This is an Agreement between you (the “Client”, “You” or “Your”) and Smart Web (“Company” or “Smart Web”), a Kenyan limited liability company doing business as Smart Web (located at www.smartweb.co.ke), collectively You and Company, are hereinafter referred to as the “Parties.” This Agreement is effective on May 30, 2023 (the “Effective Date”).
Smart Web recruits and connects service providers who act as independent contractors (“Independent Contractors”) with individuals and companies from around the world (“Clients”) to perform specific services requested by these Clients (the “Contractor Services”); Company also provides various international payment services for Clients (collectively, the “Company Services” or “Services”). In consideration for the performance of the Services, You represent and warrant that You agree to the following:
1. 1. Term of Agreement. This Agreement is effective on the Effective Date, and shall remain in effect until terminated by either party as provided herein.
2. 2. Company’s Relationship With Independent Contractors. Company recruits Independent Contractors and introduces them to clients. As such, Independent Contractors are free to decide whether to carry out projects or tasks for a Client. You acknowledge, agree, and understand that the hiring of an Independent Contractor from Company does not create a partnership, joint venture, employer-employee or franchisor-franchisee relationship between You and Company. You are free to enter into any written agreement with Independent Contractor that you deem relevant (e.g. non-disclosure agreements, etc) assuming that such agreements do not conflict with this Agreement or other signed agreements between You and Company. Company makes no representations or warranties relating to the capability of Independent Contractors and Contractor Services. It is solely Your responsibility to monitor Independent Contractors and Contractor Services, and their access to Your confidential information and trade secrets. Any work You assign to Independent Contractors and the deliverables resulting from Contractor Services, is in no way reviewed, monitored, quality assessed, tested or endorsed by the Company, and Company is in no way liable for Contractor Services or any legal consequences that may result from Contractor Services or the deliverables thereof, including, but not limited to, patent, copyright, or trademark infringement by any third-party.
3. 3. Work Quality & Work Made For Hire. You understand and agree that Company does not in any way control, affect, or influence Independent Contractors or Contractor Services and Company specifically disclaims any and all responsibility for the same. Company makes NO representations or warranties regarding the quality, capability, compatibility, performance or legality of any project or task Independent Contractors perform for You. You agree that you are solely responsible for training, monitoring, managing and communicating with the Independent Contractors Company provides to You, and You agree to provide Independent Contractors with the necessary information and training to meet your requirements and expectations. Company affirms that Independent Contractors have been asked to agree that work completed by virtue of this Agreement will be assigned to You and shall be Your sole property including, but not limited to, copyright, trademark, service mark, patent, and trade secret laws.
4. 4. Non-Solicitation. During the term of this Agreement, and for a period of eighteen (18) months following the termination of this Agreement, You shall not directly or indirectly, whether as an individual for Your own account, or for or with any other person, firm, company, corporation, partnership, joint venture, association, or other entity whatsoever, solicit, interfere with, hire, pay for any form of services, or endeavor to entice away from the Company, any Independent Contractor of the Company to whom You have been introduced, or otherwise provided information about, by Company. Notwithstanding anything in this Agreement to the contrary, nothing herein shall prohibit Independent Contractor from responding to a public employment announcement, posting or advertisement, provided such response has not been prompted by You to intentionally circumvent this Agreement.
5. 5. Non-Disclosure. The Company shall not make public any information about You or your business operations without your explicit consent or unless obligated to by operation of law. The Company is not liable for the actions of its Independent Contractors; You understand and acknowledge that Company does not and cannot guarantee Independent Contractors will protect or keep confidential information about You or your business. You shall not disclose confidential or non-public information regarding the Company without the prior written consent of Company or unless obligated to by operation of law, in which case you shall provide written notice to Company of such obligation at least 5 business days prior to making the disclosure.
6. 6. Data and Financial Security. You agree and acknowledge that You are responsible for protecting the integrity of your own data, financial information, and other sensitive and private information and agree not to hold the Company accountable. You agree to only provide the level of access to the Independent Contractor of such sensitive information (including, but not limited to, bank accounts and credit cards, customer data, access to accounts, etc.) to which You are comfortable and that You, and not Company, are solely responsible for ensuring the integrity and security of such information and data.
7. 7. Independent Contractor Termination. You may terminate the specific Independent Contractor You were assigned at any time, with 24 hours written notice to the Company. Company may assign a new Independent Contractor to You, at your request.
8. 8. Payment Rate & Pending Bills. Company shall charge, and Client shall pay, the fees identified in Exhibit A, Fees, incorporated herein by reference, or as otherwise agreed to via email between the Parties specifically referencing any changes in fees. Company reserves the right, in its sole discretion, to change the fees, services or other information in Exhibit A at any time with thirty (30) days notice to You. If you disagree with any revision to any Exhibit A, your sole remedy is to terminate this Agreement as permitted within this Agreement. Company shall charge your credit card on file, or other payment method if previously agreed upon, for fees outlined in this Agreement and Exhibit A. If there is no credit card on file, you agree to pay invoices manually within 2 business days of receipt. If You fail to pay our invoices or fees when due, Company reserves the right to stop any Independent Contractor from working with You (Company disclaims all responsibility and You accepts all risk associated with suspended services for lack of payment). Additional services may be conducted by Independent Contractors after mutual agreement between the parties, which shall become incorporated into and made part of this Agreement.
9. 9. Validity of Special Offers. Company reserves the right to cancel any special offers of discounted or free trials in its sole discretion, with or without notice.
10. 10. Automatic Billing & Payment Schedule. You authorize Company to automatically charge a credit card You provide every 30 days (your “Billing Date”), starting 3 days after your initial “trial period” payment of $49. You will not be charged the 30-day payment if you notify Company within the first three days after your $49 payment that You would like to cancel. You agree and authorize that all payments are charged upfront for the subsequent pay period — i.e. for work not yet completed — and that these payments are not refundable. You agree to Company using third-party payment providers (e.g. Stripe, Square, Payoneer, Paypal, etc) to process payments and manage your payment information.You agree that this authorization of automatic billing will remain in effect until You cancel it by notifying Company in writing at least 1 day prior to your subsequent Billing Date. You agree to promptly notify Company in writing of any changes to your credit card on file or if You wish to terminate this authorization. You understand and acknowledge that canceling your authorization of automatic billing only applies to payments for future work and that the authorization remains in effect for any prior payments which have bounced, did not “go through”, or are otherwise owed to Company. You understand and agree that Company reserves the right to suspend Contractor Services or withhold any deliverables until You pay all monies owed to Company.
11. 11. Additional & Unused Work Hours. Payments are made by You to Company based on a pre-established number of hours which Independent Contractor will be available to work with You each 30-day period. For example, if You select the Gold plan, You will be charged for 80 hours each 30-day period. You agree that any unused hours will not “roll over” to the subsequent pay period. Any additional hours worked by your Independent Contractor that exceed your plan level over the course of that pay period (for example, if You are on the Gold plan and Your Independent Contractor works 85 hours over a 30-day period) will be charged at the flat hourly rate associated with your plan in Exhibit A. You agree and authorize that these additional hours will be added to the amount charged to You at your subsequent Billing Date.
12. 12. Making Payments to Independent Contractors. You represent and warrant that all payments for Contractor Services shall be made by You to Company, and Company is responsible for paying the Independent Contractor. You are prohibited from paying the Independent Contractor directly. You expressly agree not to attempt to hire or pay Independent Contractors that Company has introduced to you and that doing so would be considered by Company to be a material breach of this Agreement, and subject to the liquidated damages provided for herein.
13. 13. Non-Payment. If the amounts by Client owed under this Agreement cannot be collected from the Client’s payment method (for example, if the credit card on file cannot be charged), Client is solely responsible for paying this amount using another means acceptable to Company. A Client will be considered in “default” if they fail to pay any bill that is due under this Agreement within a reasonable time frame but no more than 10 days after Client is notified in writing of an unpaid bill. If Client is in default, Client must pay Company the amount owed plus interest on the outstanding amount of one and one-half percent (1.5%) each month or the maximum interest allowed by applicable law. Any action to collect any sums due under this Agreement may be brought in a court of competent jurisdiction in Mombasa, Kenya, and the parties consent to personal jurisdiction and venue in said County. In any action or proceeding to enforce or construe this Agreement, the prevailing party shall be entitled to recover their attorney’s fees and related enforcement costs and expenses.
14. 14. Chargebacks. Payments made to Company are non-refundable and Client agrees not to request or issue a chargeback on payments made to Company. Chargebacks shall be deemed a material breach of this Agreement and may result in Company instituting a collection action, terminating this Agreement, suspending Contractor Services and/or withholding any deliverables, in the sole judgment of Company.
15. 15. Hour Tracking. Company is not responsible for the accuracy of the hours reported by Independent Contractors and You understand and acknowledge that Company is not liable for any perceived errors in Independent Contractor hour reporting. In the event that You dispute the hours recorded by Independent Contractor, you may contact the Company within 48 hours of the close of the day in question to help work out a solution and Company will make reasonable efforts to resolve the dispute. Company reserves the right, after examining the facts of the case, to determine whether the work hours were completed by Independent Contractor, and to issue you a full or partial refund, at its sole discretion.
16. 16. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO COMPANY SERVICES, CONSULTING SERVICES, INDEPENDENT CONTRACTORS, THIS AGREEMENT (OR ITS TERMINATION), AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY (INCLUDING ATTORNEY FEES) FOR DAMAGES HEREUNDER OR ANY CAUSE WHATSOEVER RELATING TO COMPANY SERVICES, CONTRACTOR SERVICES OR ANY APPLICATIONS THEREIN, SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY YOU TO COMPANY HEREUNDER FOR SUCH SERVICES.
17. 17. Warranty. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
18. 18. Indemnification. Client shall indemnify and hold Company harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney fees, which arise from any alleged breach of (i) this Agreement, or (ii) any representations and warranties made under this Agreement. Company shall promptly notify Client of any such claims if they so arise.
19. 19. Termination. This Agreement may be terminated at any time with or without cause, by either the Company or You by giving written notice of termination to the other party. All payments due at the time of termination shall be payable as indicated herein.
20. 20. Notices. Any notice or other communication required under this Agreement will be deemed to be properly given only when sent via email to firstname.lastname@example.org when to the Company, and to Client’s email address on file with the Company. You represent and warrant that You will keep a valid and up-to-date email address on file with the Company, and that the Company is not responsible for returned mail or email bounces or other causes of non-delivery of emails outside of its control. The effective date of notice shall be the date notice is sent.
21. 21. Liquidated Damages for Solicitation of Independent Contractors. Any material breach of Paragraph 4 would result in damages that are difficult to estimate and therefore You agree to pay Company the following amount, not as a penalty but as compensation for reasonable calculation of damages incurred by Company: an amount equal to two (2) times the highest monthly fees paid or payable to the Company in the preceding six (6) months.
22. 22. Injunctive Relief. You hereby acknowledge that the Company will suffer irreparable harm if You breach this Agreement and that Company shall be entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce such provisions, without the need or requirement to prove damages or post a bond.
23. 23. Severable Provisions. The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provisions to the maximum extent enforceable with current law shall nevertheless be binding and enforceable.
24. 24. Modifications; Assignment. Any modifications or changes to this Agreement will only be binding on Company if signed by a duly authorized representative of the Company. The Company, but not You, shall have the right to modify or amend any provisions of this Agreement, provided that such amendments shall be in writing and Company shall provide a copy of the Agreement as amended or modified to You at least 30 days prior to such amendment or modification becoming effective, subject to the limitations set forth in this Section. If You do not agree to these amended terms, You may terminate this agreement within the 30-day notice period and You will not be bound by the amended terms. Your failure to terminate this Agreement prior to the end of the 30-day notice period shall be deemed to be acceptance of the amendment or modification, and such amendment or modification shall be binding on You upon termination of the notice period. Company shall have the right, upon written notice provided to You, to assign this Agreement in connection with a merger, reorganization, or sale of all or substantially all of the Company’s assets.
25. 25. Excusable Delays. Neither party will be considered to be responsible for failure or delay in performance of this Agreement if the failure or delay is due to war, terrorism, loss of internet, acts of God, or any other causes outside of the direct control of the non-performing party.
26. 26. Survival. After termination of this Agreement, the terms which suggest or imply continuation will remain in full force and effect. This includes, but is not limited to, non-disclosure, indemnification, and payment of fees. Termination of this Agreement does not release You from obligations incurred prior to the termination of the Agreement or that may accrue thereafter.
27. 27. Prior Understandings. This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement. The Agreement supersedes all prior understanding, agreements, or representations.
28. 28. Waiver. Any waiver of a default under this Agreement must be made in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be constructed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act. The failure of You or Company to enforce the provisions of this Agreement will not be interpreted as a waiver of any provision or the right of such party thereafter to enforce each and every provision of this Agreement.
29. 29. Jurisdiction and Venue. This Agreement is to be construed pursuant to the laws of Kenya. You agree to personal jurisdiction and venue of any court of competent jurisdiction in Mombasa County, Kenya, without regard to conflict of laws provisions, for any claim arising out of this Agreement.
30. 30. Counterparts; Execution; Electronic Signature and Delivery. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. This Agreement, any other document necessary for the consummation of the transaction contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on each party as if it were physically executed.
Smart Web is a social enterprise focused on providing great work to talented workers in developing countries. We appreciate your support of these workers!
After an initial 3-day trial for $49, Company will charge You every “month” (defined herein as a period of 30 days) the following rates based on the plan selected by You:
• Silver: 40 hours/month – $359.60 ($8.99/hour) (~10 hours/week)
• Gold: 80 hours/month – $639.20 ($7.99/hour) (~20 hours/week)
• Diamond: 160 hours/month – $1,118.40 ($6.99/hour) (~40 hours/week)
By digitally signing below you intend to sign the agreement digitally and acknowledge that you have read and understand the foregoing Agreement, that you agree to comply with all of the terms of the Agreement, and that you have received a copy of the Agreement.