Online Services Agreement
Last Modified: June 20, 2024
This Online Services Agreement ("Agreement") constitutes a legal agreement between you (“You” or "Partner") and: (i) Instawork Canada Inc., a corporation incorporated under the laws of British Columbia (“Instawork Canada”), if you are engaging with Instawork Canada’s network of geographically distributed independent contractors (each a "Contractor Professional") in connection with the Instawork Platform, and/or (ii) Advantage Workforce Services Canada Inc., a corporation incorporated under the laws of British Columbia (“AWSC”), if you are engaging with AWSC and/or its employees (each an "Employee Professional") in connection with the Instawork Platform or otherwise. For the purposes of this Agreement, Instawork Canada and AWSC may each be referenced as an “Instawork Company,” and are referred to collectively as "Instawork" or "we", and Contractor Professionals and Employee Professionals are referred to collectively as “Professionals.” This Agreement governs your use of and access to the Instawork Platform and related content, products, and services (collectively, the "Services"), including without limitation, if and as applicable, services performed either by Contractor Professionals or by Employee Professionals.
PLEASE NOTE: SECTION 11 OF THIS AGREEMENT (THE “MUTUAL ARBITRATION PROVISION”) AFFECTS HOW DISPUTES BETWEEN YOU AND INSTAWORK TO BE ARBITRATED ON AN INDIVIDUAL BASIS AND PROHIBITS CLASS ACTION CLAIMS. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THAT MUTUAL ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
This Agreement sets out the legally binding terms of the relationship between Instawork and You. By accepting, and/or acknowledging acceptance of this Agreement, and/or by using the Instawork Platform in connection with the Services, You represent that: (1) You have read, understand, and agree to be bound by this Agreement; and (2) You have the binding authority to enter into this Agreement personally or on behalf of the entity You have named as the Partner. The terms "You" and "Partner" refer to You and the entity you have identified as the Partner. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, DO NOT ACCESS OR USE THE SERVICES.
You agree and understand that certain services and/or features of the Instawork Platform may be subject to additional terms, conditions, and/or registration requirements. You agree to abide by these additional terms and You further agree that a violation of those terms shall constitute a breach of this Agreement. With the exception of the mutual obligation to arbitrate disputes, we reserve the right to modify or amend any other terms of this Agreement from time to time without notice, and Your continued use of the Instawork Platform following the posting of such modifications and/or amendments shall constitute Your acceptance of such changes. You are responsible for regularly reviewing this Agreement. Instawork does not and will not assume any obligation to notify You, Contractor Professionals, or Employee Professionals of any changes to this Agreement, or the creation or modification of any additional terms.
1. DEFINITIONS
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
“Partner Request” means a request by a Partner for, as applicable, Services provided by a Contractor Professional or Employee Professional, and will typically include a description of the work to be performed, the date and time by which the work must be completed, and the payment rate for the Professional who performs the work.
"Instawork Notice" means a notice created or provided by Instawork to one or more Professionals using the Instawork Platform or otherwise, which includes a description of a Partner Request.
"Instawork Platform" or the "Platform" means, collectively, the technology platform and software that enables users (including both Professionals and Partners) of Instawork’s text messaging platform, mobile application(s), and website(s) (including http://www.instawork.com/) provided as part of the Services to connect Partners with Professionals to fill one-time and/or recurring work opportunities.
2. THE SERVICES
2.1 Grant of Access and Use. Subject to Your compliance with the terms and conditions of this Agreement, Instawork grants You a limited, non-exclusive, non-sub licensable, revocable, non-transferrable right to access and use: (i) the Services, including access to and use of the Instawork Platform; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely in connection with Your permitted use of the Services. Any rights not expressly granted herein are reserved by Instawork and Instawork’s licensors.
2.2 Partner Requests. Partner may from time to time submit a Partner Request to an Instawork Company via the Instawork Platform or otherwise. Each such Partner Request may be posted on the Platform (including on Instawork’s mobile applications or websites) or used in or as an Instawork Notice. Once a Professional accepts the terms of a Partner Request, the Partner Request will become a "Partner Engagement." An Instawork Company may reject any Partner Request that is not appropriate or that violates the terms of this Agreement or Instawork’s policies, or for any other reason at its discretion.
2.3 Accounts. In order to use most aspects of the Services, You must register for and maintain an active Services account ("Account") with Instawork. Account registration requires You to submit to Instawork certain personal information, such as Your name, company or restaurant name, street address, email address, and phone number, as well as valid credit cards. You agree to maintain accurate, complete, and up-to-date information in Your Account, including billing information. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in Your inability to access and use the Services and the Instawork Platform, or Instawork’s termination of this Agreement 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 Instawork in writing, You may only possess one Account.
2.4 Account Requirements and Conduct. You may not authorize third parties to use Your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services and You may only use the Services for lawful purposes. You will not in Your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to a Professional or any other party. In certain instances You may be asked to provide proof of identity to access or use the Services, and You agree that You may be denied access to or use of the Services if You refuse to provide proof of identity.
2.5 Text Messaging. By creating an Account, You agree that Instawork may send You informational text messages (SMS or otherwise) as part of the normal business operation of Your use of the Services and the Instawork Platform, and that use of text messages (SMS or otherwise) may be necessary to utilize certain features of the Services. When You create an Account, we will send You a text message (SMS or otherwise) to confirm Your registration. You can cancel the text message service at any time by replying "STOP" in the text message You received. After You send the text message "STOP" to Instawork, we will send You a text message to confirm that You have been unsubscribed. It may take a few days for Instawork to process Your request. After this, You will no longer receive text messages (SMS or otherwise) from Instawork. If for any reason You continue getting text messages or need additional help, please email Instawork’s support team at unsubscribe@instawork.com. If You want to join again, just sign up as You did the first time and we will start sending text messages to You again.
2.6 Promotional Codes. Instawork may, in Instawork’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services, subject to any additional terms that Instawork establishes on a per promotional code basis ("Promo Codes"). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted in writing by Instawork; (iii) may be disabled by Instawork at any time for any reason without liability to Instawork; (iv) may only be used pursuant to the specific terms that Instawork establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to Your use. Instawork reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by You or any other user in the event that Instawork determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or this Agreement.
2.7 Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services or Instawork Platform; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Instawork Platform except as expressly permitted by Instawork; (iii) decompile, reverse engineer or disassemble the Services or Instawork Platform except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services or Instawork Platform; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or Instawork Platform, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services or Instawork Platform; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services, the Instawork Platform, or related systems or networks.
2.8 Third Party Services and Content. The Services or Instawork Platform may be made available or accessed in connection with third party services and content that Instawork does not control, including but not limited to payment processing services provided by Stripe and various advertising services. You acknowledge that different terms of use and privacy policies may apply to Your use of such third party services and content. Instawork has no control over and does not endorse such third party services and content and in no event shall Instawork be responsible or liable for any interactions You may have with or any products or services You may receive from such third party providers.
2.9 Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services and Instawork Platform. Your mobile network's data and messaging rates and fees may apply if You access or use the Services or Instawork Platform from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and the Instawork Platform and any updates thereto. Instawork does not guarantee, warrant or represent that the Services, the Instawork Platform or any portion thereof will function on any particular hardware or devices. In addition, the Services or Instawork Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
3. AWSC SERVICES
In the case of Partner Requests and Partner Engagements performed by Employee Professionals, the provisions of this Section 3 shall apply. You also understand that additional agreements may be required by AWSC in connection with such Partner Requests and Partner Engagements, and You agree to enter into such agreements as a condition of such Partner Requests and Partner Engagements.
3.1 EMPLOYMENT RELATIONSHIP
If a Partner Request for Employee Professional(s) is agreed upon by the Partner and AWSC and accepted by Employee Professional(s) (and becomes a Partner Engagement), subject to any agreed upon terms and conditions, AWSC will assign the Employee Professional(s) to work for Partner, and Partner is responsible for the supervision, direction, and control of the day-to-day activities of the Employee Professional(s) in connection with the Partner Engagement. Employee Professional(s) are responsible for performing the agreed-upon work for the Partner.
3.2 HIRING REPRESENTATIONS, DISCLAIMERS AND LIMITATIONS
Partner acknowledges and agrees that Partner has selected to utilize Employee Professional(s) based upon Partner’s determination that the nature of the work requires an Employee Professional(s), or for other factors determined exclusively by Partner. Neither Instawork Canada, nor AWSC, nor any of their affiliates makes any representations or warranties as to the skills, experience, background or education of any Employee Professional.
3.3 PAYROLL AND ADMINISTRATIVE SERVICES
The following are the services provided by AWSC in respect of Employee Professional(s) assigned to Partner: (i) calculation and payment of wages (including overtime wages) based upon submitted timesheets or electronic records; (ii) collection, payment and reporting of all federal, provincial and local taxes on such wages; (iii) administration and collection of wages associated with wage garnishments; and (iv) workers’ compensation coverage. In addition, AWSC may, at its sole discretion, provide health, dental or disability insurance, retirement benefits or other benefits as determined by AWSC. AWSC may designate a third party payroll company ("New Company"), at any time in AWSC sole discretion, to perform some or all of its obligations under this Agreement, including payroll administration for Employee Professionals. Upon such designation, or at any other time as directed by AWSC, Partner shall cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of the Services.
3.4 EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT
The Partner shall be responsible for the implementation and enforcement of any and all workplace laws, rules, policies, regulations and for any procedures that exist for the purpose of preventing the misappropriation, theft or embezzlement of the Partner’s property, including without limitation intellectual property.
Partner acknowledges and agrees that Employee Professionals are employees of AWSC for purposes of payroll processing and, in some cases, the provision of certain employee benefits, but neither Instawork Canada, nor AWSC, nor any of their affiliates assumes any responsibility for the working conditions or the workplace in which Employee Professional(s) will perform work for a Partner, the projects and work assigned to Employee Professional(s), and/or Partner’s decision to use Employee Professional(s).
3.5 EQUAL EMPLOYMENT OPPORTUNITY, WORKPLACE LAWS
AWSC is an equal opportunity employer and does not unlawfully discriminate against any candidate, applicant, employee, or independent contractor on the basis of age, ancestry, colour, race, sex, religion/creed, family status, disability, place of origin, sexual orientation, or any other status protected by the applicable human rights legislation in the provinces where we operate. Partner and Employee Professionals are required to comply with all federal, provincial, and local laws, including any laws that prohibit unlawful discrimination or harassment.
3.6 REQUIRED NOTIFICATIONS
The Partner will send all written notices and payroll communications to AWSC in accordance with any requirements specified by AWSC. Partner will provide AWSC with written notice within 24 hours of learning about any work-related accident or injury involving Employee Professionals. Partner will provide AWSC with written notice within 24 hours of learning about any garnishment orders, involuntary deduction orders, notices of liens and other forms of legal process affecting the payment of wages to an Employee Professional.
4. FEES AND PAYMENT
4.1 Engagement Fees. Regardless of whether a Partner Engagement involves Employee Professionals or Contractor Professionals, in consideration of Instawork’s provision of the Services and Platform for Partner’s use and benefit hereunder, Partner agrees to pay the applicable Instawork Company a fee for each Partner Engagement (each an "Engagement Fee"), the amount of which may be communicated to Partner during Partner’s submission of a Partner Request or after Partner has submitted a Partner Request (via the Instawork Platform or otherwise). Engagement Fees may also be based in part on the type of engagement, overall demand, and the geographic location of the Professionals used. Generally, You will be billed Engagement Fees by Instawork for each day on which Partner Engagements have been arranged and/or completed. Instawork reserves the right to establish, remove and/or revise Engagement Fees for any or all Partner Engagements obtained through the use of the Services at any time in Instawork’s sole discretion. Continued use of the Services or Instawork Platform after any such change in the Engagement Fees calculation shall constitute Your consent to such change.
4.2 Contractor Payments. In the case of a Partner Engagement performed by one or more Contractor Professionals, Instawork will facilitate Your payment of the applicable fees payable to the Contractor Professional(s) for the Partner Engagement (the “Contractor Payment”) on behalf of such Contractor Professional(s) as the limited payment collection agent for such Contractor Professional(s). The payment of the applicable Contractor Payment in such manner shall be considered the same as payment made directly by You to the Contractor Professional. After collection of the Contractor Payment for a completed Partner Engagement from You, Instawork will pay the applicable Contractor Professional, and Partner acknowledges and agrees that such payment may be subject to a fee set forth in or determined by the agreement(s) between Instawork and such Contractor Professional (including any Contractor Services Agreement). Instawork may from time to time provide certain partners or Contractor Professionals with promotional offers, discounts, or Promo Codes that may result in different amounts charged for the same or similar services obtained through the use of the Services or the Instawork Platform, and You agree that such promotional offers, discounts or Promo Codes, unless also made available to You, shall have no bearing on Your use of the Services or the Charges (as defined below) applied to You. You retain the right to negotiate the Contractor Payment with a Contractor Professional for services received by You from such Contractor Professional under a Partner Engagement at the time You receive such services. Instawork will respond accordingly to any request from a Contractor Professional to modify the Contractor Payment for a particular Partner Engagement.
4.3 Late Cancellation Fee. In the event that Partner cancels a Partner Engagement within 24 hours before the start time of the Partner Engagement, Partner will be required and agrees to pay the total cost of the Partner Engagement, including both the Contractor Payment for the Contractor Professional and the Engagement Fee paid to Instawork. In the event that Partner cancels a Partner Engagement between 72 and 24 hours before the start time of the Partner Engagement, Partner will be required and agrees to pay fifty percent (50%) of the total cost of the Partner Engagement, including both the Contractor Payment for the Contractor Professional and the Engagement Fee paid to Instawork.
4.4 Taxes; General. Engagement Fees and Contractor Payments (collectively, "Charges") do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Partner and, as applicable, Contractor Professionals, are responsible for paying all Taxes associated with Charges and purchases hereunder. Instawork may charge the Partner Taxes on the Charges, and the Partner agrees to pay such Taxes. In the case of a Partner Engagement performed by one or more Contractor Professional(s), any charging and collecting of Taxes on the Contractor Payment(s) by Instawork shall be made on behalf of such Contractor Professional(s) as limited billing/collection agent for such Contractor Professional(s). Nothing regarding Instawork’s charging and collecting of Taxes on the Contractor Payment(s) alters the fact that, in the case of a Partner Engagement performed by one or more Contractor Professional(s), Instawork’s services are limited to providing a platform for connecting customers to Contractor Professional(s), and that Partner’s arranging and obtaining of services from a Contractor Professional creates a direct business relationship between Partner and that Contractor Professional. Charges and Taxes paid by you are final and non-refundable, unless otherwise determined by Instawork.
4.5 Gratuity. Engagement Fees and Contractor Payments (if applicable) are intended to fully compensate the applicable Professional for each completed Partner Engagement. Instawork does not designate any portion of the Engagement Fee (or Contractor Payment, if applicable) as a tip or gratuity to the Professional(s). You understand and agree that, while you are free to provide additional payment as a gratuity to any Professional who performs work for you obtained through the Services, you are under no obligation to do so, and such gratuities are voluntary. Notwithstanding the forgoing, in the event that any patron or customer of Partner provides a tip or gratuity for the work performed by a Professional in connection with a Partner Engagement, 100% of such tip or gratuity must be provided to such Professional (subject to any statutory deductions or withholdings), even if the tip or gratuity is paid by the patron or customer to the Partner rather than the Professional directly. After you have received work from a Professional and a Partner Engagement is completed, you will have the opportunity to rate your experience and leave additional feedback.
4.6 Payment Method. All Charges and Taxes are due immediately and payment will be facilitated by Instawork using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid, or otherwise not able to be charged, you agree that Instawork may (on its own behalf or as the Contractor Professional's limited payment collection agent) use a secondary payment method in your Account, if available. In the event that there are unpaid or past due amounts for Charges associated with your Account, you must pay a finance charge of the lesser of 1.5% per month (18% per annum) on such outstanding balances, plus all expenses of collection, including reasonable legal fees.
4.7 Direct Hire Fee. In the event Partner or any affiliate of Partner, or any of the directors, officers, or employees of Partner or any affiliate of Partner (collectively, "Partner Personnel") desires to hire or otherwise engage a Professional (whether Contractor Professional or Employee Professional) directly through Partner or any affiliate of Partner, at any time during the six-month period beginning on the day on which such Professional first began to perform work for Partner, Partner will notify Instawork, and subsequently Partner will be billed a fee in the amount set forth here https://help.instawork.com/instawork-partners-faq/can-i-hire-an-instawork-professional-for-a-permanent-position for such direct hire or other engagement of the Professional (the "Direct Hire Fee"). Such Direct Hire Fee shall be charged regardless of whether: (a) Professional contacts Partner or an affiliate of Partner or Professional applies to Partner or an affiliate of Partner independently or otherwise through a public job posting or other job board; (b) different Partner Personnel are involved in the direct hire of the Professional and previous engagement of the Professional through the Instawork Platform or Services; and/or (c) Partner notifies Instawork of such direct hire or engagement of the Professional. Any engagement where the Professional receives any compensation from Partner or any affiliates of Partner shall be defined as a "hire" and shall trigger the Direct Hire Fee, including a full-time hire, part-time hire, independent contractor hire, intern hire, and/or any other such engagement or employment. For the avoidance of any doubt, notwithstanding anything in this paragraph, Instawork will comply with any applicable law which may prohibit or place limits on the type of fees chargeable by Instawork in the circumstances. In the event that any fee contemplated by this paragraph exceeds the maximum fee that Instawork may charge to Partner in the circumstances in accordance with applicable law, then the fee charged under this paragraph will be reduced, but only by the minimum amount necessary in order to be in compliance with the requirements of applicable law.
5. IP OWNERSHIP
5.1 Instawork IP. Partner acknowledges that all the intellectual property rights in the Instawork Platform, the Services and any metadata or other information generated by or on behalf of Instawork are owned by Instawork or Instawork’s licensors or suppliers (the "Instawork IP"). Partner shall not obtain, by this Agreement, any right, title, or interest in the trademarks of Instawork or Instawork’s licensors, affiliates or suppliers, nor shall this Agreement give Partner the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of Instawork or Instawork’s licensors, affiliates or suppliers. Partner agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Instawork IP, or (b) rent, lease, loan, or sell access to the Instawork IP.
5.2 Suggestions. Partner hereby grants to Instawork a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Instawork IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Partner related to the Instawork IP.
6. CONFIDENTIALITY
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.4 Information Included in Partner Requests and Partner Engagements. Notwithstanding the foregoing, Partner acknowledges and agrees that some of the information that it provides in Partner Requests and subsequent Instawork Notices will be sent to Professionals (as part of Instawork Notices or otherwise) who will need this information to determine if they want to perform the requested services. By submitting a Partner Request, Partner is requesting, and expressly consents to have details of the Partner Request and (if applicable) subsequent Instawork Notice sent to Professionals as Instawork deems appropriate. Partner agrees that all information that Partner provides will be accurate, current and truthful to the best of its knowledge.
7. DISCLAIMERS
THE SERVICES AND INSTAWORK PLATFORM (INCLUDING INSTAWORK’S MOBILE APPLICATIONS AND WEBSITES) ARE PROVIDED "AS-IS" AND "AS-AVAILABLE." INSTAWORK EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. INSTAWORK MAKES NO WARRANTY THAT (A) THE SERVICES AND THE INSTAWORK PLATFORM (INCLUDING INSTAWORK’S MOBILE APPLICATIONS AND WEBSITES) WILL MEET PARTNER’S REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. INSTAWORK DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH PARTNER REQUEST OR INSTAWORK NOTICE AND A PROFESSIONAL, OR THAT THERE ARE PROFESSIONALS IN EACH GEOGRAPHIC AREA REQUESTED BY PARTNER WHO ARE WILLING TO FULFILL THE PARTNER REQUEST OR INSTAWORK NOTICE AT THE TIME AND PLACE REQUESTED. PARTNER ACKNOWLEDGES AND AGREES THAT INSTAWORK HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY PROFESSIONAL, AND ACKNOWLEDGES AND AGREES THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN INSTAWORK AND CONTRACTOR PROFESSIONALS. INSTAWORK DOES NOT GUARANTEE OR WARRANT PROFESSIONALS’ PERFORMANCE OF THE PARTNER ENGAGEMENT OR THE OUTCOME OR QUALITY OF THE SERVICES PROVIDED.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL INSTAWORK BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM PARTNER’S USE OF THE INSTAWORK IP OR THE SERVICES, EVEN IF INSTAWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, INSTAWORK’S LIABILITY TO PARTNER FOR ANY DAMAGES ARISING FROM OR RELATED TO PARTNER’S USE OF THE INSTAWORK IP OR THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES PARTNER PAID TO INSTAWORK IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
9. INDEMNIFICATION; RELATIONSHIPS BETWEEN INSTAWORK, PROFESSIONALS AND THE PARTNERS; INSURANCE; HEALTH AND SAFETY
9.1 Indemnification. Partner agrees to indemnify, hold harmless and defend the Instawork Companies and their affiliates, and all of their respective directors, officers, agents and employees (collectively, the “Indemnified Parties”), from and against any and all suits, proceedings, claims, demands or actions (“Claims”) arising out of or related to Partner’s use of the Services or a Partner Engagement, and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any of them as a result of any such Claim or in the investigation, settlement or defense thereof. Without limiting the generality of the forgoing, Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) any actual or alleged misuse of the Services (including the Platform) by Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, (ii) any actual or alleged violation of applicable law or regulation (including without limitation privacy and anti-spam laws) by Partner, its affiliates, or its or their respective employees, agents, or contractors, or by any Professional(s) in the course or in connection with of a Partner Engagement, (iii) any negligent conduct or willful misconduct of Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, (iv) any breach by Partner of any representation, warranty, covenant, or obligation in this Agreement, (v) any negligent or intentional act or omission committed by Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, which act or omission gives rise to any claim for damages against an Indemnified Party, (vi) any violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right by Partner, its affiliates, or its or their respective employees, agents or contractors, or by any Professional(s) in the course of or in connection with a Partner Engagement, and (vii) any dispute or issue between Partner and any third party, including any worker, business, or other third-party; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any of them as a result of any such Claim or in the investigation, settlement or defense thereof. Instawork reserves the right (but not the obligation) to assume the exclusive defense and control of any matter otherwise subject to indemnification by Partner (without limiting Partner indemnification obligations) and Partner agrees to cooperate with Instawork’s defence of that Claim. If the defence or settlement of a Claim is assumed by Partner, Instawork may at any time thereafter elect to take over control of the defence and settlement of the Claim. Partner must not settle any Claim that it is defending on behalf of any Indemnified Party without Instawork’s prior written consent.
9.2 Contractor Professionals. You acknowledge and agree that your arranging and obtaining of services from a Contractor Professional creates a direct business relationship between you and that Contractor Professional, and your interactions and dealings with such Contractor Professional are solely between you and such Contractor Professional. Contractor Professionals are independent third parties and are not employees, partners, representatives, agents, joint venturers, service providers, or franchisees of Instawork. Instawork Canada’s services are limited to providing a platform for connecting its customers to its network of Contractor Professionals, and AWSC’s services are limited to Employee Professionals and do not relate to the use of Contractor Professionals. Instawork is not responsible or liable for the actions or inactions of any Contractor Professional in relation to any services they perform.
9.3 Instawork and Partner Relationship. Partner expressly agrees that no joint venture, co-employer, joint employer, franchise, partnership, employment, or agency agreement exists between Instawork and Partner as a result of this Agreement or any use of the Services, including the Instawork Platform.
9.4 Professional Classification and Work. Partner assumes all liability for proper classification of Contractor Professionals as independent contractors based on applicable law. Partner expressly agrees that this Agreement does not create any joint venture, co-employer, joint employer, franchise, partnership, employment, or agency relationship between Partner and a Contractor Professional, or between Partner and Instawork. Professionals do not have authority to enter into written or oral (whether implied or express) contracts on behalf of Instawork. Partner acknowledges and agrees that, unless otherwise agreed in writing by Partner and Instawork, Instawork does not, and will not in any way supervise, manage, monitor, direct, or control any Professional’s work or services performed in any respect for Partner. Instawork does not set any Professional’s work hours and location of work. Instawork will not provide any Professional with training or any equipment, labour or materials needed for a particular Partner Engagement. Instawork makes no representations or warranties that the services performed by Professionals will be performed in any particular manner or at any particular standard or quality of service, nor does Instawork make any representations or warranties with respect to any Professional’s skill, ability, fitness for a particular purpose, or compliance with any statute, regulation or other law. Instawork will not deduct, withhold or remit from any payments to Contractor Professionals any amount for payroll taxes, employment insurance contributions, pension contributions, or other amounts as it would in the case of an employee, including under the Income Tax Act (Canada), the Employment Insurance Act (Canada), and the Canada Pension Plan Act. Partner and each Contractor Professional will be solely responsible for all tax returns and payments required to be made or filed, including any applicable employment insurance contributions, pension contributions, or other amounts, to any federal, provincial, or local government authority, in any nation, with respect to Contractor Professional’s performance of Partner Engagements and any related services. A Professional is free at all times to perform Partner Engagements, and to be employed by or otherwise engage with persons or businesses other than Partner, including any competitor of Partner. Without limiting the generality of Section 9.1, Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) claims that a Contractor Professional was misclassified as an independent contractor, (ii) any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Contractor Professional was misclassified (including, but not limited to, wages, taxes, penalties, interest and legal fees), (iii) any claims that Instawork was an employer, co-employer or joint employer of a Contractor Professional (iv) any claims under any employment-related laws in respect of a Contractor Professional, such as those relating to employment standards, occupational health and safety, workers’ compensation, pay equity, employment termination, employment discrimination, harassment or retaliation, as well as any claims for unpaid wages, overtime pay, sick leave, holiday or vacation pay, retirement benefits, workers’ compensation benefits, unemployment benefits, or any other employee benefits, and (v) any claims arising out of the failure by Instawork and/or the Partner to withhold or remit any taxes, premiums, contributions, payments, benefit overpayments, levies or other amounts from all or any part of any amounts paid to a Contractor Professional; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any Indemnified Party as a result of any such Claim or in the investigation, settlement or defense thereof.
9.5 Insurance. Except as required by law, unless otherwise expressly agreed herein or elsewhere in writing, Instawork is not responsible for insurance coverage of Professionals. Specifically, in the event that a Professional is injured or becomes ill while or as a result of working a Partner Engagement, Partner acknowledges and understands that the Professional may not be covered by any workers’ compensation insurance that Instawork may otherwise provide to its employees. Partner represents and warrants that, unless otherwise expressly agreed herein or elsewhere in writing, any Professionals performing a Partner Engagement of the Partner will be covered by the Partner’s workers’ compensation insurance. Further, in the event that a Professional’s actions cause an injury to a third party while the Professional is working in the course and scope of performing a Partner Engagement or otherwise, Partner acknowledges and agrees that the Professional may not be covered by any general liability or automobile liability insurance coverage that Instawork may have, and that Instawork is not making any commitment to defend, compensate and/or indemnify the Partner or Professional in such circumstances, and specifically denies such obligation.
9.6 Health and Safety, Damage to Property. Partner shall comply with applicable health and safety laws, and hereby agrees to indemnify and hold harmless Instawork, its affiliates, directors, officers, agents and employees from and against any and all claims, demands, suits, losses, fines, surcharges, damages, costs and expenses arising out of the Partner’s failure to comply with such laws. Without limiting the generality of Section 9.1, Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) the injury or death of any person, damage to or destruction of any property, which is directly or indirectly caused by any act or omission on the part of any Professional (or personnel employed or engaged by the Professional) engaged in performing any Partner Engagement to the Partner or any related service, or (ii) the injury or death of the Professional, or any personnel employed or engaged by the Professional, if such injury or death occurs while the Professional (or personnel employed or engaged by the Professional) is located at Partner’s location, is otherwise engaged in performing any Partner Engagement to the Partner or any related service, or if the injury or death is in any way connected to the Partner Engagement or any related services; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any Indemnified Party as a result of any such Claim or in the investigation, settlement or defense thereof.
10. TERMINATION
10.1 Termination With or Without Cause. Either party may terminate this Agreement at any time, for any reason upon thirty (30) days written notice to the other. Notwithstanding the forgoing, either party may terminate this Agreement at any time without prior notice, for fraud, dishonesty, wilful neglect, misconduct, or any material breach of the terms hereof by the other party.
10.2 Surviving Provisions. The sections which expressly or by their nature are intended to survive termination, including without limitation Sections 4 ("Fees and Payment"), 5 ("IP Ownership"), 6 ("Confidentiality"), 7 ("Disclaimers"), 8 ("Limitation of Liability"), 9 (“Indemnification; Relationships Between Instawork, Professionals and The Partners; Insurance; Health And Safety”), 10.2 ("Surviving Provisions"), 11 (“Mutual Arbitration and Dispute Resolution”) and 12 ("Miscellaneous"), shall survive any termination of this Agreement.
11. MUTUAL ARBITRATION AND DISPUTE RESOLUTION
11.1 Arbitration of Disputes. Instawork Canada, AWSC, and their corporate parents, subsidiaries, affiliates (including Partners), successors, assigns, and their respective directors,officers, and employees (together, the “Instawork Arbitrating Parties”) and You mutually agree to this arbitration agreement, pursuant to which You and the Instawork Arbitrating Parties (each, an “Arbitrating Party,” and together, the “Arbitrating Parties”) agree to resolve any and all disputes arising out of or relating to this Agreement or any related agreement (each, a “Dispute”) exclusively through final, binding, arbitration, in accordance with this Mutual Arbitration Provision. However, this Mutual Arbitration Provision does not cover disputes that, as a matter of law, may not be subject to pre-dispute arbitration agreements.
11.2 Informal Dispute Resolution. Before commencing arbitration, the Arbitrating Parties must engage in a good-faith effort to resolve any Dispute covered by this Mutual Arbitration Provision through an informal telephonic dispute resolution conference. The informal telephonic dispute resolution conference shall be individualized such that a separate conference must be held each time either Arbitrating Party intends to commence individual arbitration; multiple Partners. If either Party is represented by counsel, that Party's counsel may participate in the informal telephonic dispute resolution conference, but the Party also must appear at and participate in the conference. The Arbitrating Party seeking resolution of a Dispute must give notice to the other Arbitrating Party in writing (a “Dispute Notice”), and the informal telephonic dispute resolution conference shall occur within thirty (30) and sixty (60) days of the other Party receiving such Dispute Notice, unless all Arbitrating Parties involved in the Dispute agree in writing to extend the time period for such telephonic dispute resolution conference to occur. In the interval between the Party receiving such notice and the informal telephonic dispute resolution conference (“Negotiation Period”), nothing in this Mutual Arbitration Provision shall prohibit the Arbitrating Parties from engaging in informal communications to resolve the initiating Party’s claims. Engaging in an informal telephonic dispute resolution conference is a condition precedent that must be fulfilled before commencing individual arbitration, and the arbitrator shall dismiss any arbitration filed without fully and completely complying with this informal dispute resolution procedure. If an arbitration is dismissed because an Arbitrating Party failed to comply with this informal dispute resolution procedure, the Parties agree that the Arbitrating Party that failed to comply with the informal dispute resolution procedure shall be responsible for paying any arbitration filing fees and costs incurred by the other Party. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the informal dispute resolution process required by this paragraph.
11.3 CLASS ACTION WAIVER. The Arbitrating Parties further agree that by entering into this Agreement, they waive the right to have any Dispute brought, heard, administered or resolved as a class action or a group action, or to otherwise participate in a class action (the “Class Action Waiver”). Notwithstanding the foregoing, this subsection shall not apply to the extent that applicable consumer protection legislation expressly preserves such an entitlement in the context of the particular Dispute. For greater certainty, by entering into this Agreement, the Arbitrating Parties are each agreeing not to commence or participate in a class proceeding or other aggregate action in respect of any Dispute. However, this subsection does not prevent you or Instawork from participating in a classwide settlement that would resolve or release the relevant Dispute. Except as provided for in this Mutual Arbitration Provision, the arbitrator may not consolidate an arbitration conducted under this Mutual Arbitration Provision with any other arbitration.
11.4 Arbitration Proceedings. If the Arbitrating Parties are unable to resolve a Dispute within thirty (30) days of delivery of the Dispute Notice (or any extended timeframe that is agreed upon in writing by all Arbitrating Parties involved in the Dispute), an Arbitrating Party seeking resolution of a Dispute shall commence arbitration under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules (the “ADR Rules”), a current copy of which are available here. You acknowledge receipt of, and a reasonable opportunity to review, the ADR Rules. The arbitration will be conducted in English. The seat of arbitration will be Toronto, Ontario, and the arbitration will be conducted in accordance with the Ontario Arbitration Act, 1991, S.O. 1991, c. 17, as amended or replaced. The location of the arbitration hearing will be Toronto, Ontario, Winnipeg, Manitoba, Calgary, Alberta or Vancouver, British Columbia, at your election, or may be held virtually if so agreed by the Arbitrating Parties or ordered by the arbitrator. The Arbitrating Parties acknowledge that they (or any of them) are or may become counterparties to other agreements (and/or arbitration agreements), and, where there is a dispute under any other such agreement concurrent with and/or related to a Dispute hereunder, the Parties hereby consent and agree that such dispute(s) will proceed as a single arbitration (or if applicable, will be consolidated into a single arbitration) with any Dispute covered by this Mutual Arbitration Provision.
11.5 Confidentiality. The Dispute and the arbitration proceedings, including all materials submitted or generated in connection therewith and any award resulting therefrom, will be handled in a private and confidential manner and will not be disclosed to any non-party to the arbitration, except: (i) as required by law; (ii) to the extent that disclosure is reasonably necessary for the purposes of obtaining professional advice; or (iii) to the extent disclosure is necessary to enforce an award made by an arbitrator. The Arbitrating Parties agree not to make, or assist others in making, any public comments or statements, including any statements to any news media entity or through social media, concerning the Dispute or the proceedings.
11.6 Agency Investigations. Regardless of any other terms of this Mutual Arbitration Provision, nothing herein prevents the Arbitrating Parties from making a report to or filing a claim, application, or charge with an applicable governmental or administrative agency or tribunal, including, without limitation, any applicable provincial ministry of labour, workers’ compensation board, labour board, health and safety regulator, employment standards regulator, human rights commission or tribunal, or any other federal, provincial, or local government agency with authority to investigate such claim or charge (collectively, “administrative agencies”) if the terms of applicable legislation entitles such Arbitrating Party to do so and precludes exclusive pre-dispute recourse to arbitration. This Mutual Arbitration Provision also does not prevent administrative agencies from adjudicating such claims, applications or charges and awarding remedies based on such claims applications or charges. For the avoidance of any doubt, administrative agencies do not include provincial, federal, or other courts. Neither Arbitrating Party will retaliate against the other Arbitrating Party for filing a claim with an administrative agency or for exercising rights in respect of any matter before any administrative agency.
11.7 Injunctive and Other Relief. Regardless of any other terms of this Mutual Arbitration Provision, or any terms of the Instawork Terms of Use, to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s intellectual property rights, or you have otherwise violated any of your obligations under Sections 2.1, 2.4 and 2.7 above, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought, including from a court of competent jurisdiction.
11.8 Right To Consult With an Attorney. You have the right to consult with private counsel of your choice, at your own expense, with respect to any aspect of, or any claim that may be subject to this Mutual Arbitration Provision.
11.9 Severability. In the event any section, subsection, or portion of this Mutual Arbitration Provision is deemed unenforceable, it shall be severed from the Agreement such that the remainder of this Mutual Arbitration Provision shall be enforceable to the fullest extent permitted by law. In any case in which (1) the Dispute is filed as a class, collective, mass, or representative action, and (2) there is a final judicial determination that all or part of the Class Action Waiver is invalid or unenforceable, the class, collective, mass, or representative action to that extent must be severed and litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is valid and enforceable shall be enforced.
12 MISCELLANEOUS
12.1 Law. This Agreement or any claim, cause of action, dispute or proceeding arising out of or related to this Agreement, shall be governed by the laws of the province of Ontario, and the federal laws of Canada applicable therein, notwithstanding any conflicts of law principles.
12.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.3 No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Instawork’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. Instawork may assign this Agreement or any of its rights under this Agreement to any third party with or without your written consent.
12.4 Notices. Instawork may give any notice required by this Agreement by means of a general notice on the Instawork Platform, electronic mail to your email address on record with Instawork, or by written communication sent by first class mail or pre-paid post to your address on record with Instawork. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). You may give notice to Instawork, addressed to the attention of Legal. Such notice shall be deemed given when received by Instawork by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail to Instawork 548 Market Street, PMB 63152, San Francisco, California 94194-, or by email at partners@Instawork.com.
12.5 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.6 Headers. Paragraph titles and headings are provided for reference only and do not affect the substantive provisions of this Agreement.
12.7 Entire Agreement. This Agreement includes the Instawork Privacy Policy (located online at https://www.instawork.com/legal/CA/instawork-privacy-policy), Instawork Terms of Use (located online at https://www.instawork.com/legal/CA/instawork-terms-of-use), and all other policies, rules, guidelines, terms and conditions established for the Services as set forth therein and otherwise referenced in this Agreement (each a "policy" and collectively, "policies"), which are incorporated herein by reference. Instawork may amend such policies from time to time and any amendments to such policies will be effective upon Instawork’s posting of such updated policies on its websites or through the Services (including the Platform). Partner’s continued access or use of the Services after such posting confirms Partners consent to be bound by the polices, as amended, and such amended policies are incorporated herein by reference. In the event of a conflict between any term of this Agreement and a term of an Instawork policy, this Agreement shall control with respect to such conflict. This Agreement (including the policies) constitute the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties with respect to the subject matter hereof. Notwithstanding the forgoing, if you enter into or have entered into a Platform Service Agreement or Staffing Service Agreement with Instawork Canada or AWSC that remains in effect, nothing herein shall render such Platform Service Agreement or Staffing Service Agreement null or void, and to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and such Platform Service Agreement or Staffing Service Agreement, the terms of the Platform Service Agreement or Staffing Service Agreement shall prevail. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and expressly agreed upon by all parties.
12.7 Modifications to the Instawork Platform. Instawork reserves the right at any time to modify or discontinue, temporarily or permanently, the Instawork Platform or the Services (or any part thereof) with or without notice. You agree that Instawork shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Instawork Platform or the Services.
13. CONTACTING INSTAWORK
If you wish to report a violation of this Agreement, have any questions or need assistance, please contact Instawork at partners@instawork.com.