Outline. Company will use commercially reasonable efforts to make one or more independent contractors that have completed Company’s proprietary screening process (such person(s) singular and plural, “Talent”) available (the “Service”) to perform Executive Assistant work. Client understands that Talent’s performance of Work depends on Client’s active management and facilitation. Accordingly, Client must provide Talent with all information, cooperation, and assistance reasonably required in connection with the successful performance of the Work. Talent will report directly to personnel designated by Client (“Client Contact(s)”). The Client Contact(s) will be responsible for setting, reviewing, and monitoring Talent schedules, giving feedback, and otherwise managing the Talent. Client will coordinate with Talent to timely generate the desired tangible results of the Work (the “Work Output”). Client acknowledges and agrees that Company’s Service does not include directing the Work or generating Work Output. Since Company does not perform or manage the Work Company cannot guarantee the quantity or quality of the Work, the Work Output, or that the Talent will meet any desired goals or deadlines. Client is solely responsible for determining whether Talent meets Client’s needs and will be solely responsible for evaluating the on-going progress, performance, and capability of engaged Talent. Client may, at any time, request the replacement of Talent who does not meet Client’s performance and/or capability requirements. Upon such request, Company will use commercially reasonable efforts to promptly furnish a replacement satisfactory to Client. Company will offer one (1) complimentary Talent replacement. If the 2nd Talent placement does not work, Company will typically end the engagement with the Client.
Company will collect the fees from Client for Work performed by Talent. Company will charge Client monthly for Work provided during the month ahead.
All payments will be made electronically via credit card, bank wire, ACH transfer, or PayPal. Late payments will result in an interest charge of five percent (5%) per month on overdue amounts. Additionally, Client will pay or reimburse Company’s costs of collection for overdue amounts (including, without limitation, any attorneys’ fees).
Except with required notice to Company and payment of the Platform Buyout Fee (described in Section 4.2), during the term of this Agreement and for twelve (12) months thereafter (the “Non-Circumvention Period”), Client will not, directly or indirectly, encourage, solicit, hire, or otherwise contract or engage for performance of services, any Talent who Client becomes aware of in connection with the Service, uses as part of the Service or otherwise pursuant to this Agreement (“Restricted Talent”). Client also agrees that it will not refer Restricted Talent directly or indirectly to any related parties or affiliates including without limitation subsidiaries, parent companies, partnerships, holdings or investors except through the Company Service. The Client agrees that all communications, requests for additional information, and discussions or questions regarding the engagement of the Restricted Talent directly with the Client will be submitted or directed to the Company and not with the Restricted Talent or with any other party.
The Client acknowledges that in the event of any breach of the terms of this Non-Circumvention, the Company may not be made whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek an injunction to prevent breaches of the terms of this Non-Circumvention and no bond or other security will be required in connection with the pursuit of an injunction. In the event of any dispute arising out of the subject matter of this Section, the prevailing party shall be entitled to recover, in addition to any other damages assessed or relief afforded, its attorney fees and court costs incurred in litigating or otherwise settling or resolving such dispute hereunder.
Platform Buy Out
Subject to Client’s prior written notice to Company, a reasonable wind-down period, and full payment of the Platform Buyout Fee Client may, during the Non-Circumvention Period, opt to directly engage or employ Restricted Talent. The wind-down period is typically thirty (30) days, but may be reasonably adjusted by Company based on Talent’s then-existing commitments to Company and/or other Company clients.
For each Client-Hired Restricted Talent (defined below), Client will pay a Platform Buyout Fee of twenty-five thousand dollars ($US 25,000.00) representing a reasonable estimate of Company’s expenses incurred to source, recruit, screen, and replace Talent. "Client-Hired Restricted Talent" means Restricted Talent hired as an employee of or otherwise engaged by Client during the Non-Circumvention Period. The Platform Buy Out Fee is mutually agreed not to be a penalty or constraint upon the commercial activities or prospective employment of Client or Talent, only reasonable compensation for Company’s lost commercial investment in its Service in originally sourcing Client Hired Restricted Talent.
This Agreement will commence on the Effective Date and continue in effect until terminated under this Section 5. If either party desires to ternate this Agreement, the other party may terminate this Agreement in its entirety or the affected TOP(s), upon a one (1) month advance written notice to the other party. Athena also may terminate this Agreement in its entirety or a particular TOP hereunder at any time, with or without cause, upon three (3) business days’ written notice to the Client. Sections 2, 3, 4, 5, 6.2, 6.3, 7, 8 and 9 will survive any termination or expiration of this Agreement. Upon termination of this Agreement or a TOP, Client agrees to pay Company all amounts then due or accrued as of the effective date of such termination.
Representations/Warranties. Company represents, and warrants that: (a) Talent has successfully completed Company’s screening process; and (b) Company has full power, right, and authority to enter into and carry out its obligations under this Agreement. Client represents and warrants that it has full power, right, and authority to enter into and carry out its obligations under this Agreement, and that is not restricted by any U.S. export restrictions or other applicable law from entering into this Agreement.
Client’s Product and Technology Management Responsibility. Client is solely and exclusively responsible for facilitating, monitoring and overseeing Talent, the Work and the Work Output. Client agrees that it is responsible for notifying Talent of processes and policies applicable to its contracted resources. Client is responsible for acquiring all rights and licenses to any software, code, information, documentation, or other materials and intellectual property that it acquires from third parties and/or furnishes to Talent in connection with the Work and for ensuring that Client has all rights and licenses necessary to enable the Work. CLIENT ASSUMES ALL RISK WITH RESPECT TO CLIENT’S TECHNOLOGY, WEBSITES, PRODUCTS AND RELATED MATERIALS, INCLUDING ALL WORK, WORK OUTPUT AND MATERIALS INCORPORATED THEREIN.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPANY SERVICE (WHICH IS PROVIDED ON AN “AS-IS” and “AS-AVAILABLE BASIS”); TALENT, ANY WORK, WORK OUTPUT OR OTHER RESULTS ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY DIRECT AGREEMENT BETWEEN TALENT AND CLIENT. COMPANY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
If Client does not enter into its own agreement with Talent to effect transfer of ownership to Work Output then (i) Talent will assign ownership to Company pursuant Talent’s agreement with Company; (ii) and this Section 7 shall affect a transfer from Company to Client, and (iii) Client shall be a third- party beneficiary of Talent’s confidentiality obligations. The assignments and license rights provided to Client by Company in this Section 7 are expressly conditioned on Client paying all fees due and full performance of its other material obligations hereunder. Subject to the foregoing, Company hereby assigns to Client all rights, title and interest owned by and vested in Company, in and to all Work Output provided to Client by Talent in performance of the Work hereunder and all intellectual property rights Company has (including without limitation, patents, copyrights, trade secrets, moral rights and all other intellectual property or proprietary rights) therein. Such assignment does not include any Underlying Technology. “Underlying Technology” will mean (a) Company technology, methodologies, know-how and intellectual property existing as of the Effective Date or otherwise arising outside of work under this Agreement, (b) any derivatives, improvements, enhancements or extensions of the foregoing that are conceived, reduced to practice, or developed in performance of this Agreement that have general applicability in Company’s business, and (c) any intellectual property relating to any of the foregoing. To the extent any Underlying Technology is incorporated into or otherwise reasonably necessary to use any such Work Output, subject to the terms and conditions of this Agreement, Company grants to Client a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to fully exercise and exploit the Underlying Technology and to make derivative works of the same in connection with the exploitation of the Work Output. Company will (and will use commercially reasonable efforts to cause Talent to) reasonably assist Client, at Client’s request and expense, to further evidence, record, perfect, and maintain any rights assigned.
All business, technical or financial information disclosed by one party (“Discloser”) to the other party (“Recipient”) hereunder will be the “Proprietary Information” of the Discloser. All Work Output provided under this Agreement that has been fully paid for by Client (or that are not subject to payment default by Client) will be deemed the Proprietary Information of Client. The Proprietary Information of Company includes, without limitation, the names, contact information, Company’s screening and selection criteria for, rates and particular skills of the Talent in Company’s network. Each party will (and Company will use commercially reasonable efforts to cause Talent to) hold in confidence and not disclose or, except in performing their respective obligations hereunder, use any Proprietary Information of the disclosing party. Proprietary Information will not include any information the Recipient can document (i) is or becomes readily publicly available without restriction through no fault of the Recipient, or (ii) was in its possession or known by it without restriction prior to receipt from the Discloser, or (iii) was rightfully disclosed to it by a third party without restriction, or (iv) was independently developed without use of any Proprietary Information of the Discloser by employees or consultants of the Recipient. The Recipient may make disclosures required by law or court order provided the Recipient provides the Discloser with advance written notice of such disclosure and cooperates with the Discloser, at the Discloser’s request and cost, in any attempts by the Discloser to limit or prevent such disclosure.
Upon termination of this Agreement, if requested by the Discloser, the Recipient will promptly return to the Discloser all items and copies containing or embodying Proprietary Information of the other party (including, without limitation, all Work Output and all Work-in-progress, provided Client has paid Company all fees due and owing).
Publicity. After working with Company for more than two weeks with a Company Talent, Company also may refer to Client (including any Client related companies affiliated through ownership or control) on Company’s website or other marketing material which displays clients of Company and to use Client as a possible reference, provided that Client may decline Company this right, by emailing firstname.lastname@example.org stating that it does not wish to be used as a reference or listed on Company’s website. Thirty (30) days following a successful Trial Period, Company and Client may issue a press release or other public statement related to this Agreement if each party consents in writing.
Relationship of Parties; Taxes. For all purposes under this Agreement, Company and Talent are independent contractors of Client and the parties hereto are not authorized to and will not bind or attempt to bind the other to any contract. Company only will be responsible for collecting the fees payable to Talent and Company’s income taxes in connection with this Agreement, and Client will be responsible for all other taxes and assessments including without limitation, sales, value-added, use and similar taxes, if any.
Dispute Resolution; Choice of Law. THIS AGREEMENT IS MADE UNDER, AND WILL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF PUERTO RICO 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 Agreement or otherwise, (a) each of the parties irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in San Juan, PR; and (b) each of the parties irrevocably 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 9.6.
Limitations of Liability. EXCEPT FOR A BREACH OF SECTIONS 3 AND 8, OR CLIENT’S INDEMNITY OBLIGATIONS UNDER SECTION 9.5 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, SUCH PARTY’S PERFORMANCE HEREUNDER, THE USE OR INABILITY TO USE THE SERVICES, WORK OR WORK OUTPUT, OR ANY INTERRUPTION OR DISRUPTION OF OR BY ANY OF THE FOREGOING, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), THE AGGREGATE LIABILITY OF COMPANY WITH REGARD TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION ACTUALLY RECEIVED BY COMPANY FROM CLIENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES.
Indemnity. Client agrees to defend, indemnify and hold harmless Company, and its affiliates, officers, directors, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, attorneys’ fees or expenses of whatever kind (including reasonable attorneys' fees) arising out of or resulting from (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Client’s acts or omissions; (b) Client’s breach of any representation, warranty, covenant or obligation under this Agreement; (c) Client’s alleged breach of any direct agreement with Talent; or (d) Client’s non-compliance with any law, rule or regulation applicable to its business (including to its use of Talent).
Neither party will have the right to assign this Agreement to another party without the other party’s written consent, except that either party may, upon written notice to the other party (and without the other party’s consent), assign this Agreement in its entirety to a parent company, any subsidiary of a parent company, or an assignee in connection with a corporate reorganization, acquisition, merger, or sale of or substantially all of its assets; provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement. This Agreement, together with each TOP and Company’s Client Platform Access Agreement constitute the entire agreement between the parties and supersedes all prior or contemporary agreements or understandings whether written or verbal with respect to the subject matter hereof. This Agreement will take precedence over and will govern over any inconsistent or conflicting terms in Company’s Client Platform Access Agreement and/or any TOP, unless and solely to the extent that the parties expressly state in such TOP that they intend to override a specific term of this Agreement. Any additional or conflicting terms in a Client purchase order are rejected and of no force or effect. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices to Company in connection with this agreement will be made by email transmitted to email@example.com provided that Client also sends a copy of such notice via U.S. mail or nationally recognized carrier to 1776 LLC, 220 Domenech, San Juan, PR 00918, Attn: President. Notices to Client will be made by email or regular mail and will be deemed to have been duly given when sent by Company to the email or mailing address associated with Client’s account (which Client is responsible for keeping current). The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity. This Agreement may be signed by manual, digital or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable. Client affirms and agrees that it is not relying on any facts, assumptions, statements, promises, materials or representations not expressly set forth in this Agreement, has had an opportunity to make due inquiry of Company and has made an independent investigation of the suitability of using Company for its business needs on the terms set forth herein. Client represents that is not: (x) an entity, citizen or resident of a geographic area in which access to or use of the Company Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) an entity, citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (z) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. Client agrees that if its country of residence or other circumstances change such that the above representations are no longer accurate, that it will immediately cease using the Company Services and this Agreement and all TOPs will automatically terminate.