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Terms of Use for Independent Contractors

    Spot Media, LLC (the “Company”) has adopted the following Terms of Use.

    By accessing or using the Company’s website, mobile application, or any other similar type of technologically enabled means of access to or use of the Company’s technology platform, (such means of access or use and the technology platform itself are hereinafter referred to collectively as “Technology Platform”), you confirm that you have read and understand, and that you consent to and agree to be bound by, these Terms of Use – including an Agreement to Arbitrate Disputes, which is set forth at the end of these Terms of Use.

    It is your responsibility to carefully review these Terms of Use before accessing or using the Technology Platform, as such Terms of Use constitute legally binding terms and conditions governing your access to and use of the Technology Platform and its services and content.

    For purposes of these Terms of Use, the term “you” includes any person accessing or using the Company’s Technology Platform, including any legal entity out of which or on behalf of which such person operates. If you do not consent to and agree to be bound by these Terms of Use, you should exit the Technology Platform, and you may not use or access the Technology Platform or any of its services or content.

    The Company reserves the right to amend or revise these Terms of Use at its discretion, and any such amendments or revisions shall be effective as of the date posted to the Technology Platform. If you attempt to access or use the Technology Platform subsequent to such an amendment or revision, you will be asked to accept the new Terms of Use as a condition to your remaining eligible to access and use the Technology Platform.  This feature is intended to ensure that you always remain fully informed about these Terms of Use.

    The Technology Platform is intended to be used solely by individuals and entities that are legally eligible to enter into binding contracts under applicable laws. The Technology Platform is not intended for minors who have not attained the requisite age to enter into such legally binding contracts. If you are such a minor, you are not eligible to use the Technology Platform.

    For purposes of these Terms of Use, the term “self-employed independent contractor” or “independent contractor” means (i) an individual who offers the individual’s services as a self-employed individual, and (ii) a legal entity that is wholly owned by an individual who is actively involved in the management and direction of the entity’s business and in the performance of services as an employee or owner of such entity.

    The Company operates the Technology Platform to enable third-party client companies to present service opportunities to self-employed independent contractors who have registered with the Company. The Technology Platform also enables self-employed independent contractors who have registered with the Company to gain access to a wide array of opportunities to enter into contracts with and perform service opportunities presented by third-party client companies. All transactions entered into pursuant to the Technology Platform are between third-party client companies and self-employed independent contractors; the Company is not a party to any of these transactions. The Company is not in the business of providing any services other than the services described herein; it is strictly an operator of a technology platform that facilitates transactions between self-employed independent contractors engaged in the business of providing a certain type of services and third-party client companies seeking to engage an independent contractor who can provide such services. The Company is not a provider of the types of services that you are in the business of providing; its business is to facilitate a virtual exchange through which buyers and sellers of certain types of services can find each other and do business with each other.

    The Technology Platform is designed for use only by self-employed independent contractors and businesses seeking to engage independent contractors; it is not designed to assist individuals seeking employment opportunities. If you are not self-employed, and are seeking employment opportunities, the Technology Platform is not appropriate for you and you are not eligible to register. 

    To gain access to this virtual exchange, you, an independent contractor, will first register with the Company and create a user profile (“Profile”) that contains relevant information concerning you. If you elect to create a Profile, your relationship with the Company will be nonexclusive, meaning that the Company will have the right to create Profiles for other independent contractors, and you will have the right to market your services and obtain client opportunities through sources other than the Technology Platform. To create a Profile, you will create login credentials developed based on your email address and a unique password that you select. You agree not to disclose your login credentials to anyone, and not to permit anyone else to access the Technology Platform using your login credentials. You agree to be legally responsible for any consequences of someone other than you accessing the Technology Platform using your login credentials.

    By creating a Profile, you will have the right to access and use the Technology Platform at your discretion, and to offer to perform any client opportunities you learn about through the Technology Platform. You will not be under any obligation to offer to perform any minimum number of client opportunities through the Technology Platform. The Company does not guarantee to any independent contractor who creates a Profile that such independent contractor will learn about any minimum number of client opportunities through the Technology Platform or will have the opportunity to earn any minimum amount of income through the client opportunities that might be presented through the Technology Platform.

    If you have created a Profile and you wish to pursue a client opportunity that is posted on the Company’s Technology Platform, you will communicate your interest in the client opportunity by following the instructions set forth on the Technology Platform. Upon receipt of your communication, the Technology Platform will provide you with access to the agreement (the “Client Agreement”) that the third-party client company uses to engage an independent contractor to perform a client opportunity. If you have not previously entered into a Client Agreement with the third-party client company, or if the third-party client company at that time is using an updated Client Agreement that supersedes prior versions, you will have the right to enter into the then-current version of the third-party client company’s Client Agreement.  You will be eligible to offer to perform an opportunity presented by a third-party client company pursuant to the Technology Platform only if you have executed that company’s then-current Client Agreement.

    It is important that you understand that any Client Agreement you enter into pursuant to the Technology Platform will be an agreement between you and the third-party client company; you will not be entering into an agreement with the Company. Neither you nor the Company will have any contractual rights or duties relative to the other arising out of any Client Agreement you enter into with a third-party client company.

    A Client Agreement will typically consist of a general contractual agreement that you enter into with a third-party client company, which will function principally as a master services agreement, setting forth general terms and conditions governing your relationship with that third-party client company.  In these cases, any specific opportunity presented by such third-party client company through the Technology Platform will include a detailed description of the terms and conditions of the opportunity. If you wish to perform the opportunity, you will enter into with such third-party client company a separate agreement pertaining to that specific client opportunity.  For some third-party client companies, the Client Agreement will contain both general terms and also the specific terms and conditions pertaining to the specific client opportunity that you contractually agree to perform. In either case, the third-party client company will present opportunities through the Technology Platform. You will have the opportunity to offer to perform any such opportunity in accordance with the terms and conditions contained in the opportunity description. If the client company accepts your offer, it will notify you of its acceptance and, if applicable, inform you of any additional action required of you to bind the contract.  Each client opportunity that a third-party client company presents through the Technology Platform, which you offer to perform, shall constitute a separate contractual relationship between you and that third-party client company upon the third-party client company’s notification to you that it accepts your offer to perform the opportunity.

    Once you contractually agree to perform an opportunity that a third-party client company has presented through the Technology Platform, you will be solely responsible for your performance of the opportunity, your submission of any client deliverable, your billing for services you performed and your collection of the fees and any reimbursements to which you are entitled for such performance. As noted above, the Company’s function is limited to providing a virtual exchange through which buyers and sellers of a specific type of services can find each other and do business with each other; it is in all respects detached from your contractual relationship with a third-party client company. The Company intends to implement new features over time that will increase the efficiency of its exchange, but it will always remain an exchange.

    Any and all details concerning a client opportunity presented on the Technology Platform, including the fees payable for completing the opportunity and any criteria you need to satisfy to be eligible to offer to perform the opportunity, are set by, or are negotiated between you and, the third-party client company (not Company), and the services you will be asked to perform and any deliverables you will be asked to submit are defined by and may be evaluated by the third-party client company (but not Company).  The Company will neither impose nor evaluate compliance with any term or condition relating to a client opportunity presented through the Technology Platform.  The Company’s functions are in all respects ministerial and administrative on behalf of and in support of the parties to a contractual relationship created pursuant to the Technology Platform. The Company is not responsible for, and makes no representations concerning the completeness or accuracy of, the content of any description of a client opportunity that a third-party client company presents through the Technology Platform. Similarly, the Company is not responsible for and makes no representations concerning any eligibility criteria for offering to perform an opportunity that a third-party client company establishes. Such eligibility criteria can include, among other things, a minimum score on a proficiency test, a writing sample meeting specified standards or a professional credential – all of which are at the sole discretion of the third-party client company presenting the opportunity.

    As between you and the Company, you will retain sole control over the means and methods used in performing any client opportunity, and you will be solely responsible for providing any and all tools, supplies, equipment, transportation and insurance for you and your personnel (including, but not limited to, health, life and disability) that you elect to maintain, and for all expenses you incur in connection with the operation of your business and the performance of a client opportunity, e.g., fuel, repairs and motor vehicle insurance.  The Company will have no obligation to reimburse you for any expenses of any kind or nature, to provide you with any tools, equipment, supplies or transportation, or to assist you in any way in your performance of a client opportunity. You also will be solely responsible for obtaining any licenses or certificates that are required by law to provide your services.

    In connection with your accessing or use of the Technology Platform, or your performance of a service opportunity presented by a third-party client company pursuant to the Technology Platform, you hereby release, discharge and agree to indemnify, defend and hold harmless the Company, including its officers, directors, agents, parents, subsidiaries, successors, assigns, and employees, from and against any liability, including attorneys’ fees and costs, caused by or attributable to any negligent, reckless or willful acts and/or omissions committed by you or by anyone acting on your behalf. 

    Any time you enter into a contract with a third-party client company, you are solely responsible for collecting any fees or reimbursements to which you are entitled from such third-party client company, and you bear the entire risk of nonpayment by such third-party client company. The Company does not guarantee the payment of any amount i.e., neither fees nor reimbursements, to which you are entitled from a third-party client company. If a third-party client company does not pay the amounts, i.e., the fees and reimbursements, to which you believe you are entitled for your completion of an opportunity, you will have no right to collect such amounts from the Company. You hereby waive any right to assert a claim against the Company seeking the collection of any amounts to which you are entitled, or you believe you are entitled, for services you provide pursuant to a Client Agreement with a third-party client company.

    You hereby acknowledge and agree that your use of the Technology Platform or your performance of any service opportunity presented by a third-party client company pursuant to the Technology Platform will not make you eligible for, and will not enable you to participate in, any of the Company’s employee benefit plans or programs, including, but not limited to, bonus, vacation, health, pension, incentive compensation or other employee programs or policies (“Benefits Plans”).  If for any reason you are determined by any governmental agency, court, or other entity to be a statutory or common-law employee of the Company on account of or as a result of your use of the Technology Platform or your performance of any service opportunity presented by a third-party client company pursuant to the Technology Platform, you hereby waive any right to, and agree to neither seek nor accept, any benefits under the Benefits Plans, even if by the terms thereof you would be eligible for such benefits on account of or as a result of such use or performance of services.

    The Company retains the right to modify any aspect of its Technology Platform or its services at any time, and does not provide any guarantee that it will continue to maintain its Technology Platform or offer its services for any specific period of time. Moreover, the Company does not guarantee that its Technology Platform will be active and available at all times, or that it will be free from technical problems that disrupt its operation. In the event the Company were to cease operating its Technology Platform and/or cease offering its services, such action would not affect your contractual rights or obligations with any third-party client company with which you have entered into a contract – other than your right or duty to communicate with the third-party client company, or submit information, through the Technology Platform.

    You hereby agree to indemnify and hold harmless the Company, including its officers, directors, agents, parents, subsidiaries, successors, assigns, and employees, from and against any claims, damages and liabilities (including attorneys’ fees and costs) arising out of or relating to any dispute between you and a third-party client company pertaining to any matter, including but not limited to, allegations of nonpayment, nonperformance, or unacceptable performance under a Client Agreement entered into by and between you and such third-party client company, and you hereby waive any right to assert a claim against the Company with respect to such dispute.

    As a condition to any use or access of the Technology Platform by you, you hereby agree to comply with the following additional terms and conditions:

  1.     you will comply with the terms and conditions contained in the Privacy Policy governing the Technology Platform, which shall be incorporated herein as if fully set forth herein;
  2.     you will only use the Technology Platform for its intended purposes;
  3.     all information you submit to the Technology Platform, including but not limited to, your identity, contact information and history will be factually correct, and full and complete, at the time of submission;
  4.     in the event that any information you have submitted is no longer accurate, you will timely submit accurate information to replace it;
  5.     you hereby truthfully represent that you have attained the requisite age and otherwise possess the requisite legal capacity to enter into a contract under applicable law;
  6.     recognizing that a principal value of the Technology Platform is to enable third-party client companies and independent contractors to do business with each other in a highly efficient manner through the use of technology, you will, where possible, direct all communications and submit all information pertaining to a client opportunity entered into pursuant to the Technology Platform, including but not limited to any project deliverables and invoices, through the Technology Platform;
  7.     you will not engage in any conduct in connection with your accessing or use of the Technology Platform or the Company’s services that is fraudulent, unethical, in violation of any applicable law, regulation, or ordinance, or in breach of an agreement into which you have entered with a third-party;
  8.     you will not engage in any conduct in connection with your accessing or use of the Technology Platform or the Company’s services that disrupts or interferes with, or that reasonably could disrupt or interfere with the operations or performance of the Technology Platform or the Company’s services;
  9.     subject to the terms and conditions of the Company’s Privacy Policy, you irrevocably grant to the Company a perpetual, nonexclusive, royalty-free right, but no duty, to use, display on its Technology Platform, provide to a third-party client company at its request, store, and modify, in whole or in part, any information that you submit to the Technology Platform,;
  10.     the Company always retains the right, at its sole discretion, to edit or remove any information the Company possesses that is contained in your Information, or to delete your Information;
  11.     you will not disassemble or reverse engineer the systems comprising the Technology Platform or aid or abet another in doing so;
  12.     you will not intentionally engage in activities that could degrade the performance of the Technology Platform;
  13.     you will not engage in any scraping or harvesting of the data contained in the Technology Platform or utilize any bots, web crawlers or spider programs with respect to the Technology Platform; and
  14.     you will not interfere with the Company’s contractual relationships with any third party, including but not limited to the third-party client companies that present opportunities through the Technology Platform.

    As a condition to your registering with the Technology Platform, you represent and affirm:

  1.     that you understand that the Company is purely a technology platform, and that it is not engaged in providing any services other than the services described in these Terms of Use;
  2.     that you understand that the Company, itself, does not present any opportunities, but only provides a technology platform on which third-party client companies can present their opportunities;
  3.     that you are self-employed, and represent yourself to the public, and to the Company, as a self-employed independent contractor;
  4.     that you do not rely solely on the Technology Platform for gaining access to client opportunities but that you also market your services through other channels;
  5.     that you are not seeking an employment relationship with the Company or with any third-party client company presenting opportunities on the Technology Platform;
  6.     that you will maintain appropriate business records and report to the appropriate taxing authorities, as required under applicable law, the earnings you receive from completing any opportunity presented by a third-party client company pursuant to the Technology Platform in a manner that is consistent with your nonemployee status relative to the Company and such third-party client company;
  7.     that you maintain an office pertaining to your business-related activities, which could be a home office, at a location separate from the Company’s business premises;
  8.     that you understand that any payment of fees and/or reimbursements you receive for completing an opportunity presented by a third-party client company pursuant to the Technology Platform is a payment made by the third-party client company (or its client), but not by the Company;
  9.     that you will not offer to perform any client opportunity presented pursuant to the Technology Platform if your performance of such opportunity would be unethical, involve a conflict of interest, or be in violation of any applicable law, ordinance, or duty, contractual or otherwise, that you owe to a third party;
  10.     that you will promptly notify the Company if any component of your login credentials is lost, stolen, or otherwise compromised; and
  11.     that you acknowledge that your eligibility to use the Technology Platform is in reliance on the truthfulness of these representations and affirmations.

NEITHER THE COMPANY NOR ANY OF ITS EMPLOYEES OR AGENTS WARRANT THAT THE TECHNOLOGY PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES THE COMPANY OR ANY OF ITS EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE TECHNOLOGY PLATFORM. THE TECHNOLOGY PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE WARRANTIES (IF ANY) WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF USE, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. NEITHER THE COMPANY NOR ANY OF ITS EMPLOYEES OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, LOST REVENUE, LOST PROFITS OR OTHER CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PARTY AS A RESULT OF YOUR USE OF THE TECHNOLOGY PLATFORM, THE OPERATION OR MALFUNCTION OF THE TECHNOLOGY PLATFORM, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOU WILL NOT IN ANY WAY HOLD THE COMPANY RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THIRD PARTIES IN CONNECTION WITH THE TECHNOLOGY PLATFORM, (INCLUDING THOSE WITH WHOM THE COMPANY MAY CONTRACT TO OPERATE VARIOUS COMPONENTS OF THE TECHNOLOGY PLATFORM).

    Your sole and exclusive remedy against the company for any failure or non-performance of the technology platform shall be for the company to use commercially reasonable efforts to effectuate A repair of the TECHNOLOGY PLATFORM.

    Any disputes arising out of or relating to your accessing or use of the Company’s Technology Platform and these Terms of Use shall be governed by the dispute resolution provisions contained at the end of these Terms of Use.

    These Terms of Use shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Ohio, except for its conflicts of laws principles. 

    These Terms of Use supersede any and all prior terms of use, agreements and understandings, oral or written, express or implied.

    In the event that any provision of these Terms of Use conflicts with the law under which these Terms of Use are to be construed or if any such provision is held invalid, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of these Terms of Use in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of these Terms of Use shall remain in full force and effect.

Agreement to Arbitrate Disputes

  1. Subject to Section I of this Agreement to Arbitrate Disputes, any and all disputes, controversies, or claims involving Company arising out of or relating to: (i) these Terms of Use, including challenges to the scope, interpretation and enforceability of this Agreement to Arbitrate Disputes; (ii) your provision of services in connection with a service opportunity presented by a third-party client company pursuant to the Technology Platform; and (iii) any other dispute, controversy or claim between you and Company, shall be resolved exclusively and finally through binding arbitration, and not by a court or a jury.   This Agreement to Arbitrate Disputes excludes any claims that, by law, may not be subject to pre-dispute arbitration agreement. 
  2. Who Is Bound to Arbitrate: For purposes of this Agreement to Arbitrate Disputes Agreement to Arbitrate Disputes, the term “Company” includes not only Spot Media, LLC, but also its officers, directors, agents, parents, subsidiaries, successors, assigns, and employees, to the extent such persons are named as co-defendants with the Company or an affiliated entity that employs them, if applicable. The term “Contractor” or “you” includes you, your heirs, successors, and assigns. 
  3. Federal Arbitration Act: Regardless of any other choice of law provision in these Terms of Use, Contractor and Company agree that these Terms of Use represents a transaction involving interstate commerce, and that the Federal Arbitration Act, Title 9 of the United States Code, covers the interpretation and enforcement of this Agreement to Arbitrate Disputes Agreement to Arbitrate Disputes and proceedings brought pursuant to it.
  4. Commencing Arbitration: A party may commence an arbitration proceeding by serving a demand for arbitration on the other party by overnight delivery or First-Class certified U.S. Mail, postage prepaid, to the last known address of the other party.  The arbitration shall be held in the state where Contractor provided services.  All claims shall be decided by a single, neutral arbitrator jointly chosen by the parties.  If for any reason the parties cannot agree on an arbitrator, either party may apply to a court of competent jurisdiction in the location were the arbitration will be conducted for appointment of a neutral arbitrator.  A court-appointed arbitrator shall act under this Agreement with the same force and effect as if selected by the parties.
  5. Arbitration Proceedings: Each party shall have the right to take discovery, bring dispositive motions, call witnesses and present evidence as necessary to put forward its claims and/or defenses. Any decision rendered in such arbitration proceeding shall be final and binding on Contractor and Company, and judgment may be entered thereon in any court of competent jurisdiction.   
  6. Costs and Fees: In all cases where required by law, Company shall pay the arbitrator’s and arbitration fees.  If under applicable law the Company is not required to pay all of the arbitrator’s and/or arbitration fees, such fee(s) will be apportioned between the parties in accordance with applicable law.  Each party shall pay the fees of its own attorneys.  However, the arbitrator shall have the power to award attorney’s fees and costs in accordance with applicable law.   
  7. Class Action Waiver: Neither Contractor nor Company shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative, class member, or in a class-wide or private attorney general capacity.   
  8. Confidentiality: Contractor and Company agree that any arbitration hereunder and any documents prepared in connection with any arbitration shall be confidential, and unless otherwise required by law, the existence, content, or result of any arbitration shall not be disclosed to any third party without the prior written consent of both parties.
  9. Severability: If any provision or section within this Agreement to Arbitrate Disputes -- other than the Class Action Waiver clause in Section G -- is found to be illegal or unenforceable, that clause will be severed, and the remainder of the Agreement to Arbitrate Disputes will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, however, the entire Agreement to Arbitrate Disputes shall be unenforceable and the dispute shall be decided by a court of competent jurisdiction.   Notwithstanding any other provision contained in these Terms of Use, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, void, or voidable shall be decided only by a court of competent jurisdiction and not by an arbitrator.
  10. Opting-Out: Contractor may opt-out of this Agreement to Arbitrate Disputes, by submitting to the Company by certified mail, return receipt, at P.O. Box 809, Norwalk, Ohio 44857 ATTN: GigSpot Opt-Outs within 30 days from the date of Contractor’s initial acceptance of these Terms of Use a written notice that clearly identifies Contractor and states that Contractor elects to opt-out of the Agreement to Arbitration Disputes contained in the Company’s Terms of Use.

    Contractor’s decision to opt-out will have no adverse effect on his/her relationship with the Company.

    If Contractor does not opt out of this Agreement to Arbitrate Disputes within 30 days from the date of accepting these Terms of Use, then Contractor accepts the terms of this Agreement to Arbitrate Disputes and they will be legally binding.

    Contractor has the right to consult with an attorney of his/her choosing concerning these Terms of Use and the Agreement to Arbitrate Disputes.