PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS IN RELATION TO THE USE OF GIGPLE.COM. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS OF LIABILITY.
This User Agreement (this “Agreement“ or “Terms of Service“) is a contract between you (“you“ or “User“) and Gigple Digital Sdn. Bhd. (“Gigple“,“we“ or “us“). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.gigple.com (“Site“) or any part of the rest of the Site.
You understand that by using the Site or any service offered by the Site (“Site Services”) after the Effective Date, you agree to be bound by this Terms of Service. If you do not accept the Terms of Service in its entirety, you must not access or use the Site or the Site Services after the Effective Date except as permitted by the Agreement.
If you agree to the Terms of Service on behalf of an entity or agency, or in connection with providing or receiving services on behalf of an entity or agency, you represent and warrant that you have the requisite authority to bind that entity or agency to the Terms of Service and agree that you are binding both you and that entity or agency to the Terms of Service. In that event, the terms “you” and “your” referred to in this Agreement shall refer and apply to you and that entity or agency.
Subject to the conditions set forth herein, Gigple may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. Gigple will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Gigple, Gigple will provide at least thirty (30) days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
1. GIGPLE ACCOUNTS
Section 1 provides what you must agree to before using the Site or Site Services and the different types of accounts that may be created on the Site, as detailed below.
1.1. REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Terms of Service.
To access and use certain portions of the Site and the Site Services, you must register for an Account. Certain portions of the Site are available to Site Visitors, including those portions before your Account registration is accepted. Gigple reserves the right to decline a registration to join Gigple or to add an Account type as a Client or Freelancer, for any lawful reason, including but not limited to supply and demand, cost to maintain data, or other business considerations.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including this Terms of Service, on behalf of yourself and the company.
1.2. ACCOUNT ELIGIBILITY
Gigple offers the Site and Site Services for business purposes only and not for personal, household or consumer use. To register for an Account or use the Site and Site Services, you hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business or commercial purposes only; (c) will comply with any licensing, registration, permit or other requirements that your business is subject to, or the business for which you are acting for, and the provision of Freelance Services; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who may enter into legally binding contracts.
1.3. ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be revealed to other Users and, unless you modify your privacy settings on the Site, the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4. ACCOUNT TYPES
As described in this Section, there are a number of different account types. Once you register for one (1) Account with a specific account type, you may add other account types under the same username and password of the Account. For example, if you already have a Freelancer Account, you may add a Client Account as a separate account type through the settings without re-registering a new Account.
You agree not to have or register more than one (1) Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without prior notice if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.5. CLIENT ACCOUNT
You may register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”). Each User under a Client Account (“Team Member”) may be given different permissions to act on behalf of the Client Account.
1.6. FREELANCER, AGENCY, AND AGENCY MEMBER ACCOUNT
You may register for an Account or add an Account type to use the Site and Site Services as a Freelancer (a “Freelancer Account”). Another type of Freelancer Account you may add is an “Agency Account”, the owner of which is referred to as an “Agency”. An Agency Account allows permissions to be granted to Users under the Agency Account which may be given different permissions to act on behalf of the Agency (each, an “Agency Member”).
You acknowledge and agree that the Agency is solely responsible, and assumes all liability, for
(a) the classification of your Agency Members as independent contractors; and (b) paying your Agency Members in accordance with applicable law for work performed on behalf of the Agency for Projects.
You further acknowledge and agree that (i) the Agency may determine the Profile visibility and pricing/rate information of any of its Agency Members, and (ii) Agency Members’ Profiles may display work history that includes work done under the Agency Account, including after the Agency Member is no longer an Agency Member.
1.7. ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site or Site Services. Upon closure of an Account, Gigple may close any or all related Accounts.
1.8. IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one (1) or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Gigple. You authorize Gigple, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business.
1.9. USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize Gigple to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
2. PURPOSE OF GIGPLE
Section 2 provides what Gigple does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Freelancer or Client, as detailed below.
The Site is a marketplace where Clients and Freelancers may identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Gigple provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
2.1. RELATIONSHIP WITH GIGPLE
Gigple merely makes the Site and Site Services available to enable Freelancers and Clients to find and transact directly with each other. Gigple does not introduce Freelancers to Clients, find Projects for Freelancers, or find Freelancers for Clients. Through the Site and Site Services, Freelancers may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Freelancers that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or Freelancer on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Gigple is not a party to that Service Contract. You acknowledge, agree, and understand that Gigple is not a party to the relationship or any dealings between Client and Freelancer.
Without limitation, Users are solely responsible for:
(a) ensuring the accuracy and legality of any User Content;
(b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions);
(c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts;
(d) performing Freelancer Services; or
(e) paying for Service Contracts or Freelancer Services.
You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information (defined below). Gigple does not make any representations about or guarantee the truth or accuracy of any Freelancer’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Freelancers or Clients; and does not vet or otherwise perform background checks on Freelancers or Clients.
You hereby acknowledge, agree, and understand that Gigple does not, in any way, supervise, direct, control, or evaluate Freelancers or their work and is not responsible for any Project, Project terms or Work Product. Gigple makes no representations about and does not guarantee, and you agree not to hold Gigple responsible for, the quality, safety, or legality of Freelancer Services; the qualifications, background, or identities of Users; the ability of Freelancers to deliver Freelancer Services; the ability of Clients to pay for Freelancer Services, User Content, statements or posts made by Users; or the ability or willingness of a Client or Freelancer to actually complete a transaction.
You also acknowledge, agree, and understand that Freelancers are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Freelancer Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Gigple , and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Gigple will not have any liability or obligations under or related to Service Contracts and/or Freelancer Services for any acts or omissions by you or other Users; (iii) Gigple does not, in any way, supervise, direct, or control any Freelancer or Freelancer Services; does not impose quality standards or a deadline for completion of any Freelancer Services; and does not dictate the performance, methods or process Freelancer uses to perform services; (iv) Freelancer is free to determine when and if to perform Freelancer Services, including the days worked and time periods of work, and Gigple does not set or have any control over Freelancer’s pricing, work hours, work schedules, or work location, nor is Gigple involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Freelancer for a Project; (v) Freelancer will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Gigple does not, in any way, provide or guarantee Freelancer a regular salary or any minimum, regular payment; (vi) Gigple does not provide Freelancers with training or any equipment, labor, tools, or materials related to any Service Contract; and (vii) Gigple does not provide the premises at which Freelancers will perform the work. Freelancers are free to use subcontractors or employees to perform Freelancer Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Freelancer’s subcontractor(s) or employee(s). If a Freelancer uses subcontractors or employees, Freelancer further agrees and acknowledges that this paragraph applies to Gigple ’s relationship, if any, with Freelancer’s subcontractors and employees as well and Freelancer is solely responsible for Freelancer’s subcontractors and employees.
Without limiting the foregoing paragraph, if you are an Agency or Agency Member, you expressly acknowledge, agree, and understand that: (a) the Agency is solely responsible for paying its Agency Members for work performed on behalf of the Agency and that such payments will not be made through the Site; (b) Gigple is not a party to any agreement between the Agency and its Agency Members and does not have any liability or obligations under or related to any such agreement, even if the Agency or Agency Member defaults; (c) neither Agencies nor Agency Members are employees or agents of Gigple, and Gigple does not, in any way, supervise, direct, or control the Agency or Agency Member or services performed by the Agency or Agency Member; (d) Gigple does not, in any way, supervise, direct, or control the Agency or Agency Members; (e) Gigple does not set Agencies’ or Agency Members’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work; (f) Gigple does not provide Agencies or Agency Members with training or any equipment, labour, tools, or materials needed for any Service Contract; (g) Gigple does not provide the premises at which the Agency or Agency Members will perform the work; and (h) Gigple makes no representations as to the reliability, capability, or qualifications of any Agency or Agency Member or the ability or willingness of any Agency to make payments to or fulfil any other obligations to Agency Members, and Gigple disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels or platforms they choose. Users are at liberty to engage in such other business activities and services and are encouraged to do so at all times.
2.2. TAXES AND BENEFITS
Freelancer acknowledges and agrees that Freelancer is solely responsible (a) for all tax liability associated with payments received from Freelancer’s Clients and through Gigple, and that Gigple will not withhold any taxes from payments to Freelancer; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Freelancer is not covered by or eligible for any insurance from Gigple; (c) for determining whether Freelancer is required by applicable law to issue any particular invoices for the Freelancer Fees and for issuing any invoices so required; (d) for determining whether Freelancer is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Freelancer Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of Malaysia for determining if Gigple is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Gigple of any such requirement and indemnifying Gigple for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Gigple, Freelancer agrees to promptly cooperate with Gigple and provide copies of Freelancer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to Gigple.
2.3. MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Gigple to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Freelancers or Clients voluntarily submit to Gigple and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Gigple. Gigple provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Gigple post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including any rating systems implemented by Gigple, wherever referenced, and other User Content highlighted by Gigple on the Site or otherwise (“Composite Information”), if any, will include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Gigple will make Composite Information available to other Users, including composite or compiled feedback. Gigple provides its feedback system as a means through which Users may share their opinions of other Users publicly, and Gigple does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Gigple does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. Gigple is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Gigple reserves the right (but is under no obligation) to remove posted feedback or information that, in Gigple’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Gigple. You acknowledge and agree that you will notify Gigple of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Gigple may rely on the accuracy of such information.
Users shall not use any Site in order to host, display, upload, modify, publish, transmit, update, distribute, share, store or destroy material, including without limitation of Gigple’s Content; (a) in violation of any applicable law or regulation; (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property or proprietary rights of others or violate the privacy, publicity or other personal rights of others; (c) that belongs to another person and to which the user does not have any right to; (d) that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, threatening, abusive or hateful or racially, ethnically objectionable, disparaging, relating encouraging money laundering or gambling or otherwise unlawful in any manner whatsoever; (e) harm minors in any way; (f) deceives or misleads the addressee about the origin of such message or communicates any information which is grossly offensive or menacing in nature; (g) impersonate another person or entity; (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the computer systems or site or Gigple's users, customer’s computer systems or site; (i) threatens the unity, integrity, defence, security or sovereignty of Malaysia, friendly relations with foreign states or of public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or insulting any other nation.
The job posting and resume database features of the Site may be used only for lawful purposes by Freelancers seeking to offer services and Clients seeking Freelancers. Users may not use the Site in order to transmit, distribute, store or destroy material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, or (c) that is defamatory, obscene, threatening, abusive or hateful.
Users are prohibited from violating or attempting to violate the security of the Site, including, without limitation; (a) accessing data not intended for such user or logging into a server or account which the user is not authorised to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, "flooding", "spamming", "mailbombing" or "crashing"; or (d) sending unsolicited e-mail, including promotions and/or advertising of products or services. Violations of system or network security may result in civil or criminal liability.
Gigple shall reserve the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
2.5. INTELLECTUAL PROPERTY RIGHTS
Gigple Content and all right, title and interest in Gigple are the exclusive property of Gigple or its licensors. Gigple is protected by copyright, trade mark, database right and other Intellectual Property Rights. You may not reproduce, modify, copy or distribute or use for commercial purposes any of the materials or Gigple Content related to the Site without written permission from Gigple.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
Section 3 provides the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1. SERVICE CONTRACTS
If a Client and Freelancer decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Freelancer. Client and Freelancer have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that Gigple is not a party to any Service Contracts, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Gigple and any Freelancer or a partnership or joint venture between Gigple and any User.
With respect to any Service Contract, Clients and Freelancers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Gigple ’s rights and obligations under the Terms of Service.
3.2. DISPUTES AMONG USERS
For disputes arising between Clients and Freelancers, you agree to abide by the dispute process that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently.
3.3. CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality. If and to the extent that the Users do not articulate any different agreement, then they agree that this clause applies.
To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
3.4. THIRD-PARTY BENEFICIARIES
It is the intent of the Parties to this Agreement that Users who have entered into Service Contracts or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
4. WORKER CLASSIFICATION AND GIGPLE PAYROLL
Section 4 provides what you agree to concerning whether a Freelancer as an independent contractor and when you agree to use Gigple Payroll, as detailed below.
4.1. WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Gigple and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Freelancer for any Project. Client is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, when Freelancers are engaged as independent contractors of Client. Gigple will have no input into, or involvement in, worker classification as between Client and Freelancer and Users agree that Gigple has no involvement in and will have no liability arising from or relating to the classification of a Freelancer generally or with regard to a particular Project.
4.2. GIGPLE PAYROLL SERVICES
Client agrees to enroll in Gigple Payroll if it will receive services from a Freelancer under terms and conditions that would give rise to an independent contractor relationship . In this case, Client will engage Gigple’s third-party staffing vendor (the “Staffing Provider”), which is an Agency on Gigple, through the Site. The Staffing Provider will hire Freelancer at the request of Client and Freelancer according to the terms described on the site and otherwise agreed to by the Staffing Provider and Client and/or Freelancer, and subject to the Gigple Payroll Agreement. For all purposes with Gigple Payroll, the employer of Freelancer will be the Staffing Provider and not Gigple under any circumstances.
Freelancer, acknowledges, understands, and agrees that Gigple will have no control over, or involvement in determining or influencing, the terms and conditions of any employment or independent contractor relationship that may arise between Freelancer and Staffing Provider and/or Client, including the selection of the freelancer, pay rate, work hours, engagement dates and working conditions. Freelancer will not have any contract on the Gigple Site or contact with Gigple regarding such terms. Where Freelancer and Client have enrolled in Gigple Payroll the Site is provided for, and Users agree to use the Site for, the sole purpose of enabling Freelancer to communicate with the Staffing Provider and the Client.
4.3. GIGPLE SERVICE FEE
Gigple charges the Employers a five per centum (5%) service fee on the total Gig or FlexiJob value for every expert hired. Gigple reserves its right to vary the service fee from time to time.
5. RECORDS OF COMPLIANCE
Section 5 provides your agreement to make and keep all required records. Users shall each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to Gigple upon request. Nothing in this subsection requires or will be construed as requiring Gigple to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Gigple’s part to store, backup, retain, or grant access to any information or data for any period.
6. WARRANTY DISCLAIMER
Section 6 provides your agreement and understanding that the Site and Site Services may not always be available or work perfectly. You agree not to rely on the Site, the Site Services, any information on the Site or the continuation of the Site. The Site and the Site Services are provided “as is” and on an “as available” basis. Gigple makes no representations or warranties with regard to the Site, the Site Services, work product, or any activities or items related to this Agreement or the Terms of Service. To the maximum extent permitted by applicable law, Gigple disclaims all express and implied conditions, representations, and warranties including, but not limited to, the warranties of merchantability, accuracy, fitness for a particular purpose, title, and non-infringement. Some jurisdictions may not allow for all of the foregoing limitations on warranties, so to that extent, some or all of the above limitations may not apply to you. Section 9 (Agreement Term and Termination) states user’s sole and exclusive remedy against Gigple with respect to any defects, non-conformances, or dissatisfaction.
7. EXCLUSION OF LIABILITY
Section 7 provides your agreement that Gigple will not have to pay you damages relating to your use of the Site and Site Services. In no event will Gigple, its affiliates or its licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with the Terms of Service, including but not limited to:
(i) your use of or your inability to use our Site (or any websites linked to it) or Site Services;
(ii) your use or inability to use any content on the Site or such other websites or any services or items obtained through the site or such other websites;
(iii) delays or disruptions in our Site or Site Services;
(iv) viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
(v) glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
(vi) damage to your hardware device from the use of the Site or Site Services;
(vii) the content, actions, or inactions of third parties’ use of the Site or Site Services;
(viii) a suspension or other action taken with respect to your Account;
(ix) your reliance on the quality, accuracy, or reliability of job postings, profiles, ratings, recommendations, and feedback (including their content, order, and display), composite information, or metrics found on, used on, or made available through the Site; and
(x) your need to modify practices, content, or behaviour or your loss of or inability to do business, as a result of changes to the Terms of Service.
In no event will Gigple, its affiliates or its licensors, service providers, employees, agents, officers or directors be liable for any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business, business opportunity or anticipated savings, loss of use, loss of goodwill, loss of data, litigation costs, loss of data or production and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable. The foregoing does not affect any liability which cannot be excluded or limited under applicable law.
8. RELEASE AND INDEMNIFICATION
In addition to the recognition that Gigple is not a party to any contract between Users, you hereby release Gigple, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers (“Associates”) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes.
You agree to promptly indemnify Gigple and its Associates for all damages, liabilities, costs, charges and expenses and damages (actual and consequential), including reasonable legal and accounting fees, that Gigple or its Associates incur as a result of your breach of this Terms of Service and any costs in any way relating to your conduct with respect to the Site or Site Service.
9. AGREEMENT TERM AND TERMINATION
Section 9 provides your and Gigple’s agreement about when and how long this Agreement will last, when and how either you or Gigple may end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and Gigple expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to email@example.com.
In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Gigple is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one (1) or more open Projects, you agree (a) you hereby instruct Gigple to close any open contracts; (b) you will continue to be bound by this Terms of Service until all such Projects have closed on the Site; (c) Gigple will continue to perform those Site Services necessary to complete any open Project or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Gigple for any Site Services or such other amounts owed under the Terms of Service and to any Freelancers for any Freelancer Services.
Without limiting Gigple’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Gigple or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without Gigple’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you.
You therefore agree as follows: if Gigple decides to temporarily or permanently close your account, Gigple has the right where allowed by law but not the obligation to: (a) notify other users that have entered into service contracts with you to inform them of your closed account status, (b) provide those users with a summary of the reasons for your account closure. You agree that Gigple will have no liability arising from or relating to any notice that it may provide to any user regarding closed account status or the reason(s) for the closure.
9.2. ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to any data, messages, files, or other material you keep on the Site and that that any closure of your Account may involve deletion of any content stored in your Account for which Gigple shall have no liability whatsoever. Gigple, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement is terminated, the terms of this Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or Gigple from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
Section 10 provides additional terms of the agreement between you and Gigple, including that the Terms of Service contain our full agreement, how the Agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
10.1. ENTIRE AGREEMENT
This Terms of Service, sets forth the entire agreement and understanding between you and Gigple relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. You represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favouring or disfavouring you or Gigple because of the authorship of any provision of the Terms of Service.
10.2. MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Gigple unless in a written instrument signed by a duly authorized representative of Gigple or posted on the Site by Gigple. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Gigple’s prior written consent in the form of a written instrument signed by a duly authorized representative of Gigple. Gigple may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
If and to the extent any provision of this Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
10.5. FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labour disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, health/virus pandemic, outbreaks of infectious disease or any other public health crisis (including quarantine or other restrictions), acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
10.6. PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in Malaysia.
10.7. CONSENT TO USE ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from Gigple or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
Section 11 provides definitions of capitalized terms that appear in the Terms of Service but other capitalised terms are defined above. Capitalized terms not defined below or above have the meanings described in the Site Terms of Service.
"Client” means Users with a Client Account who is accessing the Site to post a job or utilizing the Site Services for any reason related to the purpose of seeking candidates the gig or job.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted by Client for such Service Contract.
“Freelancer” means Users with a Freelancer Account who is accessing the Site to search for a gig or job for provision of services.
“Freelancer Fees” means: (a) for an Hourly Contract, the amount reflected in the Hourly Invoice (the number of hours invoiced by Freelancer, multiplied by the hourly rate charged by Freelancer); (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Freelancer; and (c) any bonuses or other payments made by a Client to a Freelancer.
“Gigple Content” means all content on the Site including, but not limited to, graphics, logos, text, data, downloadable software, User Content, page layout and look and feel of the web pages.
“Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate charged by Freelancer.
“Hourly Invoice” means the report of hours invoiced for a stated period by a Freelancer for Freelancer Services performed for a Client.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Gigple, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Gigple may accept from time to time in our sole discretion.
“Project” means an engagement through the Site for Freelancer Services that a Freelancer provides to a Client under a Service Contract.
“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for a Project; or (b) if you use Gigple Payroll, the contractual provisions between Freelancer and the Staffing Provider for the provision of services to Client, if any.
“Substantial Change” means a change to the Terms of Service that reduces your rights or increases your responsibilities therein.
“User Content” means all information, data, text, software, music, sound, photographs, graphics, video, advertisements, messages or other materials submitted, posted or displayed by Users on or through the Site.
“Work Product” means any tangible or intangible results or deliverables that the Freelancer agrees to create for, or actually delivers to the Client as a result of performing the Freelancer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.