These “Terms and Conditions” are provided under the Platform Services Agreement between GoGig Jobs Inc. and the “Company” identified therein as a Party thereto (the “Agreement”); the defined terms of the Agreement are incorporated by reference. These “Terms and Conditions” shall govern the rights and obligations of the Parties relating to the Software, Platform, and Application under the Agreement.
“Candidate Data” means the data provided by the Company Candidates through the Access Service. Candidate Data does not include Client Data (defined below), Company Data (defined below), or GoGig Data (defined below).
“Client Data” means the data provided by the Company Clients through the Access Service. Client Data does not include Candidate Data, Company Data (defined below), or GoGig Data (defined below).
“Company Data” means the non-public data that Company provides as part of and during the Webpage Development.
“Fees” means the Fees for the Services, and any other fees/charges owed by Company to GoGig under the Agreement.
“Separate Database” means a database in, under, and for the Software, Platform, and/or Application for the input, storage, and access of the Candidate Data and Client Data through and by, but is segregated and separate from the databases of other third-party companies who would also utilize, the Software, Platform, and/or Application.
“Services” means the services and functionality provided by/through the Software, Platform, Application, the Services, and any other services GoGig provides to Company under the Agreement.
“Platform” means the Platform but may be used interchangeably and expansively to include the Software and Application.
Right to Services. During the Term, subject to the Agreement, and provided Company is current on the payment to GoGig of all Fees for the Services, GoGig grants Company a non-exclusive, non-transferable right and opportunity to utilize the Access Service. On Company’s behalf (and for any third party on whose behalf Company is acting), Company will obtain and maintain throughout the Term (and hereby grants to GoGig) all rights and permissions needed by GoGig for storing, tracking, analyzing, and servicing the Candidate Data and Client Data.
Intellectual Property. The Software, Platform, and Application is and are the proprietary and intellectual property of GoGig (the “GoGig IP”); any Feature Development automatically becomes part of the GoGig IP. The Company neither has nor acquires any license or ownership right, whatsoever, in and/or to the GoGig IP; the Company’s rights to utilized the GoGig IP are limited to and through the Access Service as otherwise conditioned under the Agreement. Prohibited Content. Company will not use the Software, Platform, and/or Application in connection with any advertising or other digital content that is/are obscene, pornographic, or that depict illegal activity, violate any law/regulation/third-party right (including intellectual property and privacy rights), are deceptive, or are defamatory. Company’s right to access and utilize the Platform and receive the Services shall automatically terminate if Company violates any portion of the foregoing provision.
Other Prohibitions. Company will use the Services only for Company’s own use or on behalf Company Candidates and/or Company Clients with which Company has a direct affiliation or contractual relationship. Company shall be prohibited from and shall not in any manner whatsoever or by any means:
attempt to circumvent any security measure of the Software, Platform, and/or Application;
share the Access Service of Company with, or otherwise grant account access to the Software, Platform, and/or Application to, any third party other than Company Candidates and Company Clients, without the prior written permission of GoGig;
reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile, or disassemble any software code or features of the Software,
use or authorize the use of the Software, Platform, and/or Application for any purpose not otherwise expressly permitted under the Agreement;
copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Software, Platform, and/or Application, or use the Software, Platform, and/or Application for co-branding, timesharing, arbitrage, servicing bureau; and/or
distribute viruses or other malware through any mechanism.
If GoGig, in GoGig’s sole discretion and absolute judgment, determines that Company has violated/breached any of the foregoing obligations/prohibitions, GoGig may immediately suspend the Access Service and/or terminate the Agreement. “Beta” Features and Testing. During the Term, GoGig may offer to Company the right to use certain experimental and/developmental features in the Software, Platform, and/or Application that are made available to Company by GoGig on a test basis (“Beta Features”). All Beta Features are provided on an “as is” basis, without any representations, warranties, covenants, or obligations of any kind. Any use by Company of Beta Features is solely at Company’s own risk. GoGig may add, modify, or remove any Beta Features at any time, for any reason, in the sole discretion and absolute judgment of GoGig, without advance notice to Company.
Service Levels. The obligations of GoGig to provide the Access Service shall at all times be subject to the underlying availability of the third-party hosting service for the Software, Platform, and/or Application (the “Hosting Service”); if, when, and while the Hosting Service is unavailable through the Software, Platform, and/or Application or otherwise inhibits the functionality of the Software, Platform, and/or Application, GoGig shall be relieved from any and all obligations to provide the Services; otherwise GoGig shall provide the Services in a commercially-reasonable manner; GoGig is not liable for any outages or downtime of the Software, Platform, and/or Application or unavailability of the Services as a result thereof.
Ongoing Development. GoGig reserves the right to continually develop, evolve, and maintain the Software, Platform, and/or Application without a requirement of advance notice to Company. In the event GoGig chooses to discontinue the general availability of the Software, Platform, and/or Application, GoGig will provide Company with prior written notice of thirty (30) days.
Unless otherwise specified in the the agreement, Access Service Fees begin on effective date. Invoices. Company will remit payments, in full, for the balances shown in the Invoices, within the payment terms set forth in the Agreement and in accordance with the remittance instructions set forth thereon. If any Invoice is not paid, in full, within the payment terms, GoGig reserves the right and discretion to:
charge interest of 1.5% per month (or the maximum allowed by law, whichever is lower) on the outstanding balance of the Invoice(s); and/or
suspend the Access Service of the Company; and/or
immediately terminate the provision of any further Services to Company; and/or
immediately terminate the Agreement.
All payments due under the Agreement shall be made without setoff or deduction, including for or on account of any present or future tax, assessment, or other governmental charge imposed upon such payment by any state, country, political subdivision or taxing authority thereof or therein (“Taxes”). The payment obligations of Company for Invoices shall survive the expiration or termination of the Agreement for the Fees for any Services provided prior thereto.
Candidate Data. As between GoGig and Company, Company owns all right, title, and interest in and to all Candidate Data; however, Company hereby grants GoGig a non-exclusive, perpetual, fully-paid-up right and license to store, analyze, sell, and use the Candidate Data both during and following the Term.
Client Data. As between GoGig and Company, Company owns all right, title, and interest in and to all Client Data; however, Company hereby grants GoGig a non-exclusive, perpetual, fully-paid-up right and license to store, analyze, sell, and use the Client Data both during and following the Term. Company Data. As between GoGig and Company, Company owns all right, title, and interest in all Company Data; however, GoGig may use the Company Data to provide the Services to Company.
GoGig Data. As between GoGig and Company, GoGig owns all right, title, and interest in all GoGig Data. Aside from the rights expressly granted under the Agreement with regard to the Candidate Data, Client Data, Company Data, and/or GoGig Data, neither Party grants the other Party any other right, express or implied, and each Party reserves all rights not expressly granted hereunder.
Feedback. Any suggestions, comments, improvements, ideas, enhancement requests, or feedback provided by Company, which in any manner whatsoever relate to the Software, Platform, and/or Application “(Feedback”), may be used by GoGig without compensation, accounting, or attribution to Company, and Company grants a perpetual, irrevocable, fully-paid-up right and license to the Feedback to GoGig.
Confidentiality. “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential. The terms of the Agreement are the Confidential Information of each Party (not to be disclosed by a Party to an unrelated third party without the written consent of the other Party). Candidate Data, Client Data, Company Data, and GoGig Data are also Confidential Information. The receiving Party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling said Party’s obligations or exercising said Party’s rights under the Agreement. “Confidential Information” does not include information that is or becomes part of the public domain through no fault of the receiving Party, was already in possession of the receiving Party, or was independently developed by the receiving Party without violation of this section. The receiving Party may disclose Confidential Information if required to do so by law, if the receiving Party provides the disclosing Party with prompt notice and complies with any protective order imposed on such disclosure.
Public Statements. Neither Party will make any public statement relating to the Agreement without the prior written approval of the other Party, except that GoGig may include Company’s name and logo in GoGig’s marketing, promotional materials, and customer lists. Relationship of the Parties. In performing the obligations under the Agreement, GoGig is acting as an independent contractor to Company; the relationship of the Company and GoGig is not a joint venture, partnership, or principal-agent relationship.
Notices. Any notice or communication given under the Agreement must be in writing and shall be effective only if delivered personally, or sent by email transmission, or delivered by overnight courier service to the recipient at the address set forth in the Agreement or to such other address as the Party being notified may have previously furnished to the other Party by written notice in accordance with this section. Notices or communications given under the Agreement shall be effective and deemed received on the date of personal delivery, or the date of email transmission as evidenced by the transmission confirmation, or on the day after sending by overnight courier service as evidenced by the signature of the Party or representative of Party. No Third-Party Beneficiaries. The Agreement has been entered into for the sole and respective benefit of GoGig and Company; in no event will any third-party benefits or obligations be created by the Agreement.
Force Majeure. Neither Party shall be liable to the other Party for any delay or failure in performance hereunder (other than an obligation to pay invoices), due to a force majeure event that is beyond the reasonable control of the Party unable to perform. If a force majeure event occurs, the Party delayed or unable to perform shall give immediate written notice to the other Party; the other Party may, by written notice, terminate the Agreement if a force majeure event remains in effect for more than thirty (30) days. For purposes of the Agreement, a force majeure event means acts of God, wars, riots, terrorism, civil insurrections, and abnormal forces of nature (including, without limitation, lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, and explosion), failure of underlying platform (i.e. Hosting Service), governmental preemption, legal proceedings, GoGigs, or labor unrest.
Severability. If any of the provisions of the Agreement is determined illegal, unenforceable, or invalid (in whole or in part) by a court of competent jurisdiction, the remaining provisions of the Agreement shall remain in full force and effect without being impaired or invalidated in anyway.
Survival of Provisions. The following provisions shall survive any expiration or termination of the Agreement:
Representations and Warranties. Each Party represents and warrants that: (i) said Party has the full power and authority to enter into the Agreement; (ii) said Party’s execution of and performance under the Agreement does not and will not breach or cause a default under any other agreement, contract, or joint venture agreement to which it is a Party; and (iii) said Party’s performance hereunder will fully comply with all applicable laws, including but not limited to online privacy or otherwise. Company represents and warrants that Company has the right to exploit, publish, manufacture, distribute, promote, advertise, and market the Candidate Data and Client Data and has obtained all required consents associated therewith. Company acknowledges that GoGig shall not liable for and/or as a result of errors made by Company, Company Candidates, and Company Clients in entering any and all data through the Access Service.
Indemnification. Company shall indemnify and hold GoGig harmless from any and all liability to any third party for GoGig’s use of the Candidate Data, ,Client Data, and Company Data in providing the Services and in exercising GoGig’s rights with regard thereto as provided under the Agreement and shall indemnify and hold GoGig harmless from any and all losses, costs, and expenses (including but not limited to reasonable legal fees) arising out of any breach of the representations and warranties made by the Company under the Agreement.
Governing Law. The Agreement will be governed by the laws of the State of Florida (without regard to its conflict of law principles). Each of the Parties agrees that the venue for any dispute arising under the Agreement shall be exclusively in the courts of Palm Beach County, Florida; each of the Parties hereby irrevocably consent to jurisdiction and venue in such courts and waive any objection based on inconvenient forum.
Disclaimers. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, THE SERVICES, SOFTWARE, PLATFORM, AND APPLICATION ARE EACH PROVIDED BY GOGIG “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. GOGIG MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE BENEFITS TO COMPANY FROM THE SOFTWARE, PLATFORM, APPLICATION, OR SERVICES OR THAT THE SOFTWARE, PLATFORM, APPLICATION, AND SERVICES WILL BE ERROR-FREE, ALWAYS AVAILABLE, OPERATE WITHOUT LOSS OR CORRUPTION OF DATA, OR BE FREE FROM TECHNICAL MALFUNCTION.
Limitation of Remedies. In no event shall either Party be liable to the other Party, or any third party, for indirect, special, incidental, consequential, punitive, and/or exemplary damages, loss of profits, loss of use or data, or interruption of business, whether such damages or losses are alleged in tort, contract, or indemnity. GoGig’s maximum liability for any and all claims arising directly or indirectly from the Services shall not under any condition in the aggregate exceed the Fees for the Services and during the related time period.