Last updated: January 10, 2019
Gizo (HOUDINI TECHNOLOGIES PVT. Ltd) provides a service (the “Service”) that allows its customers(Clients or Requestors) to connect with Gigzo’s network of geographically distributed contractors (“Gigsters”) to obtain service providers for various short term engagements. Please read this Customer Agreement (“Agreement”) in its entirety if you wish to become a customer.
PLEASE READ THIS AGREEMENT CAREFULLY.
ACKNOWLEDGMENT AND ACCEPTANCE OF CUSTOMER AGREEMENT
This Agreement sets out the terms of the relationship between Gigzo and you. By signing this Agreement and/or by using the Application or the Gigzo Mobile Application in connection with the Service, you represent that
(1) you have read, understand, and agree to be bound by this agreement, and
You agree and understand that certain features of the Application (defined below) may be subject to additional terms and conditions 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. Gigzo reserves the right to change this Agreement, and any additional terms at any time, effective upon making the modified provisions available on the Application or by notifying you directly. You are responsible for regularly reviewing this Agreement for updates and modifications to its terms. Continued use of the Application and/or the Gigzo Mobile Application after any such changes are made to this Agreement shall constitute your consent to such changes. Other than making the changes available on the Application, Gigzo does not and will not assume any obligation to notify Gigsters of any changes to this Agreement, or the creation or modification of any additional terms.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Deliverables” means the deliverables specified in a Gigzo Request for delivery by a Gigster to you.
1.2 “Gigzo Request” means a notice provided by Gigzo to one or more Gigsters, which includes a description of the services to be provided by the Gigsters and the associated Deliverables, the date by which the Gigzo Request must be completed and the fee for the Gigster who performs the Gigzo Request (the “Payment”).The Payment will be subject to an additional charge to compensate Gigzo for creating, hosting, administering and providing the Application (the “Service Fee”).
1.3 “Gigzo Mobile Application” or the “Application” means the software used by Gigzo in connection with the Service.
1.4 “Service Request” means a request for Service or work by you which includes a description of the Deliverables for which you wish to engage Gigsters. Once the Customer and Gigster have agreed upon the terms of a Service Request pursuant to Section 2, the Service Request will become a “Service Engagement”.
2. SERVICE REQUEST
Customer may from time to time submit a Service Request to Gigzo via the Application. We reserve the right to reject any Service Request that is not appropriate, that violates the terms of service or use or that we believe in good faith to be inconsistent with the business interests of Gigzo or the integrity of the Application.
3. FEES AND PAYMENT
3.1 Fees. Gigzo charges fees and collects payment for each Service Engagement. You agree to provide Gigzo with complete and accurate billing and contact information, including but not limited to, Customer’s legal name, address, e-mail address, and the name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Gigzo reserves the right to terminate your access to the Service, and any outstanding Service Engagement, in addition to pursuing any available legal remedies. Generally, you will be billed each day for services provided that day. Special payment arrangements may be made when appropriate. The Service Fee for engaging a Gigster as an independent contractor totals 15-20% of the Payment amount and is generally for creating, hosting, administering, maintaining and providing the Application (collectively, the “Invoice Amount”). A Service Request shall be considered complete once the Deliverables have been accepted by Customer in accordance with Section 4. The charge for Service Engagements that involve Gigzo’s payroll application for hiring Gigsters as employees will be determined based on the type of engagement and geographic location of the Gigster and that is mutually agreed upon by Gigzo and you.
3.2 Taxes. Gigzo’s fees 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, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Gigzo has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer.
3.3 Direct Hire Fee. In the event Customer or any Customer director, officer, or employee (collectively, “Customer Personnel”) desires to Hire or otherwise directly engage a Gigster outside of the Gigzo Application in the twelve (12) months following Customer’s or any Customer Personnel’s last contact with Gigster through the Gigzo Mobile Application, Customer will notify Gigzo and subsequently Customer will be billed and Customer agrees to pay six hundred rupees (Rs 600) for such direct Hire or other engagement of the Gigster. In the event Customer does not notify Gigzo of direct Hire within 30 days of engaging the Gigster, Customer will be billed and Customer agrees to pay one thousand two hundred rupees (Rs.1200) for such direct Hire. Such Direct Hire Fee shall be charged regardless of whether: (a) Gigster contacts Customer or applies to Customer independently or otherwise through a public job posting or other job board; (b) different Customer Personnel are involved in the direct Hire of the Gigster and previous engagement of the Gigster through the Gigzo Mobile Application; or (c) Customer notifies Gigzo of such direct Hire or engagement of the Gigster. Any hire or engagement of the Gigster by Customer set forth above 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, or any other such engagement where Gigster receives any compensation from Customer. In addition, “Hire” also shall include any situation where Customer who had contact with Gigster through the Gigzo Application provides any information regarding Gigster to a third party and that third party hires Gigster within the twelve (12) month period, in any capacity, whether a full time hire, part time hire, independent contractor hire, intern hire, or any other such engagement or relationship where Gigster receives any compensation, directly or indirectly, from Customer and/or the third party.
3.4 Late Cancellation Fee. In the event that Customer cancels a project or a Service Engagement less than three hours before the performance of the service is to begin, the Customer will be required to pay half of the cost of the Service Engagement. The cost includes both the payment to the Gigster and the fee paid to Gigzo.
3.5 Late Payment Charges. Any invoice which remains unpaid after the due date shall bear interest at the rate of 1.5% per month. If the amount of any late payment charge exceeds the maximum permitted by law, the charge will be reduced to that maximum amount.
4. IP OWNERSHIP
4.1 Gigzo IP. Customer acknowledges that all the intellectual property rights in the Application, the Service, the Gigzo Mobile Application, and any metadata or other information generated or submitted to Gigzo by a Gigster in the course of performing a Gigzo Request are owned by Gigzo or Gigzo’s licensors or suppliers (the “Gigzo IP”). Customer shall not obtain, by this Agreement, any right, title or interest in the trademarks of Gigzo or Gigzo’s licensors, affiliates or suppliers, nor shall this Agreement give Customer the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of Gigzo or Gigzo’s licensors, affiliates or suppliers. Customer agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Gigzo IP, or (b) rent, lease, loan, or sell access to the Gigzo IP.
4.2 Suggestions. Customer hereby grants to Gigzo a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Gigzo IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Customer related to the Gigzo IP.
5.1 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.
5.2 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.
5.3 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.
5.4 Information Included in Service Engagements. Notwithstanding the foregoing, Customer acknowledges and agrees that some of the information that it provides in Service Engagements will be sent to Gigsters who will need this information to respond to requests to perform one or more Gigzo Requests. By submitting a Service Request, Customer is requesting, and expressly consents to have details of the Service Engagement sent to Gigsters that provide like or similar services to those sought through the Gigzo Requests. Customer agrees that all information that Customer provides will be accurate, current and truthful to the best of its knowledge
THE SERVICE AND THE DELIVERABLES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” GIGZO 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. GIGZO MAKES NO WARRANTY THAT (A) THE SERVICE OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICE 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 SERVICE OR DELIVERABLES WILL BE ACCURATE OR RELIABLE. GIGZO DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH GIGZO REQUEST AND A GIGSTER OR THAT THERE ARE GIGSTERS IN EACH GEOGRAPHIC AREA REQUESTED BY CUSTOMER WHO ARE WILLING TO FULFILL THE GIGZO REQUEST AT THE TIME AND PLACE REQUESTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT GIGZO HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY GIGSTER AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN GIGZO AND THE GIGSTERS. GIGZO DOES NOT GUARANTEE OR WARRANT THE GIGSTERS’ PERFORMANCE OF THE GIGZO REQUESTS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.
7. LIMITATION OF LIABILITY; INDEMNITY
IN NO EVENT SHALL GIGZO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM CUSTOMER’S USE OF THE GIGZO IP OR THE DELIVERABLES, EVEN IF GIGZO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, GIGZO’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE GIGZO IP OR THE DELIVERABLES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES CUSTOMER PAID TO GIGZO IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
Customer warrants and represents that it has properly classified all Gigsters that are used to provide services through the Gigzo App. Customer further agrees to indemnify, defend, and hold harmless Gigzo and its parents, affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) arising from or relating to: (1) a breach by you of any representation, warranty, covenant, or obligation in this Agreement; (2) any negligent or intentional act or omission committed by you, in connection with the performance of this Agreement, which act or omission gives rise to any claim for damages against you, Gigzo and/or its parents, affiliates, employees or agents; or (3) your violation of applicable law. Gigzo specifically denies any obligation to defend and/or indemnify you from and against any third party claims made against you arising from any negligent or intentional act or omission committed by you in connection with the performance of any Gigzo engagement.
8. RELATIONSHIPS BETWEEN GIGZO, GIGSTERS AND THE
8.1 Gigzo provides a platform through which Customers and Gigsters can buy and sell Services online. Under this Agreement (and Gigzo’s service agreement with Gigsters), Gigzo provides services to both Customers and Gigsters, including the provision of a technology platform, aimed at facilitating the formation of contracts between Customers and Gigsters and informally managing disputes related to those contracts. Through the Application, Customers can post Service Requests and invite Gigsters to accept. If a Customer and Gigster agree on terms, including how a Gigster will be classified, a Contract is formed directly between such Customer and Gigster.
8.2 The Parties expressly agree that no joint venture, partnership, employment, or agency agreement exists between them as a result of this Agreement or any use of the Application.
8.3 Worker classification. Customer assumes all liability for proper classification of Gigsters as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Customer and Gigster. Gigster does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Customer. Gigster acknowledges that Gigzo does not, in any way, supervise, direct, or control Gigster’s work or Services performed in any manner. Gigzo does not set Gigster’s work hours and location of work, nor is Gigzo involved in determining the type or manner compensation to be paid for any Service Request. Gigzo will not provide Gigster with training or any equipment, labor or materials needed for a particular Request. Gigzo will not deduct any amount for withholding, unemployment, or other taxes as it would in the case of an employee. Customer and Gigster will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Gigster’s performance of Service Requests. For Contracts classified as independent contractor relationships, Customer may not require an exclusive relationship between Customer and Gigster. A Gigster classified as independent contractor is free at all times to perform Requests, be employed by or otherwise engage with persons or businesses other than Customer, including any competitor of Customer. For Contracts classified as employer-employee relationships, Customer will manage the Gigzo Request through Gigzo’s payrolling program, where the Gigster becomes an hourly employee of Gigzo’s staffing affiliate and Gigster and Customer enter into appropriate additional agreements. Customer and Gigster agree to indemnify, hold harmless and defend Gigzo from any and all claims arising out of or related to their Service Request, including but not limited to claims that Gigster was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Gigster was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Gigzo was an employer or joint employer of Gigster, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. Customer warrants it will comply with all applicable wage and hour laws, including federal, state, and local wage and hour laws.
9.1 Termination without Cause. Either party may terminate this Agreement without cause, effective immediately upon notice to the other party, however, cancellation of this Agreement shall not relieve any party of their obligations relative to any Service Engagements that has been entered into but not completed at the time of the cancellation.
9.2 Surviving Provisions. Sections 3 (“Fees and Payment”), 5 (“IP Ownership”), 6 (“Confidentiality”), 7 (“Disclaimers”), 8 (“Limitation of Liability”), 9.2 (“Surviving Provisions”) and 10 (“Miscellaneous”) shall survive any termination of this Agreement.
10.1 Law. This Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement shall be governed by the Indian laws regardless of your country of origin or where you access Gigzo, and notwithstanding any conflicts of law principles.
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first inform Gigzo (firstname.lastname@example.org) of your complaint and seek resolution. This notice of dispute must include: your name, relevant account information, a brief description of your dispute, and contact information, so that Gigzo may evaluate the dispute and attempt to informally resolve same. Gigzo will have 60 days from the date of your original complaint to informally resolve the dispute, which if successful will avoid the need for further action.
10.3 Arbitration Procedures. In the unlikely event that you and Gigzo end up in a legal dispute and have not been able to resolve it within 60 days of your original informal claim, you and Gigzo agree to the following:
All Claims (excluding claims for injunctive or other equitable relief) must be resolved through binding arbitration before Indian Laws, except as provided herein.
The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a Claim, you will submit the demand by certified mail to 32-A, DDA Flats, Gulabi Bagh, New Delhi-110007. If Gigzo initiates a claim, Gigzo will serve a demand for arbitration upon you by email to the email address on file with Gigzo, and may send a copy by certified mail to your last known address (or to another address specified by you in your notice of dispute of your informal claim). You agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought.
10.4 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.
10.5 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 Gigzo’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. Gigzo may assign this Agreement or any of its rights under this Agreement to any third party with or without your written consent.
10.6 Notices. Gigzo may give any notice required by this Agreement by means of a general notice on the Application, electronic mail to your email address on record with Gigzo, or by written communication sent by pre-paid post to your address on record with Gigzo. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after posting or upon sending (if sent by email). Except as set forth in Section 10.3 above, you may give notice to Gigzo. Such notice shall be deemed given when received by Gigzo by email or letter post at the following address: 32-A, DDA Flats, Gulabi Bagh, New Delhi-110007, Delhi or email to email@example.com.
10.7 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.
10.8 Entire Agreement. This Agreement is 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. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Service Engagement, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation (excluding Service Engagements) shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.
10.9 Modifications to Application. Gigzo reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. You agree that Gigzo shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Service.
11. CONTACTING GIGZO
If you wish to report a violation of the Customer Agreement, have any questions or need assistance, please contact Customer Support at firstname.lastname@example.org.