Effective Date: Date of Acceptance upon clicking “I agree” when signing up to our Account
This User Agreement (this "Agreement") is a contract between you ("you" or "User") and Gigart Solutions Private Limited ("Gigart", “Gigart Solutions”, “QWIRK”, "we", “our” or "us"). You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.qwirk.xyz, all affiliated websites owned and operated by us or our Affiliates (collectively, the "Site"), all processes, procedures, guidelines, services, applications and tools that are accessible through the Site and all QWIRK mobile applications that link to or reference this Agreement ("Site Services"). To the extent permitted by applicable law, QWIRK may amend this Agreement after by posting a revised version on the Site, with due notification. Any revisions to this Agreement will take effect when posted on the Site unless otherwise stated. Your continued use of the Site or the Site Services after the effective date of a revised version of this Agreement constitutes your acceptance of its terms and agreement to be bound by its terms. This Agreement includes and hereby incorporates by reference the agreements and policies linked from https://www.qwirk.xyz or elsewhere on the Site, as such agreements and policies may be modified by QWIRK from time to time in our sole discretion (collectively, the "Terms of Service"). YOU UNDERSTAND THAT THE SITE IS A VENUE WHERE THE MEMBERS USE THE MARKETPLACE AND OUR PLATFORM FOR ONLINE SERVICES. THE USER BECOME MEMBER WHEN THEY OPEN AN ACCOUNT. AS MEMBERS, YOU MAY USE THE DIRECTORY AND OTHER SERVICES TO ADVERTISE, LOCATE, INTRODUCE THEMSELVES TO EACH OTHER, SCREEN AND SELECT EACH OTHER, NEGOTIATE THE TERMS OF ENGAGEMENT. ONCE THE TERMS OF ENGAGEMENT ARE FINLISED AND EXECUTED BETWEEN THE MEMBERS, THE MEMBERS USE THE SITE TO COLLABORATE, COMMUNICATE ABOUT AND INVOICE AND PAY FOR THE ENGAGEMENT. YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT ENTITY.
"Affiliate" means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Gigart.
"Client" means any authorized User utilizing the Site to request Freelancer Services to be performed by a Freelancer. From time to time, Gigart may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to Gigart when Gigart acts in this way.
"Client Documents" means documents, instructions, requests, intellectual property, and any other information or materials that a Freelancer receives from a Client for a particular Service Contract.
"Confidential Information" means Client Documents, Freelancer Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information 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 requested by Client for such Service Contract.
"Freelancer" means any authorized User utilizing the Site to offer Services to Clients. A Freelancer User is also a customer of Gigart with respect to use of the Site and the limited Site services.
"Freelancer Deliverables" means documents, instructions, requests, intellectual property, and any other information or materials that a Client receives from a Freelancer for a particular Service Contract.
"Freelancer Fees" means: (a) for a Fixed-Price Contract, fixed fee agreed between a Client and a Freelancer; and (b) any bonuses paid or other payments made by a Client for a Service Contract.
"Freelancer Services" means all services performed for or delivered to Clients by Freelancers.
"Job" means Freelancer Services that a Freelancer agrees to provide to a Client. This term does not imply an employment relationship and is not to be interpreted in that manner.
"Payment Method" means payment through a valid credit card issued by a bank acceptable to Gigart or direct bank transfer or such other method of payment as Gigart may accept from time to time in our sole discretion.
"Proprietary Rights" means any and all rights, title, ownership, and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
"Service Contract" means the contractual provisions accepted by both a Client and a Freelancer governing the Services to be performed by a Freelancer for Client.
"Site Services" means all services that are accessible through the site.
"Work Product" means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services on a particular Service Contract, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
"User Content" means any data, feedback, reviews, information, content, text, video, music, or other information that you post to any part of the Site.
1. DIGITAL SIGNATURE
2.1 Your Consent and Your Right to Withdraw Consent
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under this Agreement that we would otherwise be required to provide to you in paper form. To facilitate better use of the Site, you give us permission to provide these records to you either electronically and/or instead of in paper form. However, we reserve the right, in our sole discretion, to communicate with you via postal service, fax and other third-party mail services using the address under which your account is registered. You should retain a copy of all of the records and notices we send to you electronically.
2.2 You Must Keep Your Email Address Current With Us
In order to ensure that we are able to provide records and notices to you electronically, you must notify us of any change in your email address by updating your Account information on the Site or by contacting Customer Support at email@example.com.
2.3 Hardware and Software You Will Need
To access and retain the records and notices we provide to you electronically, you must have: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac environment or better; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By "Current Version," we mean a version of the software that is currently being supported by its publisher.
3.1 Account Eligibility
To use certain Site Services, you must register for an Account. If you accept and/or bid on any independent contractor work, you must have, and represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity). To register for an Account, you must be and represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, you agree to: (a) be financially responsible for your use of the Site and the purchase and/or delivery of Freelancer Services; and (c) perform your obligations as specified by any Service Contract that you accept, unless such obligations are prohibited by applicable law or this Agreement. Gigart reserves the right, in our sole discretion, to refuse, suspend, or terminate your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or otherwise violates this Agreement, or for any other reason or no reason in Gigart's sole discretion.
You agree that you are not a citizen or resident of a geographic area in which access or use of the Site is prohibited by applicable law, decree, regulation, treaty, or .
3.2 Account Registration
You agree to provide true, accurate, and complete information on 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 must not provide misleading information about your location. You must not register for more than one Client Account and/or one Freelancer Account without express written permission from us.
3.3 Identity Verification
When you register for an Account and from time to time thereafter, your Account may be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, and a clearance from third-part verification service providers. The verification report for the Freelancer may include information regarding character, reputation, personal characteristics, Education (Authentication of acquired or pursuing Degrees/Diplomas); Employment history; Credit history; Court records, including criminal verification records as permitted by law; National Identity Verification; Drug Test; Finger Print Verification; Address Verification ,references from professional and personal associates as maybe applicable and any other check as found relevant for the profile. You authorize Gigart, directly or through third parties, to make any inquiries necessary to validate the above-mentioned details, subject to applicable law. Failure to provide us information about you and your business when requested is a violation of this Agreement.
3.4 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 Account username and password. You authorize vesting agreement 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 reset your password immediately if you suspect or become aware of any unauthorized use of your Account. If you need support, you may contact Customer Support at firstname.lastname@example.org.
3.5 Feedback and Ratings
Gigart encourages you to leave objective balanced feedback about Users with whom you have transacted. You acknowledge and agree that the Site contains public feedback from Users with whom you have transacted. You acknowledge that feedback results for you may consist of comments and ratings left by other Users and that Gigart may calculate a composite feedback number based on these individual ratings. Freelancers and clients agree to be rated by each other along several criteria, as determined by Gigart. Gigart provides its feedback and rating system as a means through which Users can express their opinions publicly, and Gigart does not monitor or censor these opinions or investigate any remarks posted by Users for accuracy or reliability unless a User brings the posting to Gigart 's attention. You agree to act responsibly and give constructive feedback – not violate any laws, and refer to gender, caste, age, religion or any other stereotypes / demographic attributes of the users You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if a court finds that your remarks are legally actionable or defamatory. Gigart is not responsible for any feedback or comments posted or made available on this Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable.
4. PURPOSE OF THE SITE AND SITE SERVICES
The Site is a marketplace where Clients and Freelancers can identify each other and buy and sell Freelancer Services online. Subject to the terms of this Agreement, Gigart provides the Site Services to Clients and Freelancers, including hosting and maintaining the Site, enabling the formation of Service Contracts, and managing disputes related to those Service Contracts. If a Client and Freelancer agree on terms of the Freelancer Services, a Service Contract is formed directly between such Client and Freelancer, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and Freelancer). When Client and Freelancer enter a Service Contract, they use the Site to deploy, manage, and pay online. Gigart has no role in managing the services rendered by the Freelancer, communications between Users, and has no oversight or control on the services rendered by the Freelancer.
A separate account will be created to receive money from Clients and the funds paid by the Client will be held in this account. Freelancer fees will be remitted to Freelancer upon successful completion of the Job to Clients’ satisfaction. Charges, if any, to Clients for use of Site Services will be remitted to Gigart. The funds payable to Freelancer will be net of the service charges due to Gigart (Refer clause 6.1).
5. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
5.1 Service Contracts
Client and Freelancer acknowledge and agree that when Freelancer accepts a Job awarded by Client, Client and Freelancer will be deemed to have entered into a "Service Contract" with each other that is comprised of the following agreements (as applicable): (1) The Fixed Price Contract; (2) the Job terms awarded and accepted on the Site to the extent that the terms do not purport to expand Gigart's obligations or restrict Gigart 's rights under this Agreement; and (3) any other contractual provisions accepted by both Client and Freelancer, to the extent that the provisions do not purport to expand Gigart 's obligations or restrict Gigart's rights under this Agreement. You acknowledge and agree that the formation of a Service Contract between Client and Freelancer does not, under any circumstance, create an employment relationship between Gigart and the Freelancer or a principal-agent relationship between the Client and Gigart.
5.2 Freelancer Representations and Warranties
For the purposes of the Service Contract, Freelancer hereby represents and warrants that (a) the Work Product will be an original work of Freelancer; (b) the Work Product will fully conform to the requirements and terms set forth in the Service Contract, including agreements / expectations based on Standard Operating Procedures (SOPs) or additional expectations of the client discussed between the Freelancer and Client; (c) neither the Work Product nor any element thereof will infringe or misappropriate the Proprietary Rights of any third party; (d) neither the Work Product nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances; (e) Freelancer will not grant, directly or indirectly, any rights or interest whatsoever in the Work Product to the third parties; (f) Freelancer has full right and power to enter into and perform the Service Contract without the consent of any third party or under applicable law; (g) Freelancer has an unqualified right to grant the license to all Background Technology as set forth in the section titled “License to Background Technology”; and (h) Freelancer will comply with all laws and regulations applicable to Freelancer’s obligations under the Service Contract.
6. PAYMENT TERMS
6.1 Service Fee
Freelancer agrees that when a Client pays a Freelancer or funds related to a Job are otherwise released to a Freelancer, Gigart will first deduct a Site Services fee for creating, hosting, maintaining, and providing the Site Services and then credit the balance into the Freelancer’s Account. The applicable Site Service fees will be published in the FAQ section of the website and kept current at all times. Client and a Freelancer are obligated to use the Site to pay and receive payment for Freelancer Services if they identified each other through the Site, as detailed in Section 7 titled "Exclusivity and Non-Circumvention," below.
You understand that use of the services may result in charges to you for the services you receive “Site Service fees”. After you have received services obtained through your use of the service, Gigart will facilitate your payment of the applicable charges on behalf of the third party (including Freelancer) as such third party provider’s limited payment collection agent. Payment of the charges in such manner shall be considered the same as payment made directly by you to the third party provider. Gigart shall charge you applicable Site Service Fees for any additional services provided by Gigart. The fee may be charged at the time of booking of services on the platform or upon completion of service. Such charges and fee will be inclusive of applicable taxes where required by law.
6.2 Membership Fees
Gigart reserves the right to introduce a new component in, or convert any present component of, the Site Service into a paid service and introduce a subscription based mechanism. Gigart shall ensure that before implementing the subscription based services, the existing Users shall be notified in advance.
6.3 Disbursements to Freelancers
Gigart disburses funds that are payable to Freelancer under the Service Contract for the Job (less any applicable service fees and Tax Deductible at Source (TDS)) in accordance with the Freelancer's payment instructions provided to Gigart within thirty days after the Freelancer Fees are due and payable from Client. Freelancer agrees that it will not receive interest or other earnings on the funds held by Gigart prior to disbursement to Freelancer. Freelancer acknowledges that Payment Gateway may deduct fees according to applicable rates for collecting and remitting the money to the Freelancers Account as per the payment method chosen by the Freelancer.
Notwithstanding any other provision of this Agreement, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the Site or this Agreement, we may hold the disbursement of the Freelancer Fees. Additionally, we may hold the disbursement of the Freelancer Fees if: (a) we or our payment gateways require additional information, such as Freelancer's government-issued identification, address, or date of birth, (b) we have reason to believe the Freelancer Fees may be subject to dispute or chargeback, (c) we suspect fraud, (d) we believe there are reasonable grounds for insecurity with respect to the performance of Freelancer's obligations under a Service Contract, this Agreement, or other Terms of Service, or (e) we deem necessary in connection with any investigation; or (f) required by applicable law.
If Client fails to pay the Freelancer Fees or any other amounts due under this Agreement, whether by cancelling Client's credit or debit card, initiating an improper chargeback, or any other means, Gigart may suspend or terminate Client's Account, the processing of any additional payments, and any Freelancer Services in progress.
Without limiting other available remedies, Client must pay Gigart upon demand for amounts owed under this Agreement, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys' fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, Gigart, at our discretion, may set off amounts due against other amounts received from or held by Gigart, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
6.5 No Return / Partial refund of Funds
Client acknowledges and agrees that Gigart will charge Client's designated Payment Method for the Freelancer Fees for Fixed-Price Contracts, upon Client’s acceptance of the Freelancer Services. Therefore, and in consideration of the Site Services provided by Gigart, Client agrees that once Gigart charges Client's designated Payment Method for the Freelancer Fees as provided in this Agreement, the charge is non-refundable, except as otherwise required by applicable law or the Freelancer terminates the Service Contract. Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Freelancer Fees or other Fees charged pursuant to this Agreement for any reason. A chargeback in breach of the foregoing obligation is a material breach of this Agreement. If Client initiates a chargeback in violation of this Agreement, Client agrees that Gigart shall be entitled to the full amount that has been improperly charged back plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys' fees and other costs of collection to the extent permitted by applicable law. It is hereby clarified that only in the event the Freelancer terminates the Service Contract before completing the Job, the Client shall be entitled to a refund a pro-rata share of Freelancer Fees which shall include, but not limited to, fees for the portion of the work not done and proportionate share of Gigart’s service fees.
6.6 Formal Invoices and Taxes
Invoices: Gigart shall provide the facility for issuing Freelancer invoices to the Clients, which will be automatically generated from the platform. In addition, Gigart will separately invoice its charges directly to the Clients and /or the Freelancers.
Income Tax: Gigart shall have no responsibility for determining the necessity of or for determining, remitting, or withholding any taxes applicable to the Freelancer Fees on behalf of the Clients. As an ecommerce platform operator Gigart will discharge its obligations to deduct tax while remitting the payment to the Freelancers in accordance with the applicable law.
Indirect Tax: Gigart shall have no responsibility to determining the necessity of or for determining, collecting or remitting GST on behalf of the Freelancers. The Freelancers will be responsible for discharging their applicable GST obligtions where relevant. To the limited extent of Gigart’s Service fees to be charged to Clients and / or Freelancers, Gigart shall discharge the responsibility towards GST obligations.
6.7 Payment Methods
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Gigart to run necessary authorizations on the Payment Method provided by Client, to store such details as Client's method of payment for Services, and to charge such Payment Method in accordance with the terms of this Agreement.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information to us; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client's use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement cannot be collected from Client's Payment Method(s), Client is solely responsible for paying such amounts by other means. We reserve the right to seek reimbursement from you, and you will reimburse us, if we discover erroneous or duplicate transactions or we receive a chargeback from your Payment Method for any reason. You agree that we have the right to obtain such reimbursement by deducting amounts from future payments or withdrawals, charging your Payment Method(s), or obtaining reimbursement from you by any other lawful means. Without limiting any of our other rights or remedies, we may also charge interest as per Clause 6.6 and/or terminate your Account immediately upon your failure to reimburse us for chargebacks or other amounts owed under this Agreement.
7. EXCLUSIVITY AND NON-CIRCUMVENTION
You acknowledge and agree that a substantial portion of the compensation Gigart receives for making the Site available to you is collected as a Service Fee described in the foregoing subsection titled "Service Fee". The “Service Fee” does not include reimbursements of travel or any other incidental expenses. Gigart only deducts this Service Fee when a Client pays and a Freelancer receives payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site (the "Exclusivity Period"), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the "Gigart Relationship").
Non-Circumvention. You agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
i. Submit proposals or solicit parties identified through the Site to contact, hire, manage, or pay outside the Site.
ii. Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
iii. Invoice or report on the Site an amount lower than that actually agreed between Client and Freelancer.
You agree to notify Gigart immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention policy, please submit a confidential report to Gigart by sending an email message to us at Customer Support on email@example.com.
8. SERVICE CONTRACT TERMS BETWEEN CLIENT AND FREELANCER
Unless otherwise agreed to in writing signed by both Client and Freelancer and except for Service Contracts classified as employment relationships, the terms and conditions of the Service Contract that a Freelancer enters directly with a Client when the Freelancer agrees to provide Services to the Client are as set forth in this Section. Client and Freelancer may not agree to any other terms and conditions that affect the rights or responsibilities of Gigart. Gigart is not a party to any Service Contract between Users, except as a Third-Party Beneficiary as described further below.
Freelancer shall perform the Freelancer Services in a professional manner and shall timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services shall be determined and controlled by Freelancer. The training content and associated documents like Standard Operating Procedures (SOPs) / checklists / templates, and community support through blogs are only reference materials to perform standardised tasks. The specific deliverables have to be agreed to by and between the Freelancer and the client.
Freelancer agrees that Gigart is not an Agent of you and doesn’t represent your services on your behalf, and hence acknowledge that you or people you represent are not employees of Gigart or the Client. As between Gigart and Freelancer, Freelancer agrees that Gigart has no responsibility for any wages, costs, unemployment insurance, compensation insurance, and expenses of Independent Contractor’s employees and subcontractors and that Gigart has no obligation to supervise and control them.
8.3 Termination of a Service Contract
For Fixed-Price Contracts, Client may terminate at any time but may not recover any payments already made or due, and Freelancer may terminate at any time before Gigart charges Client's Payment Method for any Freelancer Fees. If Gigart has charged Client's Payment Method, Freelancer may terminate the Fixed-Price Contract only with Client's consent. In cases where a partial payment is made to the Freelancer Gigart shall be eligible for its share of fees proportionate to such payment.
8.4 Intellectual Property Rights
8.4.1 Background Technology
The Freelancer will disclose in the Job terms any Background Technology which Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Freelancer discloses no Background Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Freelancer will separately provide, with each delivery of Work Product to Client, a third-party bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified,
(a)the name and any associated version number (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Job terms, Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
8.4.2 License to Background Technology
Upon Freelancer's receipt of payment from Client, Freelancer hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product.
8.4.3 Client Materials
Client grants Freelancer a limited, non-exclusive, revocable (at any time, at Client's sole discretion) right to use the Client Materials as necessary solely for the performance of the Freelancer Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client's written request, Freelancer shall immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Freelancer's premises, systems, or any other equipment or location otherwise under Freelancer's control. Within ten days of such request from Client, Freelancer agrees to provide written certification to Client that Freelancer has returned or destroyed all Client Materials and Work Product as provided in this subsection.
Client property, including all information that the Freelancer had access to, shall not be copied or reproduced in any other manner, without prior written consent from Clients. Freelancer further agrees that all such information shall be treated as exclusive property of the Client and shall return all of them to the Client. Additionally, the Freelancer understands that any misuse or unauthorised use or misrepresentation can result in financial crime and further agrees to indemnify all costs to the Client for any losses from such a misuse. The Freelancer agrees to abide by this clause irrespective of whether the client denies payment or claims a refund for the same. From the client’s side, the client agrees to exercise adequate controls to review the materials handed over to the Freelancer, and agrees to not include Gigart in the event of any dispute or legal charges.
8.4.4 Ownership of Work Product and Intellectual Property
Upon Freelancer's receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer's receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client's ownership in, such Intellectual Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product.
8.4.5 License to or Waiver of Other Rights
If Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Freelancer, Freelancer hereby automatically, upon Freelancer's receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Freelancer has any rights to such Work Product that cannot be assigned or licensed, Freelancer hereby automatically, upon Freelancer's receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client's customers, with respect to such rights, and will, at Client's request and expense, consent to and join in any action to enforce such rights.
Freelancer will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Freelancer's signature on any document needed in connection with the foregoing, Freelancer hereby designates and appoints Client and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Freelancer.
8.5 Worker Classification
Client assumes all liability for determining whether Freelancers are independent contractors or employees; Gigart disclaims any liability for such determination. This Agreement does not create a partnership or agency or employment relationship between Client and Freelancer. Freelancer does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Client. Service Contracts are classified as independent contractor relationships, and hence Client may not require an exclusive relationship between Client and Freelancer. A Freelancer classified as independent contractor is free at all times to provide Freelancer Services to persons or businesses other than Client, including any competitor of Client.
9. RECORDS OF COMPLIANCE
Client and Freelancer will each (1) create and maintain records to document satisfaction of their respective obligations under this Agreement and any Service Contract, including, without limitation, their respective payment obligations and compliance with tax and contracting laws, and (2) provide copies of such records to Gigart upon request. Nothing in this subsection shall be construed as requiring Gigart to supervise or monitor Freelancer Services or a User's compliance with this Agreement, the other Terms of Service, or a Service Contract.
10. RELATIONSHIP WITH GIGART
Gigart shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by you or other Users. Gigart is not a party to the dealings between Client and Freelancer, including posts, proposals, screening selection, contracting, and performance of Freelancer Services. Gigart does not introduce Freelancers to Clients or obligated to Freelancers help find jobs. Gigart merely makes the Site Services available to enable Freelancers to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Freelancers for themselves. Gigart does not, in any way, supervise, direct, or control Freelancer or Freelancer's work. Gigart does not set Freelancer's work hours, work schedules, or location of work. Gigart will not provide Freelancer with training or any equipment, labor, or materials needed for a particular Service Contract. Gigart does not provide the premises at which the Freelancer will perform the work. Gigart makes no representations about, and does not guarantee the quality, safety, or legality of, the Freelancer Services; the truth or accuracy of Freelancer's listings on the Site; the qualifications, verification by third-party verification agency on background, or identities of Users; the ability of Freelancers to deliver the Freelancer Services; the ability of Clients to pay for the Freelancer Services; or that a Client or Freelancer can or will actually complete a transaction.
Gigart is not required to and may not verify any feedback or information given to us by Freelancers or Clients. Gigart may select and engage a third-party verification agency to perform background checks on Freelancers or Clients, as required.
You hereby acknowledge and agree that Gigart may provide information about a Freelancer or Client, such as feedback, a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Freelancer or Client submits to Gigart, and Gigart provides such information solely for the convenience of Users and is not an introduction, endorsement, or recommendation by Gigart.
The user, if a holder of a Certificate of Practice from ICAI, would agree not to pose themselves as a Freelancer and use the site services to win business or share their human resources on this site to earn income.
11. THIRD-PARTY BENEFICIARY
Client and Freelancer acknowledge and agree that the value, reputation, and goodwill of the Site depend on their performance of their covenants and agreements in their Service Contract. Client and Freelancer therefore appoint Gigart as a third-party beneficiary of their Service Contracts for purposes of enforcing the obligations owed to, and the benefits conferred on, Gigart by the Service Contracts. Client and Freelancer further agree that Gigart has the right to take such actions with respect to the Service Contracts or their Accounts, including, without limitation, suspension, termination, or legal actions, as Gigart, in our sole discretion, deems necessary to enforce our rights as a third party beneficiary under the Service Contract.
Service Contracts shall be governed by Sections 14 (Confidential Information), 19 (Disputes), 20 (General), and (Definitions) of this Agreement, as applicable, either directly or by way of analogy.
13. LICENSES AND THIRD-PARTY CONTENT
13.1 Site License and Proprietary Rights
Subject to and conditioned on your compliance with this Agreement and Terms of Service, Gigart grants you a limited license to access and, if you have created an Account, to use the Site for the purpose using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than Freelancer Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without Gigart 's prior written consent. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing. You must not frame or link to the Site or Site Services except as permitted in writing by Gigart. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. The Site or any portion of the Site may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose that is not expressly permitted by us. You shall not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. Gigart and our licensors retain all right, title, and interest in and to all Proprietary Rights related in and to the Site and the Site Services. Gigart logos and name are trademarks of Gigart and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of Gigart's or any third party's Proprietary Rights, whether by estoppel, implication, or otherwise.
13.2 User Content License
When you post User Content on the Site or through the Site Services, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by posting such User Content you will not violate third-party rights of any kind, including, without limitation, any Proprietary Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that Gigart may exercise the rights to your User Content granted under this Agreement without any liability or obligation for any payment.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant Gigart and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, "Ideas"). By submitting any Ideas, you agree that: (a) your disclosure is gratuitous, unsolicited, and without restriction and will not place Gigart under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, Gigart does not waive any rights to use similar or related ideas known or developed by Gigart or obtained from sources other than you.
13.3 Unauthorized Access and Use; Site Interference; Malicious Software
The Site contains robot exclusion headers. You will not access the Site for any illegal purpose including, without limitation,: (a) not take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site's infrastructure; (b) not copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, without the prior express written permission of Gigart and/or the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) transmit spam, chain letters, or other unsolicited communications; (f) collect or harvest any personally identifiable information, including Account names, from the Site; (g) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or to solicit other Users for other websites, products, or services.
You agree not to use personal details like address gained from the use of the site, either directly or indirectly, to intimidate, harass, including sexual harassment, stalk or threaten. Further the user agrees to not engage in the above mentioned activities by leveraging internal / external blog or other sources / social media sites etc. Users will be mindful of their actions and desist from any that can hurt sentiments, promote political views points, sexually harass or make innuendos or send pornographic materials or dominate others or make flirtatious suggestions.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of Gigart or any third party.
13.4 Third-Party Verification and Monitoring
The Site makes available various services provided by third parties to verify a User's credentials, providing testing services and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of Gigart. Gigart neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Gigart 's authorized employees acting in their official capacities.
13.5 Links and Applications
The Site may contain links to third-party websites. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites will be governed by the terms and policies of the applicable third-party websites. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an "as is" and "as available" basis without any warranty for any purpose.
13.6 Mobile and Other Devices
When using our mobile applications, please be aware that your carrier's normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates shall be subject to the terms of this Agreement, unless otherwise provided in terms associated with such Update. Gigart reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree Gigart will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
14. CONFIDENTIAL INFORMATION
To the extent a Client or Freelancer provides Confidential Information to the other, the recipient shall 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, and shall: (a) not disclose or permit others to disclose another's Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another's Confidential Information, except as necessary for the performance of Freelancer Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Freelancer); and (c) limit access to another's Confidential Information to its personnel who need to know such information for the performance of Freelancer Services for the relevant Service Contract.
If and when Confidential Information is no longer needed for the performance of the Freelancer Services for a Services Contract or at Client's or Freelancer's written request (which may be made at any time at Client's or Freelancer's sole discretion), the party that received Confidential Information, shall, at its expense, 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. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party's written request for such certification.
Without limiting subsection 14.1 (Confidentiality), Client, Freelancer, and Gigart shall not publish, or cause to be published, any other party's Confidential Information or Work Product, except as may be necessary for performance of Freelancer Services for a Services Contract.
15. LIMITATION OF LIABILITY
Gigart is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
a. your use of or your inability to use our Site or Site Services;
b. delays or disruptions in our Site or Site Services;
c. viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
d. glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
e. damage to your hardware device from the use of the Site or Site Services;
f. the content, actions, or inactions of third parties' use of the Site or Site Services;
g. a suspension or other action taken with respect to your account;
h. your reliance on the quality, accuracy, or reliability of Job postings, Freelancer profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site.
i. your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL GIGART, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF GIGART, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE SERVICE FEES RETAINED BY GIGART UNDER THE SERVICE CONTRACTS DURING THE SIX-MONTH PERIOD FOR A SPECIFIC SERVICE / TASK PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
In addition to the recognition that Gigart is not a party to any Service Contract, you hereby release Gigart, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees 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. 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.
This release shall not apply to a claim that Gigart failed to meet our obligations under this Agreement.
You shall indemnify, defend, and hold harmless Gigart, our Affiliates, and our respective directors, officers, employees, representatives and agents (each an "Indemnified Party") from and against any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any cause of action, claim, suit, proceeding, demand, or action brought by you or a third party against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred or decision to supply credit or other information through use of the Site Services, including financial information; (b) decision to submit postings and accept offers from Users or Clients, any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor; the classification of Gigart as an employer or joint employer of Freelancer; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with this Agreement by you or your agents; (d) breach of any provision of this Agreement or the other Terms of Service; (e) dispute of or failure to pay any invoice of make any other payment; (f) obligations to a Freelancer, including payment obligations; (g) any breach of contract or other claims made by Users with which you conducted business through the Site; (h) any liability arising from the tax treatment of payments made or received through the Site Services or any portion thereof; (i) failure to comply with applicable law by you or your agents; (j) negligence, willful misconduct, or fraud by you or your agents; and (k) defamation, libel, violation of privacy rights, unfair competition, or infringement of Proprietary Rights or allegations thereof to the extent caused by you or your agents, including any Work Product provided by you or your agents. The foregoing indemnity will include, without limitation, such cause of action, claim, suit, proceeding, demand or action arising out of the negligence or willful misconduct of an Indemnified Party.
18. TERM, TERMINATION AND CONSEQUENCES
18.1 Term and Termination
This Agreement will become effective on the date first mentioned herein above and will remain in effect for the duration of your use of the Site. Unless both you and Gigart agree otherwise in writing, either of us may terminate the contract represented by this Agreement in our sole discretion, at any time, without explanation, upon written notice.
Except as otherwise required by applicable law, we will notify you if we terminate your Account, unless we believe, in our sole judgment, that giving notice may cause damage. 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 GIGART SUSPENDS OR TERMINATES YOUR ACCOUNT OR ANY RELATED SERVICE CONTRACTS, GIGART HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR TERMINATED ACCOUNT STATUS, AND (B) PROVIDE THOSE MEMBERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR TERMINATION.
18.2 Consequences of Termination
In the event you properly terminate this Agreement, your right to use the Site, Account and other privileges are automatically terminated; however, (i) if you have any open Jobs when you terminate this Agreement you will continue to be bound by this Agreement until all such Jobs have closed; (ii) Gigart will continue to perform those Services necessary to complete any open Job or related transaction between you and another User; and (iii) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Jobs, whichever is later, to Gigart for any Site Services and to any Freelancers for any Freelancer Services. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or Gigart 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. Those Site Policies necessary to implement the foregoing survive termination of this Agreement for any reason.
Without limiting Gigart's other remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed to Gigart or our Affiliates under this Agreement, you must pay Gigart for all fees owed to Gigart and our Affiliates and reimburse Gigart for all losses and costs (including any and all time of Gigart's employees) and reasonable expenses (including attorneys' fees) related to investigating such breach and collecting such fees. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
Those terms that by their nature are intended to survive this Agreement shall survive this Agreement.
19.1 Dispute Resolution Process
If a dispute arises between Client and Freelancer under their respective Service Contract, Client and Freelancer shall refer the dispute to Gigart for non-binding mediation. Client and Freelancer agree to take best efforts to co-operate with Gigart and resolve the dispute within 15 days from the date the dispute is referred to Gigart. In the event of a dispute, the funds allocated towards the project are frozen till the time the dispute is not resolved. In the event, the Client or Freelancer does not agree with the resolution provided by Gigart, they shall refer the dispute to be resolved by a binding arbitration. The arbitration shall be conducted by a sole arbitrator to be appointed by the Courts of India. The arbitration shall be conducted in Chennai in accordance with the terms of the Arbitration Rules which are incorporated herein by way of reference.
If a dispute arises between you and Gigart or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Gigart, and our Affiliates agree to resolve any claim or controversy at law or equity that arise out of or relate to this Agreement or the Site Services (each, a "Claim") by referring the Claim to binding arbitration. The arbitration shall be conducted as per applicable laws. The arbitration shall be conducted in Chennai in accordance with the terms of the applicable Arbitration Rules which are incorporated herein by way of reference.
19.2 Choice of Law and Forum for Disputes
Subject to arbitration, this Agreement including without limitation any dispute relating to a Service Contract, shall be governed by and construed in accordance with the laws of the India, without regard to its conflict of law provisions and the Courts of Chennai shall have the sole jurisdiction in this regard. Parties hereby agree to expressly exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods hereby.
Economic and trade sanctions are administered by India government from time to time. Certain sanction programs broadly prohibit most transactions with person located in embargoed country. These includes sanctions against countries like Iran, Iraq, North Korea, Syria, Sudan, Cuba, Cote D’lvoire (Ivory Coast), Democratic Republic of Congo, Liberia and Zimbabwe. Pursuant to these sanctions, Gigart does not work with any Client or Freelancer from these sanctioned countries and reserves the right to refuse providing Site Services to Clients and Freelancers from such sanctioned countries.
20.1 Entire Agreement
This Agreement, together with the other Terms of Service, if any, and any other legal notices and agreements published by Gigart on the Site, sets forth the entire agreement and understanding between you and Gigart 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 this Agreement are included for ease of reference only and have no binding effect. Even though Gigart drafted this Agreement, you represent that you had ample time to review and decide whether to agree to the terms of this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof shall arise favoring or disfavoring you or Gigart because of the authorship of any provision of this Agreement.
20.2 Side Agreements
Notwithstanding subsection 20.1 (Entire Agreement), Clients and Freelancers may enter into any supplemental or other written agreements or e-mail exchanges that they deem appropriate (e.g., confidentiality agreements, work for hire agreements, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand Gigart's obligations or restrict Gigart's rights under this Agreement.
20.3Notwithstanding subsection 20.1 Gigart may enter into written agreements with Clients, the provisions of which shall supersede this user agreement except to the extent otherwise specified.
User shall not violate any applicable foreign, central, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties' Proprietary Rights.
No modification or amendment to this Agreement shall be binding upon Gigart unless in a written instrument signed by a duly authorized representative of Gigart. For the purposes of this subsection, a written instrument shall expressly include electronic communications, such as email and electronic notices.
20.5 No Waiver
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without Gigart's prior written consent in the form of a written instrument signed by a duly authorized representative of Gigart (and, for the purposes of this subsection, a written instrument shall expressly include electronic communications such as email and electronic notices). Gigart may freely assign this Agreement without User's consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall 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 shall 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.
20.8 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 due to labour disturbances, political events, pandemics, accidents, fires, floods, acts of God, pandemic, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an Event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Contract shall terminate.
20.9 Prevailing Language and Location
The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
20.10 Communications from you to Gigart
All notices to Gigart or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Gigart Solutions Private Limited, A-201, A-Block, Bhagyam Sahridaya, Chennai TN 600004; or (c) in writing via email to firstname.lastname@example.org. All such notices are deemed effective upon documented receipt by Gigart.
21. CONTACTING US
If you have questions or need assistance, please contact Customer Support at email@example.com
22. PROPRIETARY SERVICES
a. Description: Gigart Proprietary Services are those services provided directly by Gigart to the Client in the capacity of a Services Provider i.e. in such cases Gigart will not merely be a Marketplace Provider but it itself will be the Service Provider. Gigart may add various such proprietary services on the website from time to time.
b. Charges: With effect from the date of this amendment, Gigart may at its sole discretion, having regard to the tenure, nature and kind of association of Client with Gigart charge such fees as may have been mentioned in the quotation to the User prior to them availing such services. Gigart Proprietary Services may be taxable and wherever applicable, Gigart will issue a tax invoice after it receives the payment.
c. Relationship: To the limited extent of the proprietary services Gigart and User shall have a direct service relationship. All other deliverables shall be continued to be governed by the Service Contract, between the Freelancer and the Client.