Pay Contractor Terms

GLOBAL CONTRACTOR PAYMENT FORWARDING SERVICE AGREEMENT

Last updated October 18th, 2022
These Global Contractor Payment Forwarding Service Terms (these “Global Contractor Payment Terms”), together with the Worca Terms of Service Agreement available at www.gusto.com/terms-of-services (the “Worca Terms”) (collectively, the “Global Contractor Payment Agreement”), set forth the terms and conditions under which Worca, Inc., a Delaware corporation doing business as Worca (“Worca”), agrees to provide to User certain payroll services and other related services (the “Payroll Service”), which are provided through Worca’s website, www.worca.io.
WHEREAS, Worca has the capability and capacity through its foreign subsidiaries to provide certain payment forwarding services to the Client’s contractors located outside the United States; and
WHEREAS, Client desires to retain Worca to provide the said services, and Worca is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Worca and Client agree as follows:
1. Services
Worca shall provide to Client the payment forwarding services (the “Services”) through its foreign subsidiaries to the Client’s designated global contractors located outside the United States based on the contractor information provided by the Client in writing or otherwise provided in Worca’s self-serving tools or platform (“Platform”). Worca will provide Client access to the Platform upon Client’s creation of a user account with Worca and acceptance of the accompanying applicable terms of use and terms of services. The details of the method and manner for performance of the Service by Worca shall be under its own control, Client being interested only in the results thereof.
2. Client Obligations.
Client shall:
  1. Provide Worca with the required contractor information in writing using form substantially similar to FORM A, which is attached hereto or otherwise submitted on the Platform;
  2. Deposit the payment amount in US dollars that it intends to pay to its contractors (“Payment Funds”) by wire transfer the funds to an account designated by Worca at least 5 business days prior to the Scheduled Payment Date set forth in the FORM A or otherwise submitted on the Platform.
  3. Cooperate with Worca in its performance of the Services;
  4. Take all steps necessary, including obtaining any required consents, to prevent Client-caused delays in Worca’s provision of the Services;
3. Worca Obligations.
Worca shall:
  1. Hold the Payment Funds as a trust fund and the Payment Funds shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party to this Agreement;
  2. Convert the Client’s Payment Funds into local currencies of the global contractors for transferring the payment to the global contractors;
  3. Transfer the converted Payment Funds in local currencies to the global contractors designated by the Client pursuant to the contractor information provided by the Client in FORM A or submitted through the Platform; and
  4. Take all steps necessary, including obtaining any required consents, to prevent Client-caused delays in Worca’s provision of the Services;
4. Monthly Service Fees and Expenses.
  1. In consideration of the provision of the Services by the Worca, Client shall pay the fees set forth in Worca’s then current fee schedule and payment terms set forth in Schedule A.
  2. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Worca’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
  3. Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of 5% per month or the highest rate permissible under California law, calculated daily and compounded monthly. Client shall also reimburse Worca for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Worca does not waive by the exercise of any rights hereunder), Worca shall be entitled to suspend the provision of any Services if the Client fails to pay any undisputed amounts/fees when due hereunder and such failure continues for 5 days following written notice thereof.
5. Conditions to Hold Payment Funds.
The acceptance by Worca of its responsibilities hereunder is subject to the following terms and conditions, which the Parties hereto agree shall govern and control with respect to Worca’s rights, duties, liabilities and immunities:
  1. Worca shall have only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstance be deemed a fiduciary of the Client or parties to this Agreement. Worca shall not be required to take any action hereunder involving any expense unless the payment of such expense is made or provided for in a manner reasonably satisfactory to it.
  2. Worca shall be protected in acting upon any written notice, consent, receipt or other paper or document furnished to it, whether made in physical copy or transmitted electronically on online or through the Platform, not only as to its due execution and validity and effectiveness of its provisions, but also as to the truth and accuracy of any information therein contained, which Worca in good faith believes to be genuine and what it purports to be. Should it be necessary for Worca to act upon any instructions, directions, documents or instruments issued or signed by or on behalf of any corporation, fiduciary or individual acting on behalf of another party hereto, which Worca in good faith believes to be genuine, it shall not be necessary for Worca to inquire into such corporation’s, fiduciary’s or individual’s authority.
  3. Worca shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for anything which it may do or refrain from doing in connection herewith, except for its own gross negligence or willful misconduct.
  4. Worca shall neither be responsible for, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document between the Client and its global contractors, including, without limitation, any employment or contractor related agreements.
  5. In the event that Worca shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from Client or its global contractors which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all Payment Funds held in the designated account until it shall be directed otherwise in writing jointly by Client and its global contractors or by a final and non-appealable order of a court of competent jurisdiction. Worca shall have the option, after 5 days’ notice to Client and its global contractors of its intention to do so, to file an action in interpleader requiring Client and its global contractors to answer and litigate any claims and rights among themselves.
6. Limited Warranty and Limitation of Liability.
  1. Worca warrants that it shall perform the Services:

    (a) An accordance with the terms and subject to the conditions set forth in the respective FORM A and this Agreement or provided by the Client in the Platform.

    (b) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
  2. Worca’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follow: Worca shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Worca cannot cure such breach within a reasonable time (but no more than 30 days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with 7.2.
  3. WORCA MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN 6.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
7. Term, Termination, and Survival.
  1. This Agreement shall commence as of the Effective Date and will automatically renew on a monthly basis unless terminated by either party by providing a 30-day advance written notice to the other party or the Client elects to cancel the Services by using the Platform’s service cancelation features.
  2. The rights and obligations of the Parties set forth in this Section 6.2, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
8. Limitation of Liability.
  1. IN NO EVENT SHALL WORCA BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT WORCA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. IN NO EVENT SHALL WORCA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO WORCA PURSUANT TO THIS AGREEMENT.
9. Indemnification.
Client shall indemnify and hold Worca harmless from and against any liability, loss, damage or expense (including, without limitation, reasonable attorney’s fees) that Worca may incur in connection with this Agreement and its performance hereunder or in connection herewith, except to the extent such liability, loss, damage or expense arises from its willful misconduct or gross negligence.
10. Entire Agreement.
This Agreement, including and together with any related forms, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any forms, the terms and conditions of this Agreement shall supersede and control.
11. Severability.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12. Amendments.
No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party.
13. Waiver.
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14. Assignment.
Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement, including by virtue of any merger or corporate reorganization which may be deemed an assignment, without the prior written consent of Worca. Any purported assignment or delegation in violation of this Section 14 shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement. Worca may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Worca’s assets without Client’s consent.
15. Successors and Assigns.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. 
16. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17. No Third-Party Beneficiaries.
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
18. Choice of Law.
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America (including its statutes of limitations and Cal. Civ. Code § 1646.5), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
19. Governing Law, Jurisdiction, and Venue.
This Agreement and all related documents including all schedules attached and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute, are governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Any action or proceeding by either of the Parties seeking injunctive relief in aid of arbitration to enforce this Agreement shall be brought only in any state or federal court located in the State of California, County of Los Angeles. The Parties irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any injunctive relief in aid of arbitration in such venue.
20. Arbitration.
  1. Any dispute, controversy, or claim arising out of or related to this Agreement or any breach or termination of this Agreement, including but not limited to the Services Worca provide to the Client, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, whether sounding in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be administered by JAMS and held in City of Los Angeles, Los Angeles County, California before a single arbitrator, in accordance with the JAMS’s rules, regulations, and requirements, as well as any requirements imposed by California law. Any arbitral award determination shall be final and binding upon the Parties. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction.
  2. Except for representative claims which cannot be waived under applicable law and which are therefore excluded from this Agreement, the Parties waive the right to assert, participate in, or receive money or any other relief from any class or collective claims against each other in court, arbitration, or any other proceeding. Each party shall only submit their own individual claims against the other and will not seek to represent the interests of any other person. The arbitrator shall have no jurisdiction or authority to compel any class or collective claim, or to consolidate different arbitration proceedings with or join any other party to an arbitration between the Parties. The arbitrator, not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of any dispute between the Parties, except for any dispute relating to the enforceability or scope of the class and collective action waiver, which shall be determined by a court of competent jurisdiction.
21. Class Action Arbitration Waiver.
Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by arbitration pursuant to Section 20. The tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. The parties agree to arbitrate solely on an individual basis, and that this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force.
22. Force Majeure.
No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Client to make payments to Worca hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic or pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it, the other Party may thereafter terminate this Agreement upon 30 days’ written notice.
23. Counterparts.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Form A: Contractor INFORMATION FORM
SCHEDULE A
Monthly Service Fees (“Fees”):
  1. Any dispute, controversy, or claim arising out of or related to this Agreement or any breach or termination of this Agreement, including but not limited to the Services Worca provide to the Client, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, whether sounding in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be administered by JAMS and held in City of Los Angeles, Los Angeles County, California before a single arbitrator, in accordance with the JAMS’s rules, regulations, and requirements, as well as any requirements imposed by California law. Any arbitral award determination shall be final and binding upon the Parties. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction.
Payment Terms and Refund Policy:
  1. Client will be billed on a monthly basis automatically for the Fees until it notifies Worca for termination of the Agreement or the Client elects to cancel the Services by using the cancelation feature on the Platform, subject to the availability of the feature on the Platform
  2. Refund of the Fees is limited and subject to Worca’s sole discretion.