Employer of Record Terms of Service
Last updated August 5th, 2020
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.wrapbook.com/legal/terms-of-service/ (the “Wrapbook Terms”), set forth the terms and conditions under which TakeOne Network Corp., a Delaware corporation doing business as Wrapbook (“Wrapbook”), agrees to provide to User certain payroll services and other related services (the “Payroll Service”), which are provided through Wrapbook’s website, www.wrapbook.com.
These Employer of Record Terms of Service are “Service Terms” under the Wrapbook Terms. Capitalized terms used but not otherwise defined in these Service Terms shall have the meanings ascribed to such terms in the Wrapbook Terms. The Employer of Record Service Agreement is a legally binding agreement between User and Wrapbook. 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 Wrapbook 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 Wrapbook Terms
The terms and conditions of the Wrapbook 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 Wrapbook 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 Wrapbook 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 WRAPBOOK TERMS, AVAILABLE AT HTTP://WWW.WRAPBOOK.COM/LEGAL/TERMS-OF-SERVICE/, CONTAIN IMPORTANT INFORMATION REGARDING LIMITATIONS OF WRAPBOOK’S LIABILITY, WRAPBOOK’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 or, sometimes referred to as the controlling employer, and Wrapbook shall act as the special employer, sometimes referred to as the payroll employer, as understood under applicable law for employees and loan-outs. User shall be responsible for day-to-day supervision, direction and control of Users in the performance of their services.
User shall act as the sole employer of all contractors excluding loan-outs.
5. Workers Compensation Coverage
Wrapbook shall obtain workers compensation insurance coverage for all employees and loan-outs whose services are provided under these Employer of Record Service Terms.
Wrapbook shall not supply or is responsible for workers compensation insurance coverage for contractors excluding loan-outs.
6. Discrimination and Serious & Willful Misconduct Claims
Wrapbook 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 Wrapbook harmless from and against any and all WC Discrimination and S&W Claims.
7. Claim/Injury Reporting
With respect to those Users covered under Wrapbook’s workers’ compensation policy, User shall promptly report all workers compensation claims and work-related injuries to Wrapbook 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 Wrapbook for any such additional sums upon Wrapbook’s demand.
Where Wrapbook is providing workers’ compensation coverage for Users, Wrapbook 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 Wrapbook for any such additional sums upon Wrapbook’s demand and shall defend, indemnify and hold Wrapbook 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, Wrapbook 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. Wrapbook’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. Wrapbook shall prepare and file any quarterly or yearly employer tax returns. Wrapbook’s obligations pursuant to this paragraph shall be subject to User’s timely approval and funding of the timesheets and invoices.
10. Fringe Benefits
Wrapbook 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 Wrapbook’s fault and not based on information provided erroneously by User.
11. Retroactive Payments
To the extent any retroactive payments must be made by Wrapbook 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 Wrapbook regardless of the date when such payments are required to be made.
User shall notify Wrapbook when User is using any Users who are minors (i.e., under eighteen years of age), and provide the proper permits upon request by Wrapbook. 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 Wrapbook of Users who are minors.
13. Union/Personnel Grievances
User shall defend, indemnify, and hold Wrapbook 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 Wrapbook. Wrapbook 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 Wrapbook 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.
16. User Shall Supply a COI
User shall provide to Wrapbook as a condition hereof a Certificate of Insurance for i) general public liability and ii) automobile liability. Such policies must provide coverage for bodily injury, personal injury and property damage, in an amount not less than $1,000,000 for each occurrence. User shall maintain the above-designated insurance coverage throughout the period during which User accesses Wrapbook’s Payroll Services and TakeOne Network DBA Wrapbook shall be named as an additionally insured on all such policies. Wrapbook shall also be named as additionally insured on any other insurance policies maintained by User in connection with the projects coverage including, but not limited to, errors and omissions coverage or employment practices liability coverage which includes contractual liability (including, without limitation, Users’s breach of this Agreement). All such policies shall provide at least thirty (30) days of written notice to Wrapbook before any modification or termination of such policies.
17. User is Solely Responsible for WC for individuals not covered by Wrapbook
User is solely responsible for maintaining a workers compensation insurance policy as required by law to cover individuals who Wrapbook does not act as the Payroll Employer for as such individuals are not covered by Wrapbook’s Workers Compensation program. Individuals not covered by Wrapbooks’ Workers Compensation program may include, but are not limited to individuals auditioning, employees, contractors, and loan-outs who Wrapbook does not act as the Payroll Employer for, interns, volunteers, foreign hires working overseas, and others who render services to User but who are not Users of Wrapbook’s Payroll Services pursuant to this Agreement. Claims by individuals who are not covered by Wrapbook’s Workers Compensation program will be forwarded to User for handling. Should Wrapbook be named in workers compensation claims for individuals who Wrapbook is not the Payroll Employer for, User shall defend, indemnify and hold harmless Wrapbook from any and all Claims arising out of such Workers compensation claims. Notwithstanding the foregoing, User shall be obligated to reimburse Wrapbook for all costs and expenses to defend such claims.