AGREEMENT BETWEEN PROFESSIONAL & SPOTWORK INC. FOR USE OF SPONTANEOUS PAID OPPORTUNITIES TODAY INC. SERVICE
Last Revised: November 2, 2023
Spotwork reserves the right to change this Agreement, and to add additional terms at any time, effective upon making the modified provisions available on the Service or by notifying you directly. You are responsible for regularly reviewing the Agreement for modifications and updates to its terms. Continued use of the Service after any such changes are made to this Agreement shall constitute your consent to such changes. Other than making the changes available on the Service, Spotwork does not assume any obligation to notify you of any changes to this Agreement, or the creation or modification of any additional terms.
- Independent Professional. By agreeing to this Agreement, you are asserting that you are an independent professional and entrepreneur who wishes to: (a) digitize and modernize your business; (b) be introduced to potential new clients by Spotwork; and (c) engage Spotwork for its Service to accomplish these entrepreneurial goals.
- SPOTWORK is Solely a Venue for Communications. Spotwork is a communications platform for enabling the connection between you and Requesters. Spotwork does not itself provide professional services. Spotwork offers tools, information, and a method for Requesters to obtain, and you to provide, services, but does not, nor does it intend to, provide such professional services. Spotwork and you intend for you to provide services to Requesters strictly as an independent contractor, and not as employees, workers, agents, joint ventures, partners or franchisees of Spotwork or the Requester for any purpose.
3.1 From time to time, Requesters will post proposed projects via the Spotwork website or mobile phone application, setting forth the nature of the services required (the “Project”). A Project proposed may include desired skills, location, date, start time (as applicable), project length (as applicable), pay rate and any required certifications (“Project Details”). If a Project becomes available in the location you have indicated on the Service, then you may be notified of the availability of the Project via the Service. You may express interest in such Project and if the Requester accepts your expression of interest, then you will be notified via the Service and you will be responsible for completing the Project at the time, on the date, and at the place specified in the Project Details, unless otherwise agreed between you and the Requester. Spotwork does not guarantee any minimum number of Projects will be available to you at any time during the term of this Agreement. If you are selected for a Project by a Requester, the applicable Requester will be able to rate you and other Requester will be able to see your rating.
3.2 You agree that your name, phone number, email address, certifications, eligibility to work and other necessary requirements listed in the Project Details may be made available to a Requester by Spotwork after the Project is confirmed. Projects are subject to change at the discretion of the Requester and may last for longer, or not as long, as originally set forth in the Project Details. Depending on the nature of the Project, the applicable Requester or Spotwork, may require that you provide proof of certain permits or licenses.
3.3 Spotwork has no control or any right to determine (a) when you use the Service, (b) if and when you log into the Service, (c) for which Projects you express interest or accept, if any, (d) what you charge for Projects, (e) any of the Project Details, (f) whether you are selected for a Project and (g) the manner or means by which you complete Projects. You and the Requester solely negotiate and determine the Project Details including when and where you perform Projects, the required services for the Project, and any additional bonuses or gratuities arising out of such Projects. You are solely responsible for costs or expenses incurred by you in connection with the performance of Projects.
- Accounts and Registration. In order for you to engage Spotwork for its Service, you must create an account on the Service. When you create an account, you will be required to provide us with some information about yourself (such as your name, a description of yourself and your business, your business address, phone number, e-mail address, and banking information for payments). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, you must immediately notify us at firstname.lastname@example.org.
5.1 You may be required to register with the Payment Service Provider retained by Spotwork (the “PSP”), agree to Terms of Service of the PSP and go through a vetting process at the request of the PSP to set up your account with the PSP. Spotwork is not a party to the PSP Agreement. You, the PSP and any other parties listed in the PSP Agreement are the parties to the PSP Agreement and Spotwork has no obligations or liability to any party under the PSP Agreement.
5.2 Requesters will be responsible for paying the invoice for each Project (the “Invoice”), which will include the pricing terms of the Project agreed with and provided by you (“Project Payment”).
5.3 After Spotwork receives confirmation through the Service that a Project has been completed, Spotwork will provide the Requester’s payment details to the PSP for processing of the Project Payment amount.
5.4 After the PSP processes the Project Payment amount, the PSP will forward the Project Payment to you, less any system access fees owed to Spotwork, if applicable, for the use of the Service, without deduction at source for the purpose of withholding income tax or other employment related withholdings. You will be liable for all taxes and withholdings applicable to any Project Payments including sales tax. You agree to 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, Spotwork will report Project Payments made to you for services you rendered by filing Form 1099-NEC with the IRS. You consent to electronic delivery of Form 1099-NEC, if such form is required or filed. You agree to indemnify Spotwork for the cost of any tax liabilities incurred by Spotwork as a result of your failure to pay all applicable taxes in a timely manner.
5.5 You acknowledge and agree that you are not entitled to or eligible for any benefits that Spotwork, its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Spotwork will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance, on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Spotwork, or any affiliate of Spotwork (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either any Requester and its parents, subsidiaries, affiliates or related entities or by Spotwork, its parents, subsidiaries, affiliates or other related entities.
5.6 Spotwork is not responsible for any non-payment by the Requester. As such, you accept the sole risk that a Requester will not pay the Project Payment after a Project has been completed, and you agree not to bring or take any action against Spotwork for non-payment by the Requester.
5.7 CANCELLATION & NON-PERFORMANCE FEE: In the event the Project is not performed according to the reasonable standards set out in Project Details, which includes, but is not limited to, not properly completing a Project or not meeting the reasonable satisfaction of the Requester, the Requester may dispute and withhold payment of any Project Payment. For greater certainty, failure to attend at a confirmed Project with a Requester is a failure to meet the standards. In the event you fail to show up for a confirmed Project, AND HAVE NOT COMMUNICATED THE REASONS FOR FAILING TO SHOW UP ON THE PLATFORM WITH A REASONABLE EXCUSE, Spotwork reserves the right to withhold up to 4 hours of your Project Payment of any earned but unpaid payments or future payments that you may otherwise be entitled to under the terms of the Agreement. Any penalty levied under this Section does not limit recourse available to the Parties under any other Section of the Agreement, including the termination procedures.
- Interactions with Requesters. Any interactions or disputes between you and a Requester are solely between you and that Requester. Spotwork and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Requester.
- License. You grant Spotwork a license to use your name, image, voice and/or likeness in connection with Spotwork’s Services to advertise and promote Spotwork’s Services, in order to identify you to Requesters, and for any other purpose deemed appropriate by Spotwork in its reasonable discretion (except to the extent prohibited by law).
- Text Messaging; Phone Calls. You agree to Spotwork’s use of a service provider to mask your phone number when you exchange text messages and phone calls with Requesters. Spotwork and its service provider will store your messaging and call data (including the time and date of the call or message, each of your phone numbers and the content of any text messages). You consent to this process and Spotwork’s use and disclosure of this data for its business purposes. Further, you agree to Spotwork’s sending SMS text messages directly to you in order to facilitate the performance of Projects. Standard call or message charges or other charges from your phone carrier may apply to calls or text (SMS) messages Spotwork sends to you. You may opt- out of receiving text (SMS) messages from Spotwork by replying with the word “STOP” to a text message from Spotwork, but you acknowledge that opting out of text (SMS) messages may impact your ability to use the Service.
- Relationship & Insurance.
9.1 You agree and acknowledge you will be engaged by the Requester as an independent contractor. Nothing contained herein shall be deemed or construed to create an employment relationship, partnership or joint venture between you and the Requester.
9.2 You further agree and acknowledge that nothing contained herein shall be deemed or construed to create an employment relationship, partnership or joint venture between you and Spotwork. As an independent contractor, you have complete discretion to determine whether, when, where, and how often you make yourself available to accept or perform on Projects for Requesters, and you are solely responsible for determining which Projects you will choose to accept (if any), and how you will perform on Projects for Requesters under this Agreement. Except as you otherwise agree in connection with your acceptance of a Project, you shall have no obligation to be available to accept Projects or to perform on Projects on any specific day, at any specific time, for any specific duration, for any specific Requester, or with any specific frequency. Spotwork does not and shall not restrict your right to provide services for, through, or arranged by other parties, including Spotwork’s competitors. Indeed, as an independent contractor / business enterprise, Spotwork expects that you will provide services for, through, or arranged by other parties. Spotwork does not and shall not direct, control, or supervise you in connection with your use of the Service, including during your consideration and acceptance of any Projects, and during your performance or provision of services for Requesters.
9.3 Neither party shall acquire by virtue of this Agreement any right, capacity or power to act as an agent for the other or to bind the other to any other person, firm or corporation, except with the written agreement of the other if necessary to carry out the purpose and intent of this Agreement.
9.4 You agree and understand that you do not have authorization to make public statements of any kind on behalf of Spotwork and that you must not make any statements or publish any material that purports to represent Spotwork or its views, including via the use of social media. Similarly, you shall ensure that your personal social media activities do not breach the confidentiality obligations set forth in this Agreement.
9.5 Should the relationship between you and Spotwork, or you and the Requester, be found in law to constitute an employment relationship, which conclusion is expressly denied, you agree to indemnify Spotwork and its respective directors, officers, employees and agents against any amounts which are found to be owing including but not limited to employer contributions, income and employment taxes, social security, disability and other contributions benefits, withholdings, sales taxes, termination or severance pay under any applicable legislation or any other applicable law. You agree to hold Spotwork harmless for any and all such payments and any fines, interest or penalties arising from non-payment or failure to withhold.
9.6 You acknowledge and agree that you are obligated to report as income all compensation received by you from Requesters (and forwarded to you by Spotwork) arising out of or related to the Service. You agree to and acknowledge the obligation to pay all self-employment and other taxes on such income.
9.7 Notwithstanding any other provision of this Agreement, a portion of the hourly proceeds from each Project will be applied toward coverage under an occupational accident insurance policy ("OAI") made available by Spotwork. By accessing and using the Service, or by clicking to accept this Agreement, you hereby apply for the OAI (made available by Spotwork). You authorize Spotwork to pay on your behalf fees for the OAI. You may opt out of the OAI by providing Spotwork proof of existing workers’ compensation insurance coverage via email.
9.8 Insurance. You acknowledge that you are an independent contractor, not an employee of Spotwork. As such, you acknowledge and understand that you are not covered by any insurance that may be provided by Spotwork to its employees, including, without limitation, health insurance, workers’ compensation insurance, general liability insurance, and automobile liability insurance.
9.9 As an independent contractor, you are obligated under this Agreement, to maintain, at your own expense, up-to-date insurance of the types, including but not limited to vehicle insurance and workers compensation insurance, in amounts equal to or greater than the minimum requirements as required by law in the jurisdiction in which you provide Services under this Agreement.
9.9 In the event you are injured while providing Services under this Agreement, you acknowledge and understand that you will not be covered by any workers compensation insurance coverage that Spotwork may provide to its employees.
9.10 In the event your actions cause an injury to a third party while you are providing Services under this Agreement, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that Spotwork may have. You further acknowledge and understand that Spotwork is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.
9.11 Notwithstanding any other provision of this Agreement, you will be provided with coverage under an OAI made available by Spotwork, subject to the terms of such OAI policy, for time spent providing Services on a Project.
- Representations and Warranties. You represent and warrant to Spotwork that (a) you have the legal right to perform Projects as contemplated by this Agreement in United States of America, (b) you are fully-licensed (to the extent required by law) and authorized to complete Projects within the jurisdiction in which you intend to work, and has the required skill, experience, and qualifications to complete Projects, (c) you will perform Projects in a professional and diligent manner in accordance with best industry standards for similar services, and (d) you will perform Projects in accordance with all applicable laws, rules, and regulations.
- Indemnification. You will indemnify and hold Spotwork and its respective directors, officers and employees harmless from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses (including reasonable legal fees) arising out of or resulting from (a) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from your performance of the Projects, (b) your breach of any representation or warranty in this Agreement, (c) any negligent, reckless or intentionally wrongful act by you or your assistants, employees, contractors or agents arising from your performance of the Projects, (d) a determination by a court or agency that the you are not an independent contractor, or (e) any claim by a Requester arising from or related to you or your assistants, employees, contractors or agents services for such Requester.
- Disclaimer. You are solely responsible for completing Projects. Spotwork is not responsible or liable for the actions or inactions of a Requester or other third party in relation to Projects as completed by you. You understand, therefore, that by using the Service, you will be introduced to third parties for whom Spotwork has not conducted any background check, that may be potentially dangerous, and that you use the Service at your own risk. SPOTWORK HAS BEEN ENGAGED BY REQUESTERS TO INTRODUCE YOU TO THEM FOR THE PURPOSES OF COMPLETING PROJECTS. SPOTWORK WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY PROJECTS OR REQUESTERS AND YOU EXPRESSLY WAIVE AND RELEASE SPOTWORK FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO PROJECTS OR REQUESTERS. SPOTWORK WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN YOU AND REQUESTERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING PROJECTS OFFERED VIA THE SERVICE (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU. SPOTWORK WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASES SPOTWORK FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE SERVICE.
- Term; Termination. This Agreement will be effective as of the date you indicate your acceptance, and will remain in effect until terminated as set forth in this Section. You or Spotwork may terminate this Agreement by deleting your account on the Service, with or without notice. Sections 1, 2, and 9 – 17 will survive termination of this Agreement.
- Assignment. You may not assign this Agreement without Spotwork’s prior, written consent. Spotwork may assign its rights and obligations under this Agreement at any time.
- Dispute Resolution. You acknowledge and agree that the terms of this Agreement are subject to Section 10 of the EULA.
- Confidential Information. You acknowledge that in the course of using the Services and performing services for the Projects, you may acquire knowledge or information of Spotwork that is confidential including, without limitation, information concerning Spotwork’s business and marketing practices, finances and sales and past, present or prospective customers and suppliers and information about the Requesters, Projects, and Project Details, ("Confidential Information"). You agree not to make use of or divulge any Confidential Information during the term of this agreement or at any time following termination of this agreement under any circumstances whatsoever, except as expressly required by law and/or permitted by Spotwork in writing. This section does not apply to information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by Spotwork; (b) becomes publicly known and made generally available after disclosure by Spotwork to you through no action or inaction on your part, (c) is already in your possession at the time of disclosure, as shown by your files and records; or (d) is obtained by you from a third party without a breach of the third party’s obligations of confidentiality.
- Governing Law. Venue; Jurisdiction. This Agreement shall be governed by and construed in accordance with the applicable substantive laws of the state of Texas, without giving effect to its conflicts of laws rules. Except as otherwise specified in this paragraph, any legal action in any way arising out of this Agreement shall be brought solely and exclusively in the state courts of Texas. Each Party submits to the sole and exclusive personal jurisdiction of the courts in Texas generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other Party. Notwithstanding the foregoing, you agree that it will submit any legal dispute between it and a Professional to binding arbitration.