This Business Partner Services Agreement ("Agreement") constitutes a legal agreement between you (“You” or “Business Partner”) and: (i) Flex Affiliate Staffing Technology, LLC, a subsidiary of Qwick, Inc. (“FAST”), if You are engaging with Qwick’s network of independent contractors in the United States of America (each a "1099 Professional") in connection with the Qwick Platform or otherwise, and/or (ii) Labor Force Group, LLC, a subsidiary of Qwick, Inc. (“LFG”), if You are engaging with LFG and/or its employees (each a “W-2 Professional") in connection with the Qwick Platform or otherwise. For the purposes of this Agreement, Qwick, Inc., FAST and LFG may each be referenced as a “Qwick Company,” and are referred to collectively as "Qwick" or "We." 1099 Professionals and W-2 Professionals are referred to collectively as “Professionals.” The term “Business Partner” includes a Business Partner and its subsidiaries, affiliates and related entities, and its and their clients, and all of their respective directors, officers, agents or contractors. This Agreement governs Your use of and access to the Qwick Platform and related content, products, and services (collectively, the "Services"), including without limitation, if and as applicable, Services performed either by 1099 Professionals or by W-2 Professionals.
IMPORTANT: PLEASE BE ADVISED THAT BY AGREEING TO THESE TERMS YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND WAIVING YOUR RIGHT TO HAVE A JURY TRIAL ON YOUR CLAIMS.
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN PROVISIONS THAT GOVERN HOW YOU CAN BRING CLAIMS BETWEEN YOU AND QWICK, INCLUDING THE ARBITRATION AGREEMENT IN SECTION 11 BELOW. THE ARBITRATION AGREEMENT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH QWICK ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION.
ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
This Agreement sets out the legally binding terms of the relationship between Qwick and You. By accepting, and/or acknowledging acceptance of this Agreement, and/or by using the Platform, You represent that: (1) You have read, understand, and agree to be bound by this Agreement; and (2) You have the binding authority to enter into this Agreement personally or on behalf of the entity You have named as the Business Partner. The terms "You" and "Business Partner" refer to You and the entity You have identified as the Business Partner. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, DO NOT ACCESS OR USE THE SERVICES.
You agree and understand that certain services and/or features of the Platform may be subject to additional terms, conditions, and/or registration requirements. You agree to abide by these additional terms, and You further agree that a violation of those terms shall constitute a breach of this Agreement. We reserve the right to modify or amend any terms of this Agreement from time to time without notice, and Your continued use of the Platform following the posting of such modifications or amendments shall constitute Your acceptance of such changes. You are responsible for regularly reviewing this Agreement and any updates, modifications, and/or amendments. Qwick does not and will not assume any obligation to notify You or Professionals of any changes to this Agreement, or the creation or modification of any additional terms.
“Business Partner Request” means a request by a Business Partner for, as applicable, Services to be provided by a Professional, and will typically include a description of the work to be performed, the date and time by which the work must be completed, and the payment rate for the Professional who performs the work.
"Qwick Notice" means a notice created or provided by Qwick to one or more Professional using the Platform or otherwise, which includes a description of a Business Partner Request.
"Qwick Platform" or the "Platform" means, collectively, the technology platform and software that enables users (including Professionals and Business Partners) of Qwick’s mobile application(s), website(s) (including www.qwick.com), and text messaging platforms which are maintained and provided as part of the Services to connect Business Partners with Professionals to fill one-time and/or recurring work opportunities.
Subject to Your compliance with the terms and conditions of this Agreement, Qwick grants You a limited, non-exclusive, non-sub-licensable, revocable, non-transferable right to access and use: (i) the Services, including access to and use of the Qwick Platform; and (ii) any content, information, and related materials that may be made available through the Services, in each case solely in connection with Your permitted use of the Services. Any rights not expressly granted herein are reserved by Qwick and Qwick’s licensors.
A Business Partner may from time to time submit a Business Partner Request to Qwick via the Qwick Platform or otherwise. Each such Business Partner Request may be posted on the Platform (including on Qwick’s mobile applications or websites) or used in or as a Qwick Notice. Once a Professional accepts the terms of a Business Partner Request, the Business Partner Request will become a "Business Partner Engagement." Qwick has discretion to reject Business Partner Requests, including for violating the terms of Qwick’s Terms of Use, this Agreement or Qwick’s policies.
In order to use most aspects of the Services, You must register for and maintain an active Services account ("Account") with Qwick. Account registration requires You to submit to Qwick certain information, such as Your name, company name, street address, email address, phone number, and billing information. You agree to maintain accurate, complete, and up-to-date information in Your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in Your inability to access and use the Services and the Qwick Platform, or Qwick’s termination of this Agreement with You. You are responsible for all activity that occurs under Your Account, and You agree to maintain the security and secrecy of Your Account username and password at all times. Unless otherwise permitted by Qwick in writing, You may only possess one Account.
You may not authorize third parties to use Your Account. You may not assign or otherwise transfer Your Account to any other person or entity. You agree to comply with all applicable laws when using the Services and You may only use the Services for lawful purposes. You will not in Your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to a Professional or any other party. In certain instances You may be asked to provide proof of identity to access or use the Services, and You agree that You may be denied access to or use of the Services if You refuse to provide proof of identity.
By creating an Account, You agree that Qwick may send You text messages (SMS or otherwise), including as part of the normal business operation of Your use of the Services and the Qwick Platform, and that use of text messages may be necessary to utilize certain features of the Services. For example, when You create an Account, we will send You a text message to confirm Your registration. You can cancel the text message service at any time by replying "STOP" in the text message You received. After You send the text message "STOP" to Qwick, we will send You a text message to confirm that You have been unsubscribed. It may take a few days for Qwick to process Your request. After this, You will no longer receive text messages from Qwick. If for any reason You continue getting text messages or need additional help, please message Qwick’s support team at 79-425. If You want to join again, just sign up as You did the first time and we will start sending text messages to You again.
Qwick may, in Qwick’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services, subject to any additional terms that Qwick establishes on a per promotional code basis ("Promo Codes"). You agree that Promo Codes: (i) must be used for the intended audience and purpose, in a lawful manner, and pursuant to reasonable limitations; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (e.g., posted to a public form or otherwise), unless expressly permitted in writing by Qwick; (iii) may be disabled by Qwick at any time for any reason without liability to Qwick; (iv) may only be used pursuant to the specific terms that Qwick establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to Your use. Qwick reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by You or any other user in the event that Qwick determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or this Agreement.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services or Qwick Platform; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or Qwick Platform except as expressly permitted by Qwick; (iii) decompile, reverse engineer or disassemble the Services or Qwick Platform except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services or Qwick Platform; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or Qwick Platform, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services or Qwick Platform; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services, the Qwick Platform, or related systems or networks.
The Services or Qwick Platform may be made available or accessed in connection with third party services and content that Qwick does not control, including but not limited to payment processing services such as those provided by Stripe, SMS messaging services such as those provided by Twilio, and various advertising services. You acknowledge that different terms of use and privacy policies may apply to Your use of such third-party services and content. Qwick has no control over and does not endorse such third-party services and content and in no event shall Qwick be responsible or liable for any interactions You may have with or any products or services You may receive from such third-party providers.
You are responsible for obtaining the data network access necessary to use the Services and Qwick Platform. Your mobile network's data and messaging rates and fees may apply if You access or use the Services or Qwick Platform from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and the Qwick Platform and any updates thereto. Qwick does not guarantee, warrant or represent that the Services, the Qwick Platform or any portion thereof will function on any particular hardware or devices. In addition, the Services or Qwick Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
In the case of Business Partner Requests and Business Partner Engagements performed by W-2 Professionals, the provisions of this Section shall apply. You also understand that additional agreements may be required by LFG in connection with such Business Partner Requests and Business Partner Engagements, and You agree to enter into such agreements as a condition of such Business Partner Requests and Business Partner Engagements.
If a Business Partner Request for W-2 Professional(s) is agreed upon by the Business Partner and Qwick and accepted by W-2 Professional(s) (and becomes a Business Partner Engagement), subject to any agreed upon terms and conditions, Qwick will assign the W-2 Professional(s) to work for Business Partner. Business Partner is exclusively responsible for the supervision, direction, and control of the day-to-day activities of the W-2 Professional(s) in connection with the Business Partner Engagement. W-2 Professional(s) are responsible for performing the agreed-upon work for the Business Partner.
Business Partner acknowledges and agrees that Business Partner has selected to utilize W-2 Professional(s) based upon Business Partner’s determination that the nature of the work requires an W-2 Professional(s), or for other factors determined exclusively by Business Partner. Qwick vets its W-2 Professionals; however, neither Qwick nor any of its subsidiaries or affiliates makes any representations or warranties as to the skills, experience, background or education of any particular W-2 Professional.
The following are the services provided by Qwick with respect to W-2 Professional(s) assigned to Business Partner: (i) calculation and payment of wages (including overtime wages) based upon submitted timesheets or electronic records; (ii) collection, payment and reporting of all federal, state and local taxes on such wages, as applicable; (iii) administration and collection of wages associated with wage garnishments; (iv) workers’ compensation coverage; and (v) collection of mandated government documents and other forms for the purposes of effectuating the foregoing services. In addition, Qwick may provide health, dental or disability insurance, retirement benefits or other benefits as determined by Qwick and in compliance with applicable law. Qwick may designate a third-party payroll company, at any time in Qwick’s sole discretion, to perform some or all of its obligations under this Agreement, including payroll administration for W-2 Professionals. Upon such designation, or at any other time as directed by Qwick, Business Partner shall cooperate with such third-party payroll company in every reasonable manner to ensure uninterrupted performance of the Services.
At all times, the Business Partner will maintain the exclusive supervision, direction and control of the day-to-day activities of each W-2 Professional while the W-2 Professional is performing work for the Business Partner. Both Qwick and the Business Partner shall be jointly responsible for the implementation and enforcement of any and all workplace laws, rules, policies, and regulations. This includes any procedures designed to prevent the misappropriation, theft or embezzlement of the Business Partner’s property, including without limitation intellectual property.
Business Partner acknowledges and agrees that W-2 Professionals are employees of Qwick only for purposes of payroll processing and, in some cases, the provision of certain employee benefits, but neither Qwick nor any of their affiliates assumes any responsibility for the working conditions or the workplace in which W-2 Professional(s) will perform work for a Business Partner, the projects and work assigned to W-2 Professional(s), and/or Business Partner’s decision to use W-2 Professional(s).
Business Partner acknowledges and agrees that 1099 Professionals, if assigned by Qwick, are not employees or consultants of Qwick, and that Qwick maintains no control over any 1099 Professional, supervision of 1099 Professionals, payroll practices or other terms and conditions of the working relationship described herein.
Qwick is an equal opportunity employer and does not unlawfully discriminate against any race, color, religion, sex, sexual orientation, gender expression or gender identity, national origin, age, creed, ancestry, veteran or military status, disability unrelated to the essential functions of a job, or any other basis prohibited by federal, state or local law. Business Partner and W-2 Professionals are required to comply with all federal, state, and local laws, including any laws that prohibit unlawful discrimination, harassment, or retaliation.
The Business Partner will send all written notices and payroll communications to Qwick in accordance with any requirements specified by Qwick. Business Partner will provide Qwick with written notice within 24 hours of learning about any work-related accident or injury involving W-2 Professionals by contacting their assigned Account Manager or texting Qwick at 79-425. Business Partner will provide Qwick with written notice within 24 hours of learning about any garnishment orders, involuntary deduction orders, notices of liens and other forms of legal process affecting the payment of wages to an W-2 Professional by contacting Qwick at 79-425 or contacting their assigned Account Manager.
In the case of a Business Partner Engagement performed by one or more W-2 Professionals, in consideration of Qwick’s provision of the Services and Platform for Business Partner’s use and benefit hereunder, Business Partner agrees to pay an hourly rate as well as a markup on such rate for time worked by W-2 Professionals, the amount of which may be communicated to Business Partner prior to or during Business Partner’s submission of a Business Partner Request or after Business Partner has submitted a Business Partner Request (via the Qwick Platform or otherwise) (“W-2 Professional Fees). W-2 Professional Fees may be based in part on the type of engagement, overall demand, and the geographic location of the Professionals used. Generally, You will be invoiced the W-2 Professional Fees within 24 hours of the shift worked. Qwick reserves the right to establish, remove and/or revise W-2 Professional Fees (including hourly rate and/or markup) for any or all Business Partner Engagements obtained through the use of the Services at any time in Qwick’s sole discretion. Continued use of the Services or Qwick Platform after any such changes shall constitute Your consent to such change.
In the case of a Business Partner Engagement performed by one or more 1099 Professionals, Qwick will facilitate Your payment due to the 1099 Professional(s) for the Business Partner Engagement (the “1099 Professional Payment”) on behalf of such 1099 Professional(s) as the limited payment collection agent for such 1099 Professional(s). The payment of the applicable 1099 Professional Payment in such manner shall be considered the same as payment made directly by You to the 1099 Professional. Qwick may from time to time provide certain Business Partners or 1099 Professionals with promotional offers, discounts, or Promo Codes that may result in different amounts charged for the same or similar services obtained through the use of the Services or the Qwick Platform, and You agree that such promotional offers, discounts or Promo Codes, unless also made available to You, shall have no bearing on Your use of the Services or the Charges (as defined below) applied to You. You retain the right to negotiate the 1099 Professional Payment with a 1099 Professional for services received by You from such 1099 Professional under a Business Partner Engagement at the time You receive such services. Qwick will respond accordingly to any request to modify the 1099 Professional Payment for a particular Business Partner Engagement.
In the event that Business Partner cancels a Business Partner Engagement within 24 hours of the start time of the Business Partner Engagement, Business Partner will be required to and agrees to pay a minimum payment of 4 hours per Professional (including any applicable markups or other fees) (the “Four Hour Minimum”). In the event that a Business Partner sends a Professional home early from a shift, the Business Partner will be charged the greater of the time actually worked by the Professional and 4 hours of the Professionals’ time.
1099 Professional Payments (collectively, "Charges") do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Business Partner and, as applicable, 1099 Professionals, are responsible for paying all Taxes associated with Charges and purchases hereunder. If Qwick has the legal obligation to pay or collect Taxes for which Business Partner is responsible under this section, the appropriate amount may be invoiced to and paid by Business Partner. Charges paid by You are final and non-refundable, unless otherwise determined by Qwick.
W-2 Professional Fees and 1099 Professional Payments are intended to fully compensate the applicable Professional for each completed Business Partner Engagement. You understand and agree that, while You are free to provide additional payment as a gratuity to any Professional who performs work for You obtained through the Services, You are under no obligation to do so, and such gratuities are voluntary. Notwithstanding the foregoing, in the event that any patron or customer of Business Partner provides a tip or gratuity for the work performed by a Professional in connection with a Business Partner Engagement, 100% of such tip or gratuity must be provided to such Professional (subject to any statutory deductions or withholdings), even if the tip or gratuity is paid by the patron or customer to the Business Partner rather than the Professional directly. After You have received work from a Professional and a Business Partner Engagement is completed, You will have the opportunity to rate Your experience and leave additional feedback.
By utilizing our Services, you authorize our platform to charge you for your use of the Services and you commit to making timely payment.
Our standard Net Terms are Net 30; any request for extended terms will require additional approval. All invoices will incur a 5% Net Terms fee. Payments are due according to the agreed upon Net Terms. Failure to make a payment by the due date may result in your account being suspended and further requests to use the Services refused. If payments are not received in a timely manner, Qwick may pursue legal action to collect any unpaid amounts, including interest and collection costs.
You may be required to create an account with Stripe, our secure payment processing platform. Stripe is a leader in online payment security, ensuring that your bank account or credit card information is protected with the highest level of encryption and security measures. Qwick does not store your payment information internally.
By creating a Stripe account, you hereby authorize Qwick to (as applicable): (a) initiate automated clearing house (ACH) debit entries or (b) charge a specific credit card account. All payments will be automatically withdrawn from the specified checking account or charged to the designated credit card 72 hours after the service is provided.
Authorization of automatic payments, whether by ACH debits, or credit card charges, allows you to avoid a 5% fee applied to invoices with net terms.
Business Partners have 24 hours after the work is performed by a Professional to adjust timecards or report discrepancies. Invoices generally will be issued to Business Partners in the website or mobile application within 24 hours of the work being performed by a Professional. You agree to review each invoice received and notify Us in writing of any errors or disputed charges within 72 hours of the work being performed by a Professional by emailing Invoice@Qwick.com. If there are any changes to the billing information provided, You must immediately update Your account or notify Qwick in writing by emailing Invoice@Qwick.com.
In the event that there are unpaid or past due amounts for Charges associated with Your Account, We reserve the right to charge You, and You agree to pay a finance charge of 1.5% per month (18% per annum) on such outstanding balances, plus all expenses of collection, including reasonable legal fees.
In the event that payment is not received for any Services provided by Us or any Professional, You acknowledge and agree to be personally liable for all outstanding amounts upon demand. Your account also may be placed on hold, disallowing continued use of the Platform. All paid Services are governed by the Terms of Use.
Qwick does not charge conversion fees. Business Partners may directly hire or otherwise engage a Professional (whether 1099 Professional or W-2 Professional) directly without being billed for such hire or engagement.
Business Partner acknowledges that all the intellectual property rights in the Qwick Platform, the Services and any metadata or other information generated by or on behalf of Qwick are owned by Qwick or Qwick’s licensors or suppliers (the "Qwick IP"). Business Partner has not been granted and shall not obtain, by this Agreement, any right, title, or interest in the trademarks of Qwick or Qwick’s licensors, affiliates or suppliers, nor shall this Agreement give Business Partner the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of Qwick or Qwick’s licensors, affiliates or suppliers. Business Partner agrees not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Qwick IP, or (b) rent, lease, loan, or sell access to the Qwick IP.
Business Partner hereby grants to Qwick a royalty-free, worldwide, transferable, irrevocable, perpetual license to use, reproduce, modify, or incorporate into the Qwick IP, and otherwise fully exploit, any suggestions, enhancement requests, recommendations or other feedback provided by Business Partner related to the Qwick IP.
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and the Receiving Party shall only disclose the Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors and agents who need such access to perform obligations or exercise rights under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Notwithstanding the foregoing, Business Partner acknowledges and agrees that some of the information that it provides in Business Partner Requests and subsequent Qwick Notices will be sent to Professionals (as part of Qwick Notices or otherwise) who will need this information to determine if they want to perform the requested services. By submitting a Business Partner Request, Business Partner is requesting, and expressly consents to have details of the Business Partner Request and (if applicable) subsequent Qwick Notice sent to Professionals as Qwick deems appropriate. Business Partner agrees that all information that Business Partner provides will be accurate, current and truthful to the best of its knowledge.
THE SERVICES AND QWICK PLATFORM (INCLUDING QWICK’S MOBILE APPLICATIONS AND WEBSITES) ARE PROVIDED "AS-IS" AND "AS-AVAILABLE." QWICK EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. QWICK MAKES NO WARRANTY THAT (A) THE SERVICES AND THE QWICK PLATFORM (INCLUDING QWICK’S MOBILE APPLICATIONS AND WEBSITES) WILL MEET BUSINESS PARTNER’S REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. QWICK DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH BUSINESS PARTNER REQUEST OR QWICK NOTICE AND A PROFESSIONAL, OR THAT THERE ARE PROFESSIONALS IN EACH GEOGRAPHIC AREA REQUESTED BY BUSINESS PARTNER WHO ARE WILLING TO FULFILL THE BUSINESS PARTNER REQUEST OR QWICK NOTICE AT THE TIME AND PLACE REQUESTED. BUSINESS PARTNER ACKNOWLEDGES AND AGREES THAT QWICK HAS NO LIABILITY FOR THE ACTION, OR INACTION, OF ANY PROFESSIONAL. BUSINESS PARTNER ACKNOWLEDGES AND AGREES THAT THERE IS NO EMPLOYMENT, JOINT VENTURE, OR AGENCY RELATIONSHIP BETWEEN QWICK AND 1099 PROFESSIONALS. QWICK DOES NOT GUARANTEE OR WARRANT PROFESSIONALS’ PERFORMANCE OF THE BUSINESS PARTNER ENGAGEMENT OR THE OUTCOME OR QUALITY OF THE SERVICES PROVIDED.
IN NO EVENT SHALL QWICK BE LIABLE TO BUSINESS PARTNER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM BUSINESS PARTNER’S USE OF THE QWICK IP OR THE SERVICES, EVEN IF QWICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, QWICK’S LIABILITY TO BUSINESS PARTNER FOR ANY DAMAGES ARISING FROM OR RELATED TO BUSINESS PARTNER’S USE OF THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE FEES BUSINESS PARTNER PAID TO QWICK IN THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
Business Partner agrees to indemnify, hold harmless and defend the Qwick Companies and their affiliates, and all of their respective directors, officers, agents and employees (collectively, the “Indemnified Parties”), from and against any and all suits, proceedings, claims, demands or actions (“Claims”) arising out of or related to Business Partner’s use of the Services or a Business Partner Engagement, and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any of them as a result of any such Claim or in the investigation, settlement or defense thereof. Without limiting the generality of the forgoing, Business Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) any actual or alleged misuse of the Services (including the Platform) by Business Partner or by any Professional(s) in the course of or in connection with a Business Partner Engagement, (ii) any actual or alleged violation of applicable law or regulation (including without limitation privacy and anti-spam laws) by Business Partneror any Professional(s) in the course or in connection with of a Business Partner Engagement, (iii) any negligent, reckless, or willful misconduct of Business Partner or by any Professional(s) in the course of or in connection with a Business Partner Engagement, (iv) any breach by Business Partner of any representation, warranty, covenant, or obligation in this Agreement, (v) any negligent or intentional act or omission committed by Business Partner or by any Professional(s) in the course of or in connection with a Business Partner Engagement, which act or omission gives rise to any claim for damages against an Indemnified Party, (vi) any violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right by Business Partner or by any Professional(s) in the course of or in connection with a Business Partner Engagement, and (vii) any dispute or issue between Business Partner and any third party, including any worker, business, or other third-party; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any of them as a result of any such Claim or in the investigation, settlement or defense thereof. Qwick reserves the right (but not the obligation) to assume the exclusive defense and control of any matter otherwise subject to indemnification by Business Partner (without limiting Business Partner indemnification obligations) and Business Partner agrees to cooperate with Qwick’s defense of that Claim. If the defense or settlement of a Claim is assumed by Business Partner, Qwick may at any time thereafter elect to take over control of the defense and settlement of the Claim. Business Partner must not settle any Claim that it is defending on behalf of any Indemnified Party without Qwick’s prior written consent.
You acknowledge and agree that Your arranging and obtaining of services from a 1099 Professional creates a direct business relationship between You and that 1099 Professional, and Your interactions and dealings with such 1099 Professional are solely between You and such 1099 Professional. 1099 Professionals are independent third parties and are not employees, Business Partners, representatives, agents, joint venturers, service providers, or franchisees of Qwick. Qwick’s services with respect to 1099 Professionals are limited to providing a platform for connecting its customers to its network of 1099 Professionals. Qwick is not responsible or liable for the actions or inactions of any 1099 Professional in relation to any services they perform.
Business Partner expressly agrees that no joint venture, co-employer, joint employer, franchise, employment, partnership or agency agreement exists between Qwick and Business Partner as a result of this Agreement or any use of the Services, including the Qwick Platform.
Business Partner assumes all liability for proper classification of 1099 Professionals as independent contractors based on applicable law. Business Partner expressly agrees that this Agreement does not create any joint venture, co-employer, joint employer, franchise, business partnership, employment, or agency relationship between Business Partner and a 1099 Professional.
Professionals do not have authority to enter into written or oral (whether implied or express) contracts on behalf of Qwick. Business Partner acknowledges and agrees that, unless otherwise agreed in writing by Business Partner and Qwick, Qwick does not, and will not in any way supervise, manage, monitor, direct, or control any Professional’s work or Services performed in any respect for Business Partner. Qwick does not set any Professional’s work hours and location of work. Qwick will not provide any Professional with any equipment, labor or materials needed for a particular Business Partner Engagement. Qwick makes no representations or warranties that the Services performed by Professionals will be performed in any particular manner or at any particular standard or quality of service, nor does Qwick make any representations or warranties with respect to any Professional’s skill, ability, fitness for a particular purpose, or compliance with any statute, regulation or other law.
With regard to 1099 Professionals, Qwick will not deduct any amount for withholding, unemployment, Social Security, or other federal, state, or local taxes as it would in the case of an employee. Business Partner and each 1099 Professional will be solely responsible for all tax returns and payments required to be made or filed, including any applicable employment insurance contributions, pension contributions, or other amounts, to any federal, state, or local government authority, in any nation, with respect to 1099 Professional’s performance of Business Partner Engagements and any related services.
A Professional is free at all times to perform Business Partner Engagements, and to be employed by or otherwise engage with persons or businesses other than Business Partner, including any competitor of Business Partner. Without limiting the generality of Section 9.1, Business Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) claims that a 1099 Professional was misclassified as an independent contractor, (ii) any liabilities arising from a determination by a court, arbitrator, government agency or other body that a 1099 Professional was misclassified (including, but not limited to, wages, taxes, penalties, interest and legal fees), (iii) any claims that Qwick was an employer, co-employer or joint employer of a 1099 Professional (iv) any claims under any employment-related laws in respect of a 1099 Professional, such as those relating to employment standards, occupational health and safety, workers’ compensation, pay equity, employment termination, employment discrimination, harassment or retaliation, as well as any claims for unpaid wages, overtime pay, sick leave, holiday or vacation pay, retirement benefits, workers’ compensation benefits, unemployment benefits, or any other employee benefits, and (v) any claims arising out of the failure by Qwick and/or the Business Partner to withhold or remit any taxes, premiums, contributions, payments, benefit overpayments, levies or other amounts from all or any part of any amounts paid to a 1099 Professional; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any Indemnified Party as a result of any such Claim or in the investigation, settlement or defense thereof.
Except as required by law, unless otherwise expressly agreed herein or elsewhere in writing (including Qwick’s Terms of Service), Qwick is not responsible for insurance coverage of Professionals. In the event that a Professional’s actions cause an injury to a third party while the Professional is working in the course and scope of performing a Business Partner Engagement or otherwise, Business Partner acknowledges and agrees that the Professional may not be covered by any general liability or automobile liability insurance coverage that Qwick may have, and that Qwick is not making any commitment to defend, compensate and/or indemnify the Business Partner or Professional in such circumstances, and specifically denies such obligation.
Business Partner shall comply with applicable health and safety laws, and hereby agrees to indemnify and hold harmless Qwick, its affiliates, directors, officers, agents and employees from and against any and all claims, demands, suits, losses, fines, surcharges, damages, costs and expenses arising out of the Business Partner’s failure to comply with such laws. Without limiting the generality of Section 9.1, Business Partner agrees to indemnify, hold harmless and defend the Indemnified Parties from and against any and all Claims arising out of or related to: (i) the injury or death of any person, damage to or destruction of any property, which is directly or indirectly caused by any act or omission on the part of any Professional (or personnel employed or engaged by the Professional) engaged in performing any Business Partner Engagement to the Business Partner or any related service, or (ii) the injury or death of the Professional, or any personnel employed or engaged by the Professional, if such injury or death occurs while the Professional (or personnel employed or engaged by the Professional) is located at Business Partner’s location, is otherwise engaged in performing any Business Partner Engagement to the Business Partner or any related service, or if the injury or death is in any way connected to the Business Partner Engagement or any related Services; and against any and all losses, damages, costs, charges, expenses and fees (including without limitation legal fees), liabilities, penalties or fines incurred by or on behalf of any Indemnified Party as a result of any such Claim or in the investigation, settlement or defense thereof.
Either party may terminate this Agreement at any time, for any reason upon thirty (30) days written notice to the other. Notwithstanding the forgoing, either party may terminate this Agreement at any time without prior notice, for fraud, dishonesty, willful neglect, misconduct, or any material breach of the terms hereof by the other party. In the event that Business Partner terminates this Agreement, the Business Partner may no longer use the Services unless otherwise expressly agreed in writing by the parties.
The sections which expressly or by their nature are intended to survive termination, including without limitation Sections 4 ("Fees and Payment"), 5 ("IP Ownership"), 6 ("Confidentiality"), 7 ("Disclaimers"), 8 ("Limitation of Liability"), 9 (“Indemnification; Relationships Between Qwick, Professionals and The Business Partners; Insurance; Health And Safety”), 10.2 ("Surviving Provisions"), 11 (“Mutual Arbitration and Dispute Resolution”) and 12 ("Miscellaneous"), shall survive any termination of this Agreement.
Except as it otherwise provides, this arbitration provision applies to any dispute, past, present, or future, that Qwick, Inc. (“Company” or “Qwick”) may have against You or that You may have against (1) the Company; (2) Qwick’s Business Partners, officers, directors, principals, shareholders, members, owners, employees, or agents; (3) the Company’s benefit plans or the plan’s sponsors, fiduciaries, administrators, affiliates, or agents; and (4) all successors and assigns of any of them. Each of the entities or individuals listed in (1) through (4) of the preceding sentence may enforce this Arbitration provision. All disputes covered by this arbitration provision will be decided by a single arbitrator through final and binding arbitration and not by way of court or jury trial. The Federal Arbitration Act, 9 U.S.C. § 1 et seq. governs this arbitration provision, which evidences a transaction involving commerce.
Additionally, except as this arbitration provision otherwise provides, the Arbitrator, and not any court, will have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability or waiver of this arbitration provision, including (but not limited to) any claim that all or any part of this arbitration provision is void or voidable.
However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, and it does not apply to the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement. Notwithstanding any other clause or language in this arbitration provision or any rules or procedures that might otherwise apply because of this arbitration provision (including, without limitation, the Commercial Arbitration Rules of the AAA (“AAA Rules”) (the AAA Rules are available via the internet at www.adr.org/commercial or by using a service such as Google to search for “AAA Commercial Arbitration Rules”) discussed below) or any amendments or modifications to those rules, any claim that the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement (in whole or in part) is unenforceable, inapplicable, unconscionable, or void or voidable, will be determined only by a court of competent jurisdiction and not by an Arbitrator. The right to a judicial determination of any claim that the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement (in whole or in part) is unenforceable, inapplicable, unconscionable, or void or voidable may not be waived.
Limitations On How This Arbitration Provision Applies. These claims are not covered under this arbitration provision:
Nothing in this arbitration provision prevents You from reporting to or filing a claim or charge with a government agency, including, without limitation, the Equal Employment Opportunity Commission, U.S. Department of Labor, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement authorities. Nothing in this arbitration provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this arbitration provision. This arbitration provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this arbitration provision. Nothing in this arbitration provision prevents or excuses a party from satisfying any conditions precedent or exhausting administrative remedies. The Company will not retaliate against You for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. This arbitration provision also does not prevent or prohibit You from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse.
A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy under applicable law, and any such application will not be deemed incompatible with or waiver of this arbitration provision to arbitrate. The court to which the application is made may consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
Starting the Process. The party bringing the claim must demand arbitration in writing and deliver the written demand by personal delivery or via certified or registered mail, return receipt requested, to the other party. The demand for arbitration must include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. The demand for arbitration must be signed in ink by the party making the demand. Any demand for arbitration by You must be delivered via personal delivery or via certified or registered mail, return receipt requested, to Qwick, Inc., Attn: legal, 3550 North Goldwater Blvd. #1154, Scottsdale, AZ 85251. You will be given notice of any demand for arbitration by the Company at the last home address You provided to the Company. The Arbitrator will resolve all disputes regarding the timeliness (demands must be made within the applicable limitations period(s)) or propriety of the demand for arbitration.
Cooling Off Period. After a party initiates a claim by making a written demand for arbitration to the other party, neither party will begin the arbitrator-selection process as described below or submit the demand to AAA for thirty (30) days after the demand is made (“Cooling Off Period”). During the Cooling Off Period, the parties may attempt in good faith to resolve the claim. The parties may also mutually agree to extend the Cooling Off Period. During the Cooling Off Period, either party may request an informal meeting to discuss in good faith a potential informal resolution of the dispute, without the need to go forward in an arbitration (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. You and a Company representative must both personally participate; any counsel representing You or the Company also may participate. The requirement of personal participation in an Informal Settlement Conference may be waived only if both You and the Company agree in writing. At the end of the Cooling Off Period or (if an Informal Settlement Conference is timely requested) 30 days after completion of the Informal Settlement Conference, and unless the parties have resolved the claim, the parties will begin the arbitrator-selection process as described below. The demand for arbitration will be submitted to AAA for administration by the party initiating the claim. Unless otherwise prohibited by applicable law, AAA and the Arbitrator are without authority to accept or administer any arbitration demand until the parties have complied with the demand-for-arbitration process and Cooling Off Period, and Informal Settlement Conference, if requested by either party.
Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action and the Arbitrator will have no authority to hear or preside over any such claim (“Class Action Waiver”). The Class Action Waiver will be severable from this arbitration provision if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction—not in arbitration.
There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action and the Arbitrator will have no authority to hear or preside over any such claim (“Collective Action Waiver”). The Collective Action Waiver will be severable from this Arbitration provision if there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction—not in arbitration.
Regardless of anything else in this arbitration provision or the AAA Rules or any amendments or modifications to those rules, any claim that all or part of the Class And Collective Action Waiver, including, but not limited to any claim that all or part of it is invalid, unenforceable, unconscionable, void or voidable, may be determined only by a court of competent jurisdiction and not by an arbitrator.
The Company and You agree to arbitrate claims under the California Private Attorneys General Act (“PAGA”) on an individual basis only. Therefore, any claim by You under PAGA to recover unpaid wages, civil penalties, or any other individual relief must be arbitrated under this arbitration provision. The Company and You also agree Your non-individual PAGA claims will be stayed and You will not pursue any such claims in Court until after the Arbitrator, and not any court, issues a final and written determination as to Your status as an “aggrieved employee.” The Arbitrator is without authority to preside over any PAGA claim by You on behalf of any other person or joined by or consolidated with another person’s PAGA claim. This PAGA Individual Action Requirement clause will be severable from this arbitration provision if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable. In such case, the PAGA action must be litigated in a civil court of competent jurisdiction—not in arbitration—but the portion of the PAGA Individual Action Requirement that is enforceable will be enforced in arbitration.
Arbitration Procedures and Selection. Unless You and the Company mutually agree otherwise, the Arbitrator will be an attorney licensed to practice law in the state in which the arbitration is convened or a retired federal or state judicial officer from any jurisdiction. The location of the arbitration proceeding will be no more than 25 miles from the place and in the same state where You last worked for the Company unless each party to the arbitration agrees in writing otherwise.
The arbitration will be administered by AAA, and except as provided in this arbitration provision, will be under the then current AAA Rules; provided, however, that if there is a conflict between the AAA Rules and this arbitration provision, this arbitration provision will govern.
The parties will attempt to mutually agree on an Arbitrator via direct negotiation. Failing that, the Arbitrator will be selected under the AAA Rules. If AAA will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted to appoint a neutral Arbitrator.
The Arbitrator may award any remedy to which a party is entitled under applicable law, but remedies will be limited to those that would be available to a party in his or her individual capacity for the claims presented to the Arbitrator, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The Arbitrator will apply the substantive federal, state, or local law applicable to the claims asserted. Either party may file dispositive motions, including, without limitation, a motion to dismiss or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure.
Discovery and Subpoenas. Each party may take the deposition of two individual fact witnesses and any expert witness designated by another party. Each party may also propound interrogatories, requests for admission, or requests for production of documents, and each party may subpoena witnesses and documents for discovery or the arbitration hearing, including testimony and documents relevant to the case from third parties. The subpoena will be issued under any state or federal law. Additional discovery may be conducted by mutual stipulation, and the Arbitrator will have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests based on the circumstances of a particular case. The Arbitrator will have exclusive authority to resolve discovery disputes.
Paying For The Arbitration. You and the Company will follow the AAA Rules applicable to initial filing fees, but You will not be responsible for any portion of those fees over the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. After You pay Your portion of any initial filing fee, the Company will pay any remaining portion of the initial fee and also will pay all costs and expenses unique to arbitration, including without limitation the Arbitrator’s fees. Each party will pay for its own costs and attorneys’ fees, if any, but if any party prevails on a claim which affords the prevailing party attorneys’ fees, the Arbitrator may award reasonable fees to the prevailing party as provided by law. The Arbitrator will resolve any disputes regarding costs or fees associated with arbitration.
The Arbitration Hearing And Award. The Arbitrator will issue a reasoned decision or award in writing. A court of competent jurisdiction will have the authority to enter a judgment upon the award made pursuant to the arbitration.
Enforcement Of This Arbitration Provision. You may assent to this arbitration provision by signing it, either in writing or electronically. You may consult with counsel of Your choice about this arbitration provision or any aspect of the arbitration proceeding. This arbitration provision is the full and complete arbitration provision about arbitration of disputes covered by this Arbitration provision and replaces any prior arbitration provisions regarding the arbitration of disputes. Any contractual disclaimers the Company has in any handbooks, other arbitration provisions, or policies do not apply to this arbitration provision. This arbitration provision will survive the termination of Your relationship with Qwick. If any portion of this arbitration provision is deemed unenforceable, the remainder of this Arbitration provision will be enforceable.
Except as otherwise set forth in Section 11, this Agreement shall be governed by the laws of the State of Arizona regardless of Your location or where You access Qwick, and notwithstanding any conflicts of law principles. Nothing in this Section, however, shall be construed to create new or additional substantive rights or obligations for the Parties, which otherwise would not be available or applicable to them in their respective place of residence or incorporation.
Except as otherwise set forth in Section 11, if any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
This Agreement and Your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by You without Qwick’s express prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be null and void. Qwick may assign this Agreement or any of its rights under this Agreement to any third party with or without Your written consent.
Qwick may give any notice required by this Agreement by means of a general notice on the Qwick Platform, electronic mail to Your email address on record with Qwick, or by written communication sent by first class mail or pre-paid post to Your address on record with Qwick. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). You may give notice to Qwick, addressed to the attention of Legal. Such notice shall be deemed given when received by Qwick by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail to Qwick, Inc, Attn: Legal, 3550 North Goldwater Blvd. #1154, Scottsdale, AZ 85251, or by email at Legal@Qwick.com.
All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Paragraph titles and headings are provided for reference only and do not affect the substantive provisions of this Agreement.
Your acceptance of this Agreement includes Your agreement to Qwick’s Privacy Policy, Terms of Use, and Community Guidelines (all of the foregoing located at www.Qwick.com) and all other policies, rules, guidelines, terms and conditions established for the Services as set forth therein and otherwise referenced in this Agreement (each a "policy" and collectively, "policies"), which are incorporated herein by reference. Qwick may amend such policies from time to time and any amendments to such policies will be effective upon Qwick’s posting of such updated policies on its websites or through the Services (including the Platform). Business Partner’s continued access or use of the Services after such posting confirms Business Partners consent to be bound by the policies, as amended, and such amended policies are incorporated herein by reference. In the event of a conflict between any term of this Agreement and a term of an Qwick policy, this Agreement shall control with respect to such conflict. This Agreement (including the policies) constitute the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties with respect to the subject matter hereof. Notwithstanding the foregoing, if You enter into or have entered into a Platform Agreement, or Master or Staffing Service Agreement with Qwick that remains in effect, nothing herein shall render such Agreement null or void, and to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and such Agreement, the terms of the Platform Agreement, oStaffing Service Agreement shall prevail. Except as permitted herein, no modification or amendment to this Agreement will be effective unless in writing and expressly agreed upon by all parties.
Qwick reserves the right at any time to modify or discontinue, temporarily or permanently, the Qwick Platform or the Services (or any part thereof) with or without notice. You agree that Qwick shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Qwick Platform or the Services.
If You wish to report a violation of this Agreement, have any questions or need assistance, please contact Qwick by text at 79-425 or at support@qwick.com.
