating payment and reviews, and assisting Users in resolving disputes. When a User enters an engagement the User uses the Platform to invoice and pay any amounts owed.
2.1 RELATIONSHIP WITH Gudwork Gudwork merely makes the Platform available to enable Contractors and Companies to find and transact directly with each other. Through the Platform, Contractors may be notified of Companies that may be seeking the services they offer, and Companies may be notified of Contractors that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Company, or Contractor on their own. If Users decide to enter into an engagement, the Engagement is directly between the Users, and Gudwork is not a party to that Engagement.You acknowledge, agree, and understand that Gudwork is not a party to the relationship or any dealings between Company and Contractor. 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 an engagement (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Engagements, (d) performing Contractor Services, or (e) paying for Engagements or Contractor Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into an engagement with another User and for verifying any information about another User. Gudwork does not make any representations about or guarantee the truth or accuracy of any Contractor’s or Company’s listings or other User Content on the Platform; does not verify any feedback or information provided by Users about Contractors or Companies. You acknowledge, agree, and understand that Gudwork does not, in any way, supervise, direct, control, or evaluate Contractors or their work and is not responsible for any Project, Project terms or Work Product. Gudwork makes no representations about and does not guarantee, and you agree not to hold Gudwork responsible for, the quality, safety, or legality of Contractor Services; the qualifications, background, or identities of Users; the ability of Contractor to deliver Contractor Services; the ability of Companies to pay for Contractor Services; User Content, statements or posts made by Users; or the ability or willingness of a Company or Contractor to actually complete a transaction.You also acknowledge, agree, and understand that Contractor 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 Contractor Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Gudwork, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Gudwork will not have any liability or obligations under or related to Engagements and/or Contractor Services for any acts or omissions by you or other Users; (iii) Gudwork does not, in any way, supervise, direct, or control any Contractor or Contractor Services; does not impose quality standards or a deadline for completion of any Contractor Services; and does not dictate the performance, methods, or process Contractor uses to perform services; (iv) Contractor is free to determine when and if to perform Contractor Services, including the days worked and time periods of work, and Gudwork does not set or have any control over Contractor’s pricing, work hours, work schedules, or work location, nor is Gudwork involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Contractor for a Project; (v) Contractor will be paid at such times and amounts as agreed with a Company in a given Engagement, and Gudwork does not, in any way, provide or guarantee Contractor a regular salary or any minimum, regular payment; (vi) Gudwork does not provide Contractor with training or any equipment, labor, tools, or materials related to any Engagement; and (vii) Gudwork does not provide the premises at which Contractors will perform the work. Contractors are free to use subcontractors or employees to perform Contractor Services and may delegate work on fixed-price contracts or by agreeing with their Companies to have hourly contracts for Contractor’s subcontractor(s) or employee(s). If a Contractor uses subcontractors or employees, Contractor further agrees and acknowledges that this paragraph applies to Gudwork’s relationship, if any, with Contractor’s subcontractors and employees as well and Contractor is solely responsible for Contractor’s subcontractors and employees.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, provided, if applicable, Users comply with the Opt Out provisions described in Section 7. 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 Contractor acknowledges and agrees that Contractor is solely responsible (a) for all tax liability associated with payments received from Contractor’s Companies and through Gudwork, and that Gudwork will not withhold any taxes from payments to Contractor; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Contractor is not covered by or eligible for any insurance from Gudwork; (c) for determining whether Contractor is required by applicable law to issue any particular invoices for the Contractor Fees and for issuing any invoices so required; (d) for determining whether Contractor 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 Contractor 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 Gudwork is required by applicable law to withhold any amount of the Contractor Fees and for notifying Gudwork of any such requirement and indemnifying Gudwork for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Gudwork, Contractor agrees to promptly cooperate with Gudwork and provide copies of Contractor’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Contractor is engaging in an independent business as represented to Gudwork.Gudwork will assist with the issuance of 1099k’s in line with being a third party payment processor.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT You hereby acknowledge and agree that Users publish and request Gudwork to publish on their behalf information on the Platform 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 Contractors or Companies voluntarily submit to Gudwork and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Gudwork; Gudwork provides such information solely for the convenience of Users.You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Platform and you specifically request that Gudwork post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Platform. You acknowledge and agree that feedback results for you wherever referenced, and other User Content highlighted by Gudwork on the Platform or otherwise (“Composite Information ”), if any, will include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Gudwork will make Composite Information available to other Users, including composite or compiled feedback. Gudwork provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Gudwork does not monitor, influence, contribute to, or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person.Gudwork 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. Gudwork is not legally responsible for any feedback or comments posted or made available on the Platform 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, Gudwork reserves the right (but is under no obligation) to remove posted feedback or information that, in Gudwork’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system, or otherwise is inconsistent with the business interests of Gudwork. You acknowledge and agree that you will notify Gudwork of any error or inaccurate statement in your feedback results, including the Composite Information , and that if you do not do so, Gudwork may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN COMPANY AND Contractor Section 3 discusses the relationship you may decide to enter into with another User, including Engagements between Users, as detailed below.
3.1 ENGAGEMENTS If a Company and Contractor decide to enter into an engagement, the Engagement is a contractual relationship directly between the Company and Contractor. Company and Contractor have complete discretion both with regard to whether to enter into an engagement with each other and with regard to the terms of any Engagement. You acknowledge, agree, and understand that Gudwork is not a party to any Engagement, that the formation of an engagement between Users will not, under any circumstance, create an employment or other service relationship between Gudwork and any Contractor or a partnership or joint venture between Gudwork and any User.With respect to any Engagement, Companies and Contractors may enter into any additional 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 Gudwork’s rights and obligations under the Terms of Service.'
3.2 DISPUTES AMONG USERS Non-binding dispute assistance (“Dispute Assistance”) is available within 30 days of the date of the last release of funds from Company to Contractor. If Company or Contractor contacts Gudwork via email to email@example.com within 30 days of the date of the last payment from Company to Contractor and requests non-binding dispute assistance for any dispute among them (a “Dispute”), Gudwork will attempt to assist Company and Contractor by reviewing the Dispute and proposing a mutual, non-binding resolution. Gudwork will only review the 30 days of work performed prior to the date a User requests Dispute Assistance.If Contractor or Company intends to obtain an order from any arbitrator or any court that might direct Gudwork to take or refrain from taking any action with respect to an Account, 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 Gudwork, 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.• The Gudwork Disputes team will notify Company and Contractor via ticket by providing a notice of dispute along with a request for information and supporting documentation.• If both Company and Contractor respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Platform that pertains to the Dispute. After review, the Disputes team will propose a mutual, non- binding resolution based on the results of the review.• The proposed resolution is non-binding; Company and Contractor can choose whether or not to agree to it. If Company and Contractor agree in writing to the proposed resolution, Company and Contractor agree that Gudwork is authorized and irrevocably instructed to immediately release funds in accordance with the proposed resolution.• If Company or Contractor rejects Gudwork’s proposed, non-binding resolution then Company and/or Contractor must pursue the Dispute independently.• Gudwork reserves the right to review the Contractor’s work for 30 days prior to the date of the request for Dispute Assistance and in its sole discretion, to make adjustments to invoices, and to direct Gudwork to make appropriate releases to Company if it finds work that clearly does not relate Hourly Contract requirements or Company instructions in the Work Diaries or violations of the Terms of Service during its review of the work.
3.3 CONFIDENTIAL INFORMATION AND OWNERSHIP Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in any Engagement Terms. If and to the extent that the Users do not articulate any different Engagement agreement, then they agree that this Section 3.3 (Confidentiality) applies.
3.3.1 Confidentiality 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.
3.3.2 Return If and when Confidential Information is no longer needed for the performance of the Contractor Services for a Services Contract or at Company’s or Contractor’s written request (which may be made at any time at Company’s or Contractor’s sole discretion), the party that received Confidential Information, will, at its expense, 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. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.
3.3.3 Ownership of Work Product Upon Contractor’s receipt of full payment from Company, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Company, and Company will be deemed to be the author thereof. If Company has any Intellectual Property Rights to the Work Product that are not owned by Company upon Contractors’s receipt of payment from Company, Contractor hereby automatically irrevocably assigns to Company all right, title, and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Contractor retains no rights to use, and will not challenge the validity of Company’s ownership in, such Intellectual Property Rights. Contractor hereby waives any moral rights, rights of paternity, integrity, disclosure, and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered and paid for.
3.3.4 LICENSE TO BACKGROUND TECHNOLOGY Upon Contractor’s receipt of full payment from Company for delivery of Work Product, Contractor hereby automatically grants to Company a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the license described herein applies only to the portion of Work Product delivered and paid for.
3.3.5 LICENSE TO OR WAIVER OF OTHER RIGHTS If Contractor has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Company by Contractor, Contractor hereby automatically, upon Contractor’s receipt of full payment from Company, unconditionally and irrevocably grants to Company during the term of such rights, an exclusive, even as to Contractor, irrevocable, perpetual, worldwide, fully-paid and royalty- free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Contractor has any rights to such Work Product that cannot be assigned or licensed, Contractor hereby automatically, upon Contractor’s receipt of payment from Company, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Company or related to Company’s customers, with respect to such rights, and will, at Company’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
3.3.6 ASSISTANCE Contractor will assist Company in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Engagement, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Company is unable, after reasonable effort, to secure Contractor’s signature on any document needed in connection with the foregoing, Contractor hereby designates and appoints Company and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Contractor.
3.3.7 THIRD-PARTY RIGHTS Contractor represents and warrants that Contractor will not incorporate or use the materials of any third party including those of any other Company or any employer, in performing the Contractor Services that are not generally available for use by the public or have not been legally transferred to the Company.
3.3.8 BACKGROUND TECHNOLOGY Contractor will disclose in the Engagement terms any Background Technology which Contractor proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Contractor discloses no Background Technology, Contractor warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Contractor will separately provide, with each delivery of Work Product to Company, a bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Contractor, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement terms, Contractor agrees that it will not incorporate into Work Product or otherwise deliver to Company any software code for which the use or distribution of the code will create (or purport to create) obligations for Company to grant any rights or immunities under Company intellectual property to a third-party, including without limitation any obligation that the Work Product or Company software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
3.3.9 COMPANY MATERIALS Company grants Contractor a limited, non-exclusive, revocable (at any time, at Company’s sole discretion) right to use the Company Materials as necessary solely for the performance of the Contractor Services under the applicable Engagement. Company reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Company Materials. Upon completion or termination of the Engagement, or upon Company’s written request, Contractor will immediately return all Company Materials to Company and further agrees to destroy all copies of Company Materials and Deliverables (except for Background Technology as permitted by the Engagement) contained in or on Contractor’s premises, systems, or any other equipment or location otherwise under Contractor’s control. Within ten days of such request from Company, Contractor agrees to provide written certification to Company that Contractor has returned or destroyed all Company Materials and Work Product as provided in this subsection.
3.4 THIRD-PARTY BENEFICIARIES It is the intent of the Parties to this Agreement that Users who have entered into Engagements 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 Section 4 discusses what you agree to concerning whether a Contractor is an employee or independent contractor and when you agree to pay Gudwork an opt-out fee, 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 Gudwork and a User. Company is solely responsible for and has complete discretion with regard to selection of any Contractor for any Project. Company is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Contractors should be engaged as independent contractors or employees of Company and engaging them accordingly; Gudwork will have no input into, or involvement in, worker classification as between Company and Contractor and Users agree that Gudwork has no involvement in and will have no liability arising from or relating to the classification of a Contractor generally or with regard to a particular Project.It will be assumed that if a Company pays a Contractor through our Platform that they have been classified as an independent contractor. In a scenario where a Contractor is deemed to be an employee or if it will receive services from a Contractor under terms and conditions that would give rise to an employment engagement, Company agrees to pay opt-out fee (outlined in section 6).Contractor, acknowledges, understands, and agrees that Gudwork will have no control over, or involvement in determining or influencing, the terms and conditions of any employment relationship that may arise between Contractor and Staffing Provider and/or Company, including the selection of an employee, pay rate, work hours, employment dates, and working conditions. Contractor will not have any contract on the Gudwork Platform or contact with Gudwork regarding such employment terms
5. Gudwork FEES Section 5 describes what fees you agree to pay to Gudwork in exchange for Gudwork providing the Platform to you and what taxes Gudwork may collect, as detailed below.
5.1 SERVICE FEES Companies pay Gudwork a Service Fee depending on their account type for the use of the Platform. Gudwork may also charge service fees to Contractors for using the Platform’s communication, invoicing, reporting, dispute resolution, and payment services, including facilitating arbitration services. Gudwork will deduct a certain percentage from the total payout when remitting payment for a project posted on the platform.Gudwork and Stripe function as a Third Party Payment Processors in accordance with Section 2091, section 6050W (c) (3) of Housing and Economic Recovery Act of 2008.
5.2 MEMBERSHIP FEES Companies may pay Gudwork a membership fee if they subscribe for a paid membership which will subscribe Companies to different levels of participation and privileges on the Platform, by payment of subscription fees.5.3 VAT AND OTHER TAXES Gudwork 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 Contractor (the "Taxes"). In such instances, any amounts Gudwork is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Gudwork under the Terms of Service.
5.4 NON-PAYMENT If Company is in “default”, meaning the Company fails to pay the Contractor 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 Gudwork), Gudwork 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, Company will be deemed to be in default on the earliest occurrence of any of the following: (a) Company fails to pay the Contractor Fees when due, (b) Company 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) Company fails to pay an invoice issued to the Company by Gudwork within the time period agreed or, if none, within 30 days, (d) Company initiates a chargeback with a bank or other financial institution resulting in a charge made by Gudwork for Contractor Fees or such other amount due being reversed to the Company, or (e) Company takes other actions or fails to take any action that results in a negative or past-due balance on the Company’s account.If Company is in default, Gudwork may, without notice, temporarily or permanently close Company’s Account and revoke Company’s access to the Platform, including Company’s authority to use the Platform to process any additional payments, enter into Engagements, or obtain any additional Contractor Services from other Users through the Platform. However, Company will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Company’s Account as a result of the default. Without limiting other available remedies, Company must pay Gudwork 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.Gudwork, at our discretion and to the extent permitted by applicable law, may set off amounts due against other amounts received from Company or held by Gudwork for Company, 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.
5.5 NO RETURN OF FUNDS Company acknowledges and agrees that Gudwork will charge Company’s designated Payment Method for the Contractor Fees when the Company remits payment, and that once Gudwork charges or debits the Company’s designated Payment Method for the Contractor Fees plus Service Fee, the charge or debit is non-refundable, except as otherwise required by applicable law. Company also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Company resolve disputes. To the extent permitted by applicable law, Company therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Contractor 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 Company initiates a chargeback in violation of this Agreement, Company agrees that Gudwork may dispute or appeal the chargeback and institute collection action against Company and take such other action it deems appropriate.
5.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION The Platform and the Platform Services operate in U.S. Dollars. If a User;s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make or receive payments in U.S. Dollars, the Platform may display foreign currency conversion rates that Gudwork currently makes 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 Platform. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit 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 Platform. A list of supported foreign currencies is available on the Platform. If foreign currency conversion is required to make a payment in U.S. Dollars and either Gudwork does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Platform, Gudwork or one of our Affiliates will charge, debit, or credit the Users Payment Method in U.S. Dollars and the Users Payment Method provider will convert the payment at a foreign currency conversion rate selected by the Users Payment Method provider. The Users Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The Users authorization of a payment using a foreign currency conversion rate displayed on the Platform is at the Users sole risk. Gudwork are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Gudwork is not responsible for currency fluctuations that occur when receiving or sending payments to and from the Account.
6. NON-CIRCUMVENTION Section 6 discusses your agreement to make and receive payments only through Gudwork for two years from the date you first meet your Company or Contractor on the Platform, unless you pay an Opt-Out Fee, as detailed below.
6.1 MAKING PAYMENTS THROUGH Gudwork You acknowledge and agree that a substantial portion of the compensation Gudwork receives for making the Platform available to you is collected through the Service Fee described in Section 5.1. Gudwork only receives this Service Fee when a Company and a Contractor pay and receive payment through the Platform. Therefore, for 24 months from the time you identify or are identified by any party through the Platform (the “Non-Circumvention Period”), you agree to use the Platform 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 “Gudwork 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 Platform, such as if you and another User worked together before meeting on the Platform, then the Non- Circumvention Period does not apply. If you use the Platform 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 6.2), you agree not to circumvent the Payment Methods offered by the Platform. By way of illustration and not in limitation of the foregoing, you agree not to:• Submit proposals or solicit parties identified through the Platform to contract, hire, work with, or pay outside the Platform.• Accept proposals or solicit parties identified through the Platform to contract, invoice, or receive payment outside the Platform.• Invoice or report on the Platform or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.• Refer a User you identified on the Platform to a third-party who is not a User of the Platform for purposes of making or receiving payments off the Platform.You agree to notify Gudwork immediately if a person suggests to you making or receiving payments outside of the Platform in violation of this Section 6.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Gudwork by sending an email message to: firstname.lastname@example.org. If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Platform, such as minimum rates supported on the Platform, and therefore choose to cease using the Platform, 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 Platform.
6.2 OPTING OUT You may opt-out of the obligation in Section 6.1 with respect to each Gudwork Relationship only if the Company or prospective Company or Contractor pays Gudwork an opt-out fee for each such relationship (the “Opt-Out Fee”).The Opt-Out Fee is computed as follows (a) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, on the amount calculated in (b), from the date Company first makes payment to the subject Contractor until the date the Opt-Out Fee is paid; and (b) the greater of: (i) $500; or (ii) 10% of the anticipated annualized salary or wages for one year if the Company offers Contractor employment directly; or (iii) all Service Fees that would be earned by Gudwork from the Gudwork Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Contractor from Company during the most recent normalized 8-week period, or during such shorter period as data is available to Gudwork;(iv) provided, however, that if the amount in (ii) and (iii) cannot be ascertained due to uncertainty or lack of sufficient information, then Gudwork and you agree that fee shall be $5000; if only one of (ii) or (iii) can be ascertained, then Gudwork and you agree that amount shall be used if it is greater than $500. To pay the Opt-Out Fee, you must request instructions by sending an email message to cathy@Gudwork.coIf Gudwork determines, in its sole discretion, that you have violated Section 7, Gudwork 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 Platform, and/or (z) charge you for all losses and costs (including any and all time of Gudwork’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
7. RECORDS OF COMPLIANCE Section 7 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 Gudwork upon request. Nothing in this subsection requires or will be construed as requiring Gudwork to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, oran engagement. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Platform will not be construed as creating any responsibility on Gudwork’s part to store, backup, retain, or grant access to any information or data for any period.
8. WARRANTY DISCLAIMER Section 8 discusses your agreement and understanding that the Platform may not always be available or work perfectly, as detailed below.YOU AGREE NOT TO RELY ON THE PLATFORM, THE PLATFORM SERVICES, ANY INFORMATION ON THE PLATFORM OR THE CONTINUATION OF THE PLATFORM. THE PLATFORM AND THE PLATFORM SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Gudwork MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE PLATFORM, THE PLATFORM 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, Gudwork 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 Gudwork WITH RESPECT TO ANY DEFECTS, NON- CONFORMANCES, OR DISSATISFACTION.
9. LIMITATION OF LIABILITY Section 9 discusses your agreement that Gudwork usually will not have to pay you damages relating to your use of the Platform and, if it is, at most it will be required to pay you $2,500, as detailed below.Gudwork 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:• your use of or your inability to use our Platform;• delays or disruptions in our Platform;• viruses or other malicious software obtained by accessing, or linking to, our Platform;• glitches, bugs, errors, or inaccuracies of any kind in our Platform;• damage to your hardware device from the use of the Platform;• the content, actions, or inactions of third parties’ use of the Platform;• a suspension or other action taken with respect to your Account;• your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information , or metrics found on, used on, or made available through the Platform; and• your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.ADDITIONALLY, IN NO EVENT WILL Gudwork, 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 Gudwork, 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 Gudwork WITH RESPECT TO ENGAGEMENTS ON WHICH USER WAS INVOLVED AS COMPANY OR Contractor 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 OFTHE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
10. RELEASE Section 10 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 Gudwork is not a party to any contract between Users, you hereby release Gudwork, 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 Contractor Services provided to Company by a Contractor and requests for refunds based upon disputes.TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”This release will not apply to a claim that Gudwork failed to meet our obligations under the Terms of Service.
11. INDEMNIFICATION Section 11 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 Platform or your illegal or harmful conduct, as detailed below.You will indemnify, defend, and hold harmless Gudwork, 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 Platform and the Platform Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Platform Services; (b) any Engagement entered into by you or your agents, including, but not limited to, the classification of a Contractor as an independent contractor; the classification of Gudwork as an employer or joint employer of Contractor; 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.
12. AGREEMENT TERM AND TERMINATION Section 12 discusses your and Gudwork’s agreement about when and how long this Agreement will last, when and how either you or Gudwork can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.12.1 TERMINATION Unless both you and Gudwork 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 cathy@Gudwork.co. In the event you properly terminate this Agreement, your right to use the Platform is automatically revoked, and your Account will be closed. Gudwork is not a party to any Engagement 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 Engagement 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 Gudwork 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 Platform; (c) Gudwork will continue to perform those Platform 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 Engagements, whichever is later, to Gudwork for any Platform Services or such other amounts owed under the Terms of Service and to any Contractors for any Contractor Services.Without limiting Gudwork’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Platform, deny your registration, or permanently revoke your access to the Platform and refuse to provide any or all Platform 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 Gudwork or our Affiliates; may be contrary to the interests of the Platform or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Platform under the same Account or a different Account or reregister under a new Account without Gudwork’s prior written consent. If you attempt to use the Platform 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 Platform depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Engagements with you. You therefore agree as follows: IF Gudwork DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, Gudwork HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO ENGAGEMENTS 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 Gudwork 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.12.2 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 Platform and that that any closure of your Account may involve deletion of any content stored in your Account for which Gudwork will have no liability whatsoever. Gudwork, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
12.3 SURVIVAL 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 Gudwork 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.
13. DISPUTES BETWEEN YOU AND Gudwork Section 13 discusses your agreement with Gudwork 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.13.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE If a dispute arises between you and Gudwork or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 13.4.4 below, you, Gudwork, 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 Gudwork (including without limitation any claimed employment with Gudwork or one of our Affiliates or successors), the termination of your relationship with Gudwork, or the Platform 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 Engagement, payments or agreements, any payments or monies you claim are due to you from Gudwork 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 Gudwork 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.
13.3 INFORMAL DISPUTE RESOLUTION Before serving a demand for arbitration of a Claim, you and Gudwork agree to first notify each other of the Claim. You agree to notify Gudwork of the Claim at Attn: Gudwork by email to Support@Gudwork, and Gudwork agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Gudwork 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 Gudwork, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Gudwork 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.
13.4 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, Gudwork, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from Gudwork’s council, instead of a court or jury. Gudwork’s council may be contacted at email@example.com.
13.4.1. 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 Gudwork ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to the Terms of Service. 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 Gudwork’s council 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 Santa Clara County, California in accordance with the Gudwork’s council Comprehensive Arbitration Rules and Procedures’ Optional ExpeditedArbitration 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 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 Contractors that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where Contractor is located in accordance with the Employment Arbitration Rules and Procedures then in effect. This Arbitration Provision does not apply to litigation between Gudwork 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 13.4.4, 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 agency, 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 agency 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 partyfrom satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Gudwork 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.
13.4.2. 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 Gudwork agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
13.4.3. CLASS AND COLLECTIVE WAIVER Private attorney general representative actions under the California 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 Gudwork 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, 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 Gudwork 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, Gudwork 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.13.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION You may opt out of the Arbitration Provision contained in this Section 14 by notifying Gudwork in writing within 30 days of the date you first registered for the Platform. To opt out, you must send a written notification to Gudwork at Attn: Legal, Gudwork 2 Sereno Circle Oakland CA 94619 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 cathy@Gudwork.co. 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 Gudwork constitutes mutual acceptance of the terms of this Arbitration Provision by you and Gudwork. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.1
3.4.5. 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 Gudwork agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14. GENERAL Section 14 discusses additional terms of the agreement between you and Gudwork, 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 Platform from certain locations, as detailed below.
14.1 ENTIRE AGREEMENT This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Gudwork 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 Gudwork 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 Gudwork because of the authorship of any provision of the Terms of Service.
14.2 MODIFICATIONS; WAIVERNo modification or amendment to the Terms of Service will be binding upon Gudwork unless in a written instrument signed by a duly authorized representative of Gudwork or posted on the Platform by Gudwork. 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.
14.3 ASSIGNABILITY User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Gudwork’s prior written consent in the form of a written instrument signed by a duly authorized representative of Gudwork. Gudwork 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 insure to the benefit of the successors, heirs, and permitted assigns of the parties.
14.4 SEVERABILITY 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.
14.5 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.
14.6 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 Platform is controlled and operated from our facilities in the United States.
14.7 ACCESS OF THE PLATFORM OUTSIDE THE UNITED STATES Gudwork makes no representations that the Platform is appropriate or available for use outside of the United States. Those who access or use the Platform 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 AdministrationRegulations 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 Platform, 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 Platform 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 Platform and your license to use the Platform will be immediately revoked.