TempHelpers Terms Statement for candidates seeking work opportunities.

TERMS OF USE INDEPENDENT CONTRACTOR SERVICES AGREEMENT

Updated: 2020-05-21 20:09:42 UTC

TempHelpers is an internet application (“TempHelpers Platform” or the “Application”) owned and operated by TempHelpers (TempHelpers,” “we,” or “us”). TempHelpers provides a service (the “Service”) that allows its customers (“Customers”) to access TempHelpers’s network of contractors (“candidate” or “you” or “Contractor”) to identify local providers to meet intermittent needs for services. The Contractors have access to the Application to receive and review requests for services from Customers and to determinetheir interest in and availability to respond to such requests.

PLEASE READ THISAGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JUDGE OR JURY TRIALS.

Acknowledgment andAcceptance of Independent Contractor Services Agreement

This Terms of UseIndependent Contractor Services Agreement (“Terms of Use” or “Agreement”) is an electronic contract thatsets out the legally binding terms of the relationship between TempHelpers andyou. By registering to become a Contractor, you accept and agree to be bound bythe terms of this Agreement. Please read it carefully. By accessing theApplication, or becoming a Contractor you accept this Agreement and agree tothe terms, conditions and notices contained and/or referenced herein.

TempHelpers reserves theright to change this Agreement, and add additional terms at any time, effectiveupon making the modified provisions available on the Application or bynotifying Contractors directly. You are responsible for regularly reviewing theTerms of Use for modifications and updates to its terms. Continued use of theApplication after any such changes are made to this Agreement shall constituteyour consent to such changes. Other than making the changes available on theApplication, TempHelpers does not assume any obligation to notify Contractorsof any changes to this Agreement, or the creation or modification of anyadditional terms.

 

Use of the Applicationis permitted only by individuals who can form legally binding contracts underapplicable law. Without limiting the foregoing, you must be at least 18 yearsold and legally authorized to work in the United States to become a Contractor.If you do not meet these criteria, you may not register to become a Contractor.  Furthermore, by agreeing to the terms of thisAgreement and by using the Application you agree that you will not: (a) copy ordistribute any portion of this Agreement or Application in whole or in part;(b) alter or modify any of the terms or conditions of the Application; (c)enter information into the Application that is false, misleading, or inviolation of the law; or (d) maintain, collect or resell any informationrelated to the Customers or Open Requests listed on the Application.  We make no representation that theApplication will be uninterrupted, error free, or will be free from viruses. 

1. DEFINITIONS

Capitalized terms are defined as set forth below or elsewhere in the Agreement.

1.1 “Account” means a user name and password assigned to the Contractor in the Application in which theContractor enters their personal information, including but not limited toe-mail address, physical address, phone number, and any other information required in the Application such as social security number to ultimately process payment as described below. 

1.2 “Services” means the services described in a  Request for services by a Customer to aContractor (confirm?).

1.3  “Request” means a notice provided, through theApplication, which includes a description of the services sought, including the terms of the Services and the feeassociated with same.  An open request isa request for Services that has not yet been accepted by a Contractor (“Open Request”). Contractors can use theApplication to review Open Requests and to indicate their availability for OpenRequests.  Once a Contractor has accepted a Request pursuant to Section 2, it will automatically  become an “ Engagement”.  

2. CONTRACTORS

2.1 Account Information and verification checks. You acknowledge that the informationcontained in your Account is true and correct. You further acknowledge that you will update and maintain its accuracyduring the course of your use of the Application.  You hereby acknowledge that in order to use the Application, TempHelpers may perform criminal checks, background checks andcredit checks, using outside companies who perform such services, at any time during your use of the Application, in order to confirm the accuracy of the information you have provided and you hereby provide your express consent to same as a consequence of your use and/or continued use of the Application.

2.2 Best Efforts. By registering to become a Contractor and accepting anOpen Request, you agree to use your best efforts to perform the  Engagement such that the Services meet therequirements and specifications of  the Customer who has createdthe OpenRequest. Once a Contractor has accepted a an Open Request, it will no longer beavailable for performance by other Contractors who received the Open Request.By accepting an Open Request, you are entering into a binding legal agreementto provide the Services for the Payment specified in the Open Request. Do notaccept an Open Request unless you are sure that  (a) you t and can performthe Services identified in the Open Request in the requested time period. Failure to timely deliver the Services consistent with the Customer’srequirements and specifications will constitute a breach, resulting innon-payment.  Further, in the event of such a breach, you will be responsible for payment of any additional fees (e.g., rush fees) or costs incurred by Customer in finding alternate performance of the required Service asa result of your failure to timely complete the Open Request in accordance with the Customer requirements.

3. INDEPENDENT CONTRACTOR RELATIONSHIP

3.1 Status of Relationship. You acknowledge and understand that you are an independent contractorand not an employee of either TempHelpers or Customer.  You have obtained advice or understandyourself the tax ramifications of such independent contractor status and yourresponsibility for tax obligations. Furthermore, as a result of this independent contractor status, you willbe paid based upon the Engagement and you specifically acknowledge that you arenot entitled to remuneration, benefits, or vacation time, including but notlimited to holiday pay, from TempHelpers. You and youalone are responsible for your Engagements and the performance of suchEngagements, including but not limited to, whether or not to accept OpenRequest, the pay associated with the Engagement and all standards associatedtherewith.  Notwithstanding theforegoing, You will perform the opportunity consistent with the representationsyou make regarding your skill and at all times in a professional mannerfollowing applicable industry standards. You acknowledge and confirm that you will not undertake anything illegalin nature as part of your Engagement and TempHelpers assumes no obligationswith respect to the Customer or their Open Request regarding same. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between TempHelpers and you or between the Customer and you. You are not the agent of TempHelpers or the Customer and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of TempHelpers or the Customer.

As an independent contractor, you are solely responsible for determining which Open Requests you will choose to accept and how, when and where you will provide the Services under this Agreement. TempHelpers will provide no supervision and will have no control over the manner in which you perform the Services. Further, you must provide all equipment, tools, material and labor that may benecessary to perform the Services.  You acknowledge and understand thatTempHelpers will not provide you with any equipment, tools, material or laborto perform the Services and will only (subject to the terms and condition statedherein) provide you with access to the Application for purposes of enabling youto access and accept (if you so choose) .

Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) you from engaging in other business activities or providing your services to others that are separate and distinct from any business activities or services that you conduct through the Application.

Without limiting thegenerality of the foregoing:

3.2  Benefits and Contributions. You are not entitled to or eligible for any benefits that TempHelpers or its Customers, their respective  parents, subsidiaries, affiliates or other related entities may make available to their employees, such as group insurance, profit-sharing , retirement benefits, or vacation benefits. Because you are an independent contractor, TempHelpers will not withholdor make payments for social security, make unemployment insurance or disabilityinsurance contributions, or obtain workers’ compensation insurance on yourbehalf. If, notwithstanding the foregoing, you are reclassified as an employeeof TempHelpers, or any affiliate of TempHelpers (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreigncourt or agency, you agree that you will not, as the result of suchreclassification, be entitled to or eligible for, on either a prospective orretrospective basis, any employee benefits under any plans or programsestablished or maintained by either the Customer and its parents, subsidiaries,affiliates or related entities or by TempHelpers, its parents, subsidiaries,affiliates or other related entities.

3.3 Taxes. You are solely responsible for filingall tax returns and submitting all payments as required by any federal, state,local, or foreign tax authority arising from the payment of Payments to youunder this Agreement, or arising out of or relating to the Services performed,and you agree to do payment of such taxes  in a timely manner. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS, TempHelpers will report the Payments paid to you for services rendered as part of TempHelpers engagements by filing Form 1099-MISC with IRS. You consent to electronic delivery of Form 1099-MISC, if such form is required or filed.

3.4 Third Party Payment Processing Services. Payment processingservices for Contractors are provided by Stripe and are subject to the Stripe ConnectedAccount Agreement,which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuingto operate as a Contractor, you agree to be bound by the Stripe ServicesAgreement, as the same may be modified by Stripe from time to time. As a condition of TempHelpers enabling payment processing services through Stripe, you agree to provide TempHelpers accurate and complete information about you, and you authorize TempHelpers to share it and transaction information related to your use of the payment processing services to Stripe.

4. CONFIDENTIALITY

4.1  Use and Disclosure. From time to time, you may be given access to confidential information in the course of performing Engagements. During the term of this Agreement and at all times thereafter, you will: (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to useConfidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining TempHelpers’ express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to TempHelpers  or itsCustomers, the fact that a party is Customer of TempHelpers, as well as any of the following: any information, however obtained regarding either Temphelpers’ or Customer’s business operations, trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information thatTempHelpers and/or the Customer considers to be confidential or proprietary or which TempHelpers has a duty to treat as confidential.You will protect theConfidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.

4.2  Exceptions. Your obligations under Sections 4.1 will terminate with respect to any particular information that you can prove, by clear and convincing evidence: (a) you lawfully knew prior to TempHelpers’  first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by TempHelpers, or is required by law or court order, provided that you immediately notify TempHelpers in writing of such required disclosure and cooperate with TempHelpers, at TempHelpers’ reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.

4.3  Removal;Return. Upon TempHelpers’ request and upon any termination orexpiration of this Agreement, you will promptly: (a) return to TempHelpers or,if so directed by TempHelpers , destroy all Confidential Information (in everyform and medium), (b) permanently erase all electronic files containing orsummarizing any Confidential Information, and (c) certify to TempHelpers inwriting that you have fully complied with these obligations.

4.4 Your Confidential Information. Any Confidential Information that is provided to TempHelpers in your Account or through theApplication shall only be used as necessary to administer the Application, for background, verification or credit checks, or to the extent necessary to share such information with Stripe. TempHelpers will use the same standard of care it uses to protect itsown confidential information with respect to your Account information.  Notwithstanding your termination of access tothe Application at a later date, TempHelpers must maintain your ConfidentialInformation as part of its records retention policy and cannot return ordestroy such Account information. 

5. NON-EXCLUSIVITY

5.1 Subject to the terms of this Agreement and the satisfactory verification as outlined, you shall be entitled to use the Application to secure Engagements. It is understood that TempHelpers makes no promises or representations whatsoever as to the potential number of Open Requests you may receive, orEngagements that you will obtain. This Agreement, nor the Application entitle you to any right to be offered any minimum number of Open Requests or Engagements. You make all decisions whether to select any Open Requests and enter into Engagements and there is no requirement for you to commit to any minimum number of Engagements. Furthermore, nothing in this Agreement shall be interpreted as requiring you to enter an exclusive relationship with TempHelpers and you are entitled to seek relationships with other third parties, other than the Customers to whom you have performed Engagements.

6. REPRESENTATIONS AND WARRANTIES

6.1  General. You represent, warrant, and covenant that:

(a)  You areat least Eighteen (18) years of age and have the ability to legally performwork in the United States;

(b) You have the ability to enter into this Agreement without the consent of any third party (including any of your current or former employers) and that you are not subject to any duty or obligation that would be breached by entering into this Agreement or by your performance of Engagement

(c)  You will comply with all of the terms of this Agreement;

(d)  You will fully conform to the Customer specifications, requirements, and other terms of any Request that you accept, and the Services delivered will be of a professional and workmanlike quality; 

(e) You will comply with all applicable laws, rules and regulations in connection with performance of the Services ;

(f) You will not subcontract engage, allow, employ or otherwise permit any persons other than you to substitute for your performance of the Services.

(g) You will not seekemployment outside of the TempHelpers App with Customers that would ordinarilybe Open Requests that they would use the App to place employment opportunities.

6.2.  Indemnification and Hold Harmless.  You shall indemnify and hold harmless TempHelpers and its parents, affiliates, employees, vendors, Customers and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) of whatever kind or nature arising out of  or relating to any Open Requests or Engagements entered into by you and any consequences which flow from same, or any breach by you of any representation, warranty, covenant, or obligation in this Agreement, TempHelpers specifically denies any obligation to defend and/or indemnify you from and against any third party claims made against you arising from any act performed or omission committed by you in connection with the performance of any Engagement.  Furthermore, you have noauthority to bind TempHelpers in any act, promise, representation or contract,or to adverttise yourself as an employee of TempHelpers and you further agreeto defend, indemnity and hold harmless TempHelpers from any such ation.

6.3  Insurance. You acknowledge that you are an independentcontractor, not an employee of TempHelpers . As such, you acknowledge andunderstand that you are not covered by any insurance that may be provided byTempHelpers to its employees, including, without limitation, health insurance,workers compensation insurance, general liability insurance, and automobileliability insurance. TempHelpers requires that, as an independent contractor,you maintain workers’ compensation or occupational accident insurance for whichyou are solely and exclusively responsible. Specifically, in the event that you are injured while working in the course and scope of an Engagement, you acknowledge and understand that you will not be covered by any workers compensation insurance coverage thatTempHelpers may provide to its employees. Furthermore, in the event that your actions cause an injury to a third party while you are working in the course and scope of performing an Engagement or the Services, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that TempHelpers may have, and that TempHelpers is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.

6.4  Disclaimer.  To the extent permitted byapplicable law, the Application is provided “as is,” as available and without anywarranties or conditions (express or implied, including the implied warrantiesof merchantability, accuracy, fitness for a particular purpose, title andnon-infringement, arising by statute or otherwise in law or from a course ofdealing or usage or trade). We make no representations or warranties, of anykind, either express or implied, as to the quality, identity or reliability ofany third party, or as to the accuracy of the postings made on the Applicationby any third party, including Customers. We assume no responsibility for any issues arising out of the Engagement or Services you undertake including, but not limited to sexual harassment, discrimination .

7. LIABILITY

IN NO EVENT WILL TempHelpers BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL,INCIDENTAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT,INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES ORLOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TempHelpers’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT,WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS OWED BY TempHelpers FOR ANY ENGAGEMENTS PERFORMED DURING THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT.

SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONSOF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALLOF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

8. TERMINATION

8.1  Termination by TempHelpers. TempHelpers reserves the right to terminate your access to the Application at any time, including for any one or more of the following reasons: if you have not accepted an Engagement for twelve consecutive months; if you materially breach this Agreement or any terms hereof; if you fail to perform any Engagement, or fail to perform such Engagement to the satisfaction of Customer; if you violate the law in connection with your use of the Application(or in connection with the performance of the Services); any misrepresentation of any information provided with respect to your Account..

8.2  Survival.  Sections 3 (“Independent Contractor Relationship”), 4 (“Confidentiality”), 5 (“No Conflicts”), 6 (“Representations and Warranties”), 7 (“Limitation of Liability”), 8.2 (“Survival”), and 9 (“General Provisions”) will survive anytermination or expiration of this Agreement and/or any modification ortermination of the Application. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.

9. GENERAL PROVISIONS

9.1  Governing Law. This Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement including the law related to the arbitration of any action hereunder shall be governed by the laws of the Commonwealth of Pennsylvania regardless of where the Engagement or you are located or reside. notwithstanding any conflicts of law principles and the parties agree that the situs of such arbitration shall be Philadelphia, PA.

9.2   Mandatory Binding Individual Arbitration and Class Action Waiver (“Arbitration Agreement”). The Company and Contractormutually agree to resolve any disputes between them exclusively through finaland binding arbitration instead of litigation. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in this Arbitration Agreement, shall apply to any and all claims arising out of or relating to this Agreement, the Contractor’s classification as an independent contractor, Contractor’s provision of services to the Company or its Customers, the payments received by Contractor for providing services to the Company  or its Customers, the termination of this Contract, and all other aspects of the Contractor’s relationship with the Company, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With DisabilitiesAct, Age Discrimination in Employment Act, Family Medical Leave Act, or FairLabor Standards Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Contractor’s relationship or the termination of that relationship with the Company.   

The agreement by Contractor and the Company to mutually arbitrate disputes provides consideration for this Arbitration Agreement. This Arbitration Agreementapplies to claims and disputes that the Company may have against Contractorand/or that Contractor may have against the Company, and (1) its affiliates andpartners (2) its officers, directors, employees, or agents in their capacity assuch or otherwise, and/or (3) all successors and assigns of any of them; anyand all of which may enforce this Arbitration Agreement.

(a)  The terms of theArbitration Agreement shall be as follows:

         (i)The Arbitrator, and not any federal, state,or local court or agency, shall have exclusive authority to resolve any dispute relating tothe interpretation, applicability, enforceability or alleged waiverof this Arbitration Agreement including, but notlimited to any claim that all or any part of this Arbitration Agreement is void orvoidable.  However, as stated in the “Class Action Waiver” below, the precedingsentence shall not apply to the clause entitled “Class Action Waiver.”

 

        (ii) all disputes shall be submitted for binding resolution to adjudicationadministered by JAMS – The Resolution Experts! (“JAMS”)in accordance with the procedure set out below.

        (iii) either party may demand arbitrationby filing electronically with JAMS, and serving electronic copies by email uponthe TempHelpers, utilizing the electronic forms and filing directions providedby JAMS on its website at www.jamsadr.com. The statement shall set forth in detail the factual andlegal issues submitted for resolution.

        (iv) Withinthree (3) business days after the statement is filed and served, the partiesshall appoint an adjudicator (the “Adjudicator”) who shall be a panelist from JAMSEmployment Panel (“JAMS Panel”) of dispute adjudicators. JAMS shall appoint an adjudicator administratively from the JAMS Panel if the parties fail to appoint an adjudicator within the three day period. The Adjudicator shall be under aduty to act impartially and fairly and shall serve as an independent neutral.At all times during and after the adjudication the adjudicator shall beshielded by quasi-judicial immunity from suit or other legal process.

        (v) The adjudication shall commence on the date that JAMS receives the adjudication statement (the “Adjudication Commencement Date”). Unless the Adjudicator decides otherwise, the Principal, the parties shall share in the cost and expenses and should any party fail to deposit funds as required by JAMS, any other party may advance the deposit, and the amount of that advance deposit will be taken into consideration in the adjudicator’s decision.

(vi)Upon commencement of the adjudication, the adjudicator is empowered to take the initiative in ascertaining the facts and the law, and to exercise sole discretion in managing the adjudication process. Among other things, the adjudicator may require the parties to make additional factual submissions such as sworn witness statements and business documents, may interview important witnesses after notice to the parties and affording opportunity to attend, may request and consider expert reports and may call for memoranda on legal issues.

 

(vii)The adjudicator shall issue a written decision (the “Decision”)which shall be binding upon and enforceable by the parties through thecompletion of the Principal’s Obligations. The Decision shall be issued through JAMS as soon as practicable but in no event later than thirty (30) calendar days of the Adjudication Commencement Date or within any later time agreed upon by the parties. This 30 day period also may be extended by the adjudicator inits sole discretion for up to 14 days in the event that JAMS has requested any party to make an additional fee and expense deposit and funds have not been deposited as requested or advanced by another party.

(viii)Any Party may request clarification of the Decision within five (5) businessdays after issuance, and the Adjudicator shall endeavor to respond within an additional five (5) business days, andany payment shall be made immediately thereafter. Unless the parties agree otherwise, the Decision shall state reasons therefore and shall be admissible in later administrative, arbitral or judicial proceedings between the parties.

        

(b) ClassAction Waiver.  The Company and Contractor mutually agree that by entering into this Arbitration Agreement , both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”).  Notwithstanding any other clause contained in this Arbitration Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which(1) the dispute is filed as a class and/or collective action and (2) there is afinal judicial determination that all or part of the Class Action Waiver isunenforceable, the class or collective action to that extent must be litigatedin a civil court of competent jurisdiction, but the portion of the Class ActionWaiver that is enforceable shall be enforced in arbitration.

 

 

(c) Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Occupational Safety and HealthAdministration, Equal Employment Opportunity Commission, or U.S. Department ofLabor) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.

   

 9.3 Modifications to Application. TempHelpers reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. However, as stated above in Section 8.2 above, Section 9 (“General Provisions”), which contains the Arbitration Agreement, will survive any termination or expiration of thisAgreement and/or any modification or termination of the Application or theService. You agree that TempHelpers shall not be liable to you or to any thirdparty for any modification, suspension or discontinuance of the Application orthe Services.

9.4 Terms. If any part of this Agreement is determined to be unlawful, void, or unenforceable, that part shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions. The failure of TempHelpers to exercise or enforce any right or provision under this Agreement shall not constitute a waiver of such right or provision. You agree that any cause of action that You may have arising out of or related to this Agreement or the Application must commence within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.

9.5 Copyright and Trademark Information. The Application, and the information and materials that itcontains, are the property of TempHelpers and its licensors, and are protectedfrom unauthorized copying and dissemination by copyright law, trademark law,international conventions and other intellectual property laws.  Nothing contained on the Application should be construed as granting, by implication, estoppel, or otherwise, any license or right to use this Application or any materials contained therein, except:(a) as expressly permitted by this Agreement; or (b) with the prior written permission of TempHelpers.

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TempHelpers Terms Statement for clients seeking to hire contractors.

TERMS OF USE CLIENT AGREEMENT

Updated: 2021-04-01 20:09:42 UTC

TempHelpers is an internet application (“TempHelpers Platform” or the “Application”) owned and operated by TempHelpers (TempHelpers,” “we,” or “us”). TempHelpers provides a service that allows its customers (“You” or “Customer”) to access TempHelpers’s network of contractors (“Contractors”) (the “Service”). You will have access to the Application to list Open Requests (as defined below) for Contractors to review and ultimately accept Requests (as defined below) which result in an Engagement (as defined below).

 

This Terms of Use Services Agreement (“Terms of Use” or “Agreement”) is an electronic contract that sets out the legally binding terms of the relationship between TempHelpers and You. By registering to become a Customer, you accept and agree to be bound by the terms of this Agreement. Please read the Agreement carefully. By accessing the Application, or becoming a Customer you accept this Agreement and agree to the terms, conditions and notices contained and/or referenced herein.

TempHelpers reserves the right to change this Agreement, and add additional terms at any time, effective upon making the modified provisions available on the Application or by notifying You directly. You are responsible for regularly reviewing the Terms of Use for modifications and updates to its terms. Continued use of the Application after any such changes are made to this Agreement shall constitute your consent to such changes. Other than making the changes available on the Application, TempHelpers does not assume any obligation to notify You of any changes to this Agreement, or the creation or modification of any additional terms.

 

Use of the Application is permitted only by individuals who can form legally binding contracts under applicable law. Furthermore, by agreeing to the terms of this Agreement and by using the Application you agree that you will not: (a) copy or distribute any portion of this Agreement or Application in whole or in part;(b) alter or modify any of the terms or conditions of the Application; (c)enter information into the Application that is false, misleading, or in violation of the law; or (d) maintain, collect or resell any information related to the Contractors or Open Requests listed on the Application.  We make no representation that the Application will work uninterrupted, error free, or will be free from viruses. 

1. DEFINITIONS
Capitalized terms are defined as set forth below or elsewhere in the Agreement.

1.1 “Account” means a username and password assigned to You containing information about your company, including but not limited to e-mail address, physical address, phone number, and any other information required in the Application. 

1.2 “Services” means the services described in a  Request for services by a Customer to a Contractor.

1.3  “Request” means once a notice has been provided, through the Application, which includes a description of the services  sought, including  the terms of the Services and the fee associated with same.  An open request isa request for Services that has not yet been accepted by a Contractor (“Open Request”). Once a Contractor has accepted a Request pursuant to Section 2, it will automatically become an “Engagement“.

2. CLIENTS

2.1 Account Information and verification checks. You acknowledge that the information contained in your Account is true and correct. You further acknowledge that you will update and maintain its accuracy during the course of your use of the Application. 

2.2 You acknowledge and confirm that you will not list anything illegal in nature aspart of your Request and TempHelpers assumes no obligations with respect any Open Request that is in violation of this clause.

3. INDEPENDENT CONTRACTOR RELATIONSHIP

3.1 Status of Relationship. You acknowledge and understand that the Contractors are independent contractors and not employees of TempHelpers. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between TempHelpers and You or between You and the Contractor.  You are not the agent of TempHelpers or the Contractor and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of TempHelpers or the Contractor. TempHelpers will provide no supervision and will have no control over the manner in which the Contractor performs the Services. TempHelpers will not provide Contractor with any equipment, tools, material or labor to perform the Services and will only(subject to the terms and condition stated herein) provide the Contractor access to the Application for purposes of enabling acceptance of Requests and Engagements.

At no time shall You engage the Contractor outside of the Application and doing so shall be a breach of this Agreement. In the event that you breach this provision of the Agreement and engage any Contractors outside of the Application, you shall be responsible to compensate TempHelpers for damages in the amount of Three Thousand US Dollars ($3000) per occurrence. If it is determined that you hired a Contractor outside of the Application process, you have damaged TempHelpers and you acknowledge, agree and affirm that you will not assert any defense to such hiring, the amount of damages by which TempHelpers has been damaged and thatYou acknowledge that the damages set forth herein are determined as fair and reasonable in the event of a breach of this Agreement as described.

3.2  Benefits and Contributions. The Contractor is not entitled to or eligible for any benefits that TempHelpers or You or any of the foregoings respective parents, subsidiaries, affiliates or other related entities may make available to their employees, such as group insurance, profit-sharing , retirement benefits, or vacation benefits. TempHelpers is not responsible to withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of Contractor. 

3.3  Third Party Payment Processing Services. Payment processing services for You are provided by Stripe and are subject to the Stripe ConnectedAccount Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of TempHelpers enabling payment processing services through Stripe,You agree to provide TempHelpers accurate and complete information about your company, and you authorize TempHelpers to share it and transaction information related to your use of the payment processing services to Stripe.

4. CONFIDENTIALITY

4.1  Use and Disclosure. From time to time, you may be given access to confidential information. During the term of this Agreement and at all times thereafter, you will: (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining TempHelpers’ express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to TempHelpers, as well as any of the following: any information, however obtained regarding the Application or Temphelpers’ business operations. You will protectthe Confidential Information from unauthorized use, access, or disclosure inthe same manner as you protect your own confidential or proprietary informationof a similar nature, and with no less than reasonable care.

5. NON-EXCLUSIVITY

5.1 Subject to the terms of this Agreement and the satisfactory verification as outlined, you shall be entitled to use the Application to secure Engagements.  It is understood that TempHelpers makes no promises or representations whatsoever as to whether a Contractor will accept an Engagement. You make all decisions whether to engage the Contractor for such Engagement. Furthermore, nothing in this Agreement shall be interpreted as requiring you to enter an exclusive relationship with TempHelpers and you are entitled to seek relationships with other third parties, other than the Contractors with whom you have engaged or become aware of through the Application. Any violation of thisclause shall entitle TempHelpers to damages as set forth in Clause 3.1.

6. REPRESENTATIONS AND WARRANTIES

6.1  General. You represent, warrant, and covenant that:

(a) You have the legal ability and authorization to enter into this Agreement and that you are not subject to any duty or obligation that would be breached by entering into thisAgreement;

(b)  You will comply with all of the terms of this Agreement;

(c) You will comply with all applicable laws, rules and regulations in connection with the listing of your requests and during the Engagement with the Contractor;

(d) You will or your employer will be the only party for whom the Request is submitted and the Engagement will be entered into on behalf of.

(g) You will not engage with the Contractors outside of the Application or the Engagements entered into through Application.

6.2. Indemnification and Hold Harmless. You shall indemnify and hold harmless TempHelpers and its parents, affiliates, employees, vendors, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) of whatever kind or nature arising out of or relating to any, Requests, Open Requests or Engagements entered into by you and any consequences which flow from same, or any breach by You of any representation, warranty, covenant, or obligation in this Agreement,TempHelpers specifically denies any obligation to defend and/or indemnify you from and against any third party claims made against you arising from theRequest, Open Request, or Engagement. Furthermore, you have no authority to bind TempHelpers in any act,promise, representation or contract, or to advertise yourself as an authorizedparty on behalf of TempHelpers and you further agree to defend, indemnity andhold harmless TempHelpers from any such action.

6.3 Insurance. You acknowledge that TempHelpers does not provide any health insurance, workers compensation insurance, general liability insurance, or automobile liability insurance on behalf of Contractor.Furthermore, in the event of any damage caused by Contractor in the performance of the Engagement, including but not limited to, an injury to a third party, You acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that TempHelpers may have, and that TempHelpers is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.

6.4  Disclaimer. To the extent permitted by applicable law, the Application is provided “as is,” as available and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). We make no representations or warranties, of any kind, either express or implied, as to the quality, identity or reliability of any third party, or as to the accuracy of the postings made on the Application by any third party, including You.  We assume no responsibility for any issues arising out of the Engagement or Services, including but not limited to sexual harassment, discrimination or any employment related issues, or any fraud, dishonesty or theft.

7. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL TempHelpers BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSSOF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TempHelpers’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS OWED BY TempHelpers FOR ANY THE PARTICULAR ENGAGEMENT PERFORMED OR WHICH MAY NOT HAVE BEEN FULFILLED.

8. TERMINATION

8.1 Termination by TempHelpers. TempHelpers reserves the right to terminate your access to the Application at any time, including for any one or more of the following reasons: if you materially breach this Agreement or any terms hereof; if you violate the law in connection with your use of the Application (or in connection with the performance of the Services); any misrepresentation of any information provided with respect to your Account; or failure to remit payment for any Engagement.

8.2  Survival. Sections 3 (“Independent Contractor Relationship”), 4 (“Confidentiality”), 5 (“No Conflicts”), 6 (“Representations and Warranties”), 7 (“Limitation of Liability”), 8.2 (“Survival”), and 9 (“General Provisions”) will survive any termination or expiration of this Agreement and/or any modification or termination of the Application. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.

9. GENERAL PROVISIONS

9.1  Governing Law. This Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement including the law related to the arbitration of any action here under shall be governed by the laws of the Commonwealth of Pennsylvania regardless of where the Engagement or You are located or reside and the parties agree that the situs of such arbitration shall be Philadelphia, PA.

9.2   Mandatory Binding Arbitration (“Arbitration Agreement”).  You and The Company mutually agree to resolve any disputes between amongst themselves exclusively through final and binding arbitration instead of litigation.  This Arbitration Agreement is governed by the FederalArbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in thisArbitration Agreement, shall apply to any and all claims arising out of or relating to this Agreement, Requests, Open Requests, Engagements (whether performed or not), the payments for Engagements, damages arising out of or relating to the Services, the termination of this Contract, and all other aspects of the relationship with the Company, past, present or future, whether arising under federal, state or local statutory and/or common law.   

 

The terms of the Arbitration Agreement shall be as follows:

        

         (i) The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or alleged waiver of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.  However, as stated in the “Class Action Waiver” below, the precedingsentence shall not apply to the clause entitled “Class Action Waiver.”

 

         (ii) all disputes shall be submitted for binding resolution to adjudication administered by JAMS – TheResolution Experts!(“JAMS”) in accordance with the procedure setout below.

 

         (iii) either party may demand arbitration by filing electronically with JAMS, and serving electronic copies by email upon the TempHelpers, utilizing the electronic forms and filing directions provided by JAMS on its website at www.jamsadr.com. The statement shall set forth in detail the factual and legal issues submitted for resolution.

         (iv) Within three (3) business days after the statement is filed and served, the parties shall appoint an adjudicator (the “Adjudicator”) who shall be a panelist from JAMS Employment Panel (“JAMS Panel”)of dispute adjudicators. JAMS shall appoint an adjudicator administratively from the JAMS Panel if the parties fail to appoint an adjudicator within the three day period. The Adjudicator shall be under a duty to act impartially and fairly and shall serveas an independent neutral. At all times during and after the adjudication the adjudicator shall be shielded by quasi-judicial immunity from suit or other legal process.

         (v) The adjudication shall commence on the date that JAMS receives the adjudication statement (the “Adjudication Commencement Date”). Unless the Adjudicator decides otherwise, the Principal, the parties shall share in the cost and expenses and should any party fail to deposit funds as required by JAMS, any other party may advance the deposit, and the amount of that advance deposit will betaken into consideration in the adjudicator’s decision.

(vi) Upon commencement of the adjudication, the Adjudicator is empowered to take the initiative in ascertaining the facts and the law, and to exercise sole discretion in managing the adjudication process. Among other things, the adjudicator may require the parties to make additional factual submissions such as sworn witness statements and business documents, may interview important witnesses after notice to the parties and affording opportunity to attend, may request and consider expert reports and may call for memoranda on legal issues.

 

(vii) The Adjudicator shall issue a written decision (the “Decision”)which shall be binding upon and enforceable by the parties through thecompletion of the Principal’s Obligations. The Decision shall be issued through JAMS as soon as practicable but in no event later than thirty (30) calendar days of the Adjudication Commencement Date or within any later time agreed upon by the parties. This 30 day period also may be extended by the adjudicator inits sole discretion for up to 14 days in the event that JAMS has requested any party to make an additional fee and expense deposit and funds have not been deposited as requested or advanced by another party.

 

(viii) Any Party may request clarification of the Decision within five (5) business days after issuance, and the Adjudicator shall endeavor to respond within an additional five (5) business days, and any payment shall be made immediately thereafter. Unless the parties agreeotherwise, the Decision shall state reasons therefore and shall be admissiblein later administrative, arbitral or judicial proceedings between the parties.

   

 9.3  Modifications to Application. TempHelpers reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. However, as stated above in Section 8.2 above, Section 9 (“General Provisions”), which contains the Arbitration Agreement, will survive any termination or expiration of this Agreement and/or any modification or termination of the Application or the Service. You agree that TempHelpers shall not be liable to you or to any third party for anymodification, suspension or discontinuance of the Application or the Services.

9.4 Terms. If any part of these is Agreement is determined to be unlawful, void, orunenforceable, that part shall be deemed severable and shall not affect thevalidity and enforceability of the remaining provisions. The failure of TempHelpers to exercise or enforce any right or provision under this Agreement shall not constitute a waiver of such right or provision. You agree that any cause of action that You may have arising out of or related to this Agree mentor the Application must commence within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.

9.5 Copyright and Trademark Information. The Application, and the information and materials that it contains, are the property of TempHelpers and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, international conventions and other intellectual property laws. Nothing contained on the Application should be construed as granting, by implication, estoppel, or otherwise, any license or right to use this Application or any materials contained therein, except: (a) as expressly permitted by this Agreement; or (b)with the prior written permission of TempHelpers.