CUSTOMER AGREEMENT FOR WORKBRIEFLY SERVICE

WorkBriefly Inc. (“WorkBriefly”) provides a service (the “Service”) that allows its customers to connect with WorkBriefly’s network of geographically distributed contractors (“WorkBriefly Workers”) 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.

ACKNOWLEDGMENT AND ACCEPTANCE OF CUSTOMER AGREEMENT

This Agreement sets out the terms of the relationship between WorkBriefly and you.  By signing this Agreement and/or by using the Application or the WorkBriefly Mobile Application in connection with the Service, you represent that (1) you have read, understand, and agree to be bound by this agreement, and (2) you have the authority to enter into this agreement personally or on behalf of the company you have named as the Customer.  The terms “you” and “Customer” refer to you or the legal entity which you work for or represent. This agreement includes WorkBriefly’s Privacy Policy.

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. WorkBriefly 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 WorkBriefly 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, WorkBriefly does not and will not assume any obligation to notify WorkBriefly Workers 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.

1.1  “Deliverables” means the deliverables specified in a WorkBriefly Request for delivery by a WorkBriefly Worker to you.

1.2  “WorkBriefly Request” means a notice provided by WorkBriefly to one or more WorkBriefly Workers, which includes a description of the services to be provided by the WorkBriefly Workers and the associated Deliverables, the date by which the WorkBriefly Request must be completed and the fee for the WorkBriefly Worker who performs the WorkBriefly Request (the “Payment”).   The Payment will be subject to an additional charge to compensate WorkBriefly for creating, hosting, administering and providing the Application (the “Service Fee”).

1.3  “WorkBriefly Mobile Application” or the “Application” means the software used by WorkBriefly 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 WorkBriefly Workers. Once the Customer and WorkBriefly Worker 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 WorkBriefly 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 WorkBriefly or the integrity of the Application.

3. FEES AND PAYMENT

3.1  Fees.  WorkBriefly charges fees and collects payment for each Service Engagement.   You agree to provide WorkBriefly with complete and accurate billing and contact information, including but not limited to, Customer’s legal name, street 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, WorkBriefly 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 WorkBriefly Worker as an independent contractor totals 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 WorkBriefly’s payroll application for hiring WorkBriefly Workers as employees will be determined based on the type of engagement and geographic location of the WorkBriefly Worker and that is mutually agreed upon by WorkBriefly and you.

3.2  Taxes.  WorkBriefly’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 WorkBriefly 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 Late Cancellation Fee. In the event that Customer cancels a project or a Service Engagement less than twelve (12) 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 WorkBriefly Worker and the fee paid to WorkBriefly.

3.4 Late Payment Charges. Any invoice which remains unpaid after the due date shall bear interest at the rate of 4.5% 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  WorkBriefly IP.  Customer acknowledges that all the intellectual property rights in the Application, the Service, the WorkBriefly Mobile Application, and any metadata or other information generated or submitted to WorkBriefly by a WorkBriefly Worker in the course of performing a WorkBriefly Request are owned by WorkBriefly or WorkBriefly’s licensors or suppliers (the “WorkBriefly IP”). Customer shall not obtain, by this Agreement, any right, title or interest in the trademarks of WorkBriefly or WorkBriefly’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 WorkBriefly or WorkBriefly’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 WorkBriefly IP, or (b) rent, lease, loan, or sell access to the WorkBriefly IP.

4.2  Suggestions.  Customer hereby grants to WorkBriefly a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the WorkBriefly IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Customer related to the WorkBriefly IP.

5. CONFIDENTIALITY

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 WorkBriefly Workers who will need this information to respond to requests to perform one or more WorkBriefly Requests. By submitting a Service Request, Customer is requesting, and expressly consents to have details of the Service Engagement sent to WorkBriefly Workers that provide like or similar services to those sought through the WorkBriefly Requests. Customer agrees that all information that Customer provides will be accurate, current and truthful to the best of its knowledge.

6. DISCLAIMERS

THE SERVICE AND THE DELIVERABLES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” WorkBriefly 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. WorkBriefly 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. WorkBriefly DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH WorkBriefly REQUEST AND A WorkBriefly Worker OR THAT THERE ARE WorkBriefly WorkerS IN EACH GEOGRAPHIC AREA REQUESTED BY CUSTOMER WHO ARE WILLING TO FULFILL THE WorkBriefly REQUEST AT THE TIME AND PLACE REQUESTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT WorkBriefly HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY WorkBriefly Worker AND THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN WorkBriefly AND THE WorkBriefly WorkerS. WorkBriefly DOES NOT GUARANTEE OR WARRANT THE WorkBriefly WorkerS’ PERFORMANCE OF THE WorkBriefly REQUESTS OR THE OUTCOME OR QUALITY OF THE DELIVERABLES PROVIDED.

7. LIMITATION OF LIABILITY; INDEMNITY

IN NO EVENT SHALL WorkBriefly 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 WorkBriefly IP OR THE DELIVERABLES, EVEN IF WorkBriefly HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, WorkBriefly’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE WorkBriefly 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 WorkBriefly 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 WorkBriefly Workers that are used to provide services through the WorkBriefly App. Customer further agrees to indemnify, defend, and hold harmless WorkBriefly 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, WorkBriefly and/or its parents, affiliates, employees or agents; or (3) your violation of applicable law. WorkBriefly 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 WorkBriefly engagement.

8. RELATIONSHIPS BETWEEN WorkBriefly, WorkBriefly Workers AND THE CUSTOMERS

8.1  WorkBriefly provides a platform through which Customers and WorkBriefly Workers  can buy and sell Services online. Under this Agreement (and WorkBriefly’s service agreement with WorkBriefly Workers), WorkBriefly provides services to both Customers and WorkBriefly Workers, including the provision of a technology platform, aimed at facilitating the formation of contracts between Customers and WorkBriefly Workers and informally managing disputes related to those contracts. Through the Application, Customers can post Service Requests and invite WorkBriefly Workers to accept. If a Customer and WorkBriefly Worker agree on terms, including how a WorkBriefly Worker will be classified, a Contract is formed directly between such Customer and WorkBriefly Worker.

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 WorkBriefly Workers as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Customer and WorkBriefly Worker. WorkBriefly Worker does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Customer. WorkBriefly Worker acknowledges that WorkBriefly does not, in any way, supervise, direct, or control WorkBriefly Worker’s work or Services performed in any manner. WorkBriefly does not set WorkBriefly Worker’s work hours and location of work, nor is WorkBriefly involved in determining the type or manner compensation to be paid for any Service Request. WorkBriefly will not provide WorkBriefly Worker with training or any equipment, labor or materials needed for a particular Request. WorkBriefly will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Customer and WorkBriefly Worker will be solely responsible for all tax returns and payments required to be filed with or made to any federal, provincial, or local tax authority, in any nation, with respect to WorkBriefly Worker’s performance of Service Requests. For Contracts classified as independent contractor relationships, Customer may not require an exclusive relationship between Customer and WorkBriefly Worker. A WorkBriefly Worker 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 WorkBriefly Request through WorkBriefly’s payrolling program, where the WorkBriefly Worker becomes an hourly employee of WorkBriefly’s staffing affiliate and WorkBriefly Worker and Customer enter into appropriate additional agreements. Customer and WorkBriefly Worker agree to indemnify, hold harmless and defend WorkBriefly from any and all claims arising out of or related to their Service Request, including but not limited to claims that WorkBriefly Worker was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that WorkBriefly Worker was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that WorkBriefly was an employer or joint employer of WorkBriefly Worker, 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 obligations under FLSA, or other federal, provincial, and local wage and hour laws.

9. TERMINATION

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. MISCELLANEOUS

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 laws of the Province of British Columbia regardless of your country of origin or where you access WorkBriefly, and notwithstanding any conflicts of law principles.

10.2  Arbitration.  You agree that THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF USE, THE APPLICATION AND/OR THE SERVICES PROVIDED (INCLUDING YOUR VISIT TO OR USE OF THE WEBSITE AND/OR THE SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, or you have otherwise violated any of the user conduct rules set forth above then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Application and/or the Service (including your visit to or use of the Application and/or the Service) be instituted more than three (3) years after the cause of action arose.

Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first inform WorkBriefly (support@WorkBriefly.com) 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 WorkBriefly may evaluate the dispute and attempt to informally resolve same. WorkBriefly 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 WorkBriefly end up in a legal dispute and have not been able to resolve it within 60 days of your original informal claim, you and WorkBriefly agree to the following:

All Claims (excluding claims for injunctive or other equitable relief) must be resolved through binding arbitration before an AAA arbitrator located in British Columbia under the commercial dispute resolution rules then in effect for AAA, except as provided herein.  Any disputes as to the applicable rules and procedures shall be resolved by the AAA arbitrator.

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 WorkBriefly at 20856 76 Ave, Langley Twp, BC V2Y 0S7, ATTN: WorkBriefly Management. If WorkBriefly initiates a claim, WorkBriefly will serve a demand for arbitration upon you by email to the email address on file with WorkBriefly, 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 WorkBriefly’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. WorkBriefly 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.  WorkBriefly 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 WorkBriefly, or by written communication sent by first class mail or pre-paid post to your address on record with WorkBriefly. 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). Except as set forth in Section 10.3 above, you may give notice to WorkBriefly, addressed to the attention of WorkBriefly Management. Such notice shall be deemed given when received by WorkBriefly by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address:  20856 76 Ave, Langley Twp, BC V2Y 0S7 or email to support@WorkBriefly.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.  WorkBriefly 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 WorkBriefly 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 WorkBriefly

If you wish to report a violation of the Customer Agreement, have any questions or need assistance, please contact Customer Support at support@WorkBriefly.com.