Workers On Call End User Agreement

Workers On Call User Agreement (the "Agreement") is a contract between you (the "User") and Workers On Call Corporation, a Wyoming corporation with its principal place of business at 13-1312 Malama Street Pahoa, Hi 96778 . ("Workers On Call", "we" or "us"). Use of the Website located at (the "Site") and other related software and services (collectively, the "Workers On Call Site") is your assent to agree to be bound by the terms and conditions of this Agreement. It is fully your responsibility to read, understand, and accept all terms and conditions of this Agreement.

Amendments: Workers On Call reserves the right to amend the Agreement at any time by posting revisions on the Site. Any amended version must state its effective date. If the amended version reduces your rights in any way or increases your obligation under this agreement we may give notice before the effective date. Using the Workers On Call Site after the effective date of an amended version of this Agreement constitutes acceptance of the amended terms. Access to the Workers On Call Site is strictly governed by information, guidelines, and policies. The guidelines and policies are made available on the Site. Should conflicts arise between the terms and conditions of the Agreement and the Site, terms and conditions of the Agreement will take presidence.

  • Capitalized terms are defined throughout the Agreement.
  • 1. Purpose and Eligibility of Workers On Call Site
  • 1.1 Purpose of the Workers On Call Site. The purpose of the Workers On Call Site is to act as a marketplace for users to buy and sell freelancing services.
  • 1.2 Eligibility.

The Workers On Call Site is available to legal entities only. Access is allowed only to persons who are at least eighteen (18) years old in most countries or have reached the legal age of majority by law in their country of residence. These persons must be capable of forming legally binding contracts under applicable law. The User agrees that the User is not (a) a citizen or resident of a country in which use or participation is prohibited by law or administrative act; (b) a citizen or resident of a country or region that is subject to U.S. or other sovereign country sanctions or embargoes. This currently includes without limitation Cuba, Iran, North Korea, Sudan and Syria; or c) 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. If a User is identified wrongly on this list and is barred from the site reasonable efforts must be taken by the User to prove that they are not the person identified on the list that barred them.

  • 2. Policies
  • 2.1 General User Obligations.

Workers On Call connects Employers and Workers using the Workers On Call Site. Workers On Call is not a service company. It does not provide Services or manage individual Workers in any manner. Workers On Call demands a high level of courtesy, respect, and professionalism from all of its Users. Posting information, comments, feedback or other content regarding other Users, Workers On Call or any third party requires good judgement on the part of the User. Defamatory comments, remarks, or other information or content posted to the Workers On Call Site may be subject to legal action. In particular, Workers On Call is an international business and we ask all users of this site to respect the ethnic, gender and religious sensitivities of other users. All Employers and Workers are to comply with all posted Workers On Call Policies, which are hereby incorporated into this Agreement.

You will not use information from the Site for any purpose other than the purpose it was intended. Engaging in activity that interferes with or disrupts the functioning of the Site is in violation of this Agreement. You will not upload or attach malicious or unknown file types. You will not insert any external links that may be malicious or serve to circumvent the marketplace operation of the Site. It is a violation of this Agreement to offer any outside goods or services.

Pursuant to the Digital Millennium Copyright Act, Workers On Call has procedures in place for receiving notification of claimed infringements. If you believe your copyrights are being infringed by a User of the Workers On Call Site, please email Workers On Call at [email protected] a Notice of Infringement that includes substantially the following: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed; (3) identification of the material that is claimed to be infringing that is to be removed, and information reasonably sufficient to enable Workers On Call to locate it; (4) information reasonably sufficient to enable Workers On Call to contact the complaining party; (5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf the owner of an exclusive right that is allegedly infringed.

  • 2.3 Identity and Account Security.

All information given to Workers On Call must be real and verifiable. Workers On Call User accounts are to be used by only one person. This person may be an agency that represents more than one worker. Individuals are allowed to only have one User account. Workers On Call reserves the right to validate User information including, but not limited to, verification of one or more official government or legal documents that confirm the User's identity. You give authorization that Workers On Call may make inquiries necessary to validate your identity as well as confirm ownership of your email address and/or financial instruments. Failure to provide appropriate and truthful information when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the Workers On Call account password they establish. You must notify Workers On Call Support immediately if you suspect that your password has been lost or stolen. Use of Workers On Call User account means you agree the Workers On Calls account security procedures. You may not allow third parties to use your password for any reason as outlined in this Agreement.

  • 2.4 Posting Jobs and Submitting Applications
  • 2.4.1 Posting

While Workers On Call endeavors to provide reasonable translations of the Site, the default language is English. Care must be taken when using automated translation services in posting jobs, as inaccuracy can create confusion. Postings shall not enable or request payment outside of the Workers On Call Site. Job postings shall be professional and give accurate, truthful information. Offensive language or advertisements for other products or services are prohibited by this Agreement. Job postings may not request or reference any service that is illegal or violates intellectual property rights. Workers On Call makes no warrantee and claims no responsibility for posts that violate the laws of the country or region in which they may appear.

  • 2.4.2 Job Offers and Profile Information.

Information on employer job offers and worker profiles must be true and accurate as they form the basis of a legal binding contract between the employer and worker. Workers On Call reserves the right to all information provided on a User's profile or in a job offer. Users attest that they have the skills and ability to perform requested Services as stated in their profile, and have the ability to complete the job requested within any time limits specified by the job offer.

  • 2.5 Managing Contracts.

It is the responsibility of Employers to regularly review daily work as provided by one of the Workers On Call time tracking applications as well as regularly determining the quality of interim work products. It is the Employers responsibility to respond promptly to requests for more information from the Worker.

  • 2.5.2 Working Contracts.

Workers agree to login to Workers On Call and change their status to show they are working and track their jobs in the job tracking center. Time not logged inside the Workers On Call system will not be paid. Time logged for a Contract must be directly related to the completion of that Contract. If the Worker bills offline time, those hours are subject to dispute by the Employer. The Worker is responsible for completing the Contract, unless otherwise stated in advance by the Employer. Workers, unless identified as an agency, may not transfer the work identified in the Contract. Workers agree to respond to all Employer communications within one business day. Workers will be required to give 2 weeks notice if unable to meet requirements due to an absence.

  • 2.6 Billing and Payments.
  • 2.6.1 Hourly-Rate Contracts.

Employers agree that there is no guarantee of the perceived or real quality of work for Hourly-Rate Contracts. The Employer is paying for the hours worked associated with the Contract, and not for any specific deliverables or results. If the Employer wishes to only pay for performance based on milestones or deliverables, the Employer should hire Workers via a Fixed-Bid Contract. Employers have the right to dispute time worked in accordance with the Dispute Resolution Policy.

  • 2.6.2 Fixed-Bid Contracts.

Workers agree that there is no guarantee of payment for Fixed-Bid Contracts. Employers have complete and sole discretion to determine whether a Worker has completed a Fixed-Bid Contract and whether to pay the Worker. Workers On Call maintains an escrow account equal to the amount of any Fixed-Bid Contract and releases those funds only upon the release of those funds by the Employer.

  • 2.6.3 Disintermediation.

Except pursuant to the Buyout Policy below, Employer shall make all payments relating to, or in any way connected with, a Contract (including, without limitation, bonus payments) through the Workers On Call Site. Any action that encourages or solicits complete or partial payment outside of the Workers On Call Site is a violation of this Agreement. Should an Employer be found in violation of this section of this Agreement, it will owe Workers On Call fees equal to the greater of a) $10,000; or b) the applicable fees had the payments been processed through the Workers On Call Site plus 20%. Employer shall immediately notify Workers On Call if a Worker requests that Employer make a payment directly to it or through any channels other than those provided or specified by Workers On Call. Worker shall not accept any payments relating to a Contract (including, without limitation, bonuses) from an employer directly or through any payment channels other than the Workers On Call Site. Worker shall immediately notify Workers On Call if an Employer attempts to make a payment to Worker directly or through any payment channels other than those provided or specified by Workers On Call.

  • 2.6.4 Buyout.

Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the Workers On Call system with Users identified through the Workers On Call marketplace. If the Services are rendered more than three (3) years after the Employer identifies the Worker through Workers On Call, no Workers On Call Fees or buyout provisions apply. If Services are rendered outside of Workers On Call less than three (3) years after the Employer identifies the Worker through Workers On Call, payments for such Services will not be subject to the Workers On Call Fees, provided that the Employer pays Workers On Call a "Buy-Out" fee in accordance with the procedure set forth below:

Prior to contracting outside of Workers On Call to receive Services from a User identified through the Workers On Call system, the Employer will notify Workers On Call in writing of its intent to pay the Buy-Out fee in lieu of paying through the Workers On Call Site.

Together with such notice, the Employer will provide a good faith estimate of the then anticipated amount to be paid to the Worker for such Services during the fifty-two week period immediately following the date of such notice.

Together with such notice, the Employer will pay or authorize Workers On Call to deduct from its account the greater of (i) fifteen percent (15%) of the good faith estimate described above; (ii) fifty-two (52) times the "Average Weekly Workers On Call Fees" (as defined below); or (iii) five hundred dollars ($500). For purposes of the foregoing, the "Average Weekly Workers On Call Fees" means the average weekly amount of Workers On Call Fees that became due to Workers On Call based upon work performed for Employer by the Worker over the four (4) weeks immediately preceding the buy-out notice described above, not counting any weeks in which no Workers On Call Fees became due.

  • 2.7 Payment accounts.

Each Worker must properly discharge and credit its Employer for all payments Workers On Call receives from such Employer. Each User understands and agrees that:

The transmission of funds in the manner described herein is not a separate and discrete service that Workers On Call provides in addition to its Workers On Call Site services. Rather, transmission of funds in an auditable manner is an integral part of the Workers On Call Site services that Workers On Call is providing.

The Workers On Call payment account is a custodial account administered by Workers On Call to facilitate disbursement of the Employer's payment to the Worker.

Workers On Call acts as agent of the Worker and not as a trustee or fiduciary with respect to payments received through Workers On Call.

Workers On Call holds funds delivered to it in a commingled account at a bank, and may include in the titling of that account "Workers On Call for the benefit of others" (FBO) or similar words. Workers On Call maintains records at Workers On Call that should, in the event of a bank failure, allow the FDIC to determine which funds are payable to which Workers.

Workers On Call will not voluntarily make your funds available to its creditors in the event of bankruptcy within the limits of the law.

You agree that you will not receive interest or other earnings on the funds that Workers On Call handles as your agent and places in comingled accounts. In consideration for your use of the Workers On Call Site, you irrevocably transfer and assign to Workers On Call 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 Workers On Call any ownership right to the principal of the funds you maintain with Workers On Call. In addition to or instead of earning interest on commingled accounts, Workers On Call may receive a reduction in fees or expense charged for banking services by the banks that hold your funds that are not passed on to the Worker.

  • 2.8 Non-payment.

If Employer fails to pay amounts due under this Agreement, whether by cancelling Employer's credit card, initiating an improper chargeback, or any other means, Employer's Workers On Call account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Employer must reimburse Workers On Call for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (2.5%) per month or the maximum allowed by law, plus attorneys fees and other costs of collection as allowed by law. In its discretion, Workers On Call may set off amounts due against other amounts received from or held for Employer, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.

Repeated failure of credit card charges and subsequent remediation may result in Workers On Call requiring that a deposit be paid by the employer before the start of any work on a Contract by worker. This deposit amount is at the sole discretion of Workers On Call.

  • 2.9 Hold on funds.

Workers On Call reserves the right, in its sole discretion, to place a hold on funds for Employer payments to clear or if Workers On Call suspects monies may be subject to charge back or if fraud is suspected. Workers On Call will release a hold as soon as deemed appropriate. In cases of fraud, abuse or violation of this Agreement, all monies in a Workers On Call account may be held and/or reclaimed, not just those from the Contract(s) under investigation.

  • 2.10 Dispute Resolution.

For Hourly-Rate Contracts only, Employers may dispute hours during the three (3) days following the close of a weekly invoice period. It is the Employer's responsibility to review the Time Log of every Contract on a weekly basis and to file any disputes on a timely basis. Once the dispute period has passed, the charges are accepted by the Employer and can no longer be disputed and can only be refunded by the Worker. Disputes can only address the hours billed, not the quality of the work performed or deliverables.

  • 2.11 Ratings and Feedback.

Workers On Call provides its feedback and rating system as a means through which Users can express their opinions publicly. Workers On Call does not monitor or censor these opinions or investigate any remarks posted by Users for accuracy or reliability. You acknowledge and agree that the Workers On Call Site 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 Workers On Call may calculate a composite feedback number based on these individual ratings. You may be held legally responsible for damages suffered by other Workers On Call Users or third parties as a result of these remarks if a court finds that these remarks are legally actionable or defamatory. Workers On Call is not responsible for any feedback or comments posted or made available on the Workers On Call Site 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. Workers On Call reserves the right to delete ratings and feedback as it deems appropriate.

Furthermore, users may choose to include ratings from third-party websites as indicated by their approval of appplications that allow the automated download of this information to the Workers On Call website. Workers On Call is not legally responsible for information retrieved from and displayed from a third-party site. Workers On Call will identify the source of that content when displayed on the Workers On Call web site as part of user's profile. Workers On Call does not claim copyright or ownership of any content loaded from a third party site and this content may be removed upon request of either the user or the third party site from which it was loaded. This information is being downloaded for informational purposes and is in no way intended to advertise, entice or in any way influence the user as to which service they select to use.

  • 2.12 Workers On Call Education and Skill Tests.

Workers On Call may at its discretion provide education and skills tests through its own means or third parties. These educational programs and tests are optional for the Workers. They are meant as an informational data point evaluating Workers and are in no way a certification by Workers On Call 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.

  • 2.13 Agencies and Agency Workers.

An "Agency" is an organization seeking to make money on Workers On Call by selling the Services of Agency Workers. An "Agency Worker" is a Worker under contract to do work on Workers On Call on behalf of an Agency. An Agency has a manager responsible for the actions of all its members, including its Agency Workers, 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 Worker profile associated with that persons Agency on Workers On Call. Agencies must comply with Section 2.3 ("Identity") below. If an Agency Worker is no longer working for an Agency, the Agency may not use the Worker's profile in any way. Workers leaving an Agency must contact the Agency manager to remove their association. Agencies may not refuse to release an Agency Worker. When leaving the Agency, Agency Workers 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 Workers who have since left the Agency. An Agency that requests the immediate suspension of a Worker must provide the documents and supporting legal authority that proves, to Workers On Call's satisfaction, that the Worker has breached a non-compete agreement or a Workers On Call policy.

  • 2.14 Enforcement of User Agreement and Policies.

Workers On Call has the right, but not the obligation, to suspend or cancel your access to the Workers On Call Site 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 Workers On Call'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 Workers On Call Site 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 Workers On Call. Once suspended or terminated, you MAY NOT continue to use the Workers On Call Site under a different account or re-register under a new account. If you attempt to use the Workers On Call Site under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts 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 Workers On Call Site, including data, messages, files and other material you keep on Workers On Call. All intellectual property provided by Employers for the purposes of completing Contracts will be returned by Workers immediately upon termination.


User agrees that all Service Contracts between any Employer or Worker shall: (i) include the terms and conditions provided in Sections 3.1 through 3.10 below ("Standard Terms"); (ii) name Workers On Call 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 Workers On Call, except as may be otherwise provided for herein. Employer and Worker 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 Workers On Call's rights.

  • 3.1 Services.

Worker shall perform Services in a professional and workmanlike manner. Under Fixed-Price Contracts, Worker shall deliver the agreed-upon Work Product. Under Hourly-Rate Contracts, Worker shall use reasonable efforts to create the desired Work Product.

  • 3.2 Agency.

Work performed on Hourly-Rate Contracts under a Worker's profile must be performed by the Worker represented. If the Worker wishes to subcontract with third parties to perform Services on behalf of the Worker on Hourly-Rate Contracts, the Worker must do so as an Agency. Worker and Agency agree and acknowledge that Agency's employees or contract personnel are not employees of Workers On Call or Employer. 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 Employer, nor Workers On Call, 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 Worker 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 Workers On Call or Employer.

  • 3.3 Fees.

Employer shall pay Worker the agreed-upon fees for time spent (under Hourly-Rate Contracts) or delivery and acceptance of the Work Product (under Fixed-Price Contracts). All amounts paid by Employer shall be paid through the Workers On Call Site to Workers On Call as the Worker's agent, and Employer's obligation of payment to Worker is met when payment is made to Workers On Call and funds are received by Workers On Call.

    Employer will be billed a fee for transaction processing. This fee may vary from time to time. The fee for credit card transactions is 2.5% and the fee for funding the employer account via PayPal is $1. The fee for ACH funding of accounts when available will be $1.

    • 3.4 Termination of a Service Contract.

    Under Hourly-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Employer remains obligated to pay for any time the Worker worked prior to termination.

    For Fixed-Price Contracts, the Employer may terminate at any time but may not recover any payments made to the Worker unless mutually agreeable. The Worker 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 Worker may terminate only with written agreement from the Employer or after the payment has been refunded.

    • 3.5 Employer Deliverables.

    Employer grants Worker a limited, non-exclusive, revocable (at any time, at Employer's sole discretion) right to use the Employer Deliverables as necessary for the performance of the Services. Employer reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Employer Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Employer, Worker shall immediately return all Employer Deliverables to the Employer and further agrees to purge all copies of Employer Deliverables and Work Product contained in or on Worker's premises, systems, or any other equipment otherwise under Worker's control. Worker agrees to provide written certification to the Employer certifying the return or purging of Employer Deliverables within ten (10) days after the receipt of the Employer's written request to certify.

    • 3.6 Work Product.

    Any copyrightable works or works for hire prepared by Worker in connection with a Fixed-Price Contract for Employer shall be owned by the Worker until payment has been made by the Employer and accepted by the Worker. If the Employer pays an amount less than the amount agreed to in the Service Contract, the Worker may refund the amount paid within two (2) weeks of the payment date and retain ownership of the Work Product.

    For Hourly-Rate Contracts, the Employer is considered the author and owner of works created once payment for the period of time in question has been made in full, assuming that all hours worked are properly tracked using the Workers On Call Time Tracking System. Once payment has been made in accordance with the above, Worker shall be deemed to have assigned all Proprietary Rights in the Work Product to the Employer. In this case all work performed is considered "Work for Hire."

    To the extent that under applicable law, Proprietary Rights cannot be assigned, Worker hereby irrevocably agrees to grant, and hereby grants, to Employer an exclusive (excluding also Worker), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under applicable law, Worker hereby irrevocably agrees to grant, and hereby grants, to Employer, such rights as Employer reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Employer will be able to acquire, perfect and use such Proprietary Rights, Worker will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Employer; (ii) sign any documents at Employer's request to assist Employer in the documentation, perfection and enforcement of its rights; and (iii) provide Employer with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Worker also irrevocably authorizes Employer to act and sign on Worker's behalf and take any necessary steps in order to perfect Employer's rights under this Agreement. In the case that under applicable law, Worker retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights") or other inalienable rights to Work Product or Confidential Information under this Agreement, Worker irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Worker cannot waive such rights, Worker agrees not to exercise such rights, until Worker has provided prior written notice to Employer and then only in accordance with any reasonable instructions that Employer issues in the interest of protecting its rights. Worker agrees to assist Employer in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries. Worker will sign all documents that the Employer may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Employer may select at its sole discretion. Worker's obligations under this Section 3.6 will continue even after Worker deregisters from or ceases use of the Workers On Call Site. Worker appoints Employer as Worker's attorney-in-fact to execute documents on Worker's behalf for the purposes set forth in this Section 3.6.

    • 3.7 Pre-existing Intellectual Property in Work Product.

    Worker shall ensure that no Work Product created or delivered by Worker includes any pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Worker or a third party including, without limitation, code written by proprietary software companies or developers in the open source community (collectively "Pre-existing IP") without obtaining the prior written consent of the Employer to the inclusion of such Pre-existing IP in the Work Product. Worker acknowledges that, without limiting any other remedies, Worker shall not be entitled to payment for, and shall refund any payments to Worker for, any Services performed on a Contract if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 3.7.

    • 3.8 Worker classification.

    Employer assumes all liability for proper classification of workers as independent Workers or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Employer and Worker. Worker does not have authority to enter into written or oral whether implied or express contracts on behalf of Employer.

    Worker acknowledges that Workers On Call does not, in any way, supervise, direct, or control Worker's work or Services performed in any manner. Workers On Call does not set Worker's work hours and location of work. Workers On Call will not provide Worker with training or any equipment, labor or materials needed for a particular Contract. Workers further acknowledge that all contracts formed through Workers On Call are considered work-for-hire contacts and all intellectual property will remain the property of the employer unless otherwise agreed to in writing.

    Workers On Call will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Employer and Worker 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 Worker's performance of Services.

    For Contracts classified as independent Worker relationships, Employer may not require an exclusive relationship between Employer and Worker. A Worker classified as independent Worker is free at all times to provide Services to persons or businesses other than Employer, including any competitor of Employer.

    Employer and Worker agree to indemnify, hold harmless and defend Workers On Call from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Worker was misclassified as an independent Worker, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Worker was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that Workers On Call was an employer or joint employer of Worker, 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

    Employer and Worker 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 Workers On Call upon request. Workers On Call, or Workers On Call's advisors or agents, shall have the right, but not the obligation, to routinely, but no less frequently than annually, audit Worker's operations and records to confirm compliance. Nothing in this provision should be construed as providing Workers On Call with the right or obligation to supervise or monitor the actual Services performed by Worker.

    • 3.10 General.

    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 Employer and Worker shall constitute the entire agreement and understanding of Employer and Worker 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.

    • 4.1 Service Contracts.

    User expressly acknowledges, agrees and understands that: (i) the Workers On Call Site is merely a venue where Users may act as Employers or Workers; (ii) Workers On Call is not a party to any Service Contracts between Employers and Workers; (iii) User recognizes, acknowledges and agrees that User is not an employee of Workers On Call and that Workers On Call does not, in any way, supervise, direct, or control User's work or Services; (iv) Workers On Call shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) Workers On Call has no control over Workers or over the Services promised or rendered by Workers; and, (vi) Workers On Call makes no representations as to the reliability, capability, or qualifications of any Worker or the quality, security or legality of any Services, and Workers On Call disclaims any and all liability relating thereto.

    • 4.2 Proprietary Rights.

    Workers On Call and its licensors reserve all Proprietary Rights in and to the Workers On Call Site. User may not use the Workers On Call Site 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. Workers On Call reserves the right to withdraw, expand and otherwise change the Workers On Call Site at any time in Workers On Call's sole discretion. User shall not be entitled to create any "links" to the Workers On Call Site, or "frame" or "mirror" any content contained on, or accessible through, the Workers On Call Site, on any other server or internet-based device.

    • 4.3 Workers On Call's Compensation.

    All Workers On Call Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.

    • 5.1 Formal Invoices and Taxes.

    Workers On Call shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Worker Fees. Instead, Worker shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Worker Fees and for issuing any invoices so required. Worker shall also be solely responsible for: (a) determining whether Worker or Workers On Call 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 Worker Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Workers On Call, as appropriate; and (b) determining whether Workers On Call is required by applicable law to withhold any amount of the Worker Fees, notifying Workers On Call of any such requirement and indemnifying Workers On Call (either by permitting Workers On Call to offset the relevant amount against a future payment of Worker Fees or by refunding to Workers On Call the relevant amount, at Workers On Calls sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Workers On Call shall have the right, but not the obligation, to audit and monitor Worker's compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of Workers On Call, Worker agrees to promptly cooperate with Workers On Call and provide copies of Worker's tax returns, and other documents as may be reasonably requested for purposes of such audit.

    • 5.2 Billing Employer.

    For Hourly-Rate Contracts, Employer will be billed for hourly Worker Fees on a weekly basis or at the end of the work being performed. For bonuses, milestone payments and Fixed-Price payments, Employer is billed immediately. If Employer believes an Hourly-Rate Contract charge to be incorrect, Employer shall notify Workers On Call within the time period set forth in the Dispute Resolution Policy (Section 2.10 above), in which case Workers On Call will promptly investigate the Time Log to determine, in its sole discretion, whether an adjustment is appropriate. Workers On Call's determination shall be final. If Employer does not notify Workers On Call within this time set forth in the Dispute Resolution Policy, the charge automatically becomes final and Employer cannot appeal it.

    • 5.3 Payment.

    Employer hereby authorizes Workers On Call to run credit card authorizations on all credit cards provided by Employer, to store credit card details as Employer's method of payment for Services, and to charge Employer's credit card (or any other form of payment authorized by Workers On Call or mutually agreed to between Employer and Workers On Call).

    • 5.4 Dispute Resolution Policy Between Worker and Employer.

    All disputes between a Worker and an employer regarding the chargeable nature of the number of hours recorded in the Time Logs shall be resolved pursuant to Workers On Call's Dispute Resolution Policy (Section 2.10 above)

    • 5.5 Payment Guarantee.

    Workers On Call does not guarantee performance of the Employer's payment to you as a Service Worker working on Hourly-Rate Contracts where the Employer has a verified payment method, the time represented is captured online using the Workers On Call Team software, the work performed and captured pertains directly to the Service Contract billed, and each Time Log is annotated with appropriate work memos describing the work performed. Determination of whether these criteria have been met is at the sole discretion of Workers On Call. The Payment Guarantee will not apply to Workers or Contracts in violation of this Agreement, where the Worker is aware of or complicit in another Users violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.

    • 6.1 Confidentiality.

    To the extent an employer or Worker provides Confidential Information to the other and/or to Workers On Call, 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 Workers On Call, to any Employer or Worker 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 Workers On Call Site for use by Worker).

    • 6.2 Return.

    If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Employer's or Worker's written request (which may be made at any time at Employer's or Worker's sole discretion), Employer or Worker (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 Employer or Worker, 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 partys written request to certify.

    • 6.3 Publications.

    Without limiting Section 6.1 (Confidentiality), Employer, Worker and Workers On Call shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a relevant Contract.





    • 9.1 Proprietary Rights.

    Each User shall indemnify, defend and hold harmless Workers On Call 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 Employer.

    Each Employer 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 Employer's use of Services, including without limitation claims by or on behalf of any Worker for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Employer and a Worker.

    • 9.3 Indemnification by Worker.

    Each Worker 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 Worker's provision of Services, or (ii) any Service Contract entered into between such Worker and an employer.

    • 10.1 Term.

    The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 10.2 below.

    • 10.2 Termination.

    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 Users 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 Employer 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 Employer following termination pursuant to Section 5.2 (Billing Employer), and charged to Employer's credit card or other form of payment pursuant to Section 5.3 (Payment). Subject to Section 5.4 (Dispute Resolution Policy), Workers On Call shall pay Worker, in accordance with the provisions of Section 5 (Fees and Payments), for all time recorded in the Time Logs incurred prior to the effective date of the termination.

    • 10.4 Survival.

    Sections 4 through 12 of this Agreement shall survive any termination thereof.

    • 11. GENERAL.
    • 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, Employers and Workers 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 Workers On Call's obligations or restrict Workers On Call's rights under this Agreement.

  • 11.3 Compliance.

    User shall not violate any laws or third party rights on or related to the Workers On Call Site. 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 Workers On Call Site. Notices hereunder shall be invalid unless made in writing and given (a) by Workers On Call via email (in each case to the address that you provide), (b) a posting on the Workers On Call Site or (c) by you via email to [email protected] On or to such other addresses as Workers On Call may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.

  • 11.5 Modifications.

    No modification or amendment to this Agreement shall be binding upon Workers On Call unless in a written instrument signed by a duly authorized representative of Workers On Call. 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.

  • 11.7 Assignability.

    User may not assign this Agreement, or any of its rights or obligations hereunder, without Workers On Call's prior written consent in the form of a written instrument signed by a duly authorized representative of Workers On Call (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). Workers On Call 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

  • 11.8 Severability.

    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 Hawaii, 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.

    Workers On Call and User hereby agree that any Claims shall first be settled through the Workers On Call 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 non-appearance-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 Workers On Call may be resolved in whatever forum the parties deem appropriate. The Hawaii 3rd district court in Hilo, Hawaii will have jurisdiction and venue over any Claims where Workers On Call is a party and the amount in controversy exceeds $25,000; each party hereby irrevocably consents to the personal jurisdiction and venue of this court.

    • 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.

    • 12. DEFINITIONS.
      • 12.1 "Employer" means any User utilizing the Workers On Call Site to request Services to be performed by a Worker. From time to time, Workers On Call may act as an employer, and the terms and conditions of this Agreement applicable to Employers will apply to Workers On Call when acting in this way.
      • 12.2 "Employer Deliverables" means instructions, requests, intellectual property and any other information or materials that a Worker receives from an employer for a particular Contract.
      • 12.3 "Confidential Information" means Employer or Worker 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 Worker or Employer; (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.
      • 12.4 "Contract" means a particular project or set of ongoing tasks for which an employer has requested Services to be performed by a Worker and the Worker has agreed on the Workers On Call Site.
      • 12.5 "Worker" means any company or individual User utilizing the Workers On Call Site to offer Services to Employers.
      • 12.6 "Worker Deliverables" means instructions, requests, intellectual property and any other information or materials that an employer receives from a Worker for a particular Contract.
      • 12.7 "Worker Fees" means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Worker in the Time Logs, multiplied by the Hourly Rate; (b) for a Fixed-Price Contract, the Fixed-Price; and (c) any bonuses paid or other payments made by an employer for a Contract.
      • 12.8 "Effective Date" means the date of acceptance of this Agreement.
      • 12.9 "Fixed-Price" means a fixed fee agreed between an employer and a Worker, prior to the commencement of a Contract, for the completion of all Services requested by Employer for such Contract.
      • 12.10 "Fixed-Price Contract" means a Contract for which Employer is charged a Fixed-Price.
      • 12.11 "Hourly Rate" for a Contract means, in respect of a Worker, the hourly rate specified for that Worker in the Workers On Call Site.
      • 12.12 "Hourly-Rate Contract" means a Contract for which Employer is charged based on the Hourly Rate.
      • 12.13 "License Agreement" means the license agreement between User and Workers On Call relating to use of the Workers On Call Team software.
      • 12.14 "Payment Period" shall mean the one-week period beginning on Monday at 12:00 AM UTC.
      • 12.15 "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.
      • 12.16 "Services" means web development, software development, writing, translation, administrative, marketing, design customer service, sales, data entry, general business services and other knowledge-based or online services.
      • 12.17 "Time Logs" means the number of hours recorded for a stated period by a Worker in Workers On Call Team in compliance with Workers On Call's then-current Policies, for the Services performed in respect of a Contract.
      • 12.18 "Work Product" means any tangible or intangible results or deliverables that Worker agrees to create for, or actually delivers to, Employer 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.

    You assent to this agreement when you sign up for an account, and use of the Workers On Call website further declares that you have read, understand and agree to the terms of this agreement.

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