FOR CURRENT CONTRACTOR SERVICES AGREEMENT, SEE flextal.com/csa/
This Contractor Services Agreement (“Agreement”) between Assemble Technologies, Inc./”FlexTal” (the “Company”), and the Contractor, Freelancer, or Flexible Talent listed on the Services Assignments (the “Contractor”), an individual, is effective as of the date listed on the Services Assignment (the “Effective Date”).
1. Engagement of Services. The Company may issue PO, Work Orders, Work Assignments, or Services Assignments to Contractor in the form attached to this Agreement as Exhibit A (each, a “Services Assignment”). Subject to the terms of this Agreement, Contractor will render the services set forth in Services Assignment(s) accepted by the Contractor (the “Services”) by the completion dates set forth therein.
2. Performance of Services. Except as otherwise provided in the applicable Services Assignment, the Contractor will be free of control and direction from the Company (other than general oversight and control over the results of the Services), and the Contractor will have exclusive control over the manner and means of performing the Services, including the choice of place and time. The Contractor will provide, at the Contractor’s own expense, a place of work and all equipment, tools and other materials necessary to complete the Services; however, to the extent necessary to facilitate performance of the Services, the Company may, in its discretion, make certain of its equipment or facilities available to the Contractor at the Contractor’s request. While on the Company’s premises, or on the premises of a client of the Company, the Contractor agrees to comply with the Company’s or the Company client’s, as applicable, then-current access rules and procedures, including those related to safety, security and confidentiality. The Contractor agrees and acknowledges that the Contractor has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including stored computer files, email messages and voice messages) and that the Contractor’s activities, including the sending or receiving of any files or messages, on or using those systems may be monitored, and the contents of such files and messages may be reviewed and disclosed, at any time, without notice, in accordance with the Company’s requirements for the Services. Contractor agrees not to make any unauthorized use or disclosure of any proprietary, confidential or trade secret information of any third party in performing the Services.
3. Term and Termination.
a. Term. Unless terminated earlier as provided below, the term of this Agreement shall begin on the Effective Date and shall continue for thirteen (13) weeks unless otherwise stated in the Services Assignment. Thereafter, this Agreement will automatically renew on the same terms and conditions, indefinitely, unless either party provides seven (7) days’ written notice prior to the end of the applicable term that the Agreement will not renew.
b. Termination. The Company may terminate this Agreement with or without cause, at any time upon five (5) days’ prior written notice to the Contractor. The Contractor may terminate this Agreement without cause, at any time when no Services Assignment is in effect upon thirty (30) days’ prior written notice to the Company. In addition, either party may terminate this Agreement upon five (5) days written notice to the other, in the event the other party materially breaches this Agreement. Notwithstanding the foregoing, the Company may terminate this Agreement immediately in its sole discretion by written notice to Contractor due to the Contractor’s material breach of Sections 5, 6, or 7 of the Agreement. Upon termination or expiration of this Agreement, Contractor shall have no further obligation to provide Services to the Company pursuant to this Agreement and, except for payment of undisputed fees to the Contractor for Services rendered or reimbursable expenses incurred prior to the date of termination, the Company shall have no further obligation to pay the Contractor. If the Agreement is terminated prior to completion of the Services to be provided hereunder, the Contractor shall enter final timekeeping time entries for Services and associated notes within two (2) business days from the date of termination and the Company shall pay those hours in accordance with the Services Assignment and Section 4 hereof.
c. Survival. The following Sections of the Agreement shall survive the cancellation, expiration or termination of this Agreement: 4, 5, 6, 7, 8, 9, 11, 12, 14, and 15 (including all subsections of Section 15).
4. Contractor’s Fees and Expenses and Discrepancies and Disputes. During the term of this Agreement, the Contractor’s sole compensation for the Services shall be the fees paid at the rates set forth in each Services Assignment, plus reimbursement of certain expenses as provided in the applicable Services Assignment(s). The Contractor shall maintain record of time spent on each Service Assignment and enter the documentation for that time into the FlexTal timekeeping portal. All time entries must be completed no later than 11:59 pm Pacific Time each Saturday, and each time entry must include notes or details regarding the work performed during the time associated with the entry. If applicable, itemized documentation for pre-approved expenses incurred must be submitted to FlexTal within five (5) days of the expense incurred. If necessary, receipts, proof of purchase or expense, support for hours worked, or additional documentation shall be addressed to:
accounting@flextal.com
or
Assemble Technologies, Inc. dba FlexTal
342 Market Avenue SW
Grand Rapids, Michigan 49503
Attn: Accounting / Talent Services
Each invoice or time entry submitted by the Contractor must provide complete supporting detail and/or notes for each day on which Services were performed by Contractor, including the dates, hours, and description of the Services worked by Contractor. Payment for valid invoices or time entries is contingent upon adherence to the Services and terms provided in the Services Assignment. If the Contractor does not adhere to the Services and terms provided in any Services Assignment, the Company shall have the right to adjust invoices at its reasonable discretion, and such adjustments may include reduction in the fees to account for the costs or impact of Contractor’s failure to adhere to the terms of such Services Assignment. Payment for documented, valid, and adjusted invoices and time entries shall be due and payable to Contractor within thirty (30) days after the end date of the Work Period.
The Company determines that a Work Week begins on Sunday at 12:00 am and ends at 11:59 pm on Saturday. Work Weeks are determined using the current ISO 8601 Calendar; Work Periods are defined as two consecutive Work Weeks, starting on the first week of the ISO 8601 Calendar. For a list of the Work Weeks based on standard calendar dating, see the Work Week Table on the FlexTal Portal found at portal.flextal.com.
From the date a client of the Company is invoiced, the client or their authorized representative has ten (10) days to report to the Company a dispute of work performed or discrepancy of hours reported for time worked. If a dispute or discrepancy is filed by a client of the Company, payment(s) to the Contractor for disputed work or hours may be delayed until the dispute is resolved. The Contractor will be notified of any dispute or discrepancy filed that may delay payment or affect the amount to be paid to Contractor and will be expected to provide necessary information to support the details of work performed, tasks completed, or hours billed.
5. Ownership of Materials Related to Services. The parties agree that all information, documents, drawings, materials and other work product authored or prepared, in whole or in part, by the Contractor in the course of providing Services, including without limitation computer programs, computer systems, databases, files, software, archives, source code, data, computer documentation or other material whatsoever (collectively, the “Works”), are the sole and exclusive property of the Company. The Contractor hereby assigns, and, upon their authorship or creation, expressly and automatically assigns in the future, all copyrights, proprietary rights, trade secrets and other right, title and interest in and to such Works to the Company, and the Contractor waives and agrees to waive any rights thereto (including without limitation any moral rights, rights of authorship, or like rights). The Contractor agrees to render all reasonably required assistance to the Company to perfect and protect the rights hereinabove described. In the event that the Company cannot secure the Contractor’s signature on any document the Company deems necessary or advisable for the registration or protection of its rights in the Works, the Contractor hereby irrevocably appoints the Company as its attorney-in-fact to execute any such document, which agency is coupled with an interest.
6. Company or Client Confidential Information.
a. Confidential Information. The Contractor agrees to keep confidential and refrain from any unauthorized disclosure or use of all information communicated to the Contractor or developed by the Contractor with respect to Services, including any confidential information gained or developed by the Contractor by reason of the Contractor’s association with the Company. “Confidential Information” means any information, whether written or not, concerning the Company, the Company’s clients, or other third parties, that is not generally known in the industry, or that has been treated by the Company or its clients as confidential, or that is of competitive advantage to the Company or its clients. Confidential Information includes, but is not limited to: computer programs, marketing, manufacturing, organizational, operating and business plans; strategic or statistical models or calculation methods; research and development; policies and manuals; forecasts; reports; analyses; compilations of data; personnel information; pricing and nonpublic financial information; current and prospective client lists; and third parties information that is confidential or proprietary and that is subject to restrictions on the Company’s use and disclosure. The Contractor further agrees that all information, conclusions, recommendations, reports, advice, analyses, or other documents generated by the Contractor pursuant to this Agreement, including but not limited to all Works, are confidential. Notwithstanding the foregoing, the Contractor’s obligation to hold any information confidential under this Agreement shall not apply to any information that is: (i) in the public domain at the time of disclosure to the Contractor by the Company, or subsequent to the date of disclosure, without breach of this Agreement by the Contractor; (ii) known to the Contractor, as evidenced by written documentation, prior to disclosure of such information by the Company; (iii) disclosed without restriction to the Contractor by a third party having a bona fide right to disclose the same to the Contractor and without breach of this Agreement by the Contractor; (iv) disclosed with the Company’s prior written approval; or (v) independently developed by the Contractor without access to or use of such Confidential Information.
b. Protection of Confidential Information. The Contractor shall not disclose any Confidential Information to any other person or entity or make any use of Confidential Information, unless specifically authorized in writing by the Company to do so, provided, however, the Contractor may make such uses of Confidential Information as are necessary to perform Services hereunder. If the Company gives the Contractor written authorization to make further disclosures, the Contractor shall do so only within the limits and to the extent of that authorization. The Contractor shall use best efforts to prevent inadvertent disclosure of any Confidential Information to any third party by using the same care and discretion that the Contractor uses with similar data that the Contractor designates as confidential. The Contractor agrees that copies of Confidential Information may not be made without the express written permission of the Company, except for working copies of Confidential Information necessary for the performance of Services hereunder, and that all such copies shall be returned to the Company along with all originals pursuant to the terms of Section 13 hereof.
c. No Public Statements. The Contractor agrees that the Contractor shall not issue any news releases or make other public statements relating to this Agreement, any client of the Company, or any engagement of the Company by a client (each, an “Engagement”), without advance written authorization from the Company.
d. Protected Activity. Notwithstanding the foregoing nondisclosure obligations, pursuant to 18 U.S.C. Section 1833(b), the Contractor will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, nothing in this Agreement prevent the Contractor from discussing or disclosing information that is expressly prohibited from being the subject of nondisclosure obligations under applicable law, such as information about unlawful acts in the workplace, including harassment or any other conduct that the Contractor has reason to believe is unlawful or in violation of public policy, or from speaking with an attorney regarding the same.
7. Contractor’s Warranties. The Contractor provides the following warranties to the Company:
a. The Contractor’s performance of the Services called for by this Agreement does not and shall not violate any applicable law, rule, or regulation; any contracts with third parties; or any third-party rights in any patent, trademark, copyright, trade secret, or any other proprietary right.
b. The Contractor has full authority and sufficient right, title, and interest in and to any computer programs, computer systems, data, computer documentation or other Works or material whatsoever (exclusive of rights respecting programs, data and materials identified by the Company as furnished to the Company by third-party vendors) to grant and convey the rights accorded to the Company under Section 5 hereof.
c. All Works, including any software and all other products, documentation and other materials required to be delivered by Contractor to the Company hereunder, the development and use by the Company thereof, and the performance by the Contractor of the Contractor’s obligations hereunder, shall be in compliance with all applicable industry standards, laws, rules and regulations as of the date of delivery thereof.
8. Indemnification and Insurance.
a. Indemnification. The Contractor hereby agrees to indemnify, hold harmless and defend the Company and any member, officer, director, employee or agent thereof (each of the foregoing hereinafter referred to individually as an “Indemnified Party”) against all liabilities, claims, losses, expenses (including without limitation attorneys’ fees, allocated costs of counsel, and legal expenses related to such defense), fines, penalties, taxes or damages (collectively “Liabilities”) asserted by any third party where such Liabilities arise out of or result from: (a) the negligence or intentional wrongdoing of Contractor in providing any Services hereunder; (b) the representations or warranties made by Contractor hereunder, or their breach; or (c) the violation or misappropriation by Contractor of any third party’s trade secrets, proprietary information, trademark, copyright, or patent rights. The Company shall promptly notify the Contractor of any third party action arising as described herein, and the Company shall cooperate with such defense at the Contractor’s expense. The Contractor shall not settle or compromise any Liabilities without the express written consent of the Company.
b. Insurance. The Contractor, at the Contractor’s sole cost and expense, shall obtain and maintain appropriate insurance coverage as follows: (i) Commercial General Liability Broad Form Coverage, including coverage for Property Damage, Bodily Injury, Personal/Advertising Injury, and Contractual Liability with a combined single limit of not less than $1,000,000.00; and (ii) Professional Liability (i.e. Errors and Omissions Coverage) with a limit of not less than $3,000,000.00. A Certificate of Insurance indicating such coverage shall be delivered to the Company upon request.
9. Limitation of Liability. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT. THE COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES AND EXPENSES OWED BY THE COMPANY TO CONTRACTOR FOR SERVICES PERFORMED UNDER THIS AGREEMENT.
10. Non-Exclusivity. The Contractor retains the right to perform services for entities other than the Company, except that the Contractor shall not perform services for the Company’s client in the Engagement other than pursuant to this Agreement, and the Contractor shall not perform services for others, or engage in other activities, to the extent such services or activities materially conflict or interfere with any Engagements with respect to which the Contractor provides Services hereunder. During the term of this Agreement, the Company may engage the services of any other individual or business entity, including but not limited to any individual or business that competes with the Contractor or offers services similar to those offered by the Contractor, and any such engagements shall not be considered a breach of this Agreement.
11. Non-Solicitation of Clients. Unless advance written consent is obtained from the Company, during the term of this Agreement and for one (1) year after its termination, expiration or cancellation, the Contractor shall not provide or offer to provide services, other than through the Company, to any client of the Company in connection with any Engagement(s) with respect to which the Contractor provided Services hereunder.
12. Noninterference with Business. During and for a period of two (2) years immediately following termination of this Agreement by either party or expiration of the Agreement, the Contractor agrees not to solicit or attempt to solicit any employee or independent contractor of the Company to terminate an employment, contractual or other relationship with the Company in order to become an employee or contractor of the Contractor or another person or entity.
13. Return of Company Property. Upon termination of the Agreement or earlier as requested by the Company, the Contractor will deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof (in whole or in part), and any other material or electronic data containing or disclosing any Works, Confidential Information, or any information of any third party obtained by the Contractor in connection with this Agreement. The Contractor further agrees that any property situated on the Company’s premises and owned by the Company, including disks, computers, and other electronic storage media, filing cabinets or other work areas, is subject to inspection by the Company’s personnel at any time with or without further notice, and with or without the Contractor’s consent or participation.
14. Independent Contractor. The Contractor agrees, represents and warrants that Contractor is an independent contractor and that Contractor is not serving as an employee, agent or representative of the Company under this Agreement. The Contractor further agrees that nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship between the Company and the Contractor. The Contractor: (a) is not the agent of the Company; (b) is not authorized to make any representation, contract, or commitment on behalf of the Company; and (c) will not be entitled to any of the benefits that the Company makes available to its employees, such as group insurance, profit-sharing or retirement benefits, paid time off, vacations, sick leave, or paid holidays, due to rendering the Services (and the Contractor waives the right to receive any such benefits). The Contractor will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to the Contractor’s performance of Services and receipt of fees under this Agreement. If applicable, the Company will report amounts paid to the Contractor by filing the applicable Form 1099 with the Internal Revenue Service, as required by law. The Contractor agrees to accept exclusive liability for complying with all applicable state and federal laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to the Contractor under this Agreement. The Company will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on the Contractor’s behalf. The Contractor hereby shall indemnify, hold harmless and defend the Company from any and all claims, liabilities, damages, taxes, fines or penalties sought or recovered by any governmental entity, including but not limited to the Internal Revenue Service or any state taxing authority, based on or arising out of the Contractor’s alleged failure to pay federal, state or local taxes related to the fees paid to the Contractor under this Agreement or the Company’s failure to make withholdings or deductions from its payments to Contractor, and from any and all claims, liabilities, damages, taxes, fines or penalties sought or recovered by any party based on or arising from any alleged employment relationship between the Company and the Contractor. The Contractor agrees to provide proof of payment of appropriate taxes on any fees paid to Contractor under this Agreement upon reasonable request of the Company.
15. General Provisions.
a. Nonassignability; Successors and Assigns. This Agreement, and the Contractor’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by the Contractor without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. This Agreement will be for the benefit of the Company’s successors and assigns, and the terms of this Agreement shall be binding upon assignees.
b. Injunctive Relief. The Contractor acknowledges that, because the Contractor’s services are personal and unique and because the Contractor will have access to confidential information of the Company and its clients, any breach of this Agreement by the Contractor would cause irreparable injury to the Company (or its clients) for which monetary damages would not be an adequate remedy and, therefore, will entitle the Company to injunctive relief (including specific performance) without posting a bond. The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
c. Severability; Governing Law. In the event that any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be modified so as to render it lawful and enforceable to the fullest extent permitted by law consistent with the intent of the parties insofar as possible. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Delaware without regard to conflicts of laws principles.
d. Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
e. Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page, by personal delivery, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving written notice of such change to the other party.
f. No Export of Technical Data. The Contractor agrees not to export, directly or indirectly, any U.S. technical data acquired from the Company or its clients, 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.
g. Dispute Resolution. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement or any Work Order, or the subject matter hereof, that are not resolved by their mutual agreement shall be submitted to final and binding arbitration. Either party may commence the arbitration process by filing a written demand for arbitration with the American Arbitration Association (“AAA”), with a copy to the other party. The arbitration shall be conducted in accordance with the AAA’s commercial arbitration rules. Notwithstanding the parties’ agreement to arbitrate, the parties hereby agree that each party may apply to any court of law or equity of competent jurisdiction for specific performance or injunctive relief to enforce or prevent any violation of the provisions of this Agreement. The parties will cooperate with one another in selecting an arbitrator and in scheduling the arbitration proceedings. In the absence of agreement, each party shall select an arbitrator, and those two arbitrators shall select a third. The parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction. The place of arbitration shall be in a location mutually agreed on by the parties. The arbitration proceedings shall take place in the English language.
h. Entire Agreement; Interpretation; Counterparts. This Agreement, including the Services Assignment, is the final, complete and exclusive embodiment of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all other discussions, representations, or promises with respect to that subject matter. This Agreement can be modified or amended only by written agreement fully executed by authorized representatives of the parties. The terms of this Agreement will govern all Services undertaken by the Contractor for the Company. In the event of any conflict between this Agreement and the Services Assignment, then the Services Assignment shall control but only with respect to the Services set forth therein. Any ambiguity in this Agreement shall not be construed against any party as the drafter. This Agreement may be executed in counterparts which shall be deemed to be part of one original, and signatures transmitted by facsimile, PDF, or other electronic delivery, will suffice as original signatures.