GoSource TERMS AND CONDITIONS
In these terms and conditions, “we” “us” and “our” refers to GoSource Pty Ltd, Trading as GoSource. Your access to and use of all information on this website including purchase of our service/s is provided subject to the following terms and conditions.
We reserve the right to amend this Notice at any time and your use of the website following any amendments will represent your agreement to be bound by these terms and conditions as amended. We therefore recommend that each time you access our website you read these terms and conditions.
1. THE GOSOURCE PLATFORM.
1.1 Purpose of the GoSource Platform.
The GoSource Platform is a multisourcing capability. It enables Users to assemble a Virtual Team of local/in-house staff with external IT experts from anywhere around the globe, and manage that team’s construction activity on a locally hosted cloud environment.
1.2 GoSource Services
GoSource provides the following services to clients:
- Crowd sourcing of contractors from the global resource pool.
- Sourcing of local architects to act as GoSource project assurers.
- Provision of a hosted Application Lifecycle Management (ALM) platform
- Provision of pyhsical server infrastructure hosted in Australia
All services are available on-demand in hourly increments, priced by the hour and billed weekly. Customers can request fixed price contracts, billed on successful completion of agreed milestones.
1.3 GoSource Roles
These Terms and Conditions reference the following user Roles:
- Contractor : A skilled resource hired by a GoSource customer from our global resource pool.
- Assurer : A local (Australian) IT Architect appointed by a GoSource customer to translate customer requirements into a solution outline and to manage the quality of contractor work.
- Customer : A user that has requested a GoSource service and has a validated payment method.
2. GOSOURCE POLICIES
2.1 GoSource Fee. GoSource charges fees for Contractors, Infrastructure and it’s Application Lifecycle Platform.
2.2 General User Obligations. GoSource has created a marketplace to connect Clients and Contractors using the GoSource Platform. GoSource expects a consistent and high level of courtesy, respect and professionalism from all of its Users toward each other. Users agree to use good judgment when posting information, comments, feedback or other content regarding other Users, GoSource or any third party anywhere within the GoSource Platform. Users may be held legally responsible for damages suffered by other Users, GoSource or any third party as a result of legally actionable or defamatory comments, remarks, or other information or content posted to the GoSource Platform. All Clients and Contractors are to comply with all laws applicable to them or to their activities, and with all posted GoSource Policies, which are hereby incorporated into this Agreement by reference. These policies may be modified from time to time at GoSource’s discretion, and the currently effective policies will be deemed to be part of this Agreement.
You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services.
Under federal law, GoSource is not legally responsible for any remarks, information or other content posted or made available on the GoSource Platform by any User or third party, even if such information or content is defamatory or otherwise legally actionable. GoSource is not responsible for and does not monitor or censor content for accuracy or reliability. However, GoSource reserves the right to remove or restrict access to any information or content posted or made available on the GoSource Platform if ordered to do so by a government authority or if GoSource considers such information or content to be in violation of this Agreement.
2.3 Identity and Account Security. All identity information associated with an GoSource User account must be real and verifiable. Each GoSource User account must be used by only one person, and each person is allowed to use only one User account. GoSource reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User’s identity. You authorize GoSource, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial instruments. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User’s GoSource account password. User agrees not to disclose this password to any third party and shall be solely responsible for any use of or action taken through the use of such password on GoSource. You must notify GoSource Support immediately if you suspect that your password has been lost or stolen. By using your GoSource User account, you acknowledge and agree the GoSource’s account security procedures are commercially reasonable. You may not allow third parties to use this password to perform any action, including but not limited to, posting jobs, bidding for or performing Services under your GoSource User account, except through an authorized GoSource API.
2.4 Creating Projects and Profiles
2.4.1 Creating a Project.
All projects created on GoSource must be in English and not contain any information enabling or requesting contact or payment outside of the GoSource Platform. Projects must be of a professional nature and accurately describe the Services requested. They should be free of offensive language or advertisements for other products or services. Projects may not request any service that is illegal or violates intellectual property rights, copyrights or the terms of service of another service, product or website.
2.4.2 Creating a Profile
All information provided in a profile must be true, accurate and complete. GoSource reserves the right to verify any and all information provided on a User’s profile.
2.5 Managing and Working on Contracts.
2.5.1 Managing Contracts.
Clients agree to regularly review the Work Diaries, Time Logs, and interim work product and respond promptly to communications with and requests for information from Contractors and Assurers.
2.5.2 Working on Contracts.
Contractors agree to provide GoSource with Team and Work Diaries to track all time associated with Hourly-Rate Contracts. Time not logged to the Work Diary via 1) GoSource Team, or 2) entering offline time, will not be paid. Time logged for a Contract must be directly related to the completion of that Contract. If the Contractor bills offline time, those hours are subject to dispute by the Client and not guaranteed by GoSource. The Contractor is responsible for providing all tools and resources necessary to complete the Contract, unless explicitly stated in advance by the Client. Contractors agree to respond to all Client communications and requests for information within one business day. If the Contractor will be unable to meet this requirement due to an absence, he is expected to notify the Client at least 2 weeks prior. After the completion of a Contract, the Contractor agrees to provide timely, honest and objective feedback on the Client.
2.6 Billing and Payments.
2.6.1 Hourly-Rate Contracts.
Clients agree that there is no guarantee of the perceived or real quality of work for Hourly-Rate Contracts. The Client is paying for the hours worked associated with the Contract, and not for any specific deliverables or results. If the Client wishes to only pay for performance based on milestones or deliverables, the Client should hire Contractors via a Fixed-Price Contract.
2.6.2 Fixed-Price Contracts.
Contractors agree that there is no guarantee of payment for Fixed-Price Contracts. Clients have complete and sole discretion to determine whether a Contractor has completed a Fixed-Price Contract and whether to pay the Contractor.
2.7 Payment accounts. Each User understands and agrees that:
- The transmission of funds in the manner described herein is not a separate and discrete service that GoSource provides in addition to its GoSource Platform services. Rather, transmission of funds in an auditable manner is an integral part of the GoSource Platform services that GoSource is providing.
- The GoSource payment account is a custodial account administered by GoSource to facilitate disbursement of the Client’s payment to the Contractor.
- GoSource acts as agent of the Contractor and not as a trustee or fiduciary with respect to payments received through GoSource.
2.8 Non-payment. If Client fails to pay amounts due under this Agreement, whether by cancelling Client’s credit card, initiating an improper chargeback, or any other means, Client’s GoSource account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse GoSource for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, GoSource may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.9 Agencies and Agency Contractors. An “Agency” is an organization seeking to make money on GoSource by selling the Services of Agency Contractors. An “Agency Contractor” is a Contractor under contract to do work on GoSource on behalf of an Agency. An Agency has a manager responsible for the actions of all its members, including its Agency Contractors, administrators in charge of maintaining the Agency’s finances, roster, and profile, and staffing managers in charge of finding and supervising Contracts. One User may serve in all or multiple roles. Every person who will do work for an Agency must have an individual User account and Contractor profile associated with that person’s Agency on GoSource. Agencies must comply with Section 2.3 (“Identity”) above. If an Agency Contractor is no longer working for an Agency, the Agency may not use the Contractor’s profile in any way. Contractors leaving an Agency must contact the Agency manager to remove their association. Agencies may not refuse to release an Agency Contractor. When leaving the Agency, Agency Contractors keep their profiles, including their work and feedback histories. Their histories are meant to reflect work done by them. The Agency’s work and feedback history will retain the Contracts of Contractors who have since left the Agency. An Agency that requests the immediate suspension of a Contractor must provide the documents and supporting legal authority that prove, to GoSource’s satisfaction, that the Contractor has breached a non-compete agreement or an GoSource policy.
2.10 Enforcement of User Agreement and Policies.
GoSource has the right, but not the obligation, to suspend or cancel your access to the GoSource Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting GoSource’s other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the GoSource Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for GoSource. Once suspended or terminated, you MAY NOT continue to use the GoSource Platform under a different account or reregister under a new account. If you attempt to use the GoSource Platform under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the GoSource Platform, including data, messages, files and other material you keep on GoSource. All intellectual property provided by Clients for the purposes of completing Contracts will be returned by Contractors immediately upon termination.
3. SERVICE CONTRACT TERMS BETWEEN CLIENT AND CONTRACTOR.
User agrees that all Service Contracts between any Client or Contractor shall: (i) include the terms and conditions provided in Sections 3.1 through 3.10 below (“Standard Terms”); (ii) name GoSource as an express third party beneficiary under the Service Contract; and (iii) make no representations or warranties or enter into any contracts on behalf of GoSource, except as may be otherwise provided for herein. Client and Contractor may agree to terms in their Service Contract materially different than the Standard Terms; however, nothing in such Service Contract will in any way limit or modify GoSource’s rights.
Contractor shall perform Services in a professional and workmanlike manner. Under Fixed-Price Contracts, Contractor shall deliver the agreed-upon Work Product. Under Hourly-Rate Contracts, Contractor shall use reasonable efforts to create the desired Work Product.
Work performed on Hourly-Rate Contracts under a Contractor’s profile must be performed by the Contractor represented. If the Contractor wishes to subcontract with third parties to perform Services on behalf of the Contractor on Hourly-Rate Contracts, the Contractor must do so as an Agency. Contractor and Agency agree and acknowledge that Agency’s employees or contract personnel are not employees of GoSource or Client. Agency is solely responsible for all wages, costs, and expenses of Agency’s employees or contract personnel and has the sole and exclusive right to supervise and control them. Neither Client, nor GoSource, will require Agency’s contract personnel to devote full time to performing the Contracts entered into by Agency as required by this Agreement. Furthermore, both Contractor and Agency acknowledge and agree that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits of any kind from GoSource or Client.
Client shall pay contractor the agreed-upon fees for time spent (under Hourly-Rate Contracts) or delivery and acceptance of the Work Product (under Fixed-Price Contracts). All amounts paid by Client shall be paid through the GoSource Platform to GoSource as the Contractor’s agent, and Client’s obligation of payment to Contractor is met when payment is made to GoSource.
3.4 Termination of a Service Contract.
Under Hourly-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Client remains obligated to pay for any time the Contractor worked prior to termination.
For Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments made to the Contractor unless mutually agreeable. The Contractor may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Contractor may terminate only with written agreement from the Client or after the payment has been refunded.
3.5 ** **Client Deliverables**.**
Client grants Contractor a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Deliverables as necessary for the performance of the Services. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Contractor shall immediately return all Client Deliverables to the Client and further agrees to purge all copies of Client Deliverables and Work Product contained in or on Contractor’s premises, systems, or any other equipment otherwise under Contractor’s control. Contractor agrees to provide written certification to the Client certifying the return or purging of Client Deliverables within ten (10) days after the receipt of the Client’s written request to certify.
3.6 Work Product.
Any copyrightable works or works for hire prepared by Contractor in connection with a Fixed-Price Contract for Client shall be owned by the Contractor until payment has been made by the Client and accepted by the Contractor. If the Client pays an amount less than the amount agreed to in the Service Contract, the Contractor may refund the amount paid within two (2) weeks of the payment date and retain ownership of the Work Product.
For Hourly-Rate Contracts, the Client is considered the author and owner of works created once payment for the period of time in question has been made in full, assuming that all hours worked are properly tracked using the GoSource Team. Once payment has been made in accordance with the above, Contractor shall be deemed to have assigned all Proprietary Rights in the Work Product to the Client.
To the extent that under applicable law, Proprietary Rights cannot be assigned, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client an exclusive (excluding also Contractor), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under applicable law, Contractor hereby irrevocably agrees to grant, and hereby grants, to Client, such rights as Client reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Client will be able to acquire, perfect and use such Proprietary Rights, Contractor will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Client; (ii) sign any documents at Client’s request to assist Client in the documentation, perfection and enforcement of its rights; and (iii) provide Client with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Contractor also irrevocably authorizes Client to act and sign on Contractor’s behalf and take any necessary steps in order to perfect Client’s rights under this Agreement. In the case that under applicable law, Contractor retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively “Moral Rights”) or other inalienable rights to Work Product or Confidential Information under this Agreement, Contractor irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Contractor cannot waive such rights, Contractor agrees not to exercise such rights, until Contractor has provided prior written notice to Client and then only in accordance with any reasonable instructions that Client issues in the interest of protecting its rights. Contractor agrees to assist Client in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries. Contractor will sign all documents that the Client may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Client may select at its sole discretion. Contractor’s obligations under this Section 3.6 will continue even after Contractor deregisters from or ceases use of the GoSource Platform. Contractor appoints Client as Contractor’s attorney-in-fact to execute documents on Contractor’s behalf for the purposes set forth in this Section 3.6.
3.7 Pre-existing Intellectual Property in Work Product.
Contractor shall ensure that no Work Product created or delivered by Contractor includes any pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Contractor or a third party including, without limitation, code written by proprietary software companies or developers in the open source community (collectively “Pre-existing IP”) without obtaining the prior written consent of the Client to the inclusion of such Pre-existing IP in the Work Product. Contractor acknowledges that, without limiting any other remedies, Contractor shall not be entitled to payment for, and shall refund any payments to Contractor for, any Services performed on a Contract if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 3.7.
3.8 Worker classification.
This Agreement does not create a partnership or agency relationship between Client and Contractor. Contractor does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Client.
Contractor acknowledges that GoSource does not, in any way, supervise, direct, or control Contractor’s work or Services performed in any manner. GoSource does not set Contractor’s work hours and location of work. GoSource will not provide Contractor with training or any equipment, labor or materials needed for a particular Contract.
GoSource will not deduct any amount for withholding, unemployment, or other taxes as it would in the case of an employee. Client and Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Contractor’s performance of Services.
For Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Contractor. A Contractor classified as independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.
For Contracts classified as employer-employee relationships, Client will manage the Contract through GoSource’s payrolling program, where the Contractor becomes an hourly employee of GoSource’s staffing affiliate and Contractor and Client enter into appropriate additional agreements. If Client elects to not utilize this program, Client and Contractor shall be solely responsible for all obligations for tax withholding, the payment of taxes and/or providing the benefits associated with any employment relationship.
Client and Contractor agree to indemnify, hold harmless and defend GoSource from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that GoSource was an employer or joint employer of Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
3.9 Audit Rights
Client and Contractor each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to GoSource upon request. GoSource, or GoSource’s advisors or agents, shall have the right, but not the obligation, to routinely, but no less frequently than annually, audit Contractor’s operations and records to confirm compliance. Nothing in this provision should be construed as providing GoSource with the right or obligation to supervise or monitor the actual Services performed by Contractor.
Service Contracts shall be governed by Sections 6 (Confidential Information) 11 (General) and 12 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
3.11 Entire Agreement.
The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Client and Contractor shall constitute the entire agreement and understanding of Client and Contractor with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
4. ACKNOWLEDGMENTS BY USER OF GOSOURCE’S ROLE.
4.1 Proprietary Rights.
GoSource and its licensors reserve all Proprietary Rights in and to the GoSource Platform. User may not use the GoSource Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. GoSource reserves the right to withdraw, expand and otherwise change the GoSource Platform at any time in GoSource’s sole discretion. User shall not be entitled to create any “links” to the GoSource Platform, or “frame” or “mirror” any content contained on, or accessible through, the GoSource Platform, on any other server or internet-based device.
4.2 GoSource’s Compensation.
All GoSource Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
5. FEES AND PAYMENTS.
5.1 Billing Client.
For Hourly-Rate Contracts, Client will be billed for hourly Contractor Fees on a weekly basis. For bonuses, milestone payments and Fixed-Price payments, Client is billed immediately.
Client hereby authorizes GoSource to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client’s method of payment for Services, and to charge Client’s credit card (or any other form of payment authorized by GoSource or mutually agreed to between Client and GoSource).
5.3 Dispute Resolution Policy Between Contractor and Employer.
All disputes between a Contractor and a Client regarding the chargeable nature of the number of hours recorded in the Time Logs shall be resolved between the Client and the Contractor.
5.4 Payment Guarantee.
GoSource will guarantee performance of the Client’s payment to you as a Service Contractor working on Hourly-Rate Contracts where the Client has a verified payment method, the time represented is captured online using the GoSource Team software, the work performed and captured pertains directly to the Service Contract billed, and each Time Log is annotated with appropriate work memos describing the work performed. Determination of whether these criteria have been met is at the sole discretion of GoSource. The Payment Guarantee will not apply to Contractors or Contracts in violation of this Agreement, where the Contractor is aware of or complicit in another User’s violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.
6. CONFIDENTIAL INFORMATION.
To the extent a Client or Contractor provides Confidential Information to the other and/or to GoSource, the recipient shall protect the secrecy of the 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 not: (i) disclose Confidential Information to anyone except, in the case of GoSource, to any Client or Contractor engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Contract (including, without limitation, the storage or transmission of Confidential Information on or through GoSource Platform for use by Contractor).
If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Client’s or Contractor’s written request (which may be made at any time at Client’s or Contractor’s sole discretion), Client or Contractor (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Contractor, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 6.2 within ten (10) days after the receipt of disclosing party’s written request to certify.
Without limiting Section 6.1 (Confidentiality), Client, Contractor and GoSource shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a relevant Contract.
7. WARRANTY DISCLAIMER.
GOSOURCE MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, GOSOURCE PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GOSOURCE DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST GOSOURCE WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL GOSOURCE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF GOSOURCE TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY GOSOURCE FEES RETAINED BY GOSOURCE WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR CONTRACTOR DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, 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.
9.1 Proprietary Rights.
Each User shall indemnify, defend and hold harmless GoSource and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each an “Indemnified Party” for purposes of this Section 9) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.
9.2 Indemnification by Client.
Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (i) such Client’s use of Services, including without limitation claims by or on behalf of any Contractor for Worker’s Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Client and a Contractor.
9.3 Indemnification by Contractor.
Each Contractor shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (i) such Contractor’s provision of Services, or (ii) any Service Contract entered into between such Contractor and a Client.
10. TERM AND TERMINATION.
The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 10.2 below.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User’s account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
10.3 Consequences of Termination.
Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be invoiced to Client following termination pursuant to Section 5.2 (Billing Client), and charged to Client’s credit card or other form of payment pursuant to Section 5.3 (Payment). Subject to Section 5.4 (Dispute Resolution Policy), GoSource shall pay Contractor, in accordance with the provisions of Section 5 (Fees and Payments), for all time recorded in the Time Logs incurred prior to the effective date of the termination.
Sections 4 through 12 of this Agreement shall survive any termination thereof.
11.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Side Agreements.
Section 11.1 notwithstanding, Clients and Contractors may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, 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 GoSource’s obligations or restrict GoSource’s rights under this Agreement.
User shall not violate any laws or third party rights on or related to the GoSource Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties’ Proprietary Rights.
11.4 Notices: Consent to Electronic Notice.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the GoSource Platform. Notices hereunder shall be invalid unless made in writing and given (a) by GoSource via email (in each case to the address that you provide), (b) a posting on the GoSource Site or (c) by you via email to support@GoSource.com or to such other addresses as GoSource may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
No modification or amendment to this Agreement shall be binding upon GoSource unless in a written instrument signed by a duly authorized representative of GoSource. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
11.6 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 each party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without GoSource’s prior written consent in the form of a written instrument signed by a duly authorized representative of GoSource (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). GoSource may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section 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.
11.9 Choice of Law.
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement (“Claims”) shall be governed by and construed in accordance with the laws of the ACT.
11.10 Informal Dispute Resolution and Arbitration.
GoSource and User hereby agree that any Claims shall first be settled through the GoSource dispute resolution program.
11.11 Prevailing Language.
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.
**12.1 ** “Client” means any User utilizing the GoSource Platform to request Services to be performed by a Contractor. From time to time, GoSource may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to GoSource when acting in this way.
**12.2 ** “Client Deliverables” means instructions, requests, intellectual property and any other information or materials that a Contractor receives from a Client for a particular Contract.
**12.3 ** “Confidential Information” means Client or Contractor Deliverables, Work Product, and any other information provided to, or created by, a User for a 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 Contractor 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 Confidential Information.
**12.4 ** “Contract” means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Contractor and the Contractor has agreed on the GoSource Platform.
**12.5 ** “Contractor” means any company or individual User utilizing the GoSource Platform to offer Services to Clients.
**12.6 ** “Contractor Deliverables” means instructions, requests, intellectual property and any other information or materials that a Client receives from a Contractor for a particular Contract.
**12.7 ** “Contractor Fees” means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Contractor in the Time Logs, multiplied by the Hourly Rate; (b) for a Fixed-Price Contract, the Fixed-Price; and (c) any bonuses paid or other payments made by a Client for a Contract.
**12.8 ** “Effective Date” means the date of acceptance of this Agreement.
**12.9 ** “Fixed-Price” means a fixed fee agreed between a Client and a Contractor, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.
**12.10 ** “Fixed-Price Contract” means a Contract for which Client is charged a Fixed-Price.
**12.11 ** “Hourly Rate” for a Contract means, in respect of a Contractor, the hourly rate specified for that Contractor in the GoSource Platform.
**12.12 ** “Hourly-Rate Contract” means a Contract for which Client is charged based on the Hourly Rate.
**12.13 ** “License Agreement” means the license agreement between User and GoSource relating to use of the GoSource Team software.
**12.14 ** “GoSource Team” means the online platform accessed using GoSource’s downloaded Team software that enables time tracking, chat and screen shot sharing with other team members.
**12.15 ** “Payment Period” shall mean the one-week period beginning on Monday at 12:00 AM UTC.
**12.16 ** “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.
**12.17 ** “Services” means web development, software development, writing, translation, administrative, marketing, design customer service, sales, data entry, general business services and other knowledge-based or online services.
**12.18 ** “Time Logs” means the number of hours recorded for a stated period by a Contractor in GoSource Team in compliance with GoSource’s then-current Policies, for the Services performed in respect of a Contract.
**12.19 ** “Work Product” means any tangible or intangible results or deliverables that Contractor agrees to create for, or actually delivers to, Client as a result of performing the Services on a particular Contract, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any intellectual property developed in connection therewith.