Employer of Record Terms of Service
Last updated March 31st, 2019
These Employer of Record Terms of Service (these “Employer of Record Service Agreement”), together with the TakeOne Network Terms of Service Agreement available at https://www.takeone.io/legal/terms-of-service/ (the “TakeOne Terms”), set forth the terms and conditions under which TakeOne Network Corp., a Delaware corporation doing business as TakeOne (“TakeOne”), agrees to provide to User certain payroll services and other related services (the “Payroll Service”), which are provided through TakeOne’s website, www.takeone.io.
These Employer of Record Terms of Service are “Service Terms” under the TakeOne Terms. Capitalized terms used but not otherwise defined in these Service Terms shall have the meanings ascribed to such terms in the TakeOne Terms. The Employer of Record Service Agreement is a legally binding agreement between User and TakeOne. User is encouraged to read the Terms of Service carefully and to save a copy of it for User’s records. If User is agreeing to these Service Terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to the Employer of Records Terms of Service Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” (as defined in the TakeOne Terms) also refers to that business or individual. By (i) clicking the applicable button to indicate User’s Service Plan choice, (ii) clicking the applicable button to indicate User’s acceptance of the Employer of Record Terms of Service Agreement, or (iii) accessing or using the Employer of Record Service, User accepts the Employer of Record Terms of Service Agreement, and User agrees, effective as of the date of such action, to be bound by the Employer of Record Terms of Service Agreement.
1. This Employer of Record Service Agreement Are Part of and Are Governed by the TakeOne Terms
The terms and conditions of the TakeOne Terms agreed to in connection with the creation of User’s Account, including but not limited to all representations, warranties, covenants, disclaimers, limitations on liability, agreements, and indemnities relating to the Services, are incorporated herein by reference, and User acknowledges and agrees that the representations, warranties, covenants, disclaimers, limitations on liability, agreements, and indemnities contained in the TakeOne Terms shall remain in full force and effect to the full extent provided therein.
If the terms and conditions of these Employer of Record Terms of Service Agreement conflict with the terms and conditions of the TakeOne Terms, the terms and conditions of these Employer of Record Terms of Service Agreement shall control with respect to the provision of the Employer of Record Service.
THE TAKEONE TERMS, AVAILABLE AT HTTP://WWW.TAKEONE.IO/LEGAL/TERMS-OF-SERVICE/, CONTAIN IMPORTANT INFORMATION REGARDING LIMITATIONS OF TAKEONE’S LIABILITY, TAKEONE’S WARRANTY DISCLAIMERS, USER’S INDEMNIFICATION OBLIGATIONS, USER’S DUTY TO MITIGATE DAMAGES, THE LAW GOVERNING THE PAYROLL AGREEMENT, AND DISPUTE RESOLUTION PROCEDURES THEREUNDER.
2. No Partnership
Nothing contained herein shall constitute a partnership between, or joint venture by, the parties hereto or make either party an agent of the other. Neither party shall hold itself out contrary to the terms of this paragraph. Neither party shall become liable by any representation, act or omission of the other contrary to the provision hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any third party whether referred to herein or not. No act, commission, or omission by any Party to this Agreement shall change this independent Service Provider relationship or be construed to render the Parties partners, joint venturers or agents of each other. Nothing contained in this Agreement shall be deemed to permit either Party to conduct business in the name of or on account of the other party, to incur or assume any expense, debt, obligation, liability, tax or responsibility on behalf of or in the name of the other Party or to act on behalf of or bind the other Party in any manner whatsoever.
3. No-Continuing Waiver
No waiver by either party of any default hereof shall be deemed a waiver of any preceding or succeeding default hereof.
4. Employer Status
User shall act as the general employer and TakeOne shall act as the special employer as understood under applicable law. User shall be responsible for day-to-day supervision, direction and control of Users in the performance of their services.
5. Workers Compensation Coverage
TakeOne shall obtain workers compensation insurance coverage for all Users whose services are provided under these Employer of Record Service Terms.
6. Discrimination and Serious & Willful Misconduct Claims
TakeOne shall not be responsible for covering or defending any claims or petitions by or involving Users which allege violation of California Labor Code §§ 132a and 4553 and/or other jurisdictions’ analogous laws relating to work injury discrimination or employer serious and willful misconduct (hereinafter, “WC Discrimination and S&W Claims”). User shall defend, indemnify and hold TakeOne harmless from and against any and all WC Discrimination and S&W Claims.
7. Claim/Injury Reporting
With respect to those Users covered under TakeOne’s workers’ compensation policy, User shall promptly report all workers compensation claims and work-related injuries to TakeOne as soon as User has knowledge or reasonably should have knowledge of such claims. If User fails to promptly report any such claim/injury and this failure results in additional sums which otherwise would not become due, or gives rise to liability in workers’ compensation that would not otherwise exist, User shall reimburse TakeOne for any such additional sums upon TakeOne’s demand.
Where TakeOne is providing workers’ compensation coverage for Users, TakeOne shall supply User with all notices, postings, and forms required under applicable workers’ compensation laws with respect to Users, and User shall be responsible for distributing such forms and notices to Users and/or displaying such postings where Users work in accordance with applicable workers’ compensation laws. If User failure to distribute or post any required notice, form, or posting gives rise to any additional sums in workers’ compensation which would not otherwise become due, User shall reimburse TakeOne for any such additional sums upon TakeOne’s demand and shall defend, indemnify and hold TakeOne harmless from any Claims associated with User’s failure to distribute and/or post such required postings, notices and/or forms to Users.
In accordance with the timesheets and invoices submitted by Users, TakeOne shall calculate withholdings and pay all obligations imposed by applicable state and federal law or governmental regulations, including without limitation, payments and withholdings for Social Security and Medicare tax, federal, state and local income tax, and’ compensation, unemployment, and required disability insurance. TakeOne’s fees for services are comprised of a combination of all the individually listed rates and do not purport to represent the Service Provider’s actual net costs. TakeOne shall prepare and file any quarterly or yearly employer tax returns. TakeOne’s obligations pursuant to this paragraph shall be subject to User’s timely approval and funding of the timesheets and invoices.
10. Fringe Benefits
TakeOne shall remit all User pension, health, and welfare and any other applicable fringe benefit contributions for Users to the appropriate labor organization trust fund(s) within the time and manner specified in the collective bargaining agreements and/or benefit plans governing User. User is solely responsible for all penalties and any other claims or liability relating to late payment of benefit contributions except those resulting solely from TakeOne’s fault and not based on information provided erroneously by User.
11. Retroactive Payments
To the extent any retroactive payments must be made by TakeOne on account of the services performed by User, including retroactive payments resulting from amendments or modifications to any collective bargaining agreements, personal service contracts or applicable law or enforcement thereof, such retroactive payments shall be deemed to be covered compensation of Users for which User shall be obligated to repay TakeOne regardless of the date when such payments are required to be made.
User shall notify TakeOne when User is using any Users who are minors (i.e., under eighteen years of age), and provide the proper permits upon request by TakeOne. User shall be solely responsible for any claims, liabilities or additional payments, including any claims for deposits to trust accounts formed under the California Family Code for minors working in the entertainment industry that result from User’s failure to notify TakeOne of Users who are minors.
13. Union/Personnel Grievances
User shall defend, indemnify, and hold TakeOne harmless from and against any and all Claims arising out of or relating to any dispute of any kind with any union, guild, pension and health trust fund or any individual User represented by any of these organizations resulting from any acts or conduct of any kind by User or any directives, guidelines or instructions provided by User to TakeOne. TakeOne agrees to cooperate in the defense of any grievance or claims and agree to provide all necessary documents that may be required by the other party in the course of such defense.
14. Legal Compliance at Worksites
User shall be solely responsible for compliance with all laws (whether denominated as statutes, regulations, ordinances, or otherwise) with respect to all worksite where Users will provide services to User, including, but not limited to, workplace health/safety laws (OSHA and analogous state laws), employment civil rights laws (Title VII and analogous state laws), tort laws, wage and hour laws (FLSA and analogous state laws), labor rights laws (NLRA) and medical/family care leave laws (FMLA and analogous state laws). User shall also be solely responsible for compliance with all collective bargaining agreements with respect to all worksite(s) (whether studio, shop, or on-location) where Users will provide services to User on productions covered by this Agreement.
15. No Change in Agreement Duties Due to any Joint Employer/Liability Finding
If a court, arbitrator, government agency, or any other decision-making body or official renders a determination that TakeOne and User are joint employers of Users or are jointly and severally liable with respect to any Claims involving Users no such determination shall alter any other provisions of this Agreement allocating responsibility between the Parties.