This Contractor Professional Services Agreement ("Agreement") is a legally binding agreement between independent contractor professionals (“1099 Professionals”) who perform Services on the Platform (“You”) and Qwick, Inc., and its parents, subsidiaries (including Flex Affiliate Staffing Technology, LLC), representatives, affiliates, officers and directors (collectively, “Qwick” or “Company”) that governs Your access to our Platform (defined below) in connection with Your provision of on-demand daily services as an independent contractor.
For the sake of clarity and depending on the context, references to “Qwick,” “We,” “Our,” and “Us” may also refer to the appropriate Qwick-affiliated contracting entity or Qwick collectively.
IMPORTANT: PLEASE BE ADVISED THAT BY AGREEING TO THESE TERMS YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND WAIVING YOUR RIGHT TO HAVE A JURY TRIAL ON YOUR CLAIMS.
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN PROVISIONS THAT GOVERN HOW YOU CAN BRING CLAIMS BETWEEN YOU AND QWICK, INCLUDING THE ARBITRATION AGREEMENT IN SECTION 8 BELOW. THE ARBITRATION AGREEMENT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH QWICK ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION.
ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
This Agreement sets out the legally binding terms of the relationship between Qwick and You. By accepting, and/or acknowledging acceptance of this Agreement, and/or by using the Platform, You represent that: (1) You have read, understand, and agree to be bound by this Agreement; and (2) You have the binding authority to enter into this Agreement personally or on behalf of the entity You have named as the 1099 Professional. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, DO NOT ACCESS OR USE THE SERVICES.
You agree and understand that certain services and/or features of the Platform may be subject to additional terms, conditions, and/or registration requirements. You agree to abide by these additional terms, and You further agree that a violation of those terms shall constitute a breach of this Agreement. We reserve the right to modify or amend any terms of this Agreement from time to time without notice, and Your continued use of the Platform following the posting of such modifications or amendments shall constitute Your acceptance of such changes. You are responsible for regularly reviewing this Agreement and any updates, modifications, and/or amendments. Qwick does not and will not assume any obligation to notify You or Professionals of any changes to this Agreement, or the creation or modification of any additional terms.
“Account” means a profile created through the Application and used by a 1099 Professional to access the Platform.
“Application” means the mobile software application (iOS and/or Android) through which a 1099 Professional accesses the Platform.
“Business Partner” means a company using the Platform to request 1099 Professionals to fill one-time and/or recurring local work opportunities.
“Business Partner Request” means a request for Services posted on the Platform by a Business Partner.
“Open Business Partner Request” means a Business Partner Request that has not been accepted by a Professional.
“Business Partner Engagement” means a Business Partner Request that a 1099 Professional has accepted and for which the Professional has agreed to perform Services.
“Platform” means the online and mobile platform developed and maintained by Qwick on which Business Partners connect with Professionals.
“1099 Professional” and “Professional” mean a service provider operating an independent business, including You, who uses the Application to access the Platform in order to receive access to Business Partner Service Requests.
“Services” means the work product and/or services provided by a Professional to a Business Partner pursuant to a Business Partner Engagement.
This Agreement governs the entire relationship between the Parties and establishes their respective rights and obligations arising out of this relationship, including Your access to the Platform and/or use of the Qwick Application, which facilitates your provision of Services to Business Partners in response to Business Partner Requests. The Parties intend this Agreement to create the relationship of independently contracting parties and not that of employer and employee, joint venture, partners, or principal and agent; neither Party shall have the right to bind the other in contract (or otherwise) except as specifically provided in this Agreement. Nothing in this Agreement requires You to accept any Open Business Partner Request, and nothing in this Agreement shall guarantee You any particular volume of Business Partner Requests for any particular time period. This Agreement expressly supersedes prior agreements with You. Qwick reserves the right to amend, modify, and/or supplement from time to time and without notice any terms in this Agreement, unless expressly stated otherwise in this Agreement.
Qwick is in the business of developing, maintaining, and distributing the software and logistics necessary to provide and support the Application and Platform. Qwick acts as a referral source enabling Business Partners and 1099 Professionals to connect with each other for Services; it does not provide workers (whether independent contractors or otherwise) to Partners or other third parties. As a condition to use the Application and access the Platform, You acknowledge and accept Qwick’s Terms of Use, Privacy Policy, and Community Guidelines, which are expressly incorporated herein by reference. Qwick reserves the right at any time and with or without notice to modify and/or supplement external documents and policies referenced and incorporated into this Agreement (or the location where such documents and policies may be found). Such modifications and/or supplements shall become effective upon posting, and Your continued use of the Application or Platform shall constitute Your consent to any such modification and/or supplement. In the event of a conflict between any term of this Agreement and a term of an external policy, the terms of this Agreement shall control.
By creating an Account and accepting an Open Business Partner Request, You agree to use Your best efforts to provide Services that meet the requirements and specifications of the Partner as articulated in the Open Business Partner Request or otherwise. You understand and acknowledge that when You accept an Open Business Partner Request, the associated Business Partner Request will no longer be available for performance by other Professionals who received notice of the Open Business Partner Request. By accepting an Open Business Partner Request, You agree to enter into a binding legal agreement to provide the Services for the payment specified in the Open Business Partner Request. You further agree that You will not accept an Open Business Partner Request unless certain that: (1) You understand the nature of the Services requested by the Partner; and (2) You can perform these Services at the time and in the location requested by the Partner. You agree that if You fail to timely provide the Services consistent with the Partner’s requirements and specifications (a “Service Failure”), Qwick reserves the right to recover any costs or fees incurred by Qwick related to Your action(s) and/or omission(s).
You expressly consent to be contacted by, and to receive and accept communications from Qwick and authorized partners, representatives, and/or affiliates (which may include Partners) via different communication methods, including but not limited to email(s), text message(s) (SMS or otherwise), push notification(s), and/or phone call(s) to contact information, including telephone number(s), You provide to Qwick. By consenting to being contacted, You understand and agree that You may receive communications—including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems—sent by or on behalf of Qwick on various subjects, including but not limited to: (1) operational or transactional communications, such as those concerning Your user account, sign up progress to become a Professional, use of the Platform and/or the Application; (2) communications relating to Business Partner Requests and/or Services, including incentive offers; (3) promotions, advertising, and/or marketing; (4) news concerning Qwick and industry developments that affect Your relationship with Qwick; and (5) Account verification communications. Message and data rates may apply. By consenting to be contacted, You represent that the telephone number(s) that You have provided to Qwick are Your contact numbers, that You are permitted to receive calls at such telephone number(s), and that You will promptly alert Qwick whenever you stop using or change a particular telephone number.
You agree that Qwick, its partners, representatives, and/or affiliates (which may include Partners) may contact You (including for marketing and promotional purposes from Qwick or our third-party partners where permitted by law) by email, phone, push notifications, text message(s) (SMS or otherwise), or by other comparable means (including artificial or pre-recorded messages and/or automated systems, such as automatic telephone dialing systems) at the email address(es), phone(s), or phone number(s) You provide to Qwick. YOU CAN UNSUBSCRIBE FROM QWICK’S MARKETING EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING EMAILS, QWICK MAY STILL SEND YOU EMAILS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS BETWEEN THE PARTIES. FURTHER, IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES (SMS OR OTHERWISE), IN RESPONSE TO SUCH A MESSAGE YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGE. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE MARKETING TEXTS OR CALLS AS A CONDITION OF PERFORMING SERVICES USING QWICK. YOU ACKNOWLEDGE THAT BY OPTING OUT OF SMS MESSAGES YOU WILL NOT BE ABLE TO RECEIVE CERTAIN SHIFT INVITES WHICH ARE DELIVERED VIA SMS.
4.1 Unless otherwise notified in writing by Qwick, You will receive payment in an amount consistent with the rate You accepted for a Business Partner Engagement for all undisputed time recorded and submitted to Qwick as worked for that Business Partner Engagement.
4.2 Nothing in this Agreement prevents You from negotiating a different rate of pay with a Business Partner. You are also free to contact Qwick regarding the payment schedule, and are free to accept, reject, or ignore any Business Partner Request as a means to earn different rates of pay.
4.3 Business Partners and/or other third parties can pay You a gratuity in cash or via other payment method(s). Nothing in this Agreement shall prevent You from retaining 100% of any gratuity. Qwick acknowledges it has no right to interfere with the amount of gratuity given to You.
4.4 In the event of a Service Failure, You agree that You may forfeit all or a portion of the payment as described in this Section (depending on the extent to which the Service Failure results from Your act or omission). Any reduction of payment shall be based upon proof provided by the Partner, You, and/or any other party with information relevant to the dispute. Qwick shall make the initial determination as to what percentage of fault You bear, and You shall have the right to challenge Qwick’s determination as described in the Mutual Arbitration Provision (Section 8), below.
If You earn the minimum income established by the Internal Revenue Service, Qwick shall report all payments made to You on a calendar-year basis by issuing You an IRS Form 1099. You agree that Qwick and its third-party vendors may fulfill tax-related obligations, including providing tax documents, by electronic transmission to the email address associated with Your Account.
You agree that You are solely responsible for timely filing all tax returns and submitting all payments as required by the appropriate tax authorities.
You shall comply at Your expense with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state, and local income tax laws, and all other applicable federal, state, and local laws, regulations and codes that govern your provision of Services under this Agreement. To the extent You engage any employees, independent contractors, helpers, assistants, or other workers (collectively “Subcontractors”), unless otherwise mandated by law, You assume full and sole responsibility for the payment of all amounts due or required to be withheld from such Subcontractor(s) for work performed under this Agreement, including but not limited to any wages, benefits, and expenses; state and federal income tax withholdings; unemployment insurance contributions; and/or social security taxes. You will ensure that Subcontractor(s) involved in the Services, if any, are bound in writing to the foregoing, and to all of Your obligations under any provision of this Agreement, for the benefit of Qwick and Business Partners.
You agree that during the Term of this Agreement, You shall maintain, at Your own expense, up-to-date insurance of the types, including but not limited to vehicle insurance and workers’ compensation insurance, in amounts equal to or greater than the minimum requirements as required by law in the jurisdiction in which You provide Services under this Agreement.
In the event You are injured while providing Services under this Agreement, You acknowledge and understand that You will not be covered by any workers compensation insurance coverage that Qwick may provide to its employees. In the event Your actions cause an injury to a third party while You are providing Services under this Agreement, You acknowledge and understand that You will not be covered by any general liability or automobile liability insurance coverage that Qwick may have. You further acknowledge and understand that Qwick is not making any commitment to defend and/or indemnify You in such circumstances, and specifically denies such obligation.
Notwithstanding any other provision of this Agreement, You will be provided with coverage under an occupational accident insurance policy ("OAI") made available by Qwick, subject to the terms of such OAI policy, for time spent providing Services on a Business Partner Engagement.
You agree to indemnify, defend, and hold harmless Qwick, including all parent, subsidiary, and/or affiliates (including but not limited to Flex Affiliate Staffing Technology, LLC and Labor Force Group, LLC) including Business Partners, as well at its and their past and present successors, assigns, officers, owners, directors, representatives, attorneys, employees, and agents (collectively “Indemnitees”) from: (i) any and all claims, demands, damages, lawsuits, losses, liabilities, and causes of action arising directly or indirectly from, as a result of, or in connection with the actions or omissions of You and/or any Subcontractor under this Agreement, including but not limited to personal injury to or death of any person (including You and/or any Subcontractor); (ii) any liability arising from Your failure to comply with the terms of this Agreement; (iii) any and all tax liabilities and responsibilities for payment of all federal, state, and/or local taxes, including but not limited to all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contributions imposed or required under federal, state, and/or local laws, that are owed by You with respect to Your and/or any Subcontractors using the Qwick Platform to provide Services; and (iv) all costs associated with Your business, including but not limited to the expense and responsibility for any and all applicable insurance, local, state, and/or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards, or municipalities, including assessments regarding the worker classification of You and/or Your Subcontractor(s), if any. You agree that Your obligations in this Section shall include the cost of defense, including attorneys’ fees, as well as the payment of any final judgment rendered against or settlement agreed upon by Qwick or any of the Indemnitees. You explicitly agree that, unless otherwise prohibited by law, Qwick may satisfy Your indemnity obligation (in whole or in part) by way of deduction from any payment due to You from Qwick.
Except as it otherwise provides, this arbitration provision applies to any dispute, past, present, or future, that Qwick may have against You or that You may have against (1) Qwick, (2) Qwick’s Business Partners, partners, officers, directors, principals, shareholders, members, owners, employees, or agents; (3) Qwick’s benefit plans or the plan’s sponsors, fiduciaries, administrators, affiliates, or agents; and (4) all successors and assigns of any of them. Each of the entities or individuals listed in (1) through (4) of the preceding sentence may enforce this Arbitration provision. All disputes covered by this arbitration provision will be decided by a single arbitrator through final and binding arbitration and not by way of court or jury trial. The Federal Arbitration Act, 9 U.S.C. § 1 et seq. governs this arbitration provision, which evidences a transaction involving commerce.
Additionally, except as this arbitration provision otherwise provides, the Arbitrator, and not any court, will have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability or waiver of this arbitration provision, including (but not limited to) any claim that all or any part of this arbitration provision is void or voidable.
However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, and it does not apply to the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement. Notwithstanding any other clause or language in this arbitration provision or any rules or procedures that might otherwise apply because of this arbitration provision (including, without limitation, the Commercial Arbitration Rules of the AAA (“AAA Rules”) (the AAA Rules are available via the internet at www.adr.org/commercial or by using a service such as Google to search for “AAA Commercial Arbitration Rules”) discussed below) or any amendments or modifications to those rules, any claim that the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement (in whole or in part) is unenforceable, inapplicable, unconscionable, or void or voidable, will be determined only by a court of competent jurisdiction and not by an Arbitrator. The right to a judicial determination of any claim that the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement (in whole or in part) is unenforceable, inapplicable, unconscionable, or void or voidable may not be waived.
Limitations On How This Arbitration Provision Applies. These claims are not covered under this arbitration provision:
Nothing in this arbitration provision prevents You from reporting to or filing a claim or charge with a government agency, including, without limitation, the Equal Employment Opportunity Commission, U.S. Department of Labor, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement authorities. Nothing in this arbitration provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this arbitration provision. This arbitration provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this arbitration provision. Nothing in this arbitration provision prevents or excuses a party from satisfying any conditions precedent or exhausting administrative remedies. The Company will not retaliate against You for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. This arbitration provision also does not prevent or prohibit You from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse.
A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy under applicable law, and any such application will not be deemed incompatible with or waiver of this arbitration provision to arbitrate. The court to which the application is made may consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
Starting the Process. The party bringing the claim must demand arbitration in writing and deliver the written demand by personal delivery or via certified or registered mail, return receipt requested, to the other party. The demand for arbitration must include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. The demand for arbitration must be signed in ink by the party making the demand. Any demand for arbitration by You must be delivered via personal delivery or via certified or registered mail, return receipt requested, to Qwick, Inc., Attn: Legal, 3550 North Goldwater Blvd. #1154, Scottsdale, AZ 85251. You will be given notice of any demand for arbitration by the Company at the last home address You provided to the Company. The Arbitrator will resolve all disputes regarding the timeliness (demands must be made within the applicable limitations period(s)) or propriety of the demand for arbitration.
Cooling Off Period. After a party initiates a claim by making a written demand for arbitration to the other party, neither party will begin the arbitrator-selection process as described below or submit the demand to AAA for thirty (30) days after the demand is made (“Cooling Off Period”). During the Cooling Off Period, the parties may attempt in good faith to resolve the claim. The parties may also mutually agree to extend the Cooling Off Period. During the Cooling Off Period, either party may request an informal meeting to discuss in good faith a potential informal resolution of the dispute, without the need to go forward in an arbitration (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. You and a Company representative must both personally participate; any counsel representing You or the Company also may participate. The requirement of personal participation in an Informal Settlement Conference may be waived only if both You and the Company agree in writing. At the end of the Cooling Off Period or (if an Informal Settlement Conference is timely requested) 30 days after completion of the Informal Settlement Conference, and unless the parties have resolved the claim, the parties will begin the arbitrator-selection process as described below. The demand for arbitration will be submitted to AAA for administration by the party initiating the claim. Unless otherwise prohibited by applicable law, AAA and the Arbitrator are without authority to accept or administer any arbitration demand until the parties have complied with the demand-for-arbitration process and Cooling Off Period, and Informal Settlement Conference, if requested by either party.
Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action and the Arbitrator will have no authority to hear or preside over any such claim (“Class Action Waiver”). The Class Action Waiver will be severable from this arbitration provision if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction—not in arbitration.
There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action and the Arbitrator will have no authority to hear or preside over any such claim (“Collective Action Waiver”). The Collective Action Waiver will be severable from this Arbitration provision if there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction—not in arbitration.
Regardless of anything else in this arbitration provision or the AAA Rules or any amendments or modifications to those rules, any claim that all or part of the Class And Collective Action Waiver, including, but not limited to any claim that all or part of it is invalid, unenforceable, unconscionable, void or voidable, may be determined only by a court of competent jurisdiction and not by an arbitrator.
The Company and You agree to arbitrate claims under the California Private Attorneys General Act (“PAGA”) on an individual basis only. Therefore, any claim by You under PAGA to recover unpaid wages, civil penalties, or any other individual relief must be arbitrated under this arbitration provision. The Company and You also agree Your non-individual PAGA claims will be stayed and You will not pursue any such claims in Court until after the Arbitrator, and not any court, issues a final and written determination as to Your status as an “aggrieved employee.” The Arbitrator is without authority to preside over any PAGA claim by You on behalf of any other person or joined by or consolidated with another person’s PAGA claim. This PAGA Individual Action Requirement clause will be severable from this arbitration provision if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable. In such case, the PAGA action must be litigated in a civil court of competent jurisdiction—not in arbitration—but the portion of the PAGA Individual Action Requirement that is enforceable will be enforced in arbitration.
Arbitration Procedures and Selection. Unless You and the Company mutually agree otherwise, the Arbitrator will be an attorney licensed to practice law in the state in which the arbitration is convened or a retired federal or state judicial officer from any jurisdiction. The location of the arbitration proceeding will be no more than 25 miles from the place and in the same state where You last worked for the Company unless each party to the arbitration agrees in writing otherwise.
The arbitration will be administered by AAA, and except as provided in this arbitration provision, will be under the then current AAA Rules; provided, however, that if there is a conflict between the AAA Rules and this arbitration provision, this arbitration provision will govern.
The parties will attempt to mutually agree on an Arbitrator via direct negotiation. Failing that, the Arbitrator will be selected under the AAA Rules. If AAA will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted to appoint a neutral Arbitrator.
The Arbitrator may award any remedy to which a party is entitled under applicable law, but remedies will be limited to those that would be available to a party in his or her individual capacity for the claims presented to the Arbitrator, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The Arbitrator will apply the substantive federal, state, or local law applicable to the claims asserted. Either party may file dispositive motions, including, without limitation, a motion to dismiss or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure.
Discovery and Subpoenas. Each party may take the deposition of two individual fact witnesses and any expert witness designated by another party. Each party may also propound interrogatories, requests for admission, or requests for production of documents, and each party may subpoena witnesses and documents for discovery or the arbitration hearing, including testimony and documents relevant to the case from third parties. The subpoena will be issued under any state or federal law. Additional discovery may be conducted by mutual stipulation, and the Arbitrator will have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests based on the circumstances of a particular case. The Arbitrator will have exclusive authority to resolve discovery disputes.
Paying For The Arbitration. You and the Company will follow the AAA Rules applicable to initial filing fees, but You will not be responsible for any portion of those fees over the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. After You pay Your portion of any initial filing fee, the Company will pay any remaining portion of the initial fee and also will pay all costs and expenses unique to arbitration, including without limitation the Arbitrator’s fees. Each party will pay for its own costs and attorneys’ fees, if any, but if any party prevails on a claim which affords the prevailing party attorneys’ fees, the Arbitrator may award reasonable fees to the prevailing party as provided by law. The Arbitrator will resolve any disputes regarding costs or fees associated with arbitration.
The Arbitration Hearing And Award. The Arbitrator will issue a reasoned decision or award in writing. A court of competent jurisdiction will have the authority to enter a judgment upon the award made pursuant to the arbitration.
Enforcement Of This Arbitration Provision. You may assent to this arbitration provision by signing it, either in writing or electronically. You may consult with counsel of Your choice about this arbitration provision or any aspect of the arbitration proceeding. This arbitration provision is the full and complete arbitration provision about arbitration of disputes covered by this Arbitration provision and replaces any prior arbitration provisions regarding the arbitration of disputes. Any contractual disclaimers the Company has in any handbooks, other arbitration provisions, or policies do not apply to this arbitration provision. This arbitration provision will survive the termination of Your relationship with Qwick. If any portion of this arbitration provision is deemed unenforceable, the remainder of this Arbitration provision will be enforceable
IN NO EVENT WILL QWICK, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OR OTHER RELATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “QWICK” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE QWICK PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE QWICK PLATFORM OR THIS AGREEMENT, HOWEVER ARISING, INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree that Qwick shall own all right, title and interest (including all intellectual property rights of any sort throughout the world) relating to any and all inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or for or on behalf of You during the term of this Agreement that relate to the subject matter of or arise out of or in connection with the Services or any Proprietary Information (as defined below) (collectively, "Inventions"), and You will promptly disclose and provide all Inventions to Qwick. You hereby make all assignments necessary to accomplish the foregoing ownership, and you agree to assist Qwick, at Qwick’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. You hereby irrevocably designate and appoint Qwick as Your agent and attorney-in-fact, coupled with an interest, to act for and on Your behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by You and all other creators or owners of the applicable Invention.
If any part of the Services or Inventions or information provided hereunder is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights owned by or licensed to You (or any person involved in the Services) and not assigned hereunder, You hereby grant Qwick and its successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and license to exploit and exercise all such technology and intellectual property rights in support of Qwick’s exercise or exploitation of the Services, Inventions, other work or information performed or provided hereunder, or any assigned rights (including any modifications, improvements and derivatives of any of them).
To the extent allowed by law, any license granted Qwick hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights," "artist’s rights," "droit moral," or the like (collectively "Moral Rights"). Furthermore, You agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, Qwick may and is hereby authorized to (and to allow others to) use Your name in connection with promotion of its business, products or services. To the extent any of the foregoing is ineffective under applicable law, You hereby provide any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible and agree not to assert any Moral Rights with respect thereto. You will confirm any such ratifications and consents from time to time as requested by Qwick. If any other person is in any way involved in any Services, You will obtain the foregoing ratifications, consents and authorizations from such person for Qwick’s exclusive benefit.
You agree that all Inventions and all other business, technical and financial information (including, without limitation, the identity of and information relating to Partners or employees of Qwick and/or its Partners) developed, learned or obtained by or on behalf of You during the period that You provide the Services that relate to Qwick or Business Partners, or to the business or demonstrably anticipated business of Qwick or Business Partners, or in connection with the Services or that are received by or for Qwick or any Partner in confidence, constitute “Proprietary Information.” Proprietary information also includes information received in confidence by Qwick from its Partners, suppliers, or other third parties, but shall not include any information to the extent You can document: (a) is or becomes part of the public domain through no action or omission by You; or (b) was possessed by You without an obligation of confidentiality prior to its disclosure under this Agreement.
12.1. You represent, warrant, and covenant that:
12.2. You represent, warrant, and covenant that there exist no actual or potential conflicts of interest concerning the Services to be performed under this Agreement, and that You will advise Qwick at such time as any activity of either Qwick or another business presents You with a conflict of interest or the appearance of a conflict of interest. You agree that in any such circumstance, You will take whatever action is requested by Qwick or Business Partners to resolve any conflict or appearance of conflict which it finds to exist.
13.1 Term. This Agreement is effective as of the date and time you accept it and will continue until terminated by you or us. This Agreement may be terminated as follows: (a) on a date which the Parties have mutually agreed in writing (electronic communication sufficient); (b) by either Party upon thirty (30) days written notice (electronic communication sufficient), and (b) one Party has materially breached this Agreement, immediately upon written notice to the breaching Party (electronic communication sufficient), with such notice specifying the breaching conduct;
13.2 Material Breach. A Material Breach of this Agreement includes but is not strictly limited to the following acts and/or occurrences:
Upon termination of this Agreement, Qwick shall pay You all unpaid and undisputed amounts due for Services completed prior to notice of such termination, and shall retain the full amount of any fee paid to Qwick by any Business Partner in connection with Your Business Partner Engagements. The portions of this Agreement intended to survive termination, including without limitation the Parties’ obligations regarding indemnity, mutual arbitration & dispute resolution, limitation on liability, assignment of invention, and proprietary information & confidentiality shall survive any termination or expiration.
Notwithstanding the foregoing, You agree and accept that, in addition to the Parties’ rights set forth in Section 13.1, Qwick reserves the right to suspend Your Account and/or access to Business Partner Requests based on any acts and/or occurrences by You that Qwick determines, in its sole discretion, constitute a material breach of this Agreement.
This Agreement and the Services contemplated hereunder are personal to You and You shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Qwick. Any attempt to do so shall be void. Qwick may fully assign and transfer this Agreement in whole or part.
All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice. Notices to Qwick shall be sent to 3550 North Goldwater Blvd. #1154 Scottsdale, AZ 85251, with a copy to Legal@Qwick.com.
Any breach of Sections 10 (Intellectual Property Rights), 11 (Proprietary Information & Confidentiality), and/or 12 (Warranties and Other Obligations) will cause irreparable harm to Qwick for which damages would not be an adequate remedy, and therefore, Qwick will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Except for the Mutual Arbitration Provision, which is governed by the FAA, the choice of law for interpretation of this Agreement shall be governed by and construed in accordance with the laws of the State of Arizona without regard to the conflicts of laws provisions thereof. Nothing in this Section, however, shall be construed to create new or additional substantive rights or obligations for the Parties, which otherwise would not be available or applicable to them in their respective place of residence or incorporation.
Except as otherwise set forth in Section 8, if any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. The failure of Qwick to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Qwick in writing.
You understand that pursuant to the federal Defend Trade Secrets Act of 2016, You shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. You further understand that nothing contained in this Agreement limits Your ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to Qwick.
Paragraph titles and headings are provided for reference only and do not affect the substantive provisions of this Agreement.
This Agreement and the documents incorporated herein constitute the entire agreement between the Parties and supersede all previous agreements or representations, written or oral, with respect to the subject matter hereof. You represent and warrant that You are not relying on any statement or representation not contained in this Agreement. To the extent any terms set forth in any exhibit or schedule conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly agreed by the Parties in such exhibit or schedule.
