HERE TO WORK/HERE TO HIRE SERVICES AGREEMENT
Updated May 10, 2021
The JobCall website and application (collectively, the “Application”) is owned and operated by JobCall Inc (“JobCall,” “we,” or “us”). JobCall provides a service (the “Service”) that allows you to register as independent contractor (“JobCaller(s)” or you) or as someone seeking an independent contractor (“Requestor(s)”) or both, to post or access Open Requests, or to accept Open Requests. Collectively JobCaller and Requestor are referred to as Customer(s). Customers have access to the Application to post, receive, review and respond to Open Requests.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JUDGE OR JURY TRIALS.
Acknowledgment and Acceptance of this Agreement
JobCall reserves the right to change this Agreement, and add additional terms at any time, effective upon making the modified provisions available on the Application or by notifying Customers directly. Customers are responsible for regularly reviewing this Agreement for modifications and updates to its terms. Continued use of the Application after any such changes are made to this Agreement shall constitute Customers consent to such changes. Other than making the changes available on the Application, JobCall does not assume any obligation to notify Customers of any changes to this Agreement, or the creation or modification of any additional terms.
Notwithstanding the previous paragraph or any contrary language in this Agreement, the Arbitration Provision in Section 9 of this Agreement may not be modified or terminated by Customers.
Customers acknowledge that Customers are able to electronically receive, download, and print this Agreement, any other terms, notices, forms and any other notices or documents required by, or incorporated into, this Agreement by reference, any amendments to this Agreement, or any other items required by regulation or law.
Further, Customers agree to keep the contact information in their Account current at all times including, but not limited to, email address, physical address, and phone number.
Use of the Application is permitted only by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, Customers must be at least 18 years old or the age of legal majority in the jurisdiction where the Open Request is located. You must legally authorized to work in the United States to become a JobCaller. If you do not meet this criteria, you may not register to become a JobCaller.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Services” means the service provided by JobCall.
1.2 “Open Request” An Open Request means a job request for by a Requestor that has not yet been accepted by a JobCaller through the Application, to one or more JobCallers, which includes: a description of the work to be provided by the JobCallers, the time by which the Open Request must be completed, the compensation for the work (the “JobCall Completion Date”) and the fee associated with the Open Request (the “Payment”). JobCallers can use the Application to review Open Requests and to indicate their availability for Open Requests. Once a JobCaller has accepted an Open Request pursuant to Section 2, the Open Request will become a “JobCall Engagement”.
1.3 “JobCall Application” or “Application” means the website and software application, including mobile applications, owned by JobCall.
2.1 Customer Conditional Offer Requirements and Privacy Information. Requestors may require completion of certain steps or requirements after a Jobcaller accepts an Open Request and before a Jobcaller performs the JobCall Engagement (“Conditional Offer Requirements”), such as background checks and drug testing. Any Conditional Offer Requirements will be explained after you accept the Open Request and before commencing performance of the JobCall Engagement. If you are unable or unwilling to complete such Conditional Offer Requirements to the satisfaction of the Requestor, you must notify the Requestor and rescind your acceptance of the Open Request within 24 hours of acceptance. Some of Conditional Offer Requirements will require the Requestor or their designated third-party provider to ask for your social security number and share it with entities who require the information to facilitate the Conditional Offer Requirements.
2.2 Best Efforts. By registering to become a JobCaller and accepting an Open Request, you agree to use your best efforts to perform the JobCall Engagement such that your work meets the requirements and specifications of the Requestor. Once a JobCaller has accepted an Open Request, the Open Request will no longer be available for performance by other JobCallers who received or viewed the Open Request. By accepting an Open Request, you are entering into a binding legal agreement to provide the work for the Payment specified in the Open Request. Do not accept an Open Request unless you are sure that: (1) you understand what you are being asked to deliver; (2) you can perform the work identified in the Open Request; (3) you can deliver the work in the requested time period; and if required, you can get to and from the Requestor’s location. You acknowledge and agree that your failure to timely deliver the work consistent with the Requestor’s requirements and specifications in the JobCall Engagement may result in non-payment by the Requestor. You, not JobCall, will be responsible for payment of any additional fees or costs incurred as a result of your failure to timely complete the JobCall Engagement in accordance with the Requestor’s requirements. You agree to not possess, sell, receive, or operate under the influence of any drugs or alcohol while performing any JobCall Engagement.
Requestors shall make Payment to a JobCaller provided that the JobCaller has performed work in accordance with the JobCall Engagement. Requestors shall use their best efforts to notify a JobCaller of any issues with the work being performed under a JobCall engagement and to provide the JobCaller an opportunity to correct the performance prior to notifying a JobCaller to cease work under the JobCall Engagement or when deciding not to render any portion of the Payment to the JobCaller performing the JobCall Engagement.
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between JobCall and JobCaller or between the Requestor and JobCaller. Customers will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving JobCall that is inconsistent with this Section. JobCallers are not the agent of JobCall or the Requestor and JobCallers are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of JobCall or the Requestor.
JobCallers are solely responsible for determining which Open Requests to accept. JobCallers understand and agree that JobCall does not guarantee you any minimum amount of Open Requests or JobCall Engagements.
JobCall does not:
provide a performance assessment for JobCallers and does not oversee the actual work or instruct the JobCaller as to how the JobCall Engagement will be performed, or the method or process the JobCaller uses to perform Services.
terminate the JobCall Engagements. Any such termination is between the JobCaller and the Requestor.
pay a salary, hourly rate or any other form of compensation to any JobCaller. Payment or other compensations arrangements are the sole responsibility of the Requestor.
provide training, tools, equipment, benefits, or expense reimbursement to the JobCaller or Requestor
dictate the time of performance.
combine its business operations in any way with any Customer’s’ business, but instead maintains such operations as separate and distinct. Customers shall have no legal authority to enter into contracts on JobCall’s behalf or otherwise bind JobCall in any way.
JobCall is not responsible for obtaining and maintaining any required registration, licenses, or other authorization necessary for the work the JobCaller renders.
3.1 Benefits and Contributions. Customers are not entitled to or eligible for any benefits that JobCall, its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. JobCall will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on the Customers behalf. If, notwithstanding the foregoing, you are reclassified as an employee of JobCall, or any affiliate of JobCall (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Requestor and its parents, subsidiaries, affiliates or related entities or by JobCall, its parents, subsidiaries, affiliates or other related entities.
3.2 Taxes. Customers are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from any payment or other compensation for a JobCall Engagement and agree to do so in a timely manner. Customers will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS. Customers agree to indemnify JobCall for the cost of any tax liabilities incurred by JobCall as a result of Customers failure to pay all applicable taxes in a timely manner.
3.3 Third Party Payment Processing Services. Payment processing services for Customers are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). These documents can be found at the provided links or by using a search engine (such as Google or Bing) to seek the terms “Stripe Connected Account Agreement” or “Stripe Terms of Service,” respectively.” By agreeing to these terms or continuing to use the Services as a Customer, Customers agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of JobCall enabling payment processing services through Stripe, Customers agree to provide JobCall accurate and complete information about the Customer, and authorize JobCall to share it and transaction information related to Customers’ use of the payment processing services provided by Stripe.
4.1 Use and Disclosure. From time to time, Customers may be given access to confidential information in the course of posting or accepting Open Requests and/or performing JobCall Engagements received through JobCall or any and all information related to JobCall or any Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Customers) that JobCall and/or the Customer considers to be confidential or proprietary or which JobCall has a duty to treat as confidential (collectively, “Confidential Information”). During the term of this Agreement and at all times thereafter, Customers will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining the express prior written consent from the owner of the Confidential Information.
4.2 Standard of Care. Customers will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as Customer protects Customer’s own confidential or proprietary information of a similar nature, and with no less than reasonable care.
4.3 Exceptions. The obligations under Sections 4.1 and 4.2 will terminate with respect to Confidential Information that Customer can prove, by clear and convincing evidence, (a) Customer lawfully knew prior to its first disclosure to Customer, (b) a third party rightfully disclosed to Customer free of any confidentiality duties or obligations, or (c) is, or through no fault of Customer has become, generally available to the public. Additionally, Customer will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved by the owner of the Confidential Information, or is required by law or court order, provided that Customer immediately notifies JobCall and the owner of the Confidential Information in writing of such required disclosure and cooperate with JobCall and/or the owner of the Confidential Information, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
4.4 Removal; Return. Upon JobCall’s request and upon any termination or expiration of this Agreement, Customers will promptly (a) return to JobCall or, if so, directed by JobCall, destroy all Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to JobCall in writing that Customer has fully complied with these obligations.
5. NO CONFLICTS
Customers represent and warrant that Customers are not subject to any contract or duty that would be breached by entering into or performing Customers’ obligations under this Agreement, or any JobCall Engagement, or that is otherwise inconsistent with this Agreement or any JobCall Engagement.
6. REPRESENTATIONS AND WARRANTIES
6.1 General. Customers represent, warrant, and covenant that:
(a) Customers have full right, power, and authority to enter into and perform under this Agreement without the consent of any third party (including any current or former JobCallers orRequestors);
(b) Customers will comply with all of the terms of this Agreement;
(c) You will fully conform to the Requestor’s specifications, requirements, and other terms of any Open Request that you accept, and the work delivered will be of a professional and workmanlike quality;
(d) You will comply with all applicable laws, rules and regulations in connection with performance of the JobCall Engagement under this Agreement;
(e) Any workers that you may employ, engage or otherwise retain to assist with performance of a JobCall Engagement under this Agreement are properly classified and treated under any applicable laws and will assist with the performance of the work in a safe, lawful and workmanlike manner.
(f) You are not providing and will not provide labor or services to JobCall for remuneration.
(h) You recognize that JobCall is an on-demand software-driven staffing platform and agree that Open Requests posted by Requestors are for work for Requestors and not for JobCall.
6.2. Indemnification. Customers will indemnify and hold harmless JobCall and its parents, affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorney fees and costs associated with litigation) arising from or relating to a breach by Customers of any representation, warranty, covenant, or obligation in this Agreement, or arising from or relating to any negligent or intentional act or omission committed by Customers, in connection with the performance of any JobCall Engagement, which act or omission gives rise to any claim for damages against JobCall and/or its parents, affiliates, employees or agents. JobCall specifically denies any obligation to defend and/or indemnify Customers from and against any third-party claims made against Customers arising from any negligent or intentional act or omission committed by Customers in connection with the performance of any JobCall Engagement.
6.3 Insurance. Customers acknowledge and understand that Customers are not covered by any insurance that may be provided by JobCall to its employees, including, without limitation, health insurance, workers compensation insurance, general liability insurance, and automobile liability insurance. If required under applicable law, Customers are required to maintain workers’ compensation or occupational accident insurance for which Customers are solely and exclusively responsible for. In the event that Customers actions cause an injury to a third party while Customers are working in the course and scope of performing a JobCall Engagement, Customers acknowledge and understand that Customers will not be covered by any general liability or automobile liability insurance coverage that JobCall may have, and that JobCall will not defend and/or indemnify Customers in such circumstances, and specifically denies such obligation.
6.4 Warranty Disclaimer. The Application is provided “as is,” as available and without any warranties or conditions (express or implied, including the implied warranties of merchantability, accuracy, fitness for a particular purpose, title and non-infringement, arising by statute or otherwise in law or from a course of dealing or usage or trade). We disclaim all and make no representations or warranties, of any kind, either express or implied, as to the quality, identity or reliability of any third party, or as to the accuracy of the postings made on the Application by any third party. Some states and jurisdictions do not allow for all the foregoing limitations on implied warranties, so to that extent, if any, some or all of the above limitations may not apply to Customers.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL JOBCALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. JOBCALL’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS OF CERTAIN TYPES OF DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMERS.
8. TERM & TERMINATION
8.1 Term; Termination by JobCall. This Agreement will remain in full force and effect while Customer is a user of the Application. JobCall reserves the right, at its sole discretion, to pursue all of its legal remedies, including but not limited to removal of Customer content from the Application and immediate termination of a Customer registration with or ability to access the Application and/or any other services provided to Customer by JobCall, upon any breach by Customer of the Agreement or if JobCall is unable to verify or authenticate any information a Customer submits to the Application. Even after Customer is no longer a user of the Application, certain provisions of Agreement will remain in effect, including, but not limited to Section 9.
9. ARBITRATION PROVISION
9.1 Law. Except for the “Mandatory Binding Individual Arbitration And Class Action Waiver” below, which is governed by the Federal Arbitration Act, this Agreement or any claim, cause of action or dispute (“Claim”) arising out of or related to this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania notwithstanding any conflicts of law principles.
9.2 Mandatory Binding Individual Arbitration and Class Action Waiver (“Arbitration Agreement”). JobCall and Customer mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This Arbitration provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in this Arbitration provision, shall apply to any and all claims arising out of or relating to this Agreement, all aspects of the Customer’s relationship with JobCall, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, claims based on a joint employment or misclassification theory, and all other federal or state legal claims. The agreement by Customer and JobCall to mutually arbitrate disputes provides consideration for this Arbitration provision. This Arbitration provision applies to claims and disputes that JobCall may have against Customer and/or that Customer may have against JobCall, and (1) its affiliates and partners (2) its officers, directors, employees, or agents in their capacity as such or otherwise, and/or (3) all successors and assigns of any of them; any and all of which may enforce this Arbitration provision.
To the fullest extent permitted by law, the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the formation, interpretation, applicability, enforceability or alleged 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.
This Arbitration provision does not apply to any claim that may not be arbitrated as provided by governing law. This Arbitration provision also does not apply to Private Attorney General Action claims under California law, which may only be brought in a court of law—not in arbitration.
(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Customer may be delivered to JobCall Inc. 88 Glocker Way #262 Pottstown, PA 19465 so long as the details set forth in the previous sentence are presented in the demand for arbitration.
(b) Class Action Waiver. JobCall and Customer mutually agree that by entering into this Arbitration provision, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”). In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction (if at all), but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
(d) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), although the parties may stipulate that the arbitration shall be governed by the American Arbitration Association Employment Arbitration Rules, depending on the claims at issue. In addition to and to the extent inconsistent with the foregoing AAA Rules, the following rules shall apply to any arbitration conducted pursuant to this Arbitration Agreement, unless the parties stipulate otherwise:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the Philadelphia, Pennsylvania.
(3) Unless applicable law provides otherwise, as determined by the Arbitrator, the party that initiates arbitration, must bear the extent of the Arbitrators costs and fees (if any) as that party would be required to bear in bringing and maintaining a comparable legal proceeding outside of arbitration.
(4) The Arbitrator shall be empowered to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(6) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(7) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
(8) A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual; provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the temporary or preliminary injunctive relief shall not constitute a waiver of rights under this agreement to arbitrate.
(e) Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Occupational Safety and Health Administration, Equal Employment Opportunity Commission, the U.S. Department of Labor, or similar state or local administrative agencies) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.
(f) The AAA Rules may be found at https://www.adr.org/Rules.
(g) This Arbitration provision is the full and complete agreement relating to the formal resolution of disputes covered by this Agreement. In the event any portion of this Arbitration provision is deemed unenforceable, the remainder of this Arbitration provision will be enforceable. Therefore, terms of this Arbitration provision shall be severed, to the smallest extent possible, if required to uphold the enforceability of this Arbitration provision.
10. Mobile Services.
If Customer uses the Application through a mobile device, Customer agrees that information about Customer’s use of the Application through a mobile device and carrier may be communicated to us, including but not limited to the mobile carrier, the mobile device, or Customer’s physical location. In addition, use of the Application through a mobile device may cause data to be displayed on and through the mobile device. By accessing the Application using a mobile device, Customer represents that to the extent Customer imports any of JobCall data to Customer’s’ mobile device that Customer has authority to share the transferred data with Customer’s mobile carrier or other access provider. In the event Customer changes or deactivates Customer’s mobile account, Customer must promptly update Customer’s JobCall account information to ensure that messages are not sent to the person that acquires Customer’s old number and failure to do so is Customer’s responsibility. Customer acknowledges Customer is responsible for all charges and necessary permissions related to accessing the Application through Customer’s mobile access provider. Therefore, Customers should check with Customer’s provider to find out if the Application is available and the terms for these services for Customer’s specific mobile devices.
By using any downloadable application to enable the Application, Customer is explicitly confirming Customer’s acceptance of the terms of any end user license agreement associated with the Application provided at download or installation, or as may be updated from time to time.
11. Customer Content and Submissions.
11.1 Customers understand that all information, data, text, software, music, sound, photographs, graphics, video, advertisements, messages or other materials submitted, posted or displayed by Customers on or through the Application ("Customer Content") is the sole responsibility of the person from which such Customer Content originated. JobCall claims no ownership or control over any Customer Content. Customers or a third-party licensor, as appropriate, retain all patent, trademark and copyright to any Customer Content Customers submit, post or display on or through the Application and Customers are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Customer Content on or through the Application, Customers grant JobCall a worldwide, non-exclusive, royalty-free, transferable, sub-licensable license to use, reproduce, adapt, distribute and publish such Customer Content through the Application. In addition, by submitting, posting or displaying Customer Content which is intended to be available to the general public, Customers grant JobCall a worldwide, non-exclusive, royalty-free license to reproduce, adapt, distribute and publish such Customer Content for the purpose of promoting JobCall and its services. JobCall will discontinue this licensed use within a commercially reasonable period after such Customer Content is removed from JobCall. JobCall reserves the right to refuse to accept, post, display or transmit any Customer Content in its sole discretion.
11.2 Customers represent and warrant that Customers have the right to grant, or that the holder of any rights, including moral rights in such content has completely and effectively waived all such rights and validly and irrevocably granted to Customers the right to grant, the license stated above. If Customers post Customer Content in any public area of the Application, Customers also permit any Customer to access, display, view, store and reproduce such Customer Content for personal use. Subject to the foregoing, the owner of such Customer Content placed on the Application retains any and all rights that may exist in such Customer Content. JobCall may review and remove any Customer Content that, in its sole judgment, violates this Agreement, violates applicable laws, rules or regulations, is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of, Customers of the Application. JobCall reserves the right to expel Customers and prevent their further access to the Application and/or use of JobCall services for violating this Agreement or applicable laws, rules or regulations. JobCall may take any action with respect to Customer Content that it deems necessary or appropriate in its sole discretion if it believes that such Customer Content could create liability for JobCall, damage JobCall’s brand or public image, or cause JobCall to lose Customers or (in whole or in part) the services of its ISPs or other suppliers.
11.3 JobCall does not represent or guarantee the truthfulness, accuracy, or reliability of Customer Content, derivative works from Customer Content, or any other communications posted by Customers nor does JobCall endorse any opinions expressed by Customers. Customers acknowledge that any reliance on material posted by other Customers will be at Customers own risk.
The following is a partial list of Customer Content that is prohibited on the Application. The list below is for illustration only and is not a complete list of all prohibited Customer Content.
is implicitly or explicitly offensive, such as Customer Content that engages in, endorses or promotes racism, bigotry, discrimination, hatred or physical harm of any kind against any group or individual;
harasses, incites harassment or advocates harassment of any group or individual;
involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing, “spamming” or “phishing”;
promotes or endorses false or misleading information or illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
promotes or endorses an illegal or unauthorized copy of another person's copyrighted work, such as providing or making available pirated computer programs or links to them, providing or making available information to circumvent manufacture-installed copy-protect devices, or providing or making available pirated music or other media or links to pirated music or other media files
contains restricted or password only access pages, or hidden pages or images;
displays or links to pornographic, indecent or sexually explicit material of any kind
provides or links to material that exploits people under the age of 18 in a sexual, violent or other manner, or solicits personal information from anyone under 18; or
provides instructional information about illegal activities or other activities prohibited by this Agreement, including without limitation, making or buying illegal weapons, violating someone's privacy, providing or creating computer viruses or pirating any media; and
solicits passwords or personal identifying information from other Customers.
11.4 We appreciate hearing from our Customers and welcome Customer comments regarding our services and the Application. Please be advised, however, that our policy does not permit us to accept or consider creative ideas, suggestions, inventions or materials other than those which we have specifically requested. While we do value Customer feedback on our services, please be specific in comments regarding our services and do not submit creative ideas, inventions, suggestions, or materials. If, despite our request, Customers send us creative suggestions, ideas, drawings, concepts, inventions, or other information (collectively the "Submission"), the Submission shall be the property of JobCall. None of the Submission shall be subject to any obligation of confidentiality on our part and we shall not be liable for any use or disclosure of any Submission. JobCall shall own exclusively all now known or later discovered rights to the Submission and shall be entitled to unrestricted use of the Submission for any purpose whatsoever, commercial or otherwise, without compensation to Customers or any other person.
12. Identification Of Agent To Receive Notification And Elements Of Notification Of Claimed Copyright or Trademark Infringement.
If Customers believe that Customers’ copyrighted work or trademark has been uploaded, posted or copied to the Application and is accessible on the Application in a way that constitutes copyright or trademark infringement, please contact JobCall by email at [email protected] or by regular mail at: JobCall Inc. 88 Glocker Way #262 Pottstown, PA 19465
13. Policy Regarding Termination Of Customers Who Infringe The Copyright Or Other Intellectual Property Rights Of Others.
JobCall respects the intellectual property of others, and we ask our Customers and content partners to do the same. The unauthorized posting, reproduction, copying, distribution, modification, public display or public performance of copyrighted works constitutes infringement of the copyright owners rights. As a condition to Customers use of the Application, Customers agree not to use the Application to infringe the intellectual property rights of others in any way. JobCall reserves the right to terminate the accounts of any Customers, and block access to the Application of any Customers who are repeat infringers of the copyrights, or other intellectual property rights, of others. JobCall reserves the right, in its sole discretion, to take these actions to limit access to the Application and/or terminate the accounts of any time, in our sole discretion Customers who infringe any intellectual property rights of others, whether or not there is any repeat infringement, with or without notice, and without any liability to Customers terminated or to Customers whose access is blocked. Notwithstanding the foregoing, in the event that Customers believe in good faith that a notice of copyright infringement has been wrongly filed against Customers, please contact JobCall as set forth in Section 12 above.
14. Additional terms applicable to JobCallers.
When you register with the Application, you will be asked to create an account and provide JobCall with certain information including, without limitation, name, zip code, and a valid email address ("Profile").
Any Profile you submit must be accurate and describe you, an individual person. The Profile requires standard fields to be completed and you may not include in these fields any telephone numbers, street addresses, or other means of contacting you, other than your information.
You acknowledge and agree that you are solely responsible for the form, content and accuracy of any material contained therein placed by you on the Application.
You understand and acknowledge that you have no ownership rights in your account and that if you cancel your JobCall account or your JobCall account is terminated, all your account information from JobCall, including saved jobs, questionnaires will be marked as deleted in and may be deleted from the Application and will be removed from any public area of the Application. Information may continue to be available for some period of time because of delays in propagating such deletion through JobCall’s web servers. In addition, third parties may retain saved copies of your Profile.
JobCall reserves the right to delete your Profile and all of your information after a significant duration of inactivity.
15. Use of JobCall Content.
15.1 JobCall authorizes Customers, subject to this Agreement, to access and use the Application to download and print a single copy of the content available on or from the Application solely for Customers personal, non-commercial use. The contents of the Application, such as designs, text, graphics, images, video, information, logos, button icons, software, audio files and other JobCall content (collectively, "JobCall Content"), are protected under copyright, trademark and other laws. All JobCall Content is the property of JobCall or its licensors. The compilation (meaning the collection, arrangement and assembly) of all content on the Application is the exclusive property of JobCall and is protected by copyright, trademark, and other laws. Unauthorized use of the JobCall Content may violate these laws and/or applicable communications regulations and statutes and is strictly prohibited. Customers must preserve all copyright, trademark, service mark and other proprietary notices contained in the original JobCall Content on any authorized copy Customers make of the JobCall Content. Any code that JobCall creates to generate or display any JobCall Content or the pages making up any Application is also protected by JobCall's copyright and Customers may not copy or adapt such code.
15.2 Customers agree not to sell or modify the JobCall Content or reproduce, display, publicly perform, distribute, or otherwise use the JobCall Content in any way for any public or commercial purpose, in connection with products or services that are not those of the Applications, in any other manner that is likely to cause confusion among consumers, that disparages or discredits JobCall or its licensors, that dilutes the strength of JobCall's or its licensor’s property, or that otherwise infringes JobCall's or its licensor’s intellectual property rights. Customers further agree to in no other way misuse JobCall Content. The use of the JobCall Content on any other application, web site or in a networked computer environment for any purpose is prohibited. Any code that JobCall creates to generate or display any JobCall Content or the pages making up the Application is also protected by JobCall's copyright and you may not copy or adapt such code.
16. Use of the JobCall Services.
16.1 JobCall databases, including but not limited (a) any JobCall diversity and veteran databases if applicable, and (b) any information obtained from Customers, Open Requests, JobCall Engagements (collectively “Databases”) and other features of the Application may be used only by Customers. The term “post” as used herein shall mean information that Customers submit, publish or display on the Application.
Customers are responsible for maintaining the confidentiality of Customers account, Profile and passwords, as applicable. Customers may not share Customers’ password or other account access information with any other party, temporarily or permanently, and Customers shall be responsible for all uses of Customers Application registrations and passwords, whether or not authorized by Customer. Customers agree to immediately notify JobCall of any unauthorized use of Customers’ account, Profile, or passwords.
16.2 Customers agree to not:
(b) take any action that imposes an unreasonable or disproportionately large load on the Application's infrastructure;
(c) use any device to navigate or search the Application other than the tools available on the Application, generally available third-party web browsers, or other tools approved by JobCall;
(d) use any data mining, robots or similar data gathering or extraction methods;
(e) violate or attempt to violate the security of the Application including attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
(f) forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting;
(g) reverse engineer or decompile any parts of the Application;
(h) aggregate, copy or duplicate in any manner any of the JobCall Content or information available from the Application, including expired job ads, other than as permitted by this Agreement;
(i) frame or link to any JobCall Content or information available from the Application, unless permitted by this Agreement;
(j) post any content or material that promotes or endorses false or misleading information or illegal activities, or endorses or provides instructional information about illegal activities or other activities prohibited by this Agreement, such as making or buying illegal weapons, violating someone's privacy, providing or creating computer viruses or pirating media;
(k) post any Profile or apply for any job on behalf of another party;
(l) defer any contact from an Requestor to any agent, agency, or other third party;
(m) set more than one copy of the same Profile to public at any one time;
(n) share with a third party any login credentials to the Application;
(o) access data not intended for Customers or logging into a server or account which Customers are not authorized to access;
(p) post or submit to the Application any incomplete, false or inaccurate biographical information or information which is not Customers;
(q) post content that contains restricted or password-only access pages, or hidden pages or images;
(r) solicit passwords or personally identifiable information from other Customers;
(s) delete or alter any material posted by any other person or entity;
(t) harass, incite harassment or advocate harassment of any group, company, or individual;
(u) send unsolicited mail or email, make unsolicited phone calls or send unsolicited texts, tweets or faxes promoting and/or advertising products or services to any Customer, or contact any Customers that have specifically requested not to be contacted by Customers;
(v) attempt to interfere with service to any Customer, host or network, including, without limitation, via means of submitting a virus to any Application, overloading, "flooding", "spamming", "mailbombing" or "crashing";
(w) promote or endorse an illegal or unauthorized copy of another person's copyrighted work, such by as providing or making available pirated computer programs or links to them, providing or making available information to circumvent manufacture-installed copy-protect devices, or providing or making available pirated music or other media or links to pirated music or other media files; or
(x) use the Application for any unlawful purpose or any illegal activity, or post or submit any content, resume, or job ad that is defamatory, libelous, implicitly or explicitly offensive, vulgar, obscene, threatening, abusive, hateful, racist, discriminatory, of a menacing character or likely to cause annoyance, inconvenience, embarrassment, anxiety or could cause harassment to any person or include any links to pornographic, indecent or sexually explicit material of any kind, as determined by JobCall’s discretion.
Violations of system or network security may result in civil and/or criminal liability. JobCall will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Customers who are involved in such violations.
17. Additional Terms Applicable to Customers.
17.1 Customers are solely responsible for their postings on the Application. JobCall shall not be responsible for any employment decisions, for whatever reason, made by any Customer posting jobs on any Application.
17.2 Customers understand and acknowledge that if Customer cancels their account or their account is terminated, all account information, will be marked as deleted in and may be deleted from the Application. Information may continue to be available for some period of time because of delays in propagating such deletion through JobCall’s web servers.
17.3 In order to protect Customers from commercial advertising or solicitation, JobCall reserves the right to restrict the number of e-mails which a Customer may send to Customers to a number which JobCall deems appropriate in its sole discretion. Customers shall use the Profiles in accordance with all applicable privacy and data protection laws.
17.4 Open Requests may not contain:
(a) any hyperlinks, other than those specifically authorized by JobCall;
(b) misleading, unreadable, or "hidden" keywords, repeated keywords or keywords that are irrelevant to the job opportunity being presented, as determined in JobCall’s reasonable discretion;
(c) the names, logos or trademarks of unaffiliated companies other than those of your customer save where expressly agreed by JobCall;
(d) the names of colleges, cities, states, towns or countries that are unrelated to the posting;
(e) more than one job or job description;
(f) more than one location, or more than one job category, unless the product so allows;
(g) inaccurate, false, or misleading information; and
(h) material or links to material that exploits people in a sexual, violent or other manner, or solicits personal information from anyone under 18.
17.5 Customers may not use Open Requests or Profiles to:
(a) post jobs in a manner that does not comply with applicable local, national and international laws, including but not limited to laws relating to labor and employment, equal employment opportunity and employment eligibility requirements, data privacy, data access and use, and intellectual property;
(b) post jobs that require citizenship of any particular country or lawful permanent residence in a country as a condition of employment, unless otherwise required in order to comply with law, regulations, executive order, or federal, state or local government contract;
(c) post jobs that include any screening requirement or criterion in connection with a job ad where such requirement or criterion is not an actual and legal requirement of the posted job;
(d) with respect to Profiles, determine a consumer's eligibility for: (i) credit or insurance for person, family, or household purposes; (ii) employment; or (iii) a government license of benefit.
(e) promote or advertise career fairs, job fairs, hiring events, conferences, seminars or open houses or any other event or meeting;
(f) post jobs or other advertisements for competitors of JobCall or post jobs or other content that contains links to any site competitive with JobCall;
(g) sell, promote or advertise products or services;
(h) post any franchise, pyramid scheme, "club membership", distributorship, multi-level marketing opportunity, or sales representative agency arrangement;
(i) post any business opportunity that requires an upfront or periodic payment or requires recruitment of other members, sub-distributors or sub-agents;
(j) post any business opportunity that pays commission only unless the posting clearly states that the available job pays commission only and clearly describes the product or service that the job seeker would be selling;
(k) promote any opportunity that does not represent bona fide employment which is generally indicated by the Requestor’s use of IRS forms W-2 or 1099;
(l) post jobs on the Application for modeling, acting, talent or entertainment agencies or talent scouting positions;
(m) advertise sexual services or seek employees for jobs of a sexual nature;
(n) request the use of human body parts or the donation of human parts, including, without limitation, reproductive services such as egg donation and surrogacy;
(o) endorse a political party, political agenda, political position or issue;
(p) promote a religion;
(q) post jobs located in countries subject to economic sanctions of the United States Government; and
(r) except where allowed by applicable law, post jobs which require the applicant to provide information relating to his/her (i) racial or ethnic origin, (ii) political beliefs, (iii) philosophical or religious beliefs, (iv) membership of a trade union, (v) physical or mental health (including pregnancy status), (vi) sexual life, (vii) the commission of criminal offences or proceedings, or (vii) age.
17.6 JobCall reserves the right to remove any content from the Application, which in the reasonable exercise of JobCall’s discretion, does not comply with this Agreement, or if any content is posted that JobCall believes is not in the best interest of JobCall.
17.7 If at any time during Customer’s use of the Application, Customer made a misrepresentation of fact to JobCall or otherwise misled JobCall in regards to the nature of Customer’s business activities, JobCall will have grounds to terminate Customer’s use of the Application.
18. Use of the Data by Customers
In order to ensure a safe and effective experience for all of our Customers, JobCall reserves the right to limit the amount of data that may be accessed by Customers or the number of contacts, emails or messages Customers may make or send within any JobCall system in any given time period. These limits may be amended in JobCall’s sole discretion from time to time.
19.1 JobCall makes no claims or representations that the JobCall Content may be lawfully viewed or accessed outside of the United States. Access to the JobCall Content may not be legal by certain persons or in certain countries. If Customers access the Application, Customers do so at their own risk and are responsible for compliance with the laws of their jurisdiction.
19.2 Any software downloaded from the Application is further subject to United States export control laws, and may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods or (ii) to any individual or entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using such software, Customers represent and warrant that Customers are not located in, under the control of, or a national or resident of any such country, individual, or entity on any such list.
19.3 If any provision of this Agreement are found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
19.4 No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. In addition, JobCall’s failure to enforce any term of this Agreement shall not be deemed as a waiver of such term or otherwise affect JobCall’s ability to enforce such term at any point in the future. Except as expressly provided in an additional agreement, additional terms for certain areas of the Application, a particular "Legal Notice," or software license or material on particular pages on the Application, this Agreement constitutes the entire agreement between Customers and JobCall with respect to the use of the Application. No changes to this Agreement shall be made except by a revised posting on this page.
19.5 No Resale or Unauthorized Commercial Use. Customers agree not to resell or assign Customers rights or obligations under this Agreement. Customers also agree not to make any unauthorized commercial use of the Application.
19.6 Modifications to Application. JobCall reserves the right at any time to modify or discontinue, temporarily or permanently, the Application (or any part thereof) with or without notice. Customers agree that JobCall shall not be liable to Customers or to any third party for any modification, suspension or discontinuance of the Application.
19.7 Disclaimer of Warranty. TO THE FULLEST EXTENT POSSIBLE BY LAW, JOBCALL DOES NOT WARRANT THAT THE APPLICATION OR ANY JOBCALL SERVICES WILL OPERATE ERROR-FREE OR THAT THE APPLICATION AND ITS SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF CUSTOMERS USE OF THE APPLICATION OR THE JOBCALL CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA OR ANY OTHER COSTS, JOBCALL IS NOT RESPONSIBLE FOR THOSE COSTS. THE APPLICATION AND JOBCALL CONTENT ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. JOBCALL, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. JOBCALL MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE JOBCALL CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS.
19.8 Disclaimer of Consequential Damages. TO THE FULLEST EXTENT POSSIBLE BY LAW, IN NO EVENT SHALL JOBCALL, ITS SUPPLIERS, OR ANY THIRD PARTIES MENTIONED ON THE JOBCALL SITE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITY OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE APPLICATION AND THE JOBCALL CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT JOBCALL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19.9 JobCall's Liability.
(a) The Application act as, among other things, venues for (i) Customers to post job opportunities and search for and evaluate job candidates and (ii) candidates to post Profiles and search for and evaluate job opportunities. JobCall does not screen or censor the listings, including Profiles offered. JobCall is not involved in, and does not control, the actual transaction between Customers and JobCallers. As a result, JobCall is not responsible for Customer Content, the quality, safety or legality of the jobs or resumes posted, the truth or accuracy of the listings, the ability of Customers to offer job opportunities to JobCallers or the ability of JobCallers to fill job openings and JobCall makes no representations about any jobs, resumes or Customer Content on the Applications. While JobCall reserves the right in its sole discretion to remove Customer Content, job ads, resumes or other material from the Application from time to time, JobCall does not assume any obligation to do so and to the extent permitted by law, disclaims any liability for failing to take any such action.
(b) THERE ARE RISKS, INCLUDING BUT NOT LIMITED TO THE RISK OF PHYSICAL HARM, OF DEALING WITH STRANGERS, UNDERAGE PERSONS OR PEOPLE ACTING UNDER FALSE PRETENSES. CUSTOMER ASSUME ALL RISKS ASSOCIATED WITH DEALING WITH OTHER CUSTOMERS WITH WHOM CUSTOMERS COME IN CONTACT THROUGH THE APPLICATION. BY ITS VERY NATURE OTHER PEOPLE’S INFORMATION MAY BE OFFENSIVE, HARMFUL OR INACCURATE, AND IN SOME CASES WILL BE MISLABELED OR DECEPTIVELY LABELED. WE EXPECT THAT CUSTOMER WILL USE CAUTION AND COMMON SENSE WHEN USING THE APPLICATION.
(c) Because Customer authentication on the Internet is difficult, JobCall cannot and does not confirm that each Customer is who they claim to be. Because we do not and cannot be involved in Customer-to-Customer dealings or control the behavior of participants on the Application, in the event that Customers have a dispute with one or more Customers, Customers release JobCall (and our agents and employees) from claims, demands and damages (actual and consequential and direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes to the fullest extent permitted by law.
(d) The Application and the JobCall Content may contain inaccuracies or typographical errors. JobCall makes no representations about the accuracy, reliability, completeness, or timeliness of the Application or the JobCall Content. The use of the Application and the JobCall Content is at Customers own risk. Changes are periodically made to the Application and may be made at any time. JobCall cannot guarantee and does not promise any specific results from use of the Application. No advice or information, whether oral or written, obtained by a Customer from JobCall or through or from the Application shall create any warranty not expressly stated herein.
(e) If Customer is a California resident, Customer waives California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
(f) JobCall encourages Customers to keep a back-up copy of any of your content. To the extent permitted by law, in no event shall JobCall be liable for the deletion, loss, or unauthorized modification of any content.
(g) JobCall does not provide or make any representation as to the quality or nature of any of the third party products or services purchased through the Application, or any other representation, warranty or guaranty. Any such undertaking, representation, warranty or guaranty would be furnished solely by the provider of such third party products or services, under the terms agreed to by the provider.
(h) If Customers believe that something on the Application violates this Agreement please contact our designated agent set forth in Section 12 above.
(i) If notified of any content or other materials which allegedly do not conform to these Terms, JobCall may in its sole discretion investigate the allegation and determine whether to remove or request the removal of the content. JobCall has no liability or responsibility to Customers for performance or nonperformance of such activities.