GENERAL CONTRACTOR TERMS AND CONDITIONS
PLEASE REVIEW THESE GENERAL CONTRACTOR TERMS AND CONDITIONS IN THEIR ENTIRETY. WHEN YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS BY REGISTERING TO BECOME A USER OR BY USING THE ABLEMKR PLATFORM, YOU WILL BE LEGALLY BOUND BY THEM. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS, DO NOT INDICATE YOUR ACCEPTANCE AND DO NOT REGISTER TO USE OR USE THE PLATFORM.
The ABLEMKR app and website (the “Software Applications”) are owned and operated by GitDev Applications LLC, a Wyoming company with principal offices in Sheridan, Wyoming, USA (the “Company,” “we” or “ABLEMKR”). The Software Applications are offered to both construction day laborers (“Providers”) and licensed construction contractors (“Contractor” or “you”) conditioned on your acceptance without modification of the terms, provisions and notices set forth in these Terms and Conditions (the “Terms” or this “Agreement”).
As a Contractor, your use of the ABLEMKR Platform constitutes your consent to and agreement with all such Terms. This is a binding legal agreement; please read these Terms carefully, and keep a copy of them for your reference.
Contractor engages the Company to provide moderated site worker job postings for construction labor services to be performed on behalf of Contractor (the “Services”). Contractor’s use of the Services is subject to compliance with these Terms and payment of ABLEMKR fees, as applicable and set forth below. Contractor acknowledges that ABLEMKR is a digital marketplace platform which facilitates the engagement of services by qualified construction Providers to Contractors seeking such services, but that ABLEMKR is not responsible for the provision or quality of such construction labor services to any Contractor.
2. Independent Contractor Status.
Contractor is and shall be an independent contractor of Company. Nothing contained in these Terms shall be construed to create the relationship of employer and employee, principal and agent, or any fiduciary relationship between the parties. Contractor shall have no authority to act as agent for, or on behalf of, Company, to represent Company, or to bind Company. In this regard, Contractor explicitly acknowledges, represents and agrees that:
(a) Providers and Work Orders. Providers are also independent contractors who use the Platform to offer their services and to perform work on specific projects for Contractors pursuant to accepted Work Orders. ABLEMKR is not a party to Work Orders or other service agreements between Contractors and Providers. ABLEMKR has no responsibility for, control over or involvement in the scope, nature, quality, character, timing or location of any work or services performed by a Provider under a Work Order. Each Work Order constitutes a separate contract between Contractor and Provider to perform work, and a separate agreement between Contractor and ABLEMKR to use the Platform.
(b) No Employment or Agency. Nothing in these Terms or otherwise shall be construed as identifying Provider, Contractor or their personnel or representatives as an employee, agent or legal representative of ABLEMKR or any of ABLEMKR’s related or affiliated entities for any purpose, and Contractor and and its representatives shall not hold themselves out as employees or agents of ABLEMKR in any capacity.
(c) Non-Exclusive Engagement. Except as set forth in Section 1, Contractor’s relationship ABLEMKR is non-exclusive. Contractor shall retain the right to hire workers other than Providers referred through the Platform, provided that such employment does not interfere with the fulfillment of Contractor’s obligations to Company under this Agreement on a timely basis and that all such engagements are in compliance with the provisions of Section 9 of these Terms.
(d) Permits, Licenses and Taxes. You are responsible for and currently possesses, or will timely obtain, all necessary licenses or permits to perform general contractor services in each jurisdiction in which you operate. Contractor shall comply with all applicable federal, state and local laws in performing services for its customers. Contractor shall be responsible for Contractor’s own local, state and federal employment and income taxes, including if and as required tax withholding or 1099 payments, workers’ compensation insurance, FICA and related excise tax payments and other tax and regulatory obligations, and shall indemnify, defend and hold harmless Company from and against the same. As a service to registered Contractors and on behalf of such Contractors, ABLEMKR will provide Providers with annual tax reporting documents and file such forms as may be required.
(e) Costs and Overhead. Except as otherwise specifically agreed between Contractor and Provider, each Provider will provide all equipment, tools, materials, and labor that are required to perform services pursuant to any Work Order agreed to with Contractor. ABLEMKR will provide no equipment, tools, materials or labor under these Terms. ABLEMKR will, however, provide both Contractor and Provider with access to the Platform to facilitate access to available, optional support resources and materials, if Contractor so chooses. ABLEMKR will also ensure that all Providers will have either worker’s compensation or occupational accident insurance.
(f) Scheduling. Providers are solely responsible for scheduling the timing of service consistent with the scheduling requirements set forth in each Work Order between Contractor and Provider. Contractor agrees and understands that ABLEMKR plays no role in the scheduling or delivery of services. Contractor understands and acknowledges that Providers shall remain responsible for and shall pay all operational costs, expenses and disbursements relating to operating Provider’s business (including the activities of any employees or subcontractors) and the provision of services to Contractor under a Work Order.
Contractor further acknowledges and agrees that:
(g) Providers have the right to perform services for others and shall receive no training from the Company. Each Provider warrants and represents that (i) he or she is free from the control and direction of ABLEMKR in connection with performance of the work, both under a Work Order and in fact; (ii) he or she performs work that is outside the usual course of the Company’s technology business; and (iii) he or she is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in work performed under a Work Order for a Contractor.
4. Provider Information and Verification. Contractor acknowledges that the profile information for each Provider available via the Platform is compiled and maintained by the Providers themselves and not ABLEMKR. Contractor is responsible for conducting whatever investigation or verification of a Provider’s profile information that Contractor deems necessary for purposes of entering into a Work Order with that Provider. ABLEMKR does not and will not investigate Providers and does not certify or verify the skills, qualifications, background, experience or other profile information or other information provided by Providers in their profile or elsewhere through the Platform. ABLEMKR makes no representation as to the validity or accuracy of information provided by Providers. Contractor uses the Platform and contracts with Providers for completion of Work Orders at its own risk.
5. Contractor Data and License. The Platform allows Contractors to create a profile to be viewed by prospective Providers who wish to offer their services. ABLEMKR does not own any information, text, data or other content that Contractor submits, stores or uses in the Platform, including all Work Order information (collectively, the “Contractor Data”). Contractor shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Contractor Data.
(a) License Grant. Contractor grants ABLEMKR a royalty-free, worldwide, non-exclusive right and license, with right to sublicense, to use, reproduce, modify, edit, adapt, publish, distribute, perform and display Contractor Data in connection with its operation of the Platform and related business purposes. ABLEMKR may use personally identifiable information of Contractor included in the Contractor Data for purposes of providing, improving and customizing the Platform. Once ABLEMKR has de-identified Contractor Data, ABLEMKR may also analyze, use and disclose such information for any purpose, including for marketing and advertising via the Platform interface.
6. Payments to Providers and Platform Fees. A Provider who performs work for a Contractor under a Work Order through the Platform will be paid by ABLEMKR on behalf of the Contractor. As a condition of being allowed to post and accept Work Orders between Contractors and Providers via the Platform, Contractor must deposit funds, authorize an automatic ACH or credit card payment with ABLEMKR or meet ABLEMKR’S credit requirements. All Contractor funds deposited with ABLEMKR will be held in a custodial account and will be commingled with the funds of other Contractors. Contractor acknowledges that ABLEMKR will not pay interest on the funds it holds on deposit.
(a) Fees. ABLEMKR charges fees for the use of the Platform upon approval of hours on a weekly basis. When a Contractor sources a Provider through the Platform, the Provider will pay ABLEMKR a set amount of the compensation agreed to in each Work Order. ABLEMKR will deduct these fees directly from the fees payable to a Provider by a Contractor. ABLEMKR’S fees are subject to periodic changes in its sole business discretion. Use of the Platform constitutes acceptance of ABLEMKR’s most current pricing.
(b) ABLEMKR Fee. In addition to the foregoing, ABLEMKR will charge a fee for the access and use of the Platform (the “ABLEMKR Fee”) which will be deducted directly from the amounts payable to a Provider on behalf of a Contractor for services performed. The ABLEMKR Fee will be USD $5.00 per hour for Providers. ABLEMKR’s prices, including the ABLEMKR Fee, are subject to periodic change in its sole business discretion. Use of the Platform constitutes acceptance by Contractor of ABLEMKR’s most current pricing. In the event any jurisdiction imposes sales, use, value-added, excise or other taxes payable on account of payments to ABLEMKR, other than taxes on ABLEMKR’s own income (“Taxes”), ABLEMKR’s fees will be increased to cover such Taxes so that it receives a net amount equal to the full amount of the fees or other payment obligations that would otherwise have been payable under these Terms as if no such deduction or withholding was required.
7. Platform Availability. ABLEMKR will use reasonable efforts to make the Platform available for access and use by Contractor, but offers the Platform without any guarantee or warranty of availability, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, which are specifically disclaimed. Contractor acknowledges and agrees that ABLEMKR will not be liable for (a) any unavailability caused by acts or omissions of Contractor, any Providers or other third parties, or caused by events outside ABLEMKR’s control; (b) problems with Contractor’s internet access or private computer network and equipment; and (c) ABLEMKR’s regularly scheduled maintenance work.
8. Confidential Information; Non-Disclosure.
Contractor agrees at all times to hold in strictest confidence, and not to use, except for the benefit of ABLEMKR, or to disclose without written authorization of the Company, any Confidential Information. “Confidential Information” means proprietary information, trade secrets or know-how, including but not limited to research, product or marketing plans, social media campaigns and techniques, customer lists and customers (including, without limitation, clients of the Company with whom Contractor became acquainted under these Terms), finances or other business information about the Company, its clients, managed brands and social media strategies, made available to Contractor, including in electronic and oral form, by Company. Confidential Information does not include any of the foregoing items that have become publicly known and made generally available through no wrongful act of Contactor. On termination or expiration of Contractor’s relationship with ABLEMKR, any Confidential Information in Contactor’s possession shall promptly be returned to Company and Contractor shall confirm deletion of all electronic copies of such Confidential Information from his or her digital devices and cloud storage services.
9. Non-Circumvention; Non-Interference.
Contractor shall engage Providers to perform Work Orders through the Platform only. Contractor shall not communicate with any Providers outside of the Platform for the purpose of avoiding any obligations under these Terms, including the obligation to pay all ABLEMKR fees. Contractor shall not take any actions which would circumvent the processing of payments through the Platform or prevent ABLEMKR from collecting fees due from a Provider.
(a) Non-Circumvention. For the duration of Contractor’s use of the Platform and one (1) year thereafter, Contractor shall not directly or indirectly: (i) solicit for employment or contract services or hire any Provider to perform services similar to those offered by Provider through the platform, except for services to be performed pursuant to Work Orders via the Platform, without the prior written consent of ABLEMKR; or (ii) take any action which interferes with the contractual relationship between ABLEMKR and any of its Providers unless Contractor pays the Buyout fee set forth below.
(b) Hiring of Providers. Nothing in these Terms is intended to constrain the engagement of a Provider directly by Contractor, provided that the terms of such engagement are in accordance with this Section. Subject to (i) Contractor’s prior written notice to ABLEMKR, and (ii) full payment of the Buyout Fee (as defined herein), Contractor may at any time during or after its relationship with ABLEMKR opt to directly engage or hire a Provider. Unless otherwise agreed upon by ABLEMKR and Contractor, within thirty (30) days of hiring or directly engaging a Provider, Contractor shall pay ABLEMKR a buyout fee that equals USD $7,500 (the “Buyout Fee”) per Provider hired unless 1000 hours have been worked by the Provider.
10. Disclaimer of Warranties. EXCEPT AS SET FORTH EXPRESSLY IN THESE TERMS, THE ABLEMKR PLATFORM IS PROVIDED “AS IS.” ABLEMKR DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE PERFORMANCE, OPERATION OR QUALITY OF THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ABLEMKR DOES NOT WARRANT THAT THE PLATFORM WILL MEET THE USER’S REQUIREMENTS, OPERATE IN COMBINATION WITH OTHER SOFTWARE OR WEBSITES, BE UNINTERRUPTED OR ERROR- FREE, OR FUNCTION WITHIN A PARTICULAR SYSTEM. NO OTHER ORAL OR WRITTEN ADVICE GIVEN BY ABLEMKR WILL CREATE A WARRANTY REGARDING THE PLATFORM. NO AGENT OR EMPLOYEE OF ABLEMKR IS AUTHORIZED TO MAKE ANY WARRANTY OBLIGATIONS ON BEHALF OF ABLEMKR OR MODIFY THE LIMITATIONS STATED IN THIS SECTION.
11. Indemnification. Contractor shall indemnify and hold ABLEMKR, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with: (a) a claim based on any alleged misuse of the Platform by Contractor, or a claim that any Contractor Data infringes the copyright, trademark, or patent rights of any third party; (b) any alleged conduct which would constitute a breach of the representations and warranties of Contractor set forth herein; and; (c) violation of any applicable law by Contractor; (d) any claim based on the negligent or intentional acts by Contractor; and (e) any claim arising out of or related to any Work Order, including without limitation (i) any claims by a third party or government agency that a Provider was misclassified as an independent contractor or employee of Contractor; and (ii) any claim that ABLEMKR was an employer or joint employer of a Provider; and (iii) any related legal claims under any employment, workers’ compensation or workplace safety laws or regulations.
12. Limitation of Liability. ABLEMKR’s AGGREGATE LIABILITY TO CONTRACTOR FOR ALL CLAIMS RELATING TO THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO THE TOTAL FEES PAID OR OWING TO THE COMPANY FOR WORK ORDERS COMPLETED FOR CONTRACTOR DURING THE MOST RECENT SIX (6) MONTHS OF THE TERM (AS DEFINED BELOW) OR USD $2,500, WHICHEVER IS LESS. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE, HOWEVER IT ARISES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(a) Governing Law; Jurisdiction. These Terms will be governed by the laws of the State of Wyoming, exclusive of principles of conflicts of law. Subject to subsection (c) below, you consent to the personal jurisdiction of the state and federal courts located in Sheridan County, Wyoming for resolution of any dispute arising from or relating to this Agreement.
(b) Term and Termination. These Terms commence when Contractor registers to use the Platform for the first time and continue in force until terminated by either party. Contractor may terminate these Terms immediately upon written notice to ABLEMKR at any time and for any reason. ABLEMKR may terminate these Terms immediately without any notice at any time and for any reason. Upon termination by either party, Contractor’s rights to access and use the Platform will cease immediately. Upon any termination, however, Contractor will not be relieved of its obligation to pay all fees due to ABLEMKR which accrued before the termination date. If these Terms are terminated for any reason, ABLEMKR will make all Contractor Data available for transmittal to Contractor within a reasonable period after receiving a written request from Contractor, provided such request is received within sixty (60) days after termination.
(c) Dispute Resolution/Arbitration. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, including without limitation any Provider’s classification as an independent contractor, Providers’ provision of services, Contractor’s use of the Platform, acceptance of Work Orders and any payments made or received through the Platform, or the performance of services arranged through the Platform, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on an award rendered by a single arbitrator may be entered in any court having jurisdiction thereof. ABLEMKR and Contractor agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action or collective action, and an arbitrator will not have authority to hear or arbitrate any class and/or collective claim (“Class Action Waiver”). Any contention that this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by the arbitrator.
(d) Entire Agreement. These Terms set forth the entire understanding of the Parties relating to the subject matter herein and supersedes all prior discussions between them. No modification or waiver of these Terms by Contractor will be effective unless in writing signed by an authorized representative of ABLEMKR.
The Company reserves the right, in its sole discretion, to change the Terms under which the ABLEMKR Platform is offered. The most current version of these Terms will supersede all previous versions. If there is a conflict between these Terms any additional or revised provisions, the additional or revised provisions will control for that conflict. The Company encourages you to periodically review the Terms to stay informed of our updates.
ABLEMKR welcomes your questions or comments regarding the Terms:
Effective as of June 1, 2020