theSMARTsub User Agreement
This theSMARTsub User Agreement (the "Agreement") is a contract between you (the "User") and theSMARTsub Corporation, a Pennsylvania corporation with its principal place of business at 60 Chestnut Tree Road, Noxen, Pennsylvania U.S.A. ("theSMARTsub", "we" or "us"). You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.theSMARTsub.com (the "Site") and related software and services (collectively, the "theSMARTsub Platform").
theSMARTsub may amend this Agreement at any time by posting a revised version on the Site. Each revised version will state its effective date, which will be on or after the date we post it. If the revised version materially reduces your rights or increases your responsibilities, we may post it in advance of the effective date in order to give you notice. Your continued use of the theSMARTsub Platform after the effective date of a revised version of this Agreement constitutes your acceptance of its terms.
Your access to and use of the theSMARTsub Platform is also governed by information, guidelines and policies made available on the Site. To the extent that there are any conflicts between the terms and conditions of this Agreement and the Site, the terms and conditions of this Agreement will govern. Capitalized terms are defined throughout the Agreement and in Section 12.
YOU UNDERSTAND THAT BY USING THE theSMARTsub PLATFORM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE theSMARTsub PLATFORM. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT ENTITY.
1. theSMARTsub PLATFORM.
1.1 Purpose of the theSMARTsub Platform.
The theSMARTsub Platform enables Users to streamline the process of finding, placing and filing temporary offers using a variety of electronic and automated systems. Opportunities are logged into the platform, corresponding offers are submitted to one or more Contractors. Once an offer is accepted, or subsequently not accepted, by a Contractor, information is sent electronically between to the parties involved. If a Client’s offer is accepted by a Contractor, a Service Contract is formed directly between such Client and Contractor subject to the terms specified in Section 3 (Service Contract Terms Between Client and Contractor). theSMARTsub collects payment from the Client on behalf of the Contractor.
The theSMARTsub Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.
User agrees that User is not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes, including without limitation Cuba, Iran, North Korea, Sudan and Syria; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's 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.
2. theSMARTsub POLICIES
2.1 theSMARTsub Fee.
theSMARTsub charges Clients a fee for services and technology including but not limited to maintaining the theSMARTsub Platform, providing online tracking resources, or collecting amounts owed by Clients and remitting them to Contractors.
2.2 General User Obligations.
theSMARTsub has created a means to connect Clients and Contractors using the theSMARTsub Platform. theSMARTsub is not a service company and does not provide Services or manage individual Contractors or their work, in any manner. theSMARTsub expects a consistent and high level of courtesy, respect and professionalism from all of its Users toward each other. Users agree to use good judgment when posting information, comments, feedback or other content regarding other Users, theSMARTsub or any third party anywhere within the theSMARTsub Platform. Users may be held legally responsible for damages suffered by other Users, theSMARTsub or any third party as a result of legally actionable or defamatory comments, remarks, or other information or content posted to the theSMARTsub Platform. All Clients and Contractors are to comply with all laws applicable to them or to their activities, and with all posted theSMARTsub Policies, which are hereby incorporated into this Agreement by reference. These policies may be modified from time to time at theSMARTsub's discretion, and the currently effective policies will be deemed to be part of this Agreement.
You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services.
Under federal law, theSMARTsub is not legally responsible for any remarks, information or other content posted or made available on the theSMARTsub Platform by any User or third party, even if such information or content is defamatory or otherwise legally actionable. theSMARTsub is not responsible for and does not monitor or censor content for accuracy or reliability. However, theSMARTsub reserves the right to remove or restrict access to any information or content posted or made available on the theSMARTsub Platform if ordered to do so by a government authority or if theSMARTsub considers such information or content to be in violation of this Agreement.
2.3 Identity and Account Security.
All identity information associated with a theSMARTsub User account must be real and verifiable. Each theSMARTsub User account must be used by only one person, and each person is allowed to use only one User account. theSMARTsub reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User's identity. You authorize theSMARTsub, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial instruments. Failure to provide information about you and your entity when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User’s theSMARTsub account password. User agrees not to disclose this password to any third party and shall be solely responsible for any use of or action taken through the use of such password on theSMARTsub. You must notify theSMARTsub Support immediately if you suspect that your password has been lost or stolen. By using your theSMARTsub User account, you acknowledge and agree the theSMARTsub’s account security procedures are commercially reasonable. You may not allow third parties to use this password to perform any action under your theSMARTsub User account, except through an authorized theSMARTsub API.
2.4 Offer Postings and Accepting an Offer.
2.4.1 Posting a Offer.
All offers posted to theSMARTsub must be in English and not contain any information enabling or requesting contact or payment outside of the theSMARTsub Platform. Offers must be of a professional nature and accurately describe the Services requested. They should be free of offensive language or advertisements for other products or services. Offers may not request any service that is illegal or violates intellectual property rights, copyrights or the terms of service of another service, product or website.
2.4.2 Accepting an Offer.
All information provided in your User profile must be true, accurate and complete. theSMARTsub reserves the right to verify any and all information provided on a User's profile or account information. By accepting an offer, the User is attesting that he/she/it has the skills and ability to perform the requested Services on the date and in the location stated in the offer.
2.5 Managing and Working on Contracts.
2.5.1 Managing Contracts.
Client agrees to regularly review and update pertinent information pertinent to the Offer made to the Contractor. Client agrees to abide by the information given to the Contractor at the time of the offer, regardless as to if the information changed after the Offer was made, unless Client has made a reasonable and timely effort to advise the Contractor of such change prior to Contractor’s beginning fulfillment of the Offer.
2.5.2 Working on Contracts.
Contractors agree to use theSMARTsub Team and Work Diaries to track all time associated with Hourly-Rate, Daily-Rate, and Fixed-Rate Contracts. The Contractor is responsible for providing all tools and resources necessary to complete the Contract, unless explicitly stated in advance by the Client. Contractors agree to respond to all Client communications and requests for information within a reasonable and timely manner. If the Contractor will be unable to fulfill an Offer, he is expected to notify the Client within a reasonable and timely manner.
2.6 Billing and Payments.
2.6.1 Daily-Rate Contracts.
Clients agree that there is no guarantee of the perceived or real quality of work for Daily-Rate Contracts. The Client is paying for the day (or portion of the day) worked associated with the Offer, and not for any specific deliverables or results. Clients have the right to dispute time worked in accordance with the Dispute Resolution Policy
2.6.2 Hourly-Rate Contracts.
Clients agree that there is no guarantee of the perceived or real quality of work for Hourly-Rate Contracts. The Client is paying for the hours (or portion of the hours) worked associated with the Offer, and not for any specific deliverables or results. Clients have the right to dispute time worked in accordance with the Dispute Resolution Policy
2.6.3 Fixed-Price Contracts.
Contractors agree that there is no guarantee of payment for Fixed-Price Contracts. Clients have complete and sole discretion to determine whether a Contractor has completed a Fixed-Price Contract and whether to pay the Contractor.
Except pursuant to the Employment Policy below, Client shall make all payments relating to, or in any way connected with, an Offer (including, without limitation, bonuses) through the theSMARTsub Platform. Any action that encourages or solicits complete or partial payment outside of the theSMARTsub Platform is a violation of this Agreement. Should a Client be found in violation of this section of this Agreement, it will owe theSMARTsub fees equal to the greater of a) $2,500; or b) the applicable fees had the payments been processed through the theSMARTsub Platform plus 18%. Client shall immediately notify theSMARTsub if a Contractor requests that Client make a payment directly to it or through any channels other than those provided or specified by theSMARTsub. Contractor shall not accept any payments relating to a Contract (including, without limitation, bonuses) from a Client directly or through any payment channels other than the theSMARTsub Platform. Contractor shall immediately notify theSMARTsub if a Client attempts to make a payment to Contractor directly or through any payment channels other than those provided or specified by theSMARTsub.
Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the theSMARTsub system with Users identified through the theSMARTsub Platform. If the Contractor becomes an Employee of the Client at any time after the initial offer has been fulfilled, no theSMARTsub Fees or buyout provisions apply, except for the offers that have been performed using theSMARTsub Platform.
2.7 Payment accounts.
Each Contractor must properly discharge and credit its Client for all payments theSMARTsub receives from such Client. Each User understands and agrees that:
- The transmission of funds in the manner described herein is not a separate and discrete service that theSMARTsub provides in addition to its theSMARTsub Platform services. Rather, transmission of funds in an auditable manner is an integral part of the theSMARTsub Platform services that theSMARTsub is providing.
- The theSMARTsub payment account is a custodial account administered by theSMARTsub to facilitate disbursement of the Client’s payment to the Contractor.
- theSMARTsub acts as agent of the Contractor and not as a trustee or fiduciary with respect to payments received through theSMARTsub.
- theSMARTsub holds funds delivered to it in a commingled account at a bank, and may include in the titling of that account "theSMARTsub for the benefit of others" or similar words. theSMARTsub maintains records at theSMARTsub that should, in the event of a bank failure, allow the FDIC to determine which funds are payable to which Contractors.
- theSMARTsub will not voluntarily make your funds available to its creditors in the event of bankruptcy.
- You agree that you will not receive interest or other earnings on the funds that theSMARTsub handles as your agent and places in comingled accounts. In consideration for your use of the theSMARTsub Platform, you irrevocably transfer and assign to theSMARTsub any ownership right that you may have in any interest that may accrue on funds held in commingled accounts. This assignment applies only to interest earned on your funds, and nothing in this Agreement grants theSMARTsub any ownership right to the principal of the funds you maintain with theSMARTsub. In addition to or instead of earning interest on commingled accounts, theSMARTsub may receive a reduction in fees or expense charged for banking services by the banks that hold your funds.
If Client fails to pay amounts due under this Agreement, whether by cancelling Client’s form of payment, initiating an improper chargeback, or any other means, Client’s theSMARTsub account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse theSMARTsub for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, theSMARTsub may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.9 Hold on funds.
theSMARTsub reserves the right, in its sole discretion, to place a hold on funds for Client payments to clear or if theSMARTsub suspects monies may be subject to charge back or if fraud is suspected. theSMARTsub will release a hold as soon as deemed appropriate.
2.10 Dispute Resolution.
For Daily-Rate Contracts only, Clients may dispute hours during the four (4) days following the close of an invoice period. It is the Client’s responsibility to review theSMARTsub invoice and to file any disputes on a timely basis. Once the dispute period has passed, the charges are accepted by the Client and can no longer be disputed and can only be refunded by the Contractor. Disputes can only address the days (or portion of days) billed, not the quality of the work performed or deliverables.
2.11 Ratings and Feedback.
theSMARTsub provides its feedback and rating system as a means through which Users can express their opinions publicly. theSMARTsub does not monitor or censor these opinions or investigate any remarks posted by Users for accuracy or reliability. You acknowledge and agree that the theSMARTsub Platform will contain public feedback from Users with whom you have transacted. You acknowledge that feedback results for you may consist of comments and ratings left by other Users and that theSMARTsub may calculate a composite feedback number based on these individual ratings. You may be held legally responsible for damages suffered by other theSMARTsub Users or third parties as a result of these remarks if a court finds that these remarks are legally actionable or defamatory. theSMARTsub is not responsible for any feedback or comments posted or made available on the theSMARTsub Platform by any Users or third parties, even if that information is defamatory or otherwise legally actionable. Any effort to falsify feedback, manipulate or coerce another User by threatening negative feedback or offering to sell or buy Services in exchange for feedback is in violation of this Agreement. theSMARTsub reserves the right to delete ratings and feedback as it deems appropriate.
2.12 theSMARTsub Skill Tests.
theSMARTsub may provide skills tests through its own means or third parties. These tests are optional for the Contractors. They are meant as a data point in evaluating Contractors and are in no way a certification by theSMARTsub of the User's ability to perform Services associated with a test. Manipulating test scores by providing or receiving answers to the test, allowing others to take the tests or any other attempt at falsifying credentials is a violation of this Agreement.
theSMARTsub treats personally identifiable information differently from general information. Personally identifiable information can be used to identify, locate or contact you. General information is information that is not personally identifiable information and is not associated with personally identifiable information. theSMARTsub may convert personally identifiable information into general information by excluding information that is personally identifiable. You acknowledge that general information belongs to theSMARTsub and that theSMARTsub has the right to use such general information as it determines in its sole discretion. theSMARTsub may process information in the country where it was collected, as well as other countries (including the United States) where laws regarding processing of personal information may be less stringent than the laws in your country
We will use commercially reasonable methods to keep personally identifiable information securely in our files and systems. For example, we use secure Internet connections, including SSL (Secure Sockets Layer) encryption, to help protect financial data.
2.13.2 Information gathered during registration.
If you register to buy or sell Services using theSMARTsub, we collect and store personally identifiable information, including your name, address, email address and password. theSMARTsub may request additional information from you or third parties to validate or supplement this information. Clients are also required to enter information regarding a payment method, such as credit card, bank account, or PayPal account information. You agree to provide us with information reasonably requested by us, even if the request is made after conclusion of your work on a particular Contract.
2.13.3 Automatically gathered information.
2.13.4 theSMARTsub User Interfaces.
These areas of the site are provided for the benefit of Users. The private and shared areas of the Site help to facilitate communication and the exchange and sharing of information between Clients and Contractors once an Offer has started. Such information includes, but is not limited to: (i) event (sampling|login|resume|aftersleep), (ii) screensaver on? (true|false), (iii) theSMARTsub credentials, (iv) computer uid (client data), (v) versions of all installed theSMARTsub applications, (vi) timestamp (client data), (vii) memo (theSMARTsub data), (viii) task information (theSMARTsub data), (ix) os version (client data), (x) active window title (client data), (xi) active application/process (client data), (xii) list of running processes (client data), (xiii) screenshot plus screenshot metadata (dimensions), (xiv) webcam shot (if present/enabled), (xv) keyboard events (# of keys pressed), (xvi) mouse events (# of mouse clicks) and (xvii) events per minute (sum of keyboard events plus mouse events over each minute). theSMARTsub may use general information from these and other areas of the site for statistical analysis, product development, marketing and research. theSMARTsub reserves the right to monitor communications through the Site and, if we believe that a User is violating this Agreement, theSMARTsub Policies, or any international, federal or state laws, we may terminate such usage. theSMARTsub uses commercially reasonable efforts to insure that its collection of such relevant information does not interfere with the operation or security of your system.
2.13.5 Use of Personally Identifiable Information.
2.13.6 Links to other sites.
theSMARTsub is not responsible for the privacy practices or the content of any other websites to which the Site links or which link to the Site. By clicking on a link, logo or other item, please note that you may no longer be on the Site. To check what Internet location you are on, note the URL at the top and/or bottom of your browser. We encourage you to read the posted privacy statement of that website before interacting with it.
2.14 Agencies and Agency Contractors.
An "Agency" is an organization seeking to make money on theSMARTsub by selling the Services of Agency Contractors. An "Agency Contractor" is a Contractor under contract to do work on theSMARTsub on behalf of an Agency. An Agency has a manager responsible for the actions of all its members, including its Agency Contractors, administrators in charge of maintaining the Agency's finances, roster, and profile, and staffing managers in charge of finding and supervising Contracts. One User may serve in all or multiple roles. Every person who will do work for an Agency must have an individual User account and Contractor profile associated with that person’s Agency on theSMARTsub. Agencies must comply with Section 2.3 ("Identity") above. If an Agency Contractor is no longer working for an Agency, the Agency may not use the Contractor's profile in any way. Contractors leaving an Agency must contact the Agency manager to remove their association. Agencies may not refuse to release an Agency Contractor. When leaving the Agency, Agency Contractors keep their profiles, including their work and feedback histories. Their histories are meant to reflect work done by them. The Agency's work and feedback history will retain the Contracts of Contractors who have since left the Agency. An Agency that requests the immediate suspension of a Contractor must provide the documents and supporting legal authority that prove, to theSMARTsub's satisfaction, that the Contractor has breached a non-compete agreement or a theSMARTsub policy.
2.15 Enforcement of User Agreement and Policies.
theSMARTsub has the right, but not the obligation, to suspend or cancel your access to the theSMARTsub Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting theSMARTsub's other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the theSMARTsub Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for theSMARTsub. Once suspended or terminated, you MAY NOT continue to use the theSMARTsub Platform under a different account or reregister under a new account. If you attempt to use the theSMARTsub 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 outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the theSMARTsub Platform, including data, messages, files and other material you keep on theSMARTsub. All intellectual property provided by Clients for the purposes of completing Offers will be returned by Contractors immediately upon termination.
3. SERVICE CONTRACT TERMS BETWEEN CLIENT AND CONTRACTOR.
User agrees that all Service Contracts between any Client or Contractor shall: (i) include the terms and conditions provided in Sections 3.1 through 3.10 below ("Standard Terms" ); (ii) name theSMARTsub as an express third party beneficiary under the Service Contract; and (iii) make no representations or warranties or enter into any contracts on behalf of theSMARTsub, except as may be otherwise provided for herein. Client and Contractor may agree to terms in their Service Contract materially different than the Standard Terms; however, nothing in such Service Contract will in any way limit or modify theSMARTsub's rights.
Contractor shall perform Services in a professional and workmanlike manner. Under Fixed-Price Contracts, Contractor shall deliver the agreed-upon Offer. Under Daily-Rate Contracts, Contractor shall use reasonable efforts to deliver the desired Offer.
Work performed on Daily-Rate Contracts under a Contractor's profile must be performed by the Contractor represented. If the Contractor wishes to subcontract with third parties to perform Services on behalf of the Contractor on Hourly-Rate Contracts, the Contractor must do so as an Agency. Contractor and Agency agree and acknowledge that Agency's employees or contract personnel are not employees of theSMARTsub or Client. Agency is solely responsible for all wages, costs, and expenses of Agency's employees or contract personnel and has the sole and exclusive right to supervise and control them. Neither Client, nor theSMARTsub, will require Agency's contract personnel to devote full time to performing the Contracts entered into by Agency as required by this Agreement. Furthermore, both Contractor and Agency acknowledge and agree that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits of any kind from theSMARTsub or Client.
Client shall pay Contractor the agreed-upon fees for time spent (under Daily-Rate Contracts) or delivery and acceptance of the Offer (under Fixed-Price Contracts). All amounts paid by Client shall be paid through the theSMARTsub Platform to theSMARTsub as the Contractor’s agent, and Client’s obligation of payment to Contractor is met when payment is made to theSMARTsub.
3.4 Termination of a Service Contract.
Under Daily-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Client remains obligated to pay for any time the Contractor worked prior to termination. For Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments made to the Contractor unless mutually agreeable. The Contractor may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Contractor may terminate only with written agreement from the Client or after the payment has been refunded.
3.5 Client Deliverables.
Client grants Contractor a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Deliverables as necessary for the performance of the Services. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Contractor shall immediately return all Client Deliverables to the Client and further agrees to purge all copies of Client Deliverables and Work Product contained in or on Contractor's premises, systems, or any other equipment otherwise under Contractor's control. Contractor agrees to provide written certification to the Client certifying the return or purging of Client Deliverables within ten (10) days after the receipt of the Client’s written request to certify. 3.6 Worker classification.
Client assumes all liability for proper classification of workers as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Client and Contractor. Contractor does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Client.
Contractor acknowledges that theSMARTsub does not, in any way, supervise, direct, or control Contractor's work or Services performed in any manner. theSMARTsub does not set Contractor's work hours and location of work. theSMARTsub will not provide Contractor with training or any equipment, labor or materials needed for a particular Offer.
theSMARTsub will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Client and Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Contractor's performance of Services.
For Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Contractor. A Contractor classified as independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.
For Contracts classified as employer-employee relationships, Client will manage the Contract through theSMARTsub's payrolling program, where the Contractor becomes an hourly employee of theSMARTsub's staffing affiliate and Contractor and Client enter into appropriate additional agreements. If Client elects to not utilize this program, Client and Contractor shall be solely responsible for all obligations for tax withholding, the payment of taxes and/or providing the benefits associated with any employment relationship.
Client and Contractor agree to indemnify, hold harmless and defend theSMARTsub from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that theSMARTsub was an employer or joint employer of Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
3.9 Audit Rights
Client and Contractor each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to theSMARTsub upon request. theSMARTsub, or theSMARTsub's advisors or agents, shall have the right, but not the obligation, to routinely, but no less frequently than annually, audit Contractor's operations and records to confirm compliance. Nothing in this provision should be construed as providing theSMARTsub with the right or obligation to supervise or monitor the actual Services performed by Contractor.
Service Contracts shall be governed by Sections 6 (Confidential Information) 11 (General) and 12 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
3.11 Entire Agreement.
The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Client and Contractor shall constitute the entire agreement and understanding of Client and Contractor with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
4. ACKNOWLEDGMENTS BY USER OF theSMARTsub's ROLE.
4.1 Service Contracts.
User expressly acknowledges, agrees and understands that: (i) the theSMARTsub Platform is merely a venue where Users may act as Clients or Contractors; (ii) theSMARTsub is not a party to any Service Contracts between Clients and Contractors; (iii) User recognizes, acknowledges and agrees that User is not an employee of theSMARTsub and that theSMARTsub does not, in any way, supervise, direct, or control User's work or Services; (iv) theSMARTsub shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) theSMARTsub has no control over Contractors or over the Services promised or rendered by Contractors; and, (vi) theSMARTsub makes no representations as to the reliability, capability, or qualifications of any Contractor or the quality, security or legality of any Services, and theSMARTsub disclaims any and all liability relating thereto.
4.2 Proprietary Rights.
theSMARTsub and its licensors reserve all Proprietary Rights in and to the theSMARTsub Platform. User may not use the theSMARTsub Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. theSMARTsub reserves the right to withdraw, expand and otherwise change the theSMARTsub Platform at any time in theSMARTsub's sole discretion. User shall not be entitled to create any "links" to the theSMARTsub Platform, or "frame" or "mirror" any content contained on, or accessible through, the theSMARTsub Platform, on any other server or internetbased device.
4.3 theSMARTsub's Compensation.
All theSMARTsub Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
5. FEES AND PAYMENTS.
5.1 Formal Invoices and Taxes.
theSMARTsub shall have no responsibility for determining the necessity of or for issuing any formal invoices, other than those expressly mentioned in this agreement, or for determining, remitting, or withholding any taxes applicable to Contractor Fees. Instead, Contractor shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Contractor Fees and for issuing any invoices so required. Contractor shall also be solely responsible for: (a) determining whether Contractor or theSMARTsub 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 on behalf of itself or theSMARTsub, as appropriate; and (b) determining whether theSMARTsub is required by applicable law to withhold any amount of the Contractor Fees, notifying theSMARTsub of any such requirement and indemnifying theSMARTsub (either by permitting theSMARTsub to offset the relevant amount against a future payment of Contractor Fees or by refunding to theSMARTsub the relevant amount, at theSMARTsub’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. theSMARTsub shall have the right, but not the obligation, to audit and monitor Contractor’s compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of theSMARTsub, Contractor agrees to promptly cooperate with theSMARTsub and provide copies of Contractor’s tax returns, and other documents as may be reasonably requested for purposes of such audit.
5.2 Billing Client.
For Daily-Rate Contracts, Client will be billed for hourly Contractor Fees on a basis no more frequently than weekly. For bonuses, milestone payments and Fixed-Price payments, Client is billed immediately. If Client believes a Daily-Rate Contract charge to be incorrect, Client shall notify theSMARTsub within the time period set forth in the Dispute Resolution Policy (Section 2.10 above), in which case theSMARTsub will promptly investigate the Offer to determine, in its sole discretion, whether an adjustment is appropriate. theSMARTsub's determination shall be final. If Client does not notify theSMARTsub within this time set forth in the Dispute Resolution Policy, the charge automatically becomes final and Client cannot appeal it.
Client hereby authorizes theSMARTsub to accept payment in form of payment authorized by theSMARTsub or mutually agreed to between Client and theSMARTsub, including but not limited to Automated Clearing House, Electronic Funds Transfer, business check, credit card, and to run credit card authorizations on all credit cards provided by Client, to store payment details as Client’s method of payment for Services, and to charge Client’s credit card, or any other form or payment.
5.4 Dispute Resolution Policy Between Contractor and Employer.
All disputes between a Contractor and a Client regarding the chargeable nature of the offer shall be resolved pursuant to theSMARTsub's Dispute Resolution Policy (Section 2.10 above)
5.5 Payment Guarantee.
theSMARTsub does not guarantee performance of the Client’s payment to you as a Contractor.
6. CONFIDENTIAL INFORMATION.
To the extent a Client or Contractor provides Confidential Information to the other and/or to theSMARTsub, the recipient shall protect the secrecy of the 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, and shall not: (i) disclose Confidential Information to anyone except, in the case of theSMARTsub, to any Client or Contractor engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Contract (including, without limitation, the storage or transmission of Confidential Information on or through theSMARTsub Platform for use by Contractor).
If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Client’s or Contractor’s written request (which may be made at any time at Client’s or Contractor’s sole discretion), Client or Contractor (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Contractor, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 6.2 within ten (10) days after the receipt of disclosing party’s written request to certify.
Without limiting Section 6.1 (Confidentiality), Client, Contractor and theSMARTsub shall not publish, or cause to be published, any Confidential Information or Offer, except as may be necessary for performance of Services for a relevant Contract.
7. WARRANTY DISCLAIMER.
theSMARTsub MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, theSMARTsub PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THESMARTSUB DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST theSMARTsub WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL theSMARTsub BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF theSMARTsub TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY theSMARTsub FEES RETAINED BY theSMARTsub WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR CONTRACTOR DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, 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.
9.1 Proprietary Rights.
Each User shall indemnify, defend and hold harmless theSMARTsub and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each an "Indemnified Party" for purposes of this Section 9) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.
9.2 Indemnification by Client.
Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Client’s use of Services, including without limitation claims by or on behalf of any Contractor for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Client and a Contractor.
9.3 Indemnification by Contractor.
Each Contractor shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Contractor's provision of Services, or (ii) any Service Contract entered into between such Contractor and a Client.
10. TERM AND TERMINATION.
The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 10.2 below.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User’s account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
10.3 Consequences of Termination.
Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be invoiced to Client following termination pursuant to Section 5.2 (Billing Client), and charged to Client’s form of payment pursuant to Section 5.3 (Payment). Subject to Section 5.4 (Dispute Resolution Policy), theSMARTsub shall pay Contractor, in accordance with the provisions of Section 5 (Fees and Payments), for all time recorded for the Offer incurred prior to the effective date of the termination.
Sections 4 through 12 of this Agreement shall survive any termination thereof.
11.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Side Agreements.
Section 11.1 notwithstanding, Clients and Contractors may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand theSMARTsub's obligations or restrict theSMARTsub's rights under this Agreement.
User shall not violate any laws or third party rights on or related to the theSMARTsub Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties' Proprietary Rights.
11.4 Notices: Consent to Electronic Notice.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the theSMARTsub Platform. Notices hereunder shall be invalid unless made in writing and given (a) by theSMARTsub via email (in each case to the address that you provide), (b) a posting on the theSMARTsub Site or (c) by you via email to support@theSMARTsub.com or to such other addresses as theSMARTsub may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
No modification or amendment to this Agreement shall be binding upon theSMARTsub unless in a written instrument signed by a duly authorized representative of theSMARTsub. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
11.6 No Waiver.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without theSMARTsub's prior written consent in the form of a written instrument signed by a duly authorized representative of theSMARTsub (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). theSMARTsub may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall 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 shall 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.
11.9 Choice of Law.
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement ("Claims") shall be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.10 Informal Dispute Resolution and Arbitration.
theSMARTsub and User hereby agree that any Claims shall first be settled through the theSMARTsub dispute resolution program. Claims that the parties cannot resolve informally and where the amount in controversy is less than USD$25,000, the parties agree to resolve in a cost-effective manner through binding nonappearance- based arbitration conducted by a single arbitrator. If a party elects arbitration, that party will initiate the arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties or the American Arbitration Association (AAA) if no other service is agreed upon. The arbitrator shall be selected from a list of no less than five names through alternative strikes. Unless the parties mutually agree otherwise, the ADR provider and the parties will proceed as follows:
- the arbitration will be conducted by telephone and/or be solely based on written submissions, as specified by the party that initiates the arbitration;
- the arbitration shall not involve any personal appearance by the parties or witnesses; and
- any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Disputes over $25,000 that do not involve theSMARTsub may be resolved in whatever forum the parties deem appropriate. The Pennsylvania state courts of Luzerne County (or, if there is exclusive federal jurisdiction, the United States District Court for Northeastern Pennsylvania) will have jurisdiction and venue over any Claims where theSMARTsub is a party and the amount in controversy exceeds $25,000; each party hereby irrevocably consents to the personal jurisdiction and venue of these courts.
11.11 Prevailing Language.
The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
"Client" means any User utilizing the theSMARTsub Platform to request
Services to be performed by a Contractor. From time to time, theSMARTsub may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to theSMARTsub when acting in this way.
"Client Deliverables" means instructions, requests, intellectual property and any other information or materials that a Contractor receives from a Client for a particular Contract.
"Confidential Information" means Client or Contractor Deliverables, Work Product, and any other information provided to, or created by, a User for a Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that:
(a) is generally known by third parties as a result of no act or omission of Contractor or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by User without use of Confidential Information.
"Contract" means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Contractor and the Contractor has agreed on the theSMARTsub Platform.
"Contractor" means any company or individual User utilizing the theSMARTsub Platform to offer Services to Clients.
"Contractor Deliverables" means instructions, requests, intellectual property and any other information or materials that a Client receives from a Contractor for a particular Contract.
"Contractor Fees" means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Contractor, multiplied by the Hourly Rate; (b) for a Daily-Rate Contract, an amount equal to the number of days (or portion of days) recorded by Contractor, multiplied by the Daily Rate; (c) for a Fixed-Price Contract, the Fixed-Price; and (d) any bonuses paid or other payments made by a Client for a Contract.
"Effective Date" means the date of acceptance of this Agreement.
"Fixed-Price" means a fixed fee agreed between a Client and a Contractor, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.
"Fixed-Price Contract" means a Contract for which Client is charged a Fixed-Price.
"Hourly Rate" for a Contract means, in respect of a Contractor, the hourly rate specified for that Contractor in the theSMARTsub Platform.
"Hourly-Rate Contract" means a Contract for which Client is charged based on the Hourly Rate.
"Daily Rate" for a Contract means, in respect of a Contractor, the daily rate specified for that Contractor in the theSMARTsub Platform.
"Daily-Rate Contract" means a Contract for which Client is charged based on the Daily Rate.
"License Agreement" means the license agreement between User and theSMARTsub relating to use of the theSMARTsub Team software.
"Payment Period" shall mean the time period designated by the Client, to be no less frequently than Monthly and no more frequently than Weekly.
"Proprietary Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
"Services" means work performed by a Contractor based on a Client’s Offer.
"Work Product" means any tangible or intangible results or deliverables that Contractor agrees to create for, or actually delivers to, Client as a result of performing the Services on a particular Contract, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any intellectual property developed in connection therewith.