Last Updated: May 7, 2014
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH MANAGER (DEFINED BELOW) MAY COMMUNICATE WITH WERKERS (DEFINED BELOW) MAY REGARDING JOBS (DEFINED BELOW). YOU UNDERSTAND AND AGREE THAT WERKLY IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN MANAGERS AND WERKERS. WERKLY HAS NO CONTROL OVER THE CONDUCT OF MANAGERS, WERKERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY JOBS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
“Collective Content” means Member Content and Werkly Content.
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“Manager” means a Member who intends to secure the services of Werkers for Jobs via the Site, Application and Services.
“Member” means a person who completes Werkly’s account registration process, including, but not limited to Managers and Werkers, as described under “Account Registration” below.
“Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) and other similar municipal, state and federal indirect or other withholding and personal or corporate income taxes.Certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
“Werker” means a Member who creates a profile and intends to be contacted for Jobs, or a Member who secures an Job and is not the Manager for such Job.
“Werkly Content” means all Content that Werkly makes available through the Site, Application, or Services, including any Content licensed from a third party, but excluding Member Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Werkly reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
The Site, Application and Services can be used to facilitate the listing and securing of labor opportunities either as employees or independent contractors (“Jobs”). Managers may communicate with one or more Werkers regarding the Jobs.
As stated above, Werkly makes available a platform or marketplace with related technology for Managers and Werkers to meet online and arrange for securing Jobs. Werkly is not to be considered an employer or contractor with respect to any Job. Werkly’s responsibilities are limited to: (i) facilitating the availability of the Site, Application and Services and (ii) if applicable, serving as the limited agent of each Werker for the purpose of accepting payments from Managers on behalf of the Werker.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE THE SECURING OF JOBS. WERKLY CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY COMMUNICATION REGARDING JOBS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY JOBS. WERKLY IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND JOBS. ACCORDINGLY, ANY JOBS WILL BE SECURED AT THE WERKER’S OWN RISK.
In order to access certain features of the Site and Application, and to secure a Job, you must register to create an account (“Werkly Account”) and become a Member. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third party social networking sites (“SNS”) (including, but not limited to, Facebook); each such account, a “Third Party Account”, via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your Werkly Account with Third Party Accounts, by either: (i) providing your Third Party Account login information to Werkly through the Site, Services or Application; or (ii) allowing Werkly to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Werkly and/or grant Werkly access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Werkly to pay any fees or making Werkly subject to any usage limitations imposed by such third party service providers. By granting Werkly access to any Third Party Accounts, you understand that Werkly will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Site, Services and Application via your Werkly Account and Werkly Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Werkly Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or Werkly’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Werkly Account and your Third Party Accounts, at any time, by accessing the “Account Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Werkly makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Werkly is not responsible for any SNS Content.
We will create your Werkly Account and your Werkly Account profile page for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Werkly Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Werkly reserves the right to suspend or terminate your Werkly Account and your access to the Site, Application and Services if you create more than one (1) Werkly Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Werkly Account, whether or not you have authorized such activities or actions. You will immediately notify Werkly of any unauthorized use of your Werkly Account.
As a Member, you may create Job requests. To this end, you will be asked a variety of questions about the Job to be listed, including, but not limited to duties of the Job and pricing and related requirements and financial terms. You understand and agree that once a Werker agrees to accept your Job, the payment terms for such Job may not be altered.
You acknowledge and agree that you are responsible for any and all Job requests you make. Accordingly, you represent and warrant that any Listing you post and the securing of an Job to render services for a Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Job included in a Job Request you send, including, but not limited to, employment law and immigration laws, and (b) not conflict with the rights of third parties. Please note that Werkly assumes no responsibility for a Manager’s compliance with any applicable laws, rules and regulations. Werkly reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Werkly, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
You understand and agree that Werkly does not act as an insurer or as a contracting agent for you as a Manager or Werker. If a Werker accepts a Job and performs work or services on your behalf, any agreement you enter into with such Werker is between you and the Werker and Werkly is not a party thereto. Notwithstanding the foregoing, as applicable, Werkly may serve as the limited authorized agent of the Werker for the purpose of accepting payments from Managers on behalf of the Werker and is responsible for transmitting such payments to the Werker in that circumstance.
When you send a Job Request, you may also choose to include certain requirements which must be met by the Members who are eligible to accept such Job, including, but not limited to, requiring Members to have a profile picture or verified phone number in order to accept your Job. Any Member wishing to accept a Job Request such requirements must meet these requirements. More information on how to set such requirements is available via the “Help” section of the Site, Application and Services.
If you are a Manager, Werkly makes certain tools available to you to help you to make informed decisions about which Werkers you choose to hire for your Job. You acknowledge and agree that, as a Manager, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who are otherwise present at the Job at your request or invitation, excluding the Werker.
Werkly recommends that Managers obtain appropriate insurance for their Jobs. Please review any insurance policy that you may have for your Job carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Werkers while they perform work or services during your Job.
Werkly does not endorse any Members or any Jobs. In addition, although these Terms require Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity. You are responsible for determining the identity and suitability of others who you contact via the Site, Application and Services. Except as provided in the Werkly Manager Guarantee Terms and Conditions (“Werkly Manager Guarantee”), which is an agreement between Werkly and Managers, we will not be responsible for any damage or harm resulting from your interactions with other Members.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Werkly with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any Jobs entered into by you. This limitation shall not apply to any claim by a Werker against Werkly regarding the remittance of payments received from a Manager by Werkly on behalf of a Werker, if applicable, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
Jobs and Financial Terms for Manager
If you are a Werker and you are sent a Job Request via the Site, Application and Services, you will be required to either accept or reject the Job within 24 hours of when the Job Request is sent (as determined by Werkly in its sole discretion) or the Job Request will be automatically cancelled. When a Job Request is sent via the Site, Application and Services, we will share with you (i) the first and last name of the Manager who has requested the Job, (ii) a link to the Manager’s Werkly Account profile page, and (iii) additional information about the Job. When you accept a Job Request from a Manager, Werkly will send you an email, text message or message via the Application confirming such acceptance, depending on the selections you make via the Site, Application and Services.
The fees related to each Job Request are comprised of the Manager Fee (defined below) and the Werker Fee (defined below.) Where applicable, Taxes may be charged in addition to the Manager Fee and Werker Fee. The Manager Fee, the Werker Fee and applicable Taxes are collectively referred to in these Terms as the “Total Fees”. The amounts due and payable to a Werker solely relating to a Manager’s Job are the “Job Fees”. Please note that it is the Manager and not Werkly which determines the Job Fees.
Werkly charges a $2.00 fee to Werkers (“Werker Fee”) and a $2.00 fee to Managers (“Manager Fee”) for each acceptance of a Manager’s Job Request by a Werker. Werkers and Managers will be invoiced monthly, or in the event aggregate fees do not meet or exceed $10 in a given month, once aggregate fees reach $10.
The Managers, not Werkly, are solely responsible for honoring any confirmed Jobs and making available any Jobs reserved through the Site, Application and Services. If you, as a Werker, choose to enter into a transaction with a Manager for the acceptance of a Job, you agree and understand that you will be required to enter into an agreement with the Manager and you agree to accept any terms, conditions, rules and restrictions associated with such Job imposed by the Manager. You acknowledge and agree that you, and not Werkly, will be responsible for performing the obligations of any such agreements, that Werkly is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Werkly disclaims all liability arising from or related to any such agreements.
Some Managers may pledge to donate a portion of the funds they receive from confirmed Jobs made via the Site, Application and Services to a particular cause or charity. We do not control, and will not take any responsibility or liability for, whether the Manager does in fact make the donation he or she pledged to make.
You understand and agree that you are solely responsible for determining your applicable Tax reporting requirements in consultation with your tax advisors. Werkly cannot and does not offer Tax-related advice to any Members of the Site, Application and Services. Additionally, please note that each Manager is responsible for determining local indirect Taxes and for including any applicable Taxes to be collected or obligations relating to applicable Taxes associated with Jobs.
Damage during Jobs
You acknowledge and agree that, as a Werker, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who you invite to, or otherwise provide access to, the Job. Both Werkers and Managers agree to cooperate with and assist Werkly in good faith, and to provide Werkly with such information and take such actions as may be reasonably requested by Werkly, in connection with any complaints or claims made by Members relating to Jobs or any personal or other property located at a Job or with respect to any investigation undertaken by Werkly or a representative of Werkly regarding use or abuse of the Site, Application or the Services.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Content. In connection with your use of our Site, Application and Services, you may not and you agree that you will not:
•violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation Tax regulations;
•use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Content;
•use the Site, Application or Services for any commercial or other purposes that are not expressly permitted by these Terms;
•copy, store or otherwise access any information contained on the Site, Application, Services or Content for purposes not expressly permitted by these Terms;
•infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
•interfere with or damage our Site, Application or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
•use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
•use our Site, Application or Services in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;
•"stalk" or harass any other user of our Site, Application, or Services or collect or store any personally identifiable information about any other user other than for purposes of transacting as a Werker or Manager;
•offer, as a Manager, any Jobs that you do not yourself own or have permission to offer (without limiting the foregoing, you will not list Jobs as a Manager if you are serving in the capacity of a general contractor or other similar capacity);
•register for more than one Werkly Account or register for an Werkly Account on behalf of an individual other than yourself;
•contact a Manager for any purpose other than asking a question related to a Job Request;
•contact a Werker for any purpose other than asking a question related to a Job Request or such Werker’s use of the Site, Application and Services;
•when acting as a Werker or otherwise, recruit or otherwise solicit any Manager or other Member to join third party services or websites that are competitive to Werkly, without Werkly’s prior written approval;
•impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
•use automated scripts to collect information or otherwise interact with the Site, Application or Services;
•use the Site, Application and Services to find a Manager or Werker and then complete a Job of an Job transaction independent of the Site, Application or Services in order to circumvent the obligation to pay any Service Fees related to Werkly’s provision of the Services;
•as a Manager, submit any Listing with a false or misleading fee information, or send any Job Request with a price that you do not intend to honor;
•or post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
•systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
•use, display, mirror or frame the Site or Application, or any individual element within the Site, Services, or Application, Werkly’s name, any Werkly trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Werkly’s express written consent;
•access, tamper with, or use non-public areas of the Site or Application, Werkly’s computer systems, or the technical delivery systems of Werkly’s providers;
•attempt to probe, scan, or test the vulnerability of any Werkly system or network or breach any security or authentication measures;
•avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Werkly or any of Werkly’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
•forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
•attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
advocate, encourage, or assist any third party in doing any of the foregoing.
Werkly will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Werkly may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Werkly has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating the Site, Application and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Werkly reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Werkly, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services. Privacy
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights is the exclusive property of Werkly and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content.
Subject to your compliance with these Terms, Werkly grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Werkly reserves all rights in the Application not expressly granted to you by these Terms.
Subject to your compliance with the terms and conditions of these Terms, Werkly grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Werkly Content solely for your personal and commercial purposes related to Job Requests and (ii) access and view any Member Content to which you are permitted access, solely for your personal and commercial purposes related to Jobs. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Werkly or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to Werkly a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, or by means of the Site, Application and Services. Werkly does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Werkly the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Werkly’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Werkly is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Werkly of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
All trademarks, service marks, logos, trade names and any other proprietary designations of Werkly used herein are trademarks or registered trademarks of Werkly. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org or through the "Contact" (www.Werkly.com/contact) section of the Site and Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of Werkly and you hereby irrevocably assign to Werkly and agree to irrevocably assign to Werkly all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Werkly’s request and expense, you will execute documents and take such further acts as Werkly may reasonably request to assist Werkly to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Werkly respects copyright law and expects its users to do the same. It is Werkly’s policy to terminate in appropriate circumstances the Werkly Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our Site, Application and Services, and (b) deactivate or cancel your Werkly Account. Upon termination we will promptly pay you any amounts we reasonably determine we owe you in our discretion, which we are legally obligated to pay you. In the event Werkly terminates these Terms, or your access to our Site, Application and Services or deactivates or cancels your Werkly Account you will remain liable for all amounts due hereunder. You may cancel your Werkly Account at any time via the “Delete Account” feature of the Services or by sending an email to support@Werkly.com. Please note that if your Werkly Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES AND PARTICIPATE IN THE REFERRAL PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT WERKLY DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, WERKERS AND MANAGERS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WERKLY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WERKLY MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY JOBS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WERKLY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, JOBS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WERKLY OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY MANAGERS OR WERKERS. YOU UNDERSTAND THAT WERKLY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR VISIT ANY JOBS. WERKLY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, WERKERS AND MANAGERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY WERKLY. WERKLY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY WERKER OR OTHER THIRD PARTY.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR JOB OF ANY JOBS VIA THE SITE, APPLICATION AND SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF WERKLY WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER WERKLY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, OR SERVICES, OR FROM YOUR LISTING OR JOB OF ANY JOB VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WERKLY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL WERKLY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR REQUEST OR ACCEPTANCE OF ANY JOB VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY JOB OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR JOBS VIA THE SITE, APPLICATION AND SERVICES AS A WERKER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WERKLY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Werkly and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) Request or Acceptance of a Job, and (iiii) the Job itself, including, but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a Job.
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Site, Application and Services, you represent and warrant that (i) neither you nor your listed Job is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Site, Application and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Werkly does not permit Listings associated with certain countries due to U.S. embargo restrictions.
The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
You acknowledge and agree that (i) these Terms are concluded between you and Werkly only, and not Apple, and (ii) Werkly, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Werkly and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Werkly.
You and Werkly acknowledge that, as between Werkly and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Werkly acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Werkly and Apple, Werkly, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Werkly acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
If you communicate or engage with anyone who you feel is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Werkly by contacting us with your police station and report number at support@Werkly.com; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between Werkly and you regarding the Site, Application, Services, Collective Content, and any Job Requests made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Werkly and you regarding Jobs, the Site, Application, Services, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Werkly’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Werkly may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Werkly (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
These Terms will be interpreted in accordance with the laws of the State of Louisiana and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Orleans Parish, New Orleans, Louisiana or a United States District Court, Eastern District of Louisiana located in New Orleans, Louisiana for any actions for which the parties retain 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, as set forth in the Dispute Resolution provision below.
You and Werkly 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 to the use of the Services or use of the Site or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains 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 Werkly are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Werkly 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 “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Louisiana and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Werkly otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Werkly 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.
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. Werkly will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Werkly will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Werkly changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Werkly’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Werkly in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Werkly to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Werkly. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms or any App Store Sourced Application, please contact Werkly at firstname.lastname@example.org.