TERMS AND CONDITIONS:
I. INTELLECTUAL PROPERTY RIGHTS
- Retained Rights.
Each party will retain all right, title, and interest in and to its own Pre‐Existing Intellectual Property irrespective of any disclosure of such Pre‐Existing Intellectual Property to the other party, subject to any licenses granted herein.
- Pre‐Existing Intellectual Property.
Company will not use any Company or third party Pre‐Existing Intellectual Property in connection with this Contract unless Company has the right to use it for Customer’s benefit. If Company is not the owner of such Pre‐Existing Intellectual Property, Company will obtain from the owner any rights as are necessary to enable Company to comply with this Contract.
- Ownership of Deliverables.
Subject to Company and third party rights in Pre‐Existing Intellectual Property, all Deliverables, whether complete or in progress, and Intellectual Property Rights related thereto shall be transferred to the Customer provided the Customer has paid for the Deliverables and related services in full, at which time Company will assign such rights to Customer. To clarify, once paid in full, Company agrees that Customer will own copyrights covering the Deliverables and will have full rights to use the Deliverables.
- No Rights to Customer Intellectual Property.
Except for the limited license to use materials provided by Customer as may be necessary in order for Company to perform Work under this Contract, Company understands that it is granted no right, title, or interest in any Customer Intellectual Property.
- Confidential Information.
For purposes of this Contract, “Confidential Information” shall mean information or material proprietary to a Party or designated as confidential by such Party (the “Disclosing Party”), as well as information about which a Party (the “Receiving Party”) obtains knowledge or access, through or as a result of this Contract. Confidential Information does not include: a) information that is or becomes publicly known without restriction and without breach of this Contract or that is generally employed by the trade at or after the time the Receiving Party first learns of such information; b) generic information or knowledge which the Receiving Party would have learned in the course of similar employment or work elsewhere in the trade; c) information the Receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; d) information the Receiving Party rightfully knew prior to receiving such information from the Disclosing Party to the extent such knowledge was not subject to restrictions on further disclosure; or (e) information the Receiving Party develops independent of any information originating from the Disclosing Party.
The Parties hereby agree that during the term hereof and for a reasonable amount of time thereafter, and except as specifically permitted herein or in a separate writing signed by the Disclosing Party, the Receiving Party shall not use, commercialize or disclose Confidential Information to any person or entity. Upon termination of this Contract, or at any time upon the request of the Disclosing Party, the Receiving Party shall destroy or return to the Disclosing Party all Confidential Information, including all notes, data, reference materials, sketches, drawings, memorandums, documentations and records which in any way incorporate Confidential Information.
- Restriction on Use of Companys’ Proprietary Information
All business, technical or financial information disclosed by Company via Company properties, including without limitation, the Sites or Matching Services, is the “Proprietary Information” of Company. Proprietary Information includes, but is not limited to, the rates (“Billing Rates”, “Base Rates”, or “Charging Rates”) of any Talent in the Network. You will hold in confidence and not disclose to others any Proprietary Information. You will also not use Proprietary Information for any purposes other than evaluation of Company Talent and Talent Services as an existing or prospective client of Company. You may make disclosures of Proprietary Information required by law or court order provided that you give Company advance written notice. When you have completed your use of the Sites or Matching Services, or if you have not used the Sites or Matching Services in 12 months, you will destroy all items and copies containing or embodying Proprietary Information.
During all periods of your access to or use of the Sites or Matching Services and for twelve (12) months after each such access or use (collectively, all such periods are referred to as the “Non-Solicit Period”), you, the Customer, will not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for performance of services (excluding services performed pursuant to an Estimate or Quote agreed to by both you and Company) any Talent whom you become aware of in connection with your interaction with Company. You also agree that you will not refer such Talent directly to parent, sibling, or other affiliated companies unless it is in connection with a Company Work Request.
If you become interested in hiring Talent directly, you will inform Company immediately and agree upon a Matching Services Fee to be paid to Company upon hiring the Talent, before approaching the Talent. The Matching Services Fee will not be less than 25% of the annual compensation expected to be paid by the Customer to the Talent in their new role.
IV. CONFLICT OF INTEREST
Company represents that its execution and performance of this Contract does not conflict with or breach any contractual, fiduciary or other duty or obligation to which Company is bound.
Customer may terminate this Contract for its convenience, at any time, provided it gives 10-days prior written notice to Company. Company may terminate this Contract for its convenience, at any time, upon prior written notice to the Customer.
- Upon termination of any Work ordered hereunder, Company will provide Customer with any and all Work-in-progress or completed prior to the termination date once the Customer has paid all outstanding invoices. Customer will pay Company a prorated amount, as determined by Company, for the Work-in-progress and the agreed price for any completed Deliverables provided and accepted prior to the date of termination.
- Upon termination of this Contract, Company shall promptly return to Customer confidential materials provided by Customer to Company.
- Any provision or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Contract.
Company and Independent Contractor(s) warrant that:
- they will perform the Services hereunder in a professional and workmanlike manner;
- the Services provided to Customer will meet the requirements and conform with any specifications agreed to by the Parties as summarized in the relevant Estimate or Quote.
Customer warrants that:
- it will support the services provided by Company or the Independent Contrator(s) by contributing materials or knowledge and executing approvals as needed, in an efficient and expedited manner;
- it agrees that the descriptions on the Estimate or Quote cover any and all significant specifications or requirements that the Customer expects from the services.
Disclaimer of Warranties:
COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES PROVIDED WILL CREATE ANY ADDITIONAL PROFITS, SALES, EXPOSURE, BRAND RECOGNITION, OR THE LIKE. COMPANY HAS NO RESPONSIBILITY TO CUSTOMER IF THE SERVICES DO NOT LEAD TO CUSTOMER’S DESIRED RESULT(S).
VII. LIMITATION OF LIABILITY
- UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM ANY PART OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY.
- Notwithstanding the foregoing, any purported limitation or waiver of liability shall not apply to the Parties’ obligations under the Confidential Information section of this agreement.
VIII. INSPECTION AND ACCEPTANCE OF DELIVERABLES
- Inspection and Acceptance
Upon the delivery of any Deliverables, Customer will inspect the Deliverables and approve their quality within five business days. Upon approval, or after five days, whichever is sooner, the Deliverables related to this Contract will be considered complete.
- Non-Conforming Deliverables.
If any Deliverables delivered do not conform to specified requirements as summarized in this Contract, Customer may require the Talent to improve the Deliverables until they conform with the requirements without additional cost to the Customer. If Non-Conforming Deliverables are identified, the Customer will inform Company within five business days of the Deliverables being delivered to the Customer (i.e. prior to the Contract being considered complete). And if such an event occurs, the Customer will work with Company and the Talent to efficiently and effectively improve the Deliverables.
Company shall maintain adequate insurance coverage and minimum coverage limits for its business as required by any applicable law or regulation, including Workers’ Compensation insurance as required by any applicable law or regulation, or otherwise as determined by Company in its reasonable discretion.
This Contract will be binding upon the Parties’ heirs, executors, successors and assigns.
- Dispute Resolution.
THIS CONTRACT IS MADE UNDER, AND WILL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between or among any of the parties, whether arising out of this Contract or otherwise, each of the parties irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in Wilmington, Delaware; (b) WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY; and (c) consents to service of process by first class certified mail, return receipt requested, postage prepared, to the address at which such party is to receive notice in accordance with Section XIII.
In the case of a dispute, the parties agree to adhere to the following process:
a) Negotiation:The Parties shall make a good-faith effort to amicably settle by mutual agreement any dispute that may arise between them under this Contract.
b) Mediation/Arbitration:If good faith negotiation fails to resolve the dispute, either Party may initiate mediation or binding arbitration in a forum mutually agreed to by the Parties.
c) Litigation: If litigation is necessary, this Contract will be interpreted based on the laws of the State of Delaware, regardless of any conflict of law issues that may arise. The Parties agree that the dispute will be resolved in a court of competent jurisdiction in the agreed upon State.
d) Attorney’s Fees: The prevailing party will be able to recover its attorney’s fees and other reasonable costs for a dispute resolved by binding arbitration or litigation.
The Parties recognize the uncertainty of the law with respect to certain provisions of this Contract and expressly stipulate that this Contract will be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of this Contract are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted from this Contract or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Contract will be unaffected.
- Independent Relationship.
Nothing contained in this Contract shall create a legal partnership, an employer and employee relationship, a master and servant relationship, or a principal and agent relationship between Company and Customer, or between any Talent and the Customer. Customer and Company agree that Company and its independent contractors are, and at all times during this Contract shall remain, independent from Customer.
- Force Majeure.
Neither Party shall be liable for any failure to perform under this Contract when such failure is due to causes beyond that Party’s reasonable control, including, but not limited to, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes, accident, and prolonged shortage of energy. In the event of such delay, the date of delivery or time for completion will be extended by a period of time reasonably necessary by both Company and Customer. If the delay remains in effect for a period in excess of thirty days, Customer may terminate this Contract immediately upon written notice to Company (see Termination).
- Entire Contract.