TRADUCTIONS EN FRANÇAIS DISPONIBLES PROCHAINEMENT
Dated/Last Update: November 12, 2019
THIS AGREEMENT EXPRESSLY SUPERSEDES PRIOR AGREEMENTS OR ARRANGEMENTS WITH YOU. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF THE PLATFORM FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. INSTIRE MAY IMMEDIATELY TERMINATE THIS AGREEMENT OR ANY SERVICES WITH RESPECT TO YOU, OR GENERALLY CEASE OFFERING OR DENY ACCESS TO THE PLATFORM OR ANY PORTION THEREOF, AT ANY TIME, FOR ANY REASON.
PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH IN SECTION 13 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH INSTIRE ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION AGREEMENT) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
1.1 “Job Provider” means those individuals or entities that have created an Account to use the Platform to hire workers for jobs/shifts.
1.2 “Device” means a mobile device, smartphone, smart watch, tablet, computer owned or controlled by you on which the INSTIRE Platform has been installed as authorized by INSTIRE solely for the purpose of providing jobs/shifts, or on which you receive SMS text messaging/push notifications in connection with providing jobs/shifts.
1.3 “Fee” has the meaning set forth in Section 3.1.
1.4 “Authentication Token” means the identification code that may be assigned by INSTIRE to you that enables you to use and access the INSTIRE Platform and then authenticates your Device on the Platform.
1.5 “INSTIRE Data” means all data related to the access and use of the Platform hereunder, including all data related to Users (including User Information), all data related to the provision of jobs/shifts via the Platform.
1.6 “Jobs/Shifts” means your provision of jobs/shifts to Job Providers via the Platform.
1.7 “Services” means INSTIRE’s lead generation and related services that enable individuals to seek, receive, provide, fulfill, and/or obtain requests for jobs/shifts by Job Providers seeking to hire workers for jobs/shifts, which services include INSTIRE’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.8 “User” means an end user that has created an Account with INSTIRE to use the INSTIRE Platform for the purpose of seeking, receiving, providing, fulfilling, and/or obtaining jobs/shifts.
1.9 “User Information” means information about a User collected by us through the INSTIRE Platform, which may include a User’s name, location, services sought or provided, and contact information.
- USE OF THE SERVICES
2.1 Eligibility. In order to be eligible to receive requests for jobs/shifts via the Platform you must be at least eighteen (18) years old. You represent and warrant that all information you provide in your application and in response to any additional requests from INSTIRE is complete and accurate. INSTIRE reserves the right, in its sole discretion, to approve or reject your application for the Platform. INSTIRE expressly reserves the right to reject any application for the Platform it believes in its sole discretion are generated by fraudulent means or in violation of these Terms.
Account registration (“Account”) requires you to submit to INSTIRE certain personal information, such as your name, address, and phone number, as well as direct deposit account information. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, may result in your inability to access and use the Platform or INSTIRE’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by INSTIRE in writing, you may only possess one Account.
2.2 Authentication token. INSTIRE may send you an SMS to your Device with an authentication/verification code EACH TIME you log in (sign up for first app use or after a log out when you log in) to enable you to access and use the INSTIRE Platform in accordance with this Agreement. You agree that you will maintain your authentication token in confidence and not share your authentication token with any third party. You will immediately notify INSTIRE of any actual or suspected breach or improper use or disclosure of your authentication token on the INSTIRE Platform.
2.3 Provision of Jobs/Shifts Services. You may view jobs/shifts posted by Job Providers via the INSTIRE Platform, which may include basic information related to such posted jobs/shifts, such as the quoted pay rate, start/end date/time, duration, position, and the description of work requested and the name of Job Provider.
By creating your profile, you acknowledge that your ratings, date of first use of Platform, number of jobs performed via INSTIRE, resume, and experience (“Your Public User Information”) will be displayed on INSTIRE and viewable by all registered Job Providers.
You may apply for such jobs/shifts and you may be hired by the Job Provider. This means you accept requests for jobs/shifts that you are willing and able to fulfill. You may not apply for jobs/shifts you are not able to or do not intend to fulfill.
You acknowledge that, once you applied, the Job Provider who posted the job/shift you just applied for, will be able to see other information about you such as: name, phone number, and profile picture (“Your Private User Information”) in addition to your ratings, date of use of Platform, number of jobs performed via INSTIRE, resume, and experience (“Your Public User Information”).
You will be notified if your application is successful. If your application is successful, INSTIRE may provide you with certain additional information regarding the job/shift via the INSTIRE Platform. You shall not contact any Job Provider for any reason except for the purposes of fulfilling jobs/shifts. As between INSTIRE and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of jobs/shifts; and (b) except for the services, you shall provide all necessary equipment, tools and other materials that may be requested by Job Provider to perform such jobs/shifts.
If you allow any third party to perform the jobs/shifts that have been accepted through your account, or we otherwise determine that anyone other than yourself is accepting or performing the jobs/shifts, we may refuse and/or terminate your access to the Platform and may refuse to pay you any amounts you generate by participating in the Platform, and we reserve the right to seek damages to the fullest extent permitted by law.
2.4 Insurance. Job Providers are responsible to obtain and maintain all necessary insurance policies for Job Applicant to be able to provide such jobs/shifts requested by Job Provider, including, but not limited to, workers’ compensation.
2.5 Your Relationship with Job Providers. You acknowledge and agree that your provision of jobs/shifts to Job Providers creates a direct business relationship between you and the Job Provider. Your interactions with Job Providers and/or other third parties found on or through the Platform are solely between you and such Job Providers and/or third parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any Job Providers. INSTIRE is not responsible or liable for the actions or inactions of a Job Provider in relation to your activities. You shall have the sole responsibility for any obligations or liabilities to Job Providers or other third parties that arise from your provision of jobs/shifts. You acknowledge and agree that INSTIRE may release your contact and/or insurance information, if any, to a Job Provider upon such Job Provider’s reasonable request.
You represent that you have all appropriate documentation for eligibility to work in the United States, and you shall provide such documentation to Job Provider. INSTIRE is not responsible for reviewing or making sure you have all such necessary documentation and shall be released of any claims related to such documentation.
If there is a dispute between Users (including between you and a Job Provider), or between Users and any third party, you agree that INSTIRE is under no obligation to become involved. In the event that you have a dispute with one or more other Users, you release INSTIRE, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Platform. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.“
2.6 Your Relationship with INSTIRE. You acknowledge and agree that our provision to you of the INSTIRE Platform does not create a direct business relationship between INSTIRE and you. You acknowledge and agree that you are not an employee of INSTIRE and that INSTIRE does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of jobs/shifts or your acts or omissions. You retain the sole right to determine which requests for jobs/shifts you choose to fulfill and when and how often you utilize the INSTIRE Platform. You retain the option, via the INSTIRE Platform, to apply or to not apply (ignore a Job Provider’s job/shift) via the Platform, to cancel an application, or to cancel a job/shift if hired, for jobs/shifts via the INSTIRE Platform, subject to INSTIRE’s then-current cancellation policies. INSTIRE’s current cancellation policies are available at www.instire.com/cancellation-policies. INSTIRE shall have no right to require you to: (a) display INSTIRE’s names, logos or colors; or (b) wear a uniform or any other clothing displaying INSTIRE’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the Platform; and (ii) engage in any other occupation or business. INSTIRE retains the right to, at any time at our sole discretion, deactivate or otherwise restrict you from accessing or using the INSTIRE Platform in the event of a violation of this Agreement, your disparagement of INSTIRE, your act or omission that causes harm to INSTIRE’s brand(s), reputation or business as determined by INSTIRE in its sole discretion, or for any other reason at the reasonable discretion of INSTIRE. If you are terminated from the Platform, you may not access or use the INSTIRE Platform through a new account.
2.7 Ratings. You acknowledge and agree that: (a) after receiving jobs/shifts, a Job Provider may be asked to provide a rating of you and such jobs/shifts and, optionally, to provide comments or feedback about you and such jobs/shifts and (b) after providing jobs/shifts, you may be asked to provide a rating of the Job Provider and, optionally, to provide comments or feedback about the Job Provider through the INSTIRE Platform. You shall provide your ratings and feedback in good faith. You acknowledge that INSTIRE desires that Job Providers have access to high-quality services. In order to continue to receive access to the INSTIRE Platform, you must maintain an average rating by Job Providers that exceeds the minimum average acceptable rating established by INSTIRE, which is a minimum of two (2) stars, and may be updated from time to time by INSTIRE in its sole discretion. In the event your average rating falls below the Minimum Average Rating, INSTIRE will notify you and may provide you, in our discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), INSTIRE reserves the right to deactivate your access to the INSTIRE Platform.
INSTIRE reserves the right to use, share and display your and Job Provider ratings and comments in any manner in connection with INSTIRE’s business without attribution to you or your approval. You acknowledge and agree that INSTIRE is a distributor (without any obligation to verify) and not a publisher of your and Job Provider ratings and comments, provided that INSTIRE reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws, or INSTIRE’s content policies.
2.8 Devices. You acknowledge and agree that with respect to any Devices: (i) you are responsible for the acquisition, cost and maintenance of such Devices as well as any necessary wireless data plan; and (ii) INSTIRE shall make available any mobile application portion of the INSTIRE Platform for installation on such Device. INSTIRE hereby grants you a personal, non-exclusive, non-transferable license to install (where applicable) and use the INSTIRE Platform on a Device solely for the purpose of providing jobs/shifts. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the INSTIRE Platform (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the INSTIRE Platform from the Device in the event that you cease to provide jobs/shifts using the Device.
2.9 Text Messaging/Push Notifications. By signing up to use the Platform, you agree that INSTIRE may send you informational text (SMS) messages and or Push Notifications as part of the normal business operation of your use of the Platform and that use of SMS is necessary to utilize the Platform. We may send you SMS messages, for example, to communicate with you regarding the INSTIRE Platform (such as reminders to update your profile), to provide status updates and other alerts (such as alerts for job/shift prices), and to provide reminders regarding your jobs/shifts (such as to remind you of upcoming jobs/shifts). When you sign up for the Platform, we will send you an SMS message to confirm your signup.
In the event you no longer want to receive any Push Notifications from INSTIRE, you can cancel the Notifications service on your smartphone’s settings or set your profile on INSTIRE as NOT AVAILABLE at any time.
In the event you no longer want to receive any text messages from INSTIRE, you can cancel the SMS service at any time by e-mailing us at firstname.lastname@example.org.
Message and data rates may apply for any messages sent to you from us and to us from you. Message frequency depends on your use of the Platform. If you have any questions about your text plan or data plan, please contact your wireless provider. For all other questions about the SMS services, you can send an email to email@example.com.
3.1 Charges. You understand that use of the Platform is currently free of charge, but INSTIRE reserves the right, at any time, to make changes to its payment policy.
3.2 Payment to You. After you have completed a job/shift, which you obtained through your use of the Platform, you understand that Job Provider is responsible for paying you directly. INSTIRE shall have no payment obligations toward you, and you agree to indemnify and hold harmless INSTIRE from any and all claims related to payments owed by Job Provider.
- PROPRIETARY RIGHTS; LICENSE
4.1 License Grant. Subject to the terms and conditions of this Agreement, INSTIRE hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Platform solely for the purpose of providing jobs/shifts to Job Providers and tracking INSTIRE Fees. All rights not expressly granted to you are reserved by INSTIRE, and its licensors.
4.2 Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Platform in any way; (b) modify or make derivative works based upon the Platform; (c) improperly use the Platform, including creating Internet “links” to any part of the Platform, “framing” or “mirroring” any part of the Platform; (d) reverse engineer, decompile, modify, or disassemble the Platform, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Platform to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Platform an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Platform; or (iv) attempt to gain unauthorized access to the Platform or its related systems or networks.
4.3 Ownership. The Platform and all rights therein are and shall remain INSTIRE’s property or the property of INSTIRE’s licensors. Neither these Terms nor your use of the Platform convey or grant to you any rights: (i) in or related to the Platform except for the limited license granted above; or (ii) to use or reference in any manner INSTIRE’s company names, logos, product and service names, trademarks or services marks or those of INSTIRE’s licensors.
4.4 User Submissions. Anything you post, upload, share, store, or otherwise provide through the Platform is your “User Submission,” which may include your chat data, work history or resume information. Some User Submissions are viewable by other users. In order to display your User Submissions on the Platform, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions.
For all User Submissions, you hereby grant INSTIRE a license to translate, modify (for technical purposes), for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable INSTIRE to operate the Platform. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant INSTIRE the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited User Submission”), then you grant INSTIRE the licenses above, as well as a license to display, perform, and distribute your Limited User Submission for the sole purpose of making that Limited User Submission accessible to such other specified users, and providing the services necessary to do so. Also, you grant such other specified users a license to access that Limited User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Platform.
If you share a User Submission publicly on the Platform and/or in a manner that more than just you or certain specified users can view (a “Public User Submission”), such as your job/shift posting, then you hereby grant INSTIRE the licenses above, as well as a license to use, copy, modify, translate, distribute, perform, publish, and process your Public User Submission for the purpose of making that Public User Submission accessible to all INSTIRE users and providing the services necessary to do so, as well as all other rights necessary to use and exercise all rights in the Public User Submission in connection with the Platform and/or otherwise in connection with INSTIRE’s business for any purpose, provided that INSTIRE will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Platform. Also, you grant all other users of the Platform a license to access that Public User Submission and to use and exercise all rights in it, as permitted by the functionality of the Platform. You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide. When you delete your account, we will stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from INSTIRE’s records, and that your User Submissions may remain viewable elsewhere to the extent it was copied or stored by others. You further understand and agree that INSTIRE, in performing the required technical steps to provide the Platform to our users (including you), may need to make changes to your User Submissions to conform and adapt such User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
to the extent they relate to User Submissions that are also your personally-identifiable information.
4.5 Content on the Platform. The materials displayed or available on or through the Platform, including but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Platform, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you (i) without the prior consent of the owner of that Content, or (ii) in a way that violates someone else’s (including INSTIRE’s) rights.
Any information or content publicly posted or privately transmitted through the Platform is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and INSTIRE is not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. INSTIRE cannot control and has no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release INSTIRE from all liability for you having acquired or not acquired Content through the Platform.
You are responsible for all Content you contribute, in any manner, to the Platform and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You may not upload, distribute or otherwise publish any Content that is invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, threatening, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful or otherwise objectionable, including but not limited to any Content that encourages conduct that would constitute a criminal offense or otherwise violates any applicable U.S. or foreign laws.
The services may contain links or connections to third party websites or services that are not owned or controlled by INSTIRE. When you access third party websites or use third party services, you accept that there are risks in doing so, and that INSTIRE is not responsible for such risks. INSTIRE has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Platform. In addition, INSTIRE will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Platform, you release and hold INSTIRE harmless from any and all liability arising from your use of any third-party website or service.
4.6 Copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable any content posted through the Platform that is alleged to be infringing, and to terminate the accounts of repeat alleged infringers, in accordance with the Digital Millennium Copyright Act (the “DMCA“). To report potentially infringing content, please e-mail us at firstname.lastname@example.org.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
6.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide jobs/shifts pursuant to this Agreement; and (d) you will not allow any third party to use your account or provide the jobs/shifts accepted through your account.
6.2 Disclaimer of Warranties. YOUR USE OF THE PLATFORM, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN THE PLATFORM, ANY PLATFORM-RELATED SERVICE OR SOFTWARE THAT IS PROVIDED TO YOU, IS AT YOUR SOLE RISK. THE PLATFORM, INCLUDING ANY CONTENT, SOFTWARE OR INFORMATION CONTAINED WITHIN THE PLATFORM AND ANY PLATFORM-RELATED SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES, EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU. INSTIRE DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE PLATFORM: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR JOBS/SHIFTS. INSTIRE FUNCTIONS AS A LEAD GENERATION AND RELATED SERVICE ONLY AND MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE JOBS/SHIFTS FROM YOU, AND INSTIRE DOES NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE PLATFORM. NOTWITHSTANDING INSTIRE’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 3 ABOVE, INSTIRE EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
6.3 No Service Guarantee. INSTIRE DOES NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE INSTIRE PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND INSTIRE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
You shall indemnify, defend (at INSTIRE’s option) and hold harmless INSTIRE, its affiliates, its Job Providers, and each of the foregoing’s respective officers, directors, employees, agents, successors and assigns from and against any and all claims, liabilities, expenses (including legal fees and costs), damages, penalties, fines, social contributions and taxes arising out of or related to (a) your use of the Platform (including any actions taken by a third party using your account or identity in the Platform or performance of jobs/shifts), (b) your provision of jobs/shifts or use of the Platform (including claims and potential claims from third parties, Users, regulators and governmental authorities), (c) any material or any other content or information that You submit, post or upload to or transmit through the Platform; and (d) your violation of this Agreement. These obligations will survive any termination of your relationship with us or your use of the Platform. We reserve the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
- LIMITS OF LIABILITY
IN NO EVENT SHALL INSTIRE OR INSTIRE’S EMPLOYEES, OFFICERS, REPRESENTATIVES, SUPPLIERS, LICENSORS, JOB PROVIDERS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (i) THE USE OR INABILITY TO USE THE PLATFORM OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE PLATFORM; (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE PLATFORM OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE PLATFORM; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; (vi) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; OR (vii) ANY OTHER MATTER RELATING TO THE PLATFORM, EVEN IF WE OR OUR AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR PLATFORM-RELATED SERVICES IS TO STOP USING THE PLATFORM AND/OR THOSE SERVICES. WE ARE NOT RESPONSIBLE OR LIABLE FOR YOUR ILLEGAL, UNAUTHORIZED, OR IMPROPER USE OF INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED USING THE PLATFORM. THIS LIMITATION OF LIABILITY INCLUDES ANY OF THE FOREGOING TYPES OF DAMAGES ARISING FROM YOUR ACCESS OR USE OF THE PLATFORM OR ANY JOBS/SHIFTS PROVIDED TO JOB PROVIDERS. INSTIRE’S PLATFORM MAY BE USED BY YOU TO RECEIVE JOBS/SHIFTS, BUT YOU AGREE THAT INSTIRE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY JOB PROVIDER.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF US UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED TWO HUNDRED U.S. DOLLARS ($200.00).
- TERM AND TERMINATION
You shall indemnify, defend (at INSTIRE’s option) and hold harmless INSTIRE and its affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees and costs), damages, penalties, fines, social contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of jobs/shifts or use of the INSTIRE Platform.
9.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
9.2 Termination. Either party may terminate this Agreement by deleting and removing the INSTIRE Platform. In addition, INSTIRE may terminate this Agreement or deactivate your authentication token immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of INSTIRE, to provide jobs/shifts, or as otherwise set forth in this Agreement.
9.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the INSTIRE Platform from any of Your Devices and cease providing jobs/shifts via the Platform. Outstanding payment obligations and Sections 1, 2.5, 2.6, 3.6, 3.7, 4.2, 4.3, 5, 6, 7, 8, 9.3, 10, 12 and 13 shall survive the termination of this Agreement.
- RELATIONSHIP OF THE PARTIES
Except as otherwise expressly provided herein with respect to INSTIRE acting as the limited payment collection agent solely for the purpose of collecting payment from Job Providers on your behalf, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between INSTIRE and you; and (b) no joint venture, partnership, or agency relationship exists between INSTIRE and you.
You have no authority to bind INSTIRE and you undertake not to hold yourself out as an employee, agent or authorized representative of INSTIRE. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of INSTIRE, you undertake and agree to indemnify, defend (at INSTIRE’s option) and hold INSTIRE and its affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
- APPLE APP STORE TERMS
This Agreement applies to your use of the Platform, including the iPhone, and iPad applications available via the Apple, Inc. (“Apple“) App Store (the “Application“), but the following additional terms also apply to the Application:
11.1 Both you and INSTIRE acknowledge that this Agreement is concluded between you and INSTIRE only, and not with Apple, and that Apple is not responsible for the Application or any content posted to or made available via the Application;
11.2 The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the INSTIRE Platform for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as it is applicable to the Platform;
11.3 You will only use the Application in connection with an Apple device that you own or control;
11.4 You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
11.5 In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
11.6 You acknowledge and agree that INSTIRE, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
11.7 You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, INSTIRE, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
11.8 You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
11.9 Both you and INSTIRE acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
11.10 Both you and INSTIRE acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
- MISCELLANEOUS TERMS
12.1 Modification. INSTIRE reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement on the portal available to you on the Platform. INSTIRE reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Platform, or downloading, installing or using the Platform, you are bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fee Calculations. Continued use of the Platform after any such changes shall constitute your consent to such changes.
12.2 Supplemental Terms. Supplemental terms may apply to your use of the Platform, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms“). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
12.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
12.4 Assignment. You may not assign, delegate or transfer this Agreement or your rights or obligations hereunder, or your account with the Platform, in any way (by operation of law or otherwise) without INSTIRE’s prior written consent. INSTIRE may transfer, assign, or delegate this Agreement and its rights and obligations without consent.
12.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.“
12.6 No Third-Party Beneficiaries. Except as expressly set forth in Section 11 above regarding the Apple Application, there are no third-party beneficiaries to this Agreement and nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
12.7 Notices. INSTIRE may give notice by means of a general notice on the Platform, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to INSTIRE, with such notice deemed given when received by INSTIRE, at any time by first class mail, pre-paid post, or electronic mail to INSTIRE, 2665 S Bayshore Dr, #430, Miami, FL 33133 or email@example.com.
12.8 Choice of Law. This Agreement is governed by and construed in accordance with the laws of the State of Florida, U.S.A., without giving effect to any conflict of law principles. For all claims not subject to the Arbitration Agreement in Section 13, you agree that they will be brought exclusively in the federal or state courts of competent jurisdiction sitting in Miami-Dade County, Florida, and you expressly agree that such courts shall have jurisdiction over you. The prevailing party in any dispute arising hereunder or from your use of the Platform shall be entitled to an award of its reasonable attorney’s fees and legal costs against the non-prevailing party.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU AND INSTIRE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- ARBITRATION AGREEMENT
13.1 Arbitration. You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Platform (collectively, “Disputes“) will be settled by final and binding arbitration between you and INSTIRE. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). Notwithstanding anything else contained herein, each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and INSTIRE are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and INSTIRE otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration Agreement” section will be deemed void. Except as provided in the preceding sentence, this “Arbitration Agreement” section will survive any termination of these Terms.
Except as it otherwise provides, this Arbitration Agreement also applies, without limitation, to disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with INSTIRE, including termination of the relationship. This Arbitration Agreement also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by INSTIRE and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
13.2 Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
13.3 Arbitration Process. If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought.
13.4 Arbitration Location and Procedure. The arbitration shall take place in Miami-Dade County, Florida. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and INSTIRE submit to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
13.5 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
13.6 Fees. The party initiating the arbitration must bear the costs and fees related thereto.
13.7 Severability and Survival. This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. Therefore, terms of this Arbitration Agreement shall be severed, to the smallest extent possible, if required to uphold the enforceability of this Arbitration Agreement. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims.