Payroll Services Agreement

Payroll Services Agreement If a Client and a Freelancer enter an employment relationship, this Payroll Services Agreement ( Agreement ) applies. This Agreement is effective as of April 2, 2013. Your continued use of the Site after that date will signify your acceptance of it. We reserve the right to modify the provisions in this policy without prior notice to you, so please check back often for updates. This Agreement hereby incorporates by reference all terms, conditions, rules, policies and guidelines on the Site, including the Terms of Service ( Terms of Service ), except that this Agreement and the Member Contract exclude (i) the Independent Contractor Services Agreement and (ii) the Refund and Cancellation Policy and the Dispute Resolution Policies referenced therein. To the extent that the provisions of this Agreement conflicts with other provisions of the Terms of Service, this Agreement shall control. Capitalized terms used in this Agreement that are not defined in this document are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. This Agreement is a binding legal agreement between and among Client, Freelancer, Elance, Inc. and the Payroll Company that Elance chooses as the employer of record (as described below). This Agreement does not apply to the Escrow Service or the Hourly Billing and Payment Service. Terms and conditions for those services may be found in the Fixed Price Escrow Instructions or Hourly Billing and Payment Agreement, as appropriate. 1. Employment Relationship and Employer of Record When a Client and Freelancer decide to use Elance Payroll Services, which is described on the Site here ( Elance Payroll Services ), Elance will choose the employer of record (the Payroll Company ). The Freelancer (if accepted for employment as described below) will become an employee of the Payroll Company. Elance will instruct the Payroll Company to assign the Freelancer to work for the Client, and the Client will be responsible for supervising the Freelancer. The Payroll Company s and your specific responsibilities are described in this Agreement. In general, and without modifying any of the specifics or requirements below, the Payroll Company will be responsible for managing payroll, taxes, government documents, benefits and insurance. As the Client, you will be responsible for the supervision, direction and control of the day-to-day activities of each Freelancer assigned to you. As the Freelancer, you will be responsible for performing the work assigned by the Client. Your ability to use Elance Payroll Services may depend on certain factors, including without limitation the estimated length of the engagement, the wage to be paid and the nature of the work to be performed. Elance reserves the right to accept or reject a request to use Elance Payroll Services for any reason, or no reason at all, in its sole discretion. 2. International Payroll Services If the Freelancer is located outside the United States, Elance offers international Payroll Services for more than 30 countries. International Payroll Services are offered under the same terms as domestic Elance Payroll Services, except that (i) wages, bonuses and the Bill Rate (defined below), will be calculated differently based on the applicable employer requirements in the location where the Freelancer lives; (ii) wages are generally paid monthly; and (iii) there may be additional or different employment termination requirements, depending on applicable law. All payments to Elance must be in US dollars, regardless of the location of the Freelancer. For more information on international Payroll Services, including availability, estimated Bill Rates, and any additional required terms, please contact internationalpayroll@elance.com. 3. The Hiring Process As a Client, you will select a Freelancer to be employed by the Payroll Company and assigned to work for you via Elance Payroll Services as follows: 1) When a Client and a Freelancer decide to enter an employment relationship, Client will inform Elance that Client wants to use Elance Payroll Services. Client must inform Elance if the selected Freelancer will supervise Client employees or contractors. Payroll-Services-Agreement-130328 1

2) Where legally permitted, the Payroll Company will conduct a background check of all Freelancers prior to employing them. The Payroll Company reserves the right not to hire a Freelancer who does not authorize a legally permitted background check or who does not meet the Payroll Company s standards for employment. 3) If the Payroll Company accepts a Freelancer for employment, Payroll Services will create a Job on behalf of the Client and submit a proposal for the Client s Job based on the financial terms already agreed to between Client, Freelancer and Elance. Client will accept the proposal to hire the Freelancer. 4) After Client accepts the proposal, Elance Payroll Services and the Payroll Company will inform the Freelancer that the Freelancer needs to register with the Payroll Company. 5) The Freelancer must complete all employment paperwork required by the Payroll Company, including, in the United States, I-9 proof of employability. 6) When, and only if, a Freelancer has completed all paperwork required by the Payroll Company and been accepted for employment by the Payroll Company, that Freelancer becomes a Payroll Employee for purposes of this Agreement, but also remains a Freelancer under the other provisions of Elance s Terms of Service. 7) Once a Freelancer becomes a Payroll Employee, Elance Payroll Services and the Payroll Company will assign the Freelancer to work for the Client, and work can begin. 4. Hiring Representations, Disclaimers and Limitations Client acknowledges and agrees that Client has selected a Freelancer to become a Payroll Employee based upon Client s determination that the Freelancer possesses the skills, background and education to satisfy the requirements of the assignment. Neither Elance nor the Payroll Company makes any representations or warranties as to the skills, experience, background or education of any Freelancer or Payroll Employee. The Payroll Company reserves the right not to hire a Freelancer for any reason or no reason at all, including if the job description is considered, in the Payroll Company s sole discretion, too hazardous or is not permitted by the applicable workers compensation insurance carrier. If the Freelancer lives in the United States, the Payroll Company will comply with the I-9 requirements of the Immigration and Reform and Control Act of 1986. A Client may not switch a Payroll Employee to ordinary Freelancer status within 12 months after the Payroll Employee s employment with Client terminates, except as required by law in the event of a significant change in job duties and responsibilities. Freelancer acknowledges that Freelancer has agreed to become a Payroll Employee assigned to Client based on Freelancer s own determination that the Client offers work acceptable and appropriate for Freelancer on terms that are acceptable to Freelancer. Freelancer agrees to complete such documents as Payroll Company may legally and reasonably require to complete the employer / employee relationship, including without limitation an authorization for a background check, an employment assignment agreement, applicable tax forms and the I-9 requirements of the Immigration and Reform and Control Act of 1986 (as applicable and collectively, the Employment Paperwork ). Freelancer also agrees to enter into any separate written agreement (a Client Agreement ) that may be reasonably required by the Client, including without limitation agreements addressing intellectual property rights, confidentiality, and warranties for the work performed by Freelancer. Freelancer will not become an employee of Payroll Company entitled to work for Client or receive payment from Payroll Company until all Employment Paperwork and any Client Agreement has been completed and returned to Payroll Company or Elance, as applicable, and Payroll Company has accepted Freelancer as an employee. After employment begins, Client will continue to post projects, assign work and pay for Freelancer through the Elance platform. Elance assumes no responsibility for and shall exert no control over the projects and work assigned to Freelancer, nor has Elance had any role in Client s decision to engage Freelancer via Elance Payroll Services. Elance shall not direct the work of or supervise (to any degree, directly or indirectly) Freelancer, nor shall Elance determine any terms and conditions of Freelancer s employment relationship with Payroll Company or Client (including but not limited to rate of pay, performance evaluation, discipline and/or termination). Elance merely provides the platform for Client to assign projects and work to Freelancer, and separately facilitates the relationship between Client and the Payroll Company that will handle the administration of payroll and other legal obligations of Client with regard to Freelancer. These facts, alone or in combination, do not make Elance an employer of Freelancer or a co-employer/joint employer with Client and/or the Payroll Company. Freelancer acknowledges and agrees that he/she is not an employee, consultant, or independent contractor of Elance, and that he/she will not be providing any services to Elance (directly or indirectly) while employed by Payroll Company. 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The foregoing paragraph shall not apply if Elance is the Client to which Freelancer is assigned. Under such circumstances, Elance shall be considered both Elance and the Client for purposes of this Agreement. 5. Freelancer Representations and Responsibilities and the Payroll Company Freelancer, and not Elance or the Payroll Company, shall be responsible for timely and professional completion of each project to which it has been assigned and has agreed to, in such manner as to satisfy the Client s specified requirements. Freelancer shall be solely responsible for the professional performance of Freelancer s work. Freelancer shall be solely liable for its acts, omissions and negligence. 6. Disclaimer of Liability by Elance and Payroll Company FREELANCER IS SOLELY RESPONSIBLE FOR ALL SERVICES PROVIDED TO THE CLIENT ( FREELANCER SERVICES ) AND FOR ALL WORK PERFORMED AND WORK PRODUCT DEVELOPED BY FREELANCER AS REQUIRED TO PERFORM FREELANCER SERVICES AND DELIVERED TO THE CLIENT (OR TO ELANCE ON BEHALF OF THE ELANCE CLIENT) IN THE PERFORMANCE OF SUCH FREELANCER SERVICES ( WORK PRODUCT ). BOTH ELANCE AND THE PAYROLL COMPANY PROVIDE NO EXPRESS WARRANTY OF, WILL HAVE NO IMPLIED WARRANTY OF, AND WILL HAVE NO RESPONSIBILITY FOR, FREELANCER SERVICES AND/ OR WORK PRODUCT, INCLUDING DELIVERABLES. BOTH ELANCE AND THE PAYROLL COMPANY EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES FOR FREELANCER SERVICES AND/OR WORK PRODUCT, INCLUDING WITHOUT LIMITATION WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AS BETWEEN ELANCE AND CLIENT, FREELANCER SERVICES, WORK PRODUCT AND FREELANCER DELIVERABLES ARE PROVIDED AS IS. AS BETWEEN PAYROLL COMPANY AND CLIENT, FREELANCER SERVICES, FREELANCER WORK PRODUCT AND FREELANCER DELIVERABLES ARE PROVIDED AS IS. 7. Agreement Conflicts Conflicts between this Agreement and the other agreements defining the relationships between Elance, Client and Freelancer shall be resolved in the following order of precedence: (1) the Agreement; (2) the written agreement between the Payroll Company and Freelancer (3) the Terms of Service other than the Agreement; (4) the terms awarded and accepted on the Site between the Client and the Freelancer, to the extent not inconsistent with the Terms of Service; and (5) any other contractual provisions accepted by both Client and Freelancer and uploaded to the Site, to the extent not inconsistent with the Terms of Service. Any written agreement between Client and Freelancer that conflicts with or modifies the Terms of Service or the written agreement between the Payroll Company and the Freelancer shall be null and void while the other parts of such agreement shall remain valid and binding. 8. Elance Payroll Services The following are the services provided by the Payroll Company for Payroll Employees assigned to Client: (i) calculation and payment of wages (including any applicable overtime wages) based upon submitted timesheets; (ii) collection, payment and reporting of all required taxes on such wages; (iii) administration and management of unemployment claims; (iv) administration and collection of wages associated with wage garnishments in the US ; (v) workers compensation coverage; (vi) administration of Fair Labor Standards Act and Family Medical Leave Act matters. In addition, the Payroll Company shall provide and bear sole responsibility for any health or disability insurance, retirement benefits or other welfare or pension benefits (if any) to which such personnel may be entitled based on eligibility. 9. Control of Workplace Client acknowledges and agrees that the neither Elance nor the Payroll Company will control the workplace in which a Payroll Employee will perform services for a Client. The Client shall be solely responsible for all decisions related to strategic, operational or other matters concerning Client s business, including, but not limited to the supervision and scheduling of Payroll Employees. 10. Payroll Employee Supervision and Limitations on Scope of Employment At all times, the Client will maintain the exclusive supervision, direction and control of the day-to-day activities of each Payroll Employee. The Client shall be solely responsible for the implementation and enforcement of any and all Payroll-Services-Agreement-130328 3

workplace laws, rules, regulations and for any procedures that exist for the purpose of preventing the misappropriation, theft or embezzlement of the Client s property, including without limitation intellectual property. If Client uses Elance Payroll Services to hire Payroll Employees into a supervisory position, Client and Payroll Employee agree that such supervisors scope of employment will be strictly defined and limited. Client and Payroll Employee further agree that any such supervisors actions that are in violation of law will be outside the scope of their responsibility. Client and Payroll Employee further agree that Payroll Employees will not have the authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments or make final decisions of the nature of those generally made by Client s executives, officers or directors. Client acknowledges and agrees that Payroll Employees are not employees, consultants or independent contractors of Elance and that Elance maintain no control over the work assignments, supervision, payroll practices or other terms and conditions of the working relationship described herein. Client further acknowledges and agrees that Payroll Employees are employees of the Payroll Company for purposes of payroll processing and, in some cases, the provision of certain employee benefits, but that the Payroll Company maintains no control over the work assignments, supervision, or other terms and conditions of the working relationship except as described in this Agreement. 11. Compliance with Laws, Rules and Regulations Client shall comply with all national, state, provincial, federal and local laws, rules and regulations that govern or relate to its business, workplace, employees, safety and government contracting. Client agrees to comply with all such applicable laws, rules and regulations in its work with and treatment of Payroll Employees, including without limitations the applicable laws, rules and regulations of the location where the Freelancer lives. Client shall comply with all reasonable directives regarding health and safety from the Payroll Company s workers compensation carrier or any government agency. Client is required to accept and adhere to the Payroll Company s determination regarding each Payroll Employee s exempt or non-exempt status for purposes of any applicable overtime laws. Notwithstanding the fact that the Payroll Company reserves the right to make determinations regarding the overtime exemption status of each Payroll Employee, Client is ultimately and solely responsible for the amount of any wages that are due but unpaid to each of its Payroll Employees, including without limitation any wages, back wages, and liquidated damages determined to be due and owing in connection with any action challenging the overtime exemption status of any Payroll Employee. 12. Licensing If a Payroll Employee is required to possess or maintain a special license or be supervised by a supervisor who is required to possess or maintain a special license, the Client will be responsible for verifying such licensure and/or providing such required supervision. 13. Equal Employment Opportunity; Workplace Laws; Wage Disputes The Payroll Company selected by Elance to provide Elance Payroll Services is an equal opportunity employer and does not discriminate against any candidate, applicant, employee, Freelancer or Payroll Employee on the basis of race, color, religion, sex, national origin, age, creed, ancestry, veteran or military status, disability unrelated to the essential functions of a job, or any other basis prohibited by federal, state or local law. The Client and Payroll Employee shall comply with all federal, state, and local laws that prohibit unlawful discrimination or harassment. As fully described in the section entitled Indemnification below, the Client shall, to the full extent permitted by law, indemnify and hold Elance and the Payroll Company harmless from any claims, losses or expenses, including attorneys fees, that result from or relate to claims by or regarding Freelancers or Payroll Employees that the Client, Elance or the Payroll Company failed to comply in any respect with any workplace law or law related to the employment of persons, including but not limited to the Fair Labor Standards Act, the Occupational Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, or Title VII of the 1964 Civil Rights Act. Furthermore, the Client takes full responsibility for any disputed wages, hours, expenses, or other reimbursements owed a Payroll Employee other than disputes arising from a failure of the Payroll Company to provide any services which the Payroll Company has agreed to provide. Payroll-Services-Agreement-130328 4

14. Policy Against Sexual Harassment and Other Illegal Harassment The Payroll Company prohibits sexual and other illegal workplace harassment. The Client shall train its Payroll Employees about their rights and responsibilities pursuant to applicable law pertaining to non-harassment or other illegal workplace harassment. The Client will be informed if any special training requirements legally pertain to a Payroll Employee by virtue of that person being employed by the Payroll Company. The Payroll Company and the Client will provide all Payroll Employees with written information detailing their rights and responsibilities under the Client s and The Payroll Company s policies against sexual harassment and other illegal workplace harassment. The Client shall inform The Payroll Company immediately of any complaint of illegal harassment by or against a Payroll Employee and shall undertake and complete a prompt and thorough investigation of any such complaint. Upon notification, The Payroll Company may assist the Client with the investigation of sexual harassment complaints made by or against Payroll Employees, but the costs associated with such investigation shall be borne by the Client. Wages 15. Paying Payroll Employees To use Elance Payroll Services, you must select and use the Site s Hourly option. Elance Escrow is not available for Elance Payroll Services. When Client decides to use Elance Payroll Services, Client and Elance Payroll Services will agree on an hourly rate that Client will pay to the Payroll Employee (the Bill Rate ). The Bill Rate will include the regular hourly wages for the Payroll Employee, plus an amount for employer taxes, Elance fees and any Payroll Company fees (the Payroll Service Fees ). In addition to the Bill Rate, Client acknowledges and agrees that the laws and regulations regarding when overtime must be paid and in what amount vary from location to location, depending where the Payroll Employee works. Client also agrees that Client ultimately is responsible for paying all wages, employer taxes and fees associated with the number of hours of work reported by Payroll Employee(s), even if the Payroll Employee reports having worked more than the number of hours authorized in advance. The following formula will determine the minimum amount to be paid by Client for each Payroll Employee each week (the Minimum Payroll ): Minimum Payroll = number of hours reported by Payroll Employee x Bill Rate The Payroll Company pays wages in the United States based on a two-week payroll period (a Pay Period ). On or before the Wednesday following the end of each Pay Period, Elance will inform Client of the number of hours reported by Client s Payroll Employee(s) for the prior week that constitute overtime hours, if any, and the amount of the additional payment that will be required to cover the additional wages, employer taxes and Payroll Service Fees associated with such overtime hours (the Additional Payroll ). The sum of the Minimum Payroll and the Additional Payroll, if any, constitutes the Final Payroll. For purposes of clarity, if there is no Additional Payroll, then the Final Payroll will equal the Minimum Payroll. Expenses and other Reimbursements To be reimbursed for an expense, Payroll Employees should obtain pre-authorization for the expense and must submit scanned receipts and requests for reimbursement to Elance as described in the employment package Payroll Employee receives from the Payroll Company. Elance will provide the Client with a Miscellaneous Invoice including electronic copies of the supporting documentation submitted by the Payroll Employee. Client will have the opportunity to review and approve or deny the Miscellaneous Invoice. If the Client previously authorized the expense in the Elance workroom, Client must approve the Miscellaneous Invoice. Client s Elance Account must contain sufficient funds to cover the amount of any approved expenses before the Client approves the Miscellaneous Invoice. When Client approves the Miscellaneous Invoice, the approved amount will be withdrawn immediately from Client s Elance Account. Bonuses Payroll-Services-Agreement-130328 5

The Client may, at the Client s sole discretion, pay a bonus to a Payroll Employee at any time via Elance Payroll Services. In order to pay a Payroll Employee a bonus, the Client must first determine the proper amount to enter into Elance s payment system (the Gross Bonus ). To determine the Gross Bonus, begin by deciding the amount of the bonus to be received by the Payroll Employee (the Net Bonus ). Once the Net Bonus is determined, the Client must gross up the Net Bonus to account for the amount reserved by Elance and the Payroll Company for Payroll Service Fees and employer taxes. To do this, divide the Net Bonus by 0.8. The resulting quotient is the Gross Bonus, which is the amount that the Client must enter into the Site so that the Payroll Employee will receive the full Net Bonus. Restated as a formula: Gross Bonus = Net Bonus 0.8 The difference between the Gross Bonus and the Net Bonus is the amount reserved by Elance and the Payroll Company for the Payroll Service Fees and employer taxes. Client s Elance Account must contain sufficient funds to cover the amount of the Gross Bonus before the Client uses the Site to pay a bonus. When Client requests, via the Site, that a bonus be paid, the amount of the Gross Bonus will be withdrawn immediately from Client s Elance Account. The date Payroll Employee will receive the Net Bonus (less applicable tax and other withholdings) may vary depending on the day of the week that Client requests payment of the Gross Bonus. Client Funding of Payments Elance will provide Client with a calendar of Pay Periods for Client s Payroll Employees. By Thursday at 11:59 p.m. Eastern Time, USA, of each week following the end of a Pay Period (the Weekly Payroll Due Date ), Client s Elance Account must contain an amount of money sufficient to cover the Final Payroll for all of Client s Payroll Employees for the preceding Pay Period. The Client s Account must be funded in U.S. dollars, regardless of the location of the Freelancer. In determining whether Client s Account contains sufficient funds to meet this obligation, Client should consider the effect of potential overtime payments, as well as whether Client has approved the reimbursement of any expenses or the payment of any bonuses during the week. By entering into a Job that uses Elance Payroll Services, Client authorizes Elance to charge Client s Account for all obligations incurred under this Agreement, including payroll and other payment obligations to the Freelancer. If Client s Account does not contain an amount sufficient to cover the Final Payroll on the Weekly Payroll Due Date or to cover an approved expense reimbursement or bonus, Client hereby authorizes Elance to charge Client s credit card, bank account, and / or PayPal account (each a Backup Funding Source ) for the amount necessary to cover the deficiency (the Funding Gap ), plus an additional 10% administrative fee. If Client s Backup Funding Sources fail or are insufficient to cover the Funding Gap, Elance will notify Client of the failure via e-mail. Within two business days from the time the e-mail is sent, Client must fund its Account in a sufficient amount to cover the Funding Gap plus the 10% administrative fee or Elance may institute a collection action and in that case Client hereby agrees to repay Elance for such amounts, plus reasonable attorney fees and costs of collection incurred by Elance to recover such amounts from Client. By providing Elance with credit card, PayPal or bank account information, Client authorizes Elance to charge such credit card, PayPal or bank account as described above. Client agrees not to ask its credit card company or bank to charge back any amount to Elance for any reason. If Client does so, Client hereby agrees to repay Elance for such amounts, plus reasonable attorney fees and costs of collection. The Payroll Company and Elance will deduct 20% of the Final Payroll and any Gross Bonus for each Payroll Employee each week to cover domestic Payroll Service Fees and employer taxes. Fees and deductions for international Payroll Services are determined on a case-by-case basis and must be agreed upon prior to engagement by the Payroll Company. The Payroll Company will also withhold employee taxes as required by law from Payroll Employee s pay. Expense reimbursements are not subject to Payroll Service Fees or taxes, unless required by law. The amount that US-based Payroll Employees will receive for each Pay Period will be 80% of the Final Payroll and any applicable Gross Bonus, less employee taxes, plus any expense reimbursements. Payroll-Services-Agreement-130328 6

Termination of Payroll Services for Failure to Fund Payments Elance reserves the right to immediately terminate Client s ability to use Elance Payroll Services and the employment of Client s Payroll Employees (in accord with any applicable laws regarding notification to the Payroll Employee of such termination) if either (a) Client repeatedly relies on Backup Funding Sources to fund any required Elance Payroll Services payments, or (b) Client has failed to deposit funds into Client s Elance Account sufficient to cover a Funding Gap, plus the applicable administrative fee, within 72 hours of receiving notice from Elance that Client s Backup Funding Sources have failed or are insufficient to cover the Funding Gap. In lieu of termination, and at Elance s sole discretion, Elance may require Client to maintain a deposit balance in Client s Account in order to continue using Payroll Services. Elance subsequently may terminate Client s ability to use Payroll Services as described above if Client ever fails to maintain the deposit balance required by Elance. 16. Sales and Use Tax Subject to the terms of this Section, the Client will be responsible for any applicable sales, use or other like taxes (hereinafter, special tax or special taxes ) attributable to periods on or after the date on which Client accepts this Agreement that are based upon or measured by either Elance s or the Payroll Company s fees for performing or furnishing Elance Payroll Services, but excluding taxes based on Elance s or the Payroll Company s net income. This Section applies to Client s use of Elance Payroll Services for any Payroll Employee who works within a state that collects such special taxes, now or in the future. If Client employs a Payroll Employee who resides in a location that has special taxes, Client s Bill Rate will be increased to incorporate the additional special tax required by that specific state, plus an additional Elance processing fee. Client will also be required to increase the amount of any Gross Bonus to account for such special tax. In no event will Elance have any tax liability for Elance Payroll Services other than taxes based on Elance s net income. Elance reserves the right to invoice Client for any special taxes, plus the Elance processing fee, not initially paid by Client. Client shall cooperate with the Payroll Company to accurately determine each party s tax liability and to minimize such liability to the extent legally permissible. In the event that the appropriate tax authority determines that all or a portion of the special taxes collected from a Client is not due, the Payroll Company will either (1) assign its right to refund, credit or offset to the Client, or (2) promptly remit to the Client an amount equal to the refunds, credits or offsets received. 17. Intellectual Property Rights Freelancer will enter into an agreement with the Payroll Company providing that the rights to all work created by the Freelancer while providing services to the Client is either owned by the Client or, if the work cannot be owned by the Client, is irrevocably licensed to the Client.. 18. Confidentiality and Non-Disclosure Freelancer will enter into an agreement with the Payroll Company which will provide that Freelancer will not disclose confidential information of the Client and will only use such information as necessary to perform the services for which Freelancer has been engaged. 19. Required Notifications Writing Required The Client will send all written notices and payroll communications to Elance in accord with the requirements of the Terms of Service. Notices The Client will provide Elance with written notice within 24 hours of its own receipt of any notice of a work-related accident or injury, and within three (3) days of its receipt of any notice of any garnishment orders, involuntary Payroll-Services-Agreement-130328 7

deduction orders, notices of IRS liens and other forms of legal process affecting the payment of wages to a Payroll Employee. The Client will provide Elance with written notice within three (3) days of any major job description changes or employment decisions regarding a Payroll Employee, including a switch from full to part time status. The Client will provide Elance with written notice of the termination of the employment of a Payroll Employee (whether the termination is initiated by the Client or the Payroll Employee) by providing electronic delivery of a copy of the Payroll Employee Termination Form to payrolltermination@elance.com either (a) at least three (3) business days before the Payroll Employee s last day of employment; (b) immediately if employee quits without notice; or (c) such longer time as may be required to provide the Payroll Employee with adequate notice of termination under the law where the Payroll Employee lives. The Client also will terminate an employment relationship and provide Elance with a Payroll Employee Termination Form, as required above, if Freelancer performs no work for Client for more than 10 consecutive business days due to any reason other than planned vacation or legally required leave (which includes, without limitation, legally required medical or family leave). 20. Disclaimers Notwithstanding anything to the contrary, Client and Freelancer acknowledge and agrees that: 1) Elance is solely an online venue for buyers and sellers of services and, as such, shall not be responsible for any breach or failure to perform of the Payroll Company or any other action or inaction of the Payroll Company or any Client or any Freelancer; and 2) The Payroll Company shall not be responsible for any breach or failure to perform of Elance or any other action or inaction of Elance or any Client or any Freelancer. 3) Both Elance and the Payroll Company provide no express warranty of, will have no implied warranty of, and will have no responsibility for, Freelancer Services and/ or Work Product, including deliverables. Both Elance and the Payroll Company expressly disclaim all express and implied warranties for Freelancer Services and/or Work Product, including without limitation warranties of noninfringement, merchantability and fitness for a particular purpose. As between Elance and Client, Freelancer Services, Work Product and Freelancer deliverables are provided AS IS. As between Payroll Company and Client, Freelancer Services, Freelancer Work product and Freelancer Deliverables are provided AS IS. 21. Indemnification In addition to the indemnification obligations set forth in the User Agreement, Client agrees to (a) release, indemnify, hold harmless, protect and defend Elance, the Payroll Company, and their respective partners, employees, directors, officers, agents, affiliates and subsidiaries (each an Indemnified Party ) from and against any and all claims by any person or entity, including a Freelancer or Payroll Employee related to; and (b) reimburse any Indemnified Party for any claims, expenses, costs (including attorneys fees and court costs), obligations, losses, or damages (whether joint or several and including special, consequential, compensatory or punitive damages), whether arising in contract, tort or otherwise, related to: (i) actual or alleged acts, errors or omissions (including but not limited to breaches of contract or violations of statutes, laws, rules or regulations) by the Client, its employees (including Payroll Employee(s)), partners, agents, affiliates, members, subsidiaries, representatives, or officers; (ii) any breach of or failure to perform under this Agreement, including but not limited to the Client s failure to accurately or timely report wages, hours, expenses and other reimbursements owed a Payroll Employee or payment of taxes for which Client is responsible; (iii) any alleged failure to properly classify one or more Payroll Employees as exempt from overtime; (iv) actual or alleged errors in any timesheet(s) provided to Elance and / or the Payroll Company; (v) Client s failure to pay a timesheet properly submitted for payment by Payroll Employee; (vi) the actual or alleged failure of Client to comply in any respect with any workplace law or law related to the employment of persons, including but not limited to any location s laws with respect to the payment of wages or the treatment of employees, and including without limitation the Fair Labor Standards Act, the Occupational Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, or Title VII of the 1964 Civil Rights Act (collectively, Employment Laws and Regulations ), or (vii) the actual or alleged failure of Elance or the Payroll Company to comply in any respect with the Employment Laws and Regulations based in whole or in part (i) on any instruction(s), act(s), or failure(s) to act of Client; or (ii) on any Payroll-Services-Agreement-130328 8

incorrect, misleading or false information provided by Client to Elance or the Payroll Company. This indemnification provision shall survive the expiration or other termination of this Agreement or Client s relationship with Elance. 22. Change of Payroll Company Elance may designate a new third party payroll company ( New Company ), at any time in Elance s sole discretion, to perform Payroll Services. Upon such designation, or at any other time as directed by Elance, the Client shall: (i) cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of the Payroll Services; or if directed by Elance (ii) immediately assume all federal, state and local obligations of an employer to the Payroll Employees and immediately assume full responsibility for providing payroll services and workers compensation coverage until such time as a New Company takes over such duties from The Payroll Company. If directed by Elance, Client shall inform Payroll Employees that they are no longer covered by the Payroll Company for Payroll Services, workers compensation and/or health care policies. 23. Termination of Payroll Services Without limiting Elance s ability to terminate services provided to Client under other Terms of Service, Elance may terminate Payroll Services at any time after providing Client with notice of such termination at least 30 days in advance of the final day Payroll Services will be offered (the Termination Date ). The Payroll Company shall have the obligation for wages and benefits payable to Payroll Employees through and including the Termination Date, at which point such duties shall cease. Additionally, all obligations of the Payroll Company to maintain workers compensation insurance coverage and/or health care coverage on behalf of Payroll Employees shall cease on the Termination Date. Client, or another third party designated by Client in Client s sole discretion and only if it elects to designate a third party, as the case may be, shall immediately assume all federal, state and local obligations of an employer to the Payroll Employees and shall immediately assume full responsibility for providing payroll services and workers compensation coverage. Client shall inform Payroll Employees that they are no longer covered by the Payroll Company s workers compensation and/or health care policies. Upon the Termination Date, Elance and the Payroll Company shall immediately be released from such obligations as are permitted by law but it shall not be relieved of any such obligations that accrued or occurred prior to the Termination Date. 24. General Provisions Governing Law and Venue. The Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Freelancer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California, or the county in which Client s principal place of business is located for any lawsuit filed there against Freelancer by Client or by Elance arising from or related to Payroll Services and / or this Agreement. Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. No Assignment. The Agreement, and the party s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by either party without the other s prior written consent, and any attempted Job, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of the Agreement will be binding upon assignees. Notwithstanding the foregoing, Client may, without the consent of Freelancer, assign any rights and obligations under the Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock. Any permitted assignment of the Agreement shall be binding upon and enforceable by and against Client s and Freelancer s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of the Agreement. Injunctive Relief. Freelancer acknowledges that, because its services are personal and unique and because Freelancer will have access to Confidential Information of Client, any breach of the Agreement by Freelancer would cause irreparable injury to Client for which monetary damages may not be an adequate remedy and, therefore, will entitle Client to injunctive relief (including specific performance). The rights and remedies provided to each party in Payroll-Services-Agreement-130328 9

the Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Export. Freelancer agrees not to export, directly or indirectly, any U.S. technical data acquired from Client or any products utilizing such data, to countries outside the United States, because such export could be in violation of the United States export laws or regulations. Execution and Delivery; Binding Effect. The parties will evidence execution and delivery of the Agreement with the intention of becoming legally bound, by accepting the Terms of Service on the Site. 25. Contacting Us If you wish to report a violation of the Terms of Service, have any questions or need assistance, please contact Customer Support as follows: Web Support: http://www.elance.com/service Email: support@elance.com Phone: 1-877-4-ELANCE (1-877-435-2623) (Mon-Fri, 5 a.m. 5 p.m. Pacific Time; Sat-Sun, 8 a.m. 12:00 p.m. Noon Pacific Time) Online Help Topics: http://www.elance.com/help Payroll-Services-Agreement-130328 10