Last Modified:  July 23, 2018

Remote Team Creation and Management

Terms of Service

THIS Term of Service (“Agreement”), is made effective as of the last modified date located at the top of this page (“Effective Date”) by your company (the “Client”), and HireMadSkills, Inc., a Delaware stock corporation (“Service Provider”) (both Client and Service Provider each a “Party” collectively defined herein as the “Parties”).

RECITALS

WHEREAS, Service Provider is engaged in the business of providing virtual professionals to perform services for clients; and

WHEREAS, Client desires to engage Service Provider to provide such services.

In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

  1. Service Provider Duties and Responsibilities.  From time to time, the Client and Service Provider may agree on certain services to be performed under this Agreement, and in that case, shall prepare a statement of work in substantially the form set forth in Virtual Talent Request Form (“Statement of Work”), as attached hereto and incorporated herein.
    1. Service Provider shall:
      1. recruit, screen, interview and assign its personnel  (the “Assigned Personnel”) to perform the work described in the “Statement of Work” for Client for the Term (as defined below)
      2. pay Assigned Personnel wages and provide other benefits as Service Provider deems appropriate;
      3. pay, withhold and transmit payroll taxes, provide unemployment insurance and workers’ compensation in an amount no less than required by law, and handle workers’ compensation and unemployment claims involving Assigned Personnel as applicable;
      4. ensure Assigned Personnel are legally authorized to work in the United States;
      5. provide Client with such reports as Client may reasonably request pertaining to Assigned Personnel.
    2. Service Provider represents that:
      1. it is solely responsible for Form I-9 verification
      2. it is solely responsible for performance managing, disciplining and terminating its Assigned Personnel.
    3. Service Provider represents and warrants that Assigned Personnel will have the qualifications specified by Client. If Client finds any Assigned Personnel qualifications or general work-related behavior lacking, it shall advise Service Provider within two (2) days of discovering the insufficiency. Service Provider will make reasonable efforts to replace the Assigned Personnel as soon as practicable.
    4. At all times during the term of this Agreement, Service Provider shall, at its sole cost and expense, cover its staffing operations for Client with at least the following types and limits of insurance or other coverage, and shall provide Client with proof of such coverage on Client’s request:
      1. general liability insurance

 

  1. Client Duties and Responsibilities.  
    1. Client shall:
      1. inform Assigned Personnel of the Client’s work to be performed, and Client shall be responsible for its business operations, products, services and intellectual property;
      2. provide Assigned Personnel appropriate information and training as pertaining to work assigned

    2.2 Client shall not:

      1. include Assigned Personnel in Client’s benefits plans, policies and practices, or make any offer or promise relating to Assigned Personnel compensation or benefits; or
      2. change Assigned Personnel job duties without Staffing Firm’s express prior written approval.
  1. Compensation for Services.
    1. Hourly Fees. Service Provider shall invoice Client for services provided in accordance with this Agreement on the first (1st) and fifteenth (15th) of each month at the rates selected and set forth on Virtual Talent Request Form, attached hereto and incorporated herein as Compensation. All invoice payments are DUE UPON RECEIPT. Invoices will be accompanied by Assigned Personnel timesheets. Service Provider is responsible for approving Assigned Personnel timesheets. If any portion of any invoice is disputed, Client shall pay and deliver the undisputed portion as the Parties attempt to resolve any disputed amounts. Service Provider, in its sole timing and discretion, may reasonably modify the dates, times, and requirements for submitting invoices.
    2. Nonexempt Employee Overtime. Client acknowledges and agrees that in the event a nonexempt Assigned Personnel works more than forty (40) hours in any workweek for Client, that Assigned Personnel is entitled to premium payment for overtime compensation as provided by federal law, and as applicable, state and local laws. Service Provider acknowledges and agrees that it is solely responsible for ensuring all hours worked by Assigned Personnel are paid at the legally required rate. Client agrees to pay Service Provider for any overtime hours worked at one and one-half times the rate specified on Virtual Talent Request Form (the “Overtime Fees”).
    3. Client agrees to pay late fees on any unpaid balances after fifteen (15) days from the date of receipt of the invoice/due date. A fee of .5% will be assessed every 2-week billing cycle until outstanding invoice is paid in full.
    4. Client agrees to notify Service Provider immediately if any Assigned Personnel performs work under a state or federal government contract, and agrees to pay Service Provider a price differential to reflect the higher wages that may be due any such Assigned Personnel by reason of any state or federal requirements or contract specifications.
  2. Term; Termination; Survival.
    1. Term. The term of this Agreement shall commence upon the “Effective Date” hereof and (i) shall continue for 30 days of agreed upon trial period or (ii) till termination as provided below. After the 30 day trial period, contract will auto-renew for a period of 12 months if termination (as outlined in 4.2) is not submitted. The Parties may mutually agree in writing to extend the Term of this Agreement for the performance of additional Services in accordance with and to be reduced to writing through a new or amended Statement of Work for adding additional Assigned Personnel to contract for additional duties and services.
    2. Termination. Service Provider may terminate this Agreement for any or no reason upon fifteen (15) days advance written notice to the Client.  Client may terminate this Agreement for any or no reason upon fifteen (15) days advance written notice to the Service Provider. Any such notice of termination shall be addressed to the Party at the electronic mail address shown below or such other address as either Party may notify the other of and will be deemed given upon delivery if personally delivered, or forty-eight (48) hours after delivered by electronic mail.
    3. Survival. Upon termination or expiration, all rights and duties of the Parties toward each other will cease except: (a) the Client shall pay, within thirty (30) days of the effective date of termination, all amounts of Compensation owing to Service Provider for Services completed and accepted by the Client prior to the termination date in accordance with the provisions of Section 3, Sections 3, 4.3, 5, 6, 7, 8, 9, 10, 11, 13, 14 and 15, shall survive any termination or expiration of this Agreement.
  3. Relationship of the Parties. Nothing contained in this Agreement will be construed to create a joint venture or partnership, or the relationship of principal and agent, or employer and employee, between Service Provider and Client.
  4. Indemnification.  
    1. Each Party shall defend, indemnify and hold the other party harmless from and against any claim, loss, costs, or damages, including, but not limited to reasonable attorneys’ fees, arising out of or resulting from any action by a third party based upon (i) any negligent, reckless, or intentionally wrongful act or omission of a Party’s assistants, employees, agents, (ii) or any breach or alleged breach by a Party’s assistants, employees or agents of any of the covenants, representations, or warranties contained in this Agreement.
    2. Service Provider shall defend, indemnify and hold harmless Client from and against all losses awarded against Client in a final judgment based on a claim that any of the work product (“Deliverables”) or Client’s receipt or use thereof infringes any Intellectual Property Right of a third party arising under the Laws of the United States; provided, however, that Service Provider shall have no obligations under this section with respect to claims to the extent arising out of:
      1. any Client instruction, information, designs, specifications or other materials provided by Client in writing to Service Provider;
      2. use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing, if the infringement would have been avoided by the use of the Deliverables not so combined; or
      3. any modifications or changes made to the Deliverables by or on behalf of any person other than Service Provider or Assigned Employees.
    3. The Party seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any claim, suit, action or proceeding and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such claim, suit, action or proceeding and shall employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any claim, suit, action or proceeding in a manner that adversely affects the rights of the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this section shall not relieve the indemnifying Party of its obligations under this section except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at its own expense.
    4. The Parties agree that this Section 7 constitutes the complete agreement between the Parties with respect to indemnification, and each Party waives its right to assert any common-law indemnification or contribution claim against the other Party.
  5. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S LIABILITY TO CLIENT FOR MONETARY DAMAGES EXCEED THE COMPENSATION AMOUNTS DUE AND OWING COMPANY HEREUNDER AT THE TIME OF SAID BREACH. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
  6. Confidential Information. Both Parties may be given access to or acquire information which is proprietary or confidential to the other Party and its affiliated companies, clients and customers. Any and all such information obtained by either Party or the Assigned Personnel shall be deemed to be confidential and proprietary information. Both Parties agree to hold such information in strict confidence and not to disclose such information to third Parties or to use such information for any purposes whatsoever other than the providing of services under this Agreement. Service Provider agrees to require Assigned Personnel to keep such information confidential, and to enter into confidentiality agreements before being assigned to Client.
  7. Compliance with Law.  
    1. Both Parties represent and warrant to each other that they are in compliance with all applicable laws.
    2. Client affirms and agrees that it is an equal employment opportunity employer and are in full compliance with any and all applicable anti-discrimination laws, rules and regulations.  Client and Service Provider agree not to harass, discriminate against or retaliate against any employee of the other because of his or her race, national origin, age, sex, religion, disability, marital status or other category protected by law; nor shall either Party cause or request the other Party to engage in such discrimination, harassment or retaliation.  In the event of any complaint of unlawful discrimination, harassment or retaliation by any Assigned Personnel, Client and Service Provider agree to cooperate in the prompt investigation and resolution of such complaint.
    3. Client and Service Provider affirm and agree that for purposes of all statutory and regulatory requirements for employee leaves of absence, including the Family and Medical Leave Act and any similar state or local law, Client and Service Provider shall cooperate in compliance with any such requirements.
  8. Ownership of Intellectual Property Rights.  
    1. Definitions. For purposes of this Agreement, and, without limitation, this Section 11, the Parties hereby agree and consent to the following definitions:

      “Background IP” means all Intellectual Property owned or licensed by a Party (a) before the Effective Date; or (b) independent of and exclusive from the Services and this Agreement.

      “Developed IP” means any Intellectual Property (other than Background IP) created, resulting from, or discovered by Staffing Firm or Client in connection with Services performed for the Client.

      “Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.

      “Intellectual Property Right” means all patent rights, copyrights, trademark rights, rights in trade secret (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (whether registered or unregistered) throughout the world.
    2. Intellectual Property.  
      1. The Parties hereby agree and acknowledge the Services and resulting Work Product (as defined below) and Developed IP are performed by Service Provider under the doctrine of work-for-hire under the U.S. Copyright Act. Unless otherwise set forth in any Statement of Work, the entire right, title, and interest in and to any intellectual property created by the Service Provider under this Agreement (the “Work Product”), together with all proprietary rights relating thereto, including, without limitation, all Background IP of the Client and all Developed IP in the completed Work Product as a whole and in part (collectively, the “Intellectual Property”) are the exclusive property of Client. Service Provider hereby assigns to Client all Intellectual Property that may be embodied in any Developed IP, except for Service Provider’s Background IP, that do not meet the requirements of a work-for-hire under the U.S. Copyright Act, effective immediately as soon as such work is fixed in a tangible or electronic form or medium. Notwithstanding the foregoing provisions of this Section 11.2(a), such Work Product and Intellectual Property defined herein above does not include for purposes of this Agreement and, specifically, without limitation, this Section 11.2(a), any components of source code, plugins, or other industry-standard tools utilized in the creation of the final Work Product or any third party or open-source Intellectual Property utilized by Service Provider in performing the Services hereunder. Further, the Parties acknowledge and agree that all right, title, and interest in and to the Background IP of the Service Provider shall remain in the Service Provider, subject only to the limited license set forth in Section 11.3 below, if applicable.
      2. If applicable law or third party contracts prevent Service Provider from transferring ownership of any Developed IP to Client, Service Provider grants Client a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferable, worldwide license (with the unrestricted right to sublicense) to: (i) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use such Developed IP; and (ii) make, use, sell, offer for sale, import, export any component of, and otherwise dispose of such Developed IP. If requested by Client, Service Provider shall timely perform all acts reasonably necessary or desirable by Client to accomplish the assignments and other transactions specified in this Agreement.
    3. Background IP. If Service Provider’s Background IP is incorporated in, or is necessary to use, any Work Product or deliverable resulting from this Agreement:
      1. Service Provider shall describe its Background IP in the applicable Statement of Work; and
      2. Service Provider hereby grants to Client and its affiliates a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the unrestricted right to sublicense) to do the following: (i) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use such Background IP in connection with the Work Product, deliverables resulting from this Agreement, and Developed IP; and (ii) make, use, sell, offer for sale, import, export any component of, and otherwise dispose of such Background IP in connection with the Work Product, deliverables resulting from this Agreement, and Developed IP.
    4. Upon the reasonable request of Client, and at the sole cost of Client, Service Provider shall, and shall cause the Assigned Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect or record its rights in or to any Deliverables.
  9. Cooperation. Client and Service Provider agree to cooperate fully and to provide assistance to one another in the investigation and resolution of any complaints, claims, actions or proceedings that may be brought by or involve any of the Assigned Personnel.
  10. Non-solicitation. Client and Service Provider agree not to directly or indirectly solicit or induce for employment, or employ or engage as an independent contractor any employee of the other Party during the term of this Agreement and for a period of twenty-four (24) months thereafter without the prior written consent of the other Party.  A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for purposes of this Section 13, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section 16.
  11. Force Majeure.  
    1. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation:
      1. acts of God;
      2. flood, fire or explosion;
      3. war, invasion, riot or other civil unrest;
      4. actions, embargoes or blockades in effect on or after the date of this Agreement;
      5. national or regional emergency;
      6. strikes, labor stoppages or slowdowns or other industrial disturbances;
      7. shortage of adequate power or telecommunications; or
      8. any other event which is beyond the reasonable control of such Party.
    2. (each of the foregoing, a “Force Majeure Event”). A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    3. The non-affected Party may terminate this Agreement if such failure or delay continues for a period of thirty (30) days or more and, if the non-affected Party is Client, receive a refund of any amounts paid to Service Provider in advance for the affected services. Unless this Agreement is terminated in accordance with this Section 14, the term of this Agreement shall be automatically extended by a period equal to the period of suspension.
  12. Miscellaneous.  
    1. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
    2. Assignment. Neither Party may assign, transfer or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other Party. No assignment shall relieve the assigning Party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
    3. Amendments and Waivers. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    4. Severability. If a court of competent jurisdiction holds any provision of this Agreement, or its application to any person, place or circumstance, to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places and circumstances, shall remain in full force and effect.
    5. Entire Agreement. This Agreement, along with any Exhibits or Statements of Work agreed to by the Parties, is the entire agreement of the Parties and supersedes any prior or contemporaneous agreements between them, whether written or oral, with respect to the subject matter hereof.  No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the Parties hereto. In the event of any conflict between the terms of this Agreement and any Exhibit hereto, the terms of this Agreement shall control and govern.
    6. Mutual Drafting. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits and any other documents incorporated herein by reference shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
    7. Counterpart; Headings. This Agreement may be executed simultaneously and in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one (1) and the same instrument. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
    8. Dispute; Governing Law; Equity.
      1. Dispute Venue. Client and Service Provider agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall exclusively be filed and resolved in a state court located in the city of Norfolk in the Commonwealth of Virginia.
      2. Governing Law.  The terms, conditions and provisions of this Agreement and any dispute arising hereunder shall be governed by and under the laws of the Commonwealth of Virginia, without regard to its conflict of law principles.
      3. Equitable Relief.  In the event of a breach or threatened breach by either Party of any of the provisions of this Agreement, the Parties hereby consent and agree that the non-breaching Party shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. Such remedies shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief.

 

    1.  Attorneys’ Fees. In any legal action or other negotiation or proceeding brought to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, fees, and costs. The non-prevailing Party in any legal action brought pursuant to, or arising out of this Agreement, shall pay to prevailing Party all costs and fees incurred by such Party in such action, including, without limitation, all reasonable attorneys’ fees and out-of-pocket expenses and all other reasonable costs of enforcement of the terms and conditions hereof. As used herein, the “prevailing Party” means the Party in whose favor a final judgment, order, or decree is rendered/entered.
    2. Recitals.  The recitals contained in this Agreement above are incorporated into and made an integral and substantive part of this Agreement.