"Last Revised: 11/17/22 THIS MANAGED SERVICES AGREEMENT (this “Agreement”) contains the terms of the agreement between a Company and JobAnyDay (referred to individually as a “Party” or jointly as “Parties”), as evidenced by a Statement of Work executed by Gigglii (DBA “JobAnyDay”) and the Company. "
“Gig Economy Contractor” means an individual engaged by JobAnyDay as part of its on-demand, independent contractor labor force to execute all or part of the Services as set forth in the Agreement and SOW.
“JobAnyDay Platform” means JobAnyDay’s digital websites, digital smartphone applications, internal communications App, software, or other processes that facilitate the provision of Services by Gig Economy Contractors who offer to provide Services.
“Service(s)” means the work/labor required by the Company and performed by the Gig Economy Contractors.
“SOW” means the Statement of Work to be separately executed by the Parties, which shall set forth the specific Services and payment terms for such Services.
Engagement. The Company has engaged JobAnyDay to operate the JobAnyDay Platform on behalf of the Company and in accordance with the SOW. The Parties expressly agree that the SOW is incorporated by reference herein. The Services mentioned above and contained in the SOW may occasionally be changed by the Parties in writing and with their signatures. Any such agreement or proposed Services that JobAnyDay deems in good faith to be inconsistent with the business interests of JobAnyDay or the integrity of the JobAnyDay Platform may be rejected. This right is reserved by JobAnyDay.
JobAnyDay Services. The services provided by JobAnyDay to the Company under this Agreement may include some or all of the following:
Advertising posts on the JobAnyDay Platform for workers to perform the requisite Services for the Company.
Onboard on-demand Gig Economy Contractors onto the JobAnyDay Platform.
Identify gig economy contractors that meet the requirements listed by the Company.
Disseminate the Company’s training materials (when provided) to identified Gig Economy Contractors.
Notify the selected Gig Economy Contractors who have been recruited and provide them instructions on where and when to perform the work.
Track Gig Economy Contractors time.
Calculate Gig Economy Contractors pay.
On behalf of the Company, pay Gig Economy Contractors and send an invoice to the Company.
Technical Standards and Service Levels. Maintenance of the JobAnyDay Platform will be the responsibility of JobAnyDay. JobAnyDay reserves the right to examine and enhance the JobAnyDay Platform and/or any features, data, materials, and content at any time and for any reason.
Root cause analysis and remediation. In the event that JobAnyDay is unable to maintain the JobAnyDay Platform or offer the pertinent JobAnyDay services, JobAnyDay will conduct an investigation to determine the underlying cause. The Company will receive the analyses' findings from JobAnyDay. To the extent that the concerns are brought about by events under JobAnyDay's control, JobAnyDay will also be in charge of creating a remediation plan to address and fix them. As long as the problems are brought on by things under the Company's control, the Company will be in charge of fixing them. Such a remediation plan must be evaluated and agreed upon by the Company and JobAnyDay.
Failure to meet standards. A material breach of this Agreement will be considered to have occurred if JobAnyDay or the Company fail to follow the remediation plan. This Agreement may be terminated if JobAnyDay or the Company fails to remedy the material breach within thirty (30) calendar days of receiving written notice of it from the other Party.
Features of JobAnyDay Platform. The JobAnyDay Platform merely offers tools, resources, and a venue to the Company which enable it to engage Gig Economy Contractors. The Company understands and agrees that JobAnyDay: (A) does not employ, recommend or endorse any Gig Economy Contractors and has no control over their acts or omissions; (B) is not responsible or liable in any manner for the performance or conduct of any Gig Economy Contractors or other third parties online or offline; (C) makes no representations or warranties about the quality of the Services provided by any Gig Economy Contractors or about the Company’s interactions or dealings with them; and (D) provides limited screening of Gig Economy Contractors for identity verification but does not run any background checks (unless otherwise stated in the SOW). The Company admits and accepts that it alone is accountable for the deeds and omissions of the Gig Economy Contractors. If JobAnyDay does conduct background checks in accordance with the SOW, the Company acknowledges and agrees that the determination to verify a Contractor for Services are subject to certain jurisdictions’ laws and regulations on the use of background checks, including, but not limited to, Illinois and New York. In some jurisdictions, Contractors may still be eligible for Services irrespective of items reported on a background check. JobAnyDay shall not be liable for any determination made as to the verification of any Contractor for Services.
Definition of Confidential Information. As used herein, "Confidential Information" refers to all confidential information that has been disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, and which is designated as confidential or which, given the circumstances of disclosure and the nature of the information, should be understood to be confidential. This includes, but is not limited to, any and all personally identifiable information of any and all Gig Economy Contractors. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under these Agreement.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Information Included in Services. Notwithstanding the foregoing, Company acknowledges and agrees that some of the information that it provides in or in furtherance of the Managed Services Agreement will be sent to Gig Economy Contractors who will need this information to respond to requests to perform one or more Services. By entering this Agreement, Company is requesting, and expressly consents to have details of the Service, including training materials, sent to Gig Economy Contractors that provide like or similar services to those sought through the JobAnyDay requests. Company agrees that all information that Company provides will be accurate, current and truthful to the best of its knowledge.
Fees. JobAnyDay charges fees and collects payment for each Service as set forth in the SOW.
Taxes. Any taxes, levies, tariffs, or other governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, "Taxes") are not included in JobAnyDay's fees. If JobAnyDay is legally required to pay or collect Taxes that Company is liable for under this section, the necessary sum must be billed to and paid by Company. The parties agree to file and pay any corresponding taxes in accordance with applicable law. Company is responsible for paying all Taxes associated with its purchases hereunder.
"Direct Hire Fee. In the event Company or any Company director, officer, or employee (collectively, “Company Personnel”) desires to Hire or otherwise directly engage a Gig Economy Contractor outside of the JobAnyDay Platform in the twelve (12) months following Company’s or any Company Personnel’s last contact with Gig Economy Contractor, Company will notify JobAnyDay and subsequently Company will be billed and Company agrees to pay a placement fee of $250 per each Gig Economy Contractor hired (“Direct Hire Fee”). In the event Company does not notify JobAnyDay within fifteen (15) days that it has hired a Gig Economy Contractor, Company shall be obligated to immediately pay to JobAnyDay as the Direct Hire Fee, $2,500 for each Gig Economy Contractor Hired. The amounts described in both instances (i.e., with or without notice from Company) shall be referred to as the “Direct Hiring Fee.” Company shall pay to JobAnyDay any Direct Hire Fee owed on the same schedule as the payment of all other fees or invoices from JobAnyDay. Such Direct Hire Fee shall be charged regardless of whether: (a) Gig Economy Contractor contacts Company or applies to Company independently or otherwise through a public job posting or other job board; (b) different Company Personnel are involved in the direct Hire of the Gig Economy Contractor and previous engagement of the Gig Economy Contractor through the JobAnyDay Platform; or (c) Company notifies JobAnyDay of such direct Hire or engagement of the Gig Economy Contractor. Any hire or engagement of the Gig Economy Contractor by Company set forth above shall be defined as a “Hire” and shall trigger the Direct Hire Fee, including a full time hire, part time hire, independent contractor hire, intern hire, or any other such engagement where Gig Economy Contractor receives any compensation from Company. In addition, “Hire” also shall include any situation where Company who had contact with Gig Economy Contractor through the JobAnyDay Platform provides any information regarding Gig Economy Contractor to a third party and that third party hires Gig Economy Contractor within the twelve (12) month period, in any capacity, whether a full time hire, part time hire, independent contractor hire, intern hire, or any other such engagement or relationship where Gig Economy Contractor receives any compensation, directly or indirectly, from Company and/or the third party."
Late Cancellation Fee. Except as otherwise specified in the SOW, the Company will be responsible for paying half of the cost of the Services in addition to any other fees or costs owed for such Service in the event that it cancels or substantially modifies a project or a service less than twelve (12) hours before the performance of the service is to begin. In addition to the fee paid to JobAnyDay, the cost also includes the payment to the Gig Economy Contractor.
Company acknowledges that all the intellectual property rights in the JobAnyDay Platform, the Service, and any metadata or other information generated or submitted to JobAnyDay by a Gig Economy Contractor in the course of performing a Service, including any and all personal identifying information of a Gig Economy Contractor, are owned by JobAnyDay (the “JobAnyDay IP”). Company shall not obtain, by this Agreement, any right, title or interest in the trademarks of JobAnyDay or affiliates, nor shall this Agreement give Company the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of JobAnyDay or affiliates. Company agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the JobAnyDay IP, or (b) rent, lease, loan, or sell access to the JobAnyDay IP, including but not limited to personal identifying information of Gig Economy Contractors.
Term. The term of this Agreement shall begin on the Effective Date and continue in effect for a period of one (1) year, unless otherwise provided in the SOW, after which it will automatically renew for additional one (1) year periods.
Termination. Either Party may terminate this Agreement at any time by providing the non-terminating Party thirty (30) days written notice.
Effect of Termination. In the event that the Company terminates this Agreement, it shall have the option to terminate any Services then in effect. If JobAnyDay terminates this Agreement, any Services that were in place at the time of termination will continue to function either until (i) their natural expiration or (ii) a time mutually agreed upon by the Parties.
Companies and Gig Economy Contractors can buy and sell services online using the JobAnyDay Platform, which is provided by JobAnyDay. Under the terms of this Agreement (and JobAnyDay's service agreement with Gig Economy Contractors), JobAnyDay will offer services to businesses and Gig Economy Contractors, including the JobAnyDay Platform, to facilitate the process for businesses and Gig Economy Contractors to form contracts and manage payments. The Parties expressly concur that neither this Agreement nor the usage of the JobAnyDay Platform creates a joint venture, partnership, employment, or agency relationship between them. The employees, methods, facilities, and equipment of each Party shall at all times be under the exclusive direction and control of that Party.
The Company will maintain a minimum of $1,000,000 of general liability insurance. While the Gig Economy Contractor is employed by the Company, JobAnyDay does not cover any losses caused by the Gig Economy Contractor or any injuries to the Gig Economy Contractor or others. Any damage to the Company property, the Gig Economy Contractor’s property, the property of the clients of the Company that Gig Economy Contractors are assigned to, and any injury to third parties caused by the Gig Economy Contractor while engaged by the Company are covered by Company’s general liability insurance. All Gig Economy Contractors are required to purchase Occupational Accident Insurance (OAI) through the JobAnyDay Platform.
THE SERVICE(S) AND THE DELIVERABLES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” JOBANYDAY EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. JOBANYDAY MAKES NO WARRANTY THAT (A) THE SERVICE OR DELIVERABLES WILL MEET COMPANY’S REQUIREMENTS; (B) THE SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR DELIVERABLES WILL BE ACCURATE OR RELIABLE; OR (D) THE GIG ECONOMY CONTRACTORS ARE RELIABLE, SUITABLE OR HAVE BEEN SCREENED IN ANY WAY BY JOBANYDAY IN ORDER TO PERFORM THE SERVICES REQUESTED (UNLESS OTHERWISE STATED IN THE SOW). JOBANYDAY DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH SERVICE REQUEST AND A GIG ECONOMY CONTRACTOR OR THAT THERE ARE GIG ECONOMY CONTRACTORS IN EACH GEOGRAPHIC AREA REQUESTED BY COMPANY WHO ARE WILLING TO FULFILL THE JOBANYDAY REQUEST AT THE TIME AND PLACE REQUESTED. COMPANY ACKNOWLEDGES AND AGREES THAT JOBANYDAY HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY GIG ECONOMY CONTRACTOR AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN JOBANYDAY AND THE GIG ECONOMY CONTRACTOR. JOBANYDAY DOES NOT GUARANTEE OR WARRANT THE GIG ECONOMY CONTRACTORS’ PERFORMANCE OF THE JOBANYDAY REQUESTS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.
ARISING FROM COMPANY'S USE OF THE JOBANYDAY PLATFORM OR THE SERVICES, IN NO EVENT SHALL JOBANYDAY BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES. JOBANYDAY'S LIABILITY TO COMPANY FOR ANY DAMAGES RESULTING FROM OR RELATED TO COMPANY'S USE OF THE JOBANYDAY PLATFORM OR THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES COMPANY PAID TO JOBANYDAY IN THE TWELVE (12) MONTHS PRIOR TO THE OCCUR.
Company further agrees to indemnify, defend, and hold harmless JobAnyDay and its parents, affiliates, owners, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs) arising from or relating to: (1) a breach by Company of any representation, warranty, covenant, or obligation in these Agreement; (2) any negligent or intentional act or omission committed by Company, in connection with the performance of these Agreement, which act or omission gives rise to any claim for damages against Company, JobAnyDay and/or its parents, affiliates, employees or agents; (3) Company’s violation of applicable law; (4) any third party claims made against JobAnyDay arising from any negligent or intentional act or omission committed by the Company or Gig Economy Contractor in connection with the performance of any Service performed. JobAnyDay specifically denies any obligation to defend and/or indemnify Company from and against any third party claims made against Company arising from any negligent or intentional act or omission committed by Company or a Gig Economy Contractor in connection with the performance of any JobAnyDay Service performed.
Gig Economy Contractor does not have authority to enter into written or oral contracts on behalf of Company or JobAnyDay. Company acknowledges that JobAnyDay does not, in any way, oversee, direct, or manage the work or services rendered in any way by Gig Economy Contractors. JobAnyDay is not engaged in deciding the kind or format of compensation to be provided for any Service, nor does it determine the hours or location of labor for Gig Economy Contractors. Except as expressly stated in the SOW and provided by Company in advance, JobAnyDay will not offer Gig Economy Contractor any training or any equipment, labor, or materials required for a specific Service. There will be no withholding, unemployment, Social Security, or other taxes deducted by JobAnyDay.A Gig Economy Contractor is classified as independent contractor and is free at all times to perform Services, be employed by or otherwise engage with persons or businesses other than Company, including any competitor of Company. Company agrees to indemnify, hold harmless and defend JobAnyDay from any and all claims arising out of or related to the Services, including but not limited to claims that Gig Economy Contractor was misclassified as an independent contractor, any liabilities arising from a determination that Gig Economy Contractor was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that JobAnyDay was an employer or joint employer of Gig Economy Contractor, as well as claims under any employment-related laws.
Any controversy or claim arising out of or connected to this Agreement, or the breach thereof, shall be resolved by binding arbitration conducted before a single arbitrator with expertise in the law, business, or technology relevant to the subject matter of this Agreement.The site of any such arbitration will be Melrose Park, Illinois. The arbitration will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party will bear its own costs and expenses, including fees and expenses of counsel, associated with the arbitration. Notwithstanding the foregoing to the contrary, in the event any controversy or claim includes a claim by or against a Gig Economy Contractor named in such claim or controversy, all such disputes shall be settled in accordance with the arbitration provisions found in Section 11 of the JobAnyDay Agreement of Use and End User License Agreement governing Gig Economy Contractors located on our website which may be amended from time to time.
Entire Agreement; Amendment. This Agreement and the SOW, which is incorporated into this Agreement by reference, constitutes the entire agreement between the Parties relating to the subject matter hereof, supersedes any other business forms of either Party, and all prior agreements, correspondence, discussions, negotiations and understandings of the Parties (whether oral or written) are merged herein, made a part hereof, and superseded hereby. Any different or additional terms of any purchase order acknowledgement, invoice, or similar document of either Party, heretofore or hereafter provided to the other Party will be of no effect, except to the extent expressly provided by this Agreement. No amendment, waiver, or modification of this Agreement shall be valid unless made in writing and signed by both Parties.
Severability. The Parties acknowledge and agree that, in the event that any part of this Agreement is found to be illegal or inoperative, all rights and obligations of the Parties shall be construed and enforced in accordance with the invalid or inoperative provision being deleted from this Agreement.
Force Majeure. Neither party shall be liable to the other for any delay or failure in performance under this Agreement that results from a cause without that party's control and without that party's fault or negligence, with the exception of payment obligations. Fires, floods, earthquakes, strikes, lack of access to essential services, blackouts, acts of God, acts of declared or undeclared war, regulatory agency errors, local, national, or international pandemics are only a few examples of these causes.
Binding Effect. The Parties, each of their authorized assigns, successors, and legal agents, shall be bound by this Agreement and shall be entitled to its benefits.
Waiver of Breach. Any violation of this Agreement that is waived by either Party does not apply to subsequent violations of the same or other provisions, nor does it apply to violations of violations of violations of any other provision of this Agreement.
Applicable Law. This Agreement shall be construed according to and governed by the laws of the State of Illinois, without regards to any conflicts of law provisions.
Headings. The headings in this Agreement have merely been used for convenience of reference and do not form a part of it.
Statute of Limitations. Regardless of any statute or law to the contrary, Company acknowledges that any claim arising out of or associated with the SOW, this Agreement, the Platform, or the Services made available therein must be brought within one (1) year of the cause of action accruing. If not, such a cause of action is permanently barred.
No Assignment. Without JobAnyDay's express prior written agreement, Company may not assign, delegate, or otherwise transfer this Agreement, or Company's rights and responsibilities under it, in whole or in part, by operation of law or otherwise. Any attempted delegation, assignment, or transfer that violates the aforementioned terms will be void. JobAnyDay may assign these Agreement or any of its rights under these Agreement to any third party.
Modifications to JobAnyDay Platform. JobAnyDay reserves the right at any time to modify or discontinue, temporarily or permanently, the JobAnyDay Platform or the Service (or any part thereof) with or without notice. Company agrees that JobAnyDay shall not be liable to Company or to any third party for any modification, suspension or discontinuance of the JobAnyDay Platform or the Service(s).
Surviving Provisions. This Agreement survives any termination of the SOW.
Interpretation. If there is any inconsistency between the SOW and this Agreement, the terms in the SOW shall control.
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