This Master Service Agreement (“Agreement”) is made effective as of (“Effective Date”) and is by and between (“CLIENT”) and The Uncompany, LLC, a North Carolina limited liability company (“Uncompany”).
Uncompany shall provide OnDeck Services, Project Services, and/or Recruitment Services, as elected by CLIENT. Such services are further described in Exhibits A, B, and C, respectively, each attached hereto and incorporated herein by reference.
Uncompany shall provide in-depth searches for qualified candidates to provide required services which CLIENT requests of Uncompany in writing. The parties shall have a meeting or conference call to discuss and determine the specific criteria of preferred candidate qualifications, experience, and skills and shall agree to such criteria in writing prior to a search commencing. The written criteria shall serve as a guideline for recruitment of such candidate (“Recruitment Criteria”).
Uncompany shall have a reasonably appropriate timeframe to secure such candidates per the Recruitment Criteria. For OnDeck Services and Project Services, the parties shall mutually agree in writing to an appropriate timeframe for Uncompany to secure any candidates. This timeframe shall serve as an estimate and is subject to change based on candidate availability. For Recruitment Services, the timing of any initial candidate search shall be for one (1) month and then Exhibit C shall control regarding timing of any further candidate searches.
Uncompany shall be responsible for conducting any pre-engagement screening as CLIENT may require in its reasonable discretion, and retain and provide upon request, in form and substance reasonably satisfactory to CLIENT, evidence that all screening has been successfully completed. Uncompany shall be solely responsible for all costs and expenses for the following pre-engagement screening activities (and CLIENT shall be solely responsible for all costs and expenses for any requested pre-engagement screening activities beyond such activities): industry standard criminal background checks, Social Security trace, cross-checking and inquiries to candidates’ references.
If the parties have executed a SOW and such assignment is cancelled by CLIENT before a candidate is placed then Uncompany shall receive a cancellation fee for each Service (OnDeck, Project or Recruitment) as outlined in the respective Exhibit(s).
Once a suitable candidate is identified, Uncompany shall directly engage the services of the candidate to perform the services related to the attached Statement of Work(s) (“SOW”) through the execution of an appropriate candidate agreement between Uncompany and candidate (“Candidate Agreement”). After a SOW has been fully executed in writing, Uncompany shall introduce such candidate to CLIENT.
Uncompany shall coordinate the completion of the services to be provided by candidate in accordance with the applicable SOW(s) entered into between CLIENT and Uncompany.
CLIENT shall at all times during the Term of this Agreement comply with Uncompany’s Client Code of Conduct.
- Candidate Compliance
Uncompany shall and shall cause each such candidate to (a) comply with applicable federal, state and local laws, rules and regulations in performance of services for CLIENT, and (b) abide by the applicable provisions of CLIENT’s written data security policies and Code of Conduct (“Client Policies”), to the extent such Client Policies are attached to this Agreement prior to execution.
Uncompany shall also require candidates to comply with Uncompany’s i) Social Media Policy and ii) Freelancer Code of Conduct, as may be updated from time to time in Uncompany’s sole discretion.
- Candidate Termination
CLIENT has the right at all times to terminate the assignment of any candidate if any such candidate does not satisfactorily perform his or her assigned duties, or if CLIENT considers the candidate’s conduct materially detrimental to CLIENT’s business or operation. Uncompany shall withdraw such candidate immediately upon receiving CLIENT’s notification. Should CLIENT exercise its option hereunder to request Uncompany to withdraw a candidate, CLIENT shall provide such notification in a written document which shall include CLIENT’s reasonable basis for its request to withdraw the candidate.
In the event of a candidate termination for OnDeck or Project Services either the CLIENT shall pay on a pro-rata basis any remaining portion of the applicable Placement Fee that is due and payable to Uncompany or Uncompany shall refund on a pro-rata basis to CLIENT the unused portion of any prepaid Placement Fee, in each case based on the total number of hours actually worked by the terminated candidate from the first hour of work performed up to and including hours performed on the date of termination.
In the event of candidate termination for Recruitment Services then the terms of Exhibit C shall control any refunds to either party.
- Ownership of Work Product
All work product created by Uncompany or its candidate on behalf of CLIENT pursuant to a SOW shall be considered the property of CLIENT and Uncompany shall ensure the necessary transfer of ownership of all such material to CLIENT through Uncompany’s execution of a Candidate Agreement with the candidate in advance of the candidate’s performance of services. Uncompany shall include in its Candidate Agreement with any candidate who Uncompany engages to assist CLIENT the appropriate work for hire intellectual property assignment provisions. All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, or works of authorship developed or created by Uncompany or a candidate during the Term and in the scope of performing services under this Agreement (collectively, the “Work Product”) shall, to the extent possible, be considered a “work made for hire” on CLIENT’s behalf. To the extent such work is determined not to constitute a “work made for hire” as a matter of law, Uncompany hereby irrevocably assigns and transfers to CLIENT and shall cause each of its candidates to irrevocably assign and transfer to CLIENT, as of the time of creation of the Work Product, any and all right, title, or interest it or its candidate may have in such Work Product. Upon request of CLIENT and at CLIENT’s sole expense, Uncompany shall take such further actions and shall cause its candidates to take such further actions as may be appropriate to give full and proper effect to such assignment and to vest in CLIENT complete title and ownership to such Work Product, including execution and delivery of instruments of conveyance necessary to obtain legal protection in the United States and foreign countries for such Work Product and for the purpose of vesting title thereto in CLIENT.
Uncompany shall retain no rights to use the Work Product created by it or any candidate on behalf of CLIENT and Uncompany agrees not to and shall cause its candidates not to challenge the validity of CLIENT’s ownership of the Work Product created by it or any candidate.
In general, the Work Product shall not include any third-party material. If any third-party material is to be included in the Work Product then candidate shall make CLIENT aware of such third party material upon initial presentation so that CLIENT may secure the appropriate third party licenses to use such third party materials in the Work Product. CLIENT shall pay for any third party licenses and shall be responsible for maintaining such licenses both during and after the Term.
All pre-existing or non-customized inventions, discoveries, innovations, improvements, materials, software processes or procedures used, created or developed by Uncompany or candidate in the general conduct of Uncompany’s or candidate’s business and/or obtained, created or developed by Uncompany or candidate outside of the scope of this Agreement or any Statement of Work shall be owned exclusively by Uncompany or candidate (“Other Property”). To the extent Other Property is incorporated into the Work Product, Uncompany and candidate hereby grant to CLIENT a non-exclusive, royalty-free license to use, transmit, and display such Other Property solely as incorporated into the Work Product pursuant to this Agreement and the applicable SOW during the Term.
The provisions of this Section shall survive any expiration or termination of this Agreement.
"Confidential Information" means any information, technical data, or know-how of CLIENT including, but not limited to, that which relates to product or satisfaction surveys, questionnaires, research, data, algorithms, formulae, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, marketing, pricing or finances, whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information does not include information, technical data or know-how that: (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; or (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; or (iii) is approved by the disclosing party, in writing, for release; or (iv) the receiving party is required to disclose pursuant to a valid order of a court or other governmental body; provided, however, that the receiving party shall first have given notice to the disclosing party and shall give the disclosing party a reasonable opportunity at disclosing party’s cost to interpose an objection or obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. Without limiting the generality of the foregoing, Confidential Information includes any reports or documents created by the receiving party that include, summarize or refer to the disclosing party’s Confidential Information disclosed hereunder (“Notes”). It is expressly agreed between CLIENT and Uncompany that the following information will be deemed to be Confidential Information upon first conveyance: the pricing, capabilities, technical descriptions relating to CLIENT’s released or unreleased products or services; the marketing and promotion plans of CLIENT’s products or services; CLIENT’s financial information and business practices or policies; and CLIENT’s customer lists and customer information.
Uncompany agrees not to use any Confidential Information disclosed to it by CLIENT for its own use or for any purpose except to carry out the business relationship between CLIENT and Uncompany. Uncompany will not disclose the Confidential Information of CLIENT to third parties or to Uncompany's employees or agents except those employees, agents or candidates engaged by Uncompany who need to have the information in order to carry out the contemplated business. Uncompany will have employees, agents or candidates to whom Confidential Information of CLIENT is disclosed, or who will have access to Confidential Information of CLIENT, comply with confidentiality terms substantially equivalent to the terms of this Section. Uncompany agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of CLIENT Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall include the degree of care that Uncompany utilizes to protect its own Confidential Information of a similar nature. Uncompany agrees to notify CLIENT in writing of any misuse or misappropriation of Confidential Information of CLIENT that may come to its attention. The obligations of this Section 5 shall survive any expiration or termination of this Agreement.
- Representations and Warranties; Indemnification
Uncompany represents and warrants that the services provided to CLIENT by Uncompany and each of its candidates shall be performed in a timely, professional and workmanlike manner and in accordance with the generally-recognized industry standards in Uncompany’s field, and all services provided by Uncompany and each of its candidates shall comply with the requirements set forth in this Agreement, the applicable SOW(s) and mutually agreed upon Recruitment Criteria. UNCOMPANY MAKES NO WARRANTIES EXCEPT FOR THOSE EXPRESSLY PROVIDED IN THIS SECTION 6. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
Pursuant to the earlier Ownership Section, Uncompany represents and warrants (and shall ensure that candidate does the same) that the Work Product shall not infringe or misappropriate the intellectual property rights of any third party. Uncompany agrees to defend, indemnify and hold harmless CLIENT from and against any and all losses, damages, liabilities and expenses (including reasonable attorney fees) to the extent based upon any third party claims against CLIENT arising out of a violation of the rights of privacy or publicity, copyright infringement, trademark infringement, libel, slander, defamation or plagiarism under US law that arises from CLIENT’s use of the Work Product pursuant to this Agreement and any third party licenses secured for the Work Product.
Pursuant to the earlier Ownership Section, CLIENT shall be responsible for the accuracy and completeness of information concerning CLIENT’s products, services and competitors furnished to Uncompany and candidate to be included in the Work Product. CLIENT will indemnify, defend and hold harmless Uncompany and candidate from and against any and all losses, damages, liabilities and expenses (including reasonable attorney fees) based upon any third party claim made or brought against Uncompany or candidate relating to (a) a third party’s use of CLIENT’s products or services, (b) information or materials provided by CLIENT to Uncompany or candidate for inclusion in the Work Product, (c) material changes that CLIENT makes to the Work Product, and (d) CLIENT’s use of third party materials beyond the rights granted in third party licenses relating to the Work Product.
- Limitation of Liability
Except with respect to the parties’ indemnification obligations, neither party shall be liable to the other for any special, indirect, incidental, punitive, or consequential damages arising from or related to this Agreement, including loss of revenue, or profits or other benefits, even if the parties have been advised of the possibility of such damages. The foregoing limitation applies to all causes of action in the aggregate, including without limitation to, breach of contract, breach of warranty, negligence, strict liability, and other torts. IN NO EVENT SHALL UNCOMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE TO UNCOMPANY PURSUANT TO THE APPLICABLE STATEMENT OF WORK.
- General Non-Solicitation Outside of Placement Fees
Notwithstanding Section 9, CLIENT shall not solicit for employment or in any consulting capacity i) any Uncompany referred candidate for one (1) year after their last assignment end date or (ii) any candidate introduced to CLIENT who did not perform any services for CLIENT including any candidate whose resume is received by CLIENT from Uncompany or any candidate interviewed by CLIENT as a result of being supplied by Uncompany.
9.1 Payment Terms
Uncompany shall invoice CLIENT for the candidate’s services and CLIENT shall pay Uncompany on candidate’s behalf pursuant to the compensation terms set forth in the applicable SOW(s) and based on the specific Service(s) provided by Uncompany respectively OnDeck Services, Project Services and/or Recruitment Services as described in Exhibits A, B and C (the “Uncompany Services”)
9.2 Candidate Placement Fee; Payment
Before any candidate performs services for CLIENT, the parties shall agree in writing to Uncompany’s fee for initial placement services based upon the applicable SOW(s) and Uncompany Services (“Placement Fee”).
9.3 Direct Hire
In the event the CLIENT wants to hire a full-time employee from the start then CLIENT shall engage Uncompany as a direct hire recruiter, as outlined in Exhibit C.
9.4 Candidate’s Freelance to Full Time Conversion Fee
Under Uncompany’s OnDeck and Project Services, in the event that CLIENT wants to convert any Uncompany introduced candidate to full-time employee status then the following terms will take effect.
- i) Immediate to 30 Day Full-Time Conversion Fee
In the event CLIENT should hire as a full-time employee an Uncompany-referred candidate immediately or within the first thirty (30) days of any assignment then CLIENT shall pay to Uncompany, in addition to the Placement Fee set forth above, a full-time placement fee in the amount equivalent to twenty percent (20%) of such candidate’s hiring annual salary excluding bonuses, equity, or benefits.
- ii) 30 to 90 Day Full-Time Conversion Fee (30 to 90 days)
In the event CLIENT should hire as a full time employee an Uncompany-referred candidate who is currently a candidate after the first thirty (30) days of any assignment but before the conclusion of the first ninety (90) days of any assignment, then CLIENT shall pay to Uncompany, in addition to the Placement Fee set forth above, a full-time placement fee in the amount equivalent to fifteen percent (15%) of such candidate’s hiring annual salary excluding bonuses, equity, or benefits.
iii) 90 Day Plus Full-Time Conversion Fee (90 + days)
In the event CLIENT should hire as a full time employee an Uncompany-referred candidate who is currently a candidate not within the first ninety (90) days of any assignment or was previously engaged on an assignment within the last twelve (12) months but is not currently performing services on behalf of CLIENT, then CLIENT shall pay to Uncompany, in addition to the Placement Fee set forth above, a full-time placement fee in the amount equivalent to ten percent (10%) of such candidate’s hiring annual salary excluding bonuses, equity, or benefits.
9.5 Payment of Conversion Placement Fees
CLIENT shall pay to Uncompany the applicable Full Time Placement Fees contemplated in the above sections in the following manner. Fifty percent (50%) shall be paid to Uncompany upon CLIENT’s written notification to Uncompany of such desired full-time placement. The remaining fifty percent (50%) shall be paid to Uncompany sixty (60) days later.
- General Payment Terms
All fees shall be due and payable to Uncompany within NET 30 of receipt of invoice. An invoice will be sent by Uncompany. CLIENT may withhold from any payment, including the final payment: (a) any amount incorrectly invoiced; or (b) any amount being disputed in good faith. If undisputed payment due is not received in full within ten (10) business days then the balance past due will earn interest at a rate of one point five per cent (1.5%) per month until paid.
Uncompany will procure and maintain in force with duly licensed insurance carriers the following occurrence-based insurance for the duration of the Term and for coverage with respect to all activities described herein: (a) worker’s compensation insurance coverage adequate to comply with all statutory requirements covering all persons employed by Uncompany and employer’s liability with minimum limits of Five Hundred Thousand Dollars (US $500,000); and (b) commercial general liability insurance covering bodily injury and property damage with minimum limits of One Million Dollars (US $1,000,000) for any claim arising out of a single occurrence and Two Million Dollars (US $2,000,000) for all claims in the aggregate.
- Governing Law.
This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of North Carolina, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in any state or federal court located in the State of North Carolina, County of Wake. The parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.
- Entire Agreement; Severability; No Waiver; Third Parties; Amendment.
This Agreement sets forth the entire agreement between CLIENT and Uncompany pertaining to the subject matter of this Agreement. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect. Either party’s failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. This Agreement may be modified or amended only in a writing signed by duly authorized representatives of each of the parties.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by either party without the other party’s prior written consent, except that CLIENT may assign this Agreement in its entirety, without Uncompany’s consent, to CLIENT’s subsidiaries or affiliates or to an entity that acquires all or substantially all of CLIENT’s business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise.
- Attorney’s Fees.
If any action at law or in equity is necessary to enforce the terms of this agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
- No Partnership.
This agreement does not, and shall not be deemed to constitute a partnership or joint venture between CLIENT and Uncompany. Neither CLIENT nor Uncompany or either party’s respective directors, officers, employees, or agents, shall, by virtue of the performance of the obligations under this Agreement, be deemed to be an agent or employee of the other, and neither CLIENT nor Uncompany has the authority to bind the other party under any contract, agreement, or otherwise. Uncompany’s candidates performing services hereunder will be candidates of Uncompany who provide services to CLIENT pursuant to this Agreement. No such candidate shall be considered to be an employee of CLIENT.
CLIENT shall be solely responsible for complying with applicable employment and immigration laws pertaining to such candidates, including, without limitation, if applicable, the withholding and timely remittance to the appropriate taxing authorities of all employment and unemployment, Medicare and social security taxes or other similar taxes required by applicable law.
This Agreement may be executed in any number of counterparts, including without limitation SOW(s), Uncompany Services and hourly and project rate cards, each of which shall be deemed an original, but all of which together shall constitute a single instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
- No Exclusivity
Uncompany acknowledges and agrees that it is not CLIENT’s exclusive provider of services and CLIENT has the right, at any time and without any notice or duty to account to Uncompany, to have such or similar services performed by internal or external resources.
No right, license or other interest in any name, logo, trademark or service mark of CLIENT (“CLIENT IP”) is granted hereunder, and Uncompany shall not assert any interest in any such CLIENT IP. Uncompany shall not (i) issue a press release or any other announcement of the relationship contemplated by this Agreement, or (ii) indicate in any manner that CLIENT is a customer of Uncompany without the CLIENT’s prior written consent.
- Term, Termination and Effect of Termination
The term of this Agreement shall commence on the effective date of this Agreement and continue until terminated by a party as permitted hereunder. Either party may terminate this Agreement and all associated SOW(s) and Uncompany Services immediately upon written notice to the other if the other has materially breached this Agreement and either (a) such breach is incapable of cure, or (b) the breaching party has failed to cure such breach within ten (10) days following written notice. Additionally, either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party at any time when there are no presently-outstanding SOWs or Uncompany Services between the parties. Upon the termination of this Agreement, Uncompany will and will cause its candidates to promptly destroy or return to CLIENT all Confidential Information, together with all copies thereof and all Notes relating to the Confidential Information prepared by Uncompany or its candidates, regardless of the medium in which such information is stored, and whether or not then in the possession of Uncompany or in the possession of its candidates.
WHEREFORE, for the purpose of being bound, the parties execute this agreement by their duly authorized representatives as of the Effective Date.