Last Modified:  1 March 2021

 

Remote Team Creation and Management

Terms of Service (TOS)

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 “Customer”), and HireMadSkills, Inc. (DBA: Instant Teams), a Delaware stock corporation (“Service Provider”) (both Customer and Service Provider each a “Party” collectively defined herein as the “Parties”). 

DEFINITIONS

• Customer Dashboard (Arti) is the proprietary technology built by the Service Provider and used by Customer and Service provider to note the acceptance of terms and conditions, create teams, add/request team members and communicate with account executives.  
•  Assigned Remote Team members (RTMs) are the workforce personnel hired, managed, and paid directly by the Service Provider. RTMs are vetted, matched, and then assigned on remote teams delivering support services to Customers as Instant Teams employees. 

RECITALS

1. Instant Teams is engaged in the business of providing workforce personnel as well as access to Arti, a proprietary customer dashboard used to note the acceptance of terms and conditions, create teams, add/request team members and communicate with account executives across a variety of industries.
2. A Client is a small business or enterprise-level company that requires a service provider to provide workforce personnel services.
3. Client wishes to secure the services of Instant Teams to provide qualified remote personnel upon terms and conditions more fully described in this Agreement and its accompanying statements of work, as applicable. 

Agreement

Now, Therefore, in consideration of the mutual covenants and promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:

1. Services

Scope of the Services.  Subject to the terms and conditions of this Agreement, Instant Teams will provide for Client the services set forth in one or more statements of work (each an “SOW”) attached hereto  (the “Services”).  Additional services may be added from time to time by execution of subsequent statements of work, which services will be thereafter incorporated by reference into this Agreement and will become part of the Services.  Services will include the provision of Assigned Remote Team Members as more specifically set forth in each SOW.  For purposes of this Agreement, “Assigned Remote Team Members (or RTMs) are the workforce personnel hired, managed, and paid directly by Instant Teams and then assigned on remote teams on behalf of Client. 

Performance of the Services.

1. Match candidates, screen, pre-interview, and assign RTMs to perform the work as described in each SOW;
2. Pay RTM wages and provide other benefits as Instant Teams deems appropriate;
3. Pay, withhold and transmit payroll taxes, provide unemployment insurance and workers’ compensation in an an amount no less than required by law, and manage workers’ compensation and unemployment claims involving RTMs, as applicable;
4. Ensure RTMs are legally authorized to work in the United States and maintain sole responsibility for the Form I-9 verification;
5. Relay all confidentiality contract terms with all RTMs.  If Client requests a specific non-disclosure agreement, Instant Teams agree to review and provide feedback within three business days; and
6. Maintain sole responsibility for performance management, discipline, and termination of RTMs.  Instant Teams will, at its sole cost and expense, maintain General Liability Insurance of  $ 1 million per occurrence and $2 million in the aggregate and Cybersecurity Insurance of $1 million per occurrence and in the aggregate.

Client Responsibilities.  To assist Instant Teams in the performance of its responsibilities under this Agreement, Client agrees to perform the following duties:

• To inform each RTM of Client’s work to be performed and vis-à-vis the parties, to maintain responsibility for Client’s business operations, products, services, and intellectual property.
• To provide each RTM with appropriate information and orientation as pertaining to the work to be assigned.
• To communicate at least weekly with the assigned Instant Team’s customer success manager and consistently provide work for RTMs to meet the monthly minimum per RTM described in Section 4.5 of this Agreement.
• To communicate feedback, performance, and/or satisfaction rates to Instant Teams via assigned Instant Team’s customer success manager. 
• To notify Instant Teams, in writing, with regard to any operational matter not acceptable to Client.
• To ensure Client’s personnel are fully authorized to interact and execute Client’s obligations under the Agreement

Client agrees that it will not:

• Include any RTM in Client’s benefit plans, policies and practices, or make any offer or promise relating to any RTM’s compensation or benefits;
• Directly or indirectly solicit or induce for employment or engage as an independent contractor or employee any RTM during the Term of this Agreement or for a period of 24 months thereafter without the prior written consent of Instant Teams;
• Change an RTM’s job duties or title without Instant Team’s express prior written approval;
• Discuss pay rates, bill rates, or other Client compensation plans with RTMs;
• Pay commissions or bonuses directly to RTMs for any reason;
• Deliver any legal documents directly to RTMs for signature without prior review and approval by Instant Teams; or
• Directly terminate or proceed with any layoff or termination proceedings or actions directly with any RTM.

 Compliance with Law.  Both Client and Instant Teams represent and warrant to each other that they are in compliance with all applicable laws.

• Client and Instant Teams 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 a complaint of unlawful discrimination, harassment or retaliation by any RTM, Client and Instant Teams agree to cooperate in the prompt investigation and resolution of such complaint.
• Client agrees that it is an equal employment opportunity employer and is in full compliance with any and all applicable anti-discrimination laws, rules and regulations.
• Client and Instant Teams confirm 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 Instant Teams will cooperate in compliance with any such requirements 

2. Instant Teams  Status; Client Decisions

Independent Contractor Status.  Instant Teams is an independent contractor performing Services for Client and is not an employee, agent, representative, officer, or partner of Client.  Except as expressly set forth in this Agreement, Instant Teams has no power or authority to act for, represent, or bind Client in any manner.  Nothing contained in this Agreement will be deemed to create any relationship between the parties other than that of a principal and independent contractor.  

3. Term and Termination

Term.  This Agreement will commence on the Effective Date and will remain in effect for so long as Services are being performed and/or under one or more SOWs.  

Termination.  This Agreement will terminate upon occurrence of any of the following events:

• Either party may terminate this Agreement for any or no reason upon 30 days advance written notice to the other party.  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 48 hours after delivered by electronic mail. If Client terminates this Agreement without 30-day notice, Instant Team will assess a one-time $500.00 early termination fee per Assigned Remote Team Member being terminated from the contract. This early termination fee will be added to the final invoice, which will also include all hourly fees outstanding for work completed up until notification of termination.
• Upon written notice to Client following any failure to make payments to Instant Teams when due, which failure remains uncured for a period of 15 days after receipt by Client of written notice of such breach;
• In the unlikely case of gross misconduct, Instant Teams may immediately terminate Assigned Remote Team Member without advance notice to Client. If this occurs, Client will be notified within 24 hours and a position refill will be prioritized.
• Upon written notice to the breaching party for a material breach of the Agreement (other than for failure to pay), which breach remains uncured for a period of 30 days after receipt of written notice specifying the breach, and after reasonable opportunity for cure having been afforded the notified party; or
• Either party is adjudged bankrupt, makes a general assignment for the benefit of creditors, seeks reorganization under bankruptcy or insolvency laws, or a proceeding relating to bankruptcy or insolvency laws is commenced against the other party.
• In the event of a termination of this Agreement for breach of this Agreement by Client, notwithstanding anything herein to the contrary, Client will be responsible for all of the fees which would have otherwise been due under this Agreement for the remainder of the term if not for such breach.

Survival.  Notwithstanding anything to the contrary contained in this Agreement, the provisions of Sections 4, 5, 6, 7, 8 and Exhibit A will survive any termination, expiration or cancellation of this Agreement, regardless of the basis for such termination or cancellation.

 4. Payments

• Fees.  Client will pay Instant Teams  for the Services in accordance with the reimbursement and payment schedules set forth in any SOW.  Unless otherwise set forth in an SOW, if Client has less than 10 RTMs, Client will be  classified as a Small Medium Business or “SMB.”  SMB Clients are required to enter a method for automatic payment into ARTI.  For SMB Clients, Instant Teams will charge using the automatic payment method in ARTI within five days of the 15th and the last day of each month at the rates set forth in any agreed upon SOW.  If Client has 10 RTMs or more, Client will be classified as an “Enterprise Client.”  Enterprise Clients will be required to pay a monthly retainer for ongoing Services to be invoiced on the first day of each month for the upcoming month. Payment for such upcoming month will be due upon receipt.  Enterprise Clients’ retainers are calculated at $32,000 for every 10 full-time RTMs or $22,000 for every 10 part-time RTMs, such rates may be adjusted based on actual rates set forth in any SOW.   On the last day of each month,  Instant Teams will perform a true-up based on actual hours worked by RTMs and will either issue a new invoice for additional hours which is due upon receipt or issue a credit to Client to be applied against the next month’s retainer, as applicable.  
• Payment Method.  Invoice payments will be accepted only via electronic payment via ACH, debit or credit card using generally accepted payment platforms such as bank transfer, QuickBooks, Stripe or Bill.com. The default payment option will be ACH unless the Client specifies otherwise. No paper checks will be accepted for payment of invoices.
• Late Charges.  Client agrees to pay late fees on any unpaid balances after 30 days from the date of receipt of the invoice/due date. A fee of 0.75% will be assessed every 2-week billing cycle until the outstanding invoice is paid in full.  Client will pay such interest in addition to the amounts charged by Instant Teams for its services.  The amount of interest payable pursuant to this provision will not exceed the maximum effective rate of interest permitted to be paid under applicable law.  If such amounts result in an effective rate of interest in excess of the maximum as permitted under applicable law, then the amount payable pursuant to this provision will be reduced to the highest amount permitted under such applicable law. 
• Overtime.  Client acknowledges and agrees that in the event a nonexempt Assigned Remote Team Member works more than 40 hours in any workweek for Client, that Assigned Remote Team Members is entitled to premium pay for overtime compensation as provided by federal law, and as applicable, state and local laws. Instant Teams acknowledges and agrees that it is solely responsible for ensuring all hours worked by Assigned Remote Team Member/s are paid at the legally required rate. Client agrees to pay Instant Teams for any overtime hours worked at one and one-half times the rate specified in the applicable SOW.
• Monthly Minimums.  There is a minimum billing requirement of $1,600 per Assigned Remote Team Member position. Any hours worked above the minimum will be billed based upon actual hours worked by the Assigned Remote Team Member (ie: if the Assigned Remote Team Member works 18 hours per month but the rate would require 20 hours, the Client will be billed for 20 hours. If the Assigned Remote Team Member works 33 hours a month, the Client will be billed for 33 hours).
• Direct Hire of Assigned Remote Team Members.  Instant Teams reserves the right to grant, deny, or negotiate any requests for employment release, conversion, or direct hire by Client. Direct hire fees will begin at $10,000.00 per Assigned Remote Team Member.
• Holidays Four annual holidays (Thanksgiving, Christmas, New Years Day, and 4th of July) will be considered standard recognized holidays for all Instant Teams employees. If an RTM is working on one of these 4 holidays, the time and half rate will be billed.

 5. Confidential Information; Intellectual Property Rights, Use, and Ownership

 Definition.  The parties acknowledge that both parties may own, utilize, and develop certain Confidential Information (as defined herein) during the course of the Agreement and in furtherance of their respective obligations thereunder, which is privileged and confidential.  “Confidential Information” includes trade secrets and computer programs and software (including source codes), processes, technical information, know-how, plans, specifications, identity of customers and suppliers, financial information, and other proprietary or confidential information related to the Services and business affairs of the party which is treated as confidential by such party; provided, however, that Confidential Information will not include information which is known or becomes known to the public in general (other than by a breach of this provision), is or has been independently developed or conceived by the other party without the use of the first party’s Confidential Information, or is or has been made known or disclosed to the other party by a third person without a breach of any obligation of confidentiality such third person may have to the first party.

Use, Disclosure.  The parties agree that both parties will disclose Confidential Information to the other party only to the extent that such information is necessary to conduct the Services.  With respect to any Confidential Information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) the Receiving Party will not report, publish, transfer or otherwise disclose such information to any person, company or other entity (except that such disclosure may be provided to an affiliated or contracted or subcontracted entity or person who is bound by formal contract, including confidentiality provisions of materially similar nature, with Receiving Party) without the prior written consent of the Disclosing Party or except as otherwise expressly permitted by the terms of this Agreement, and the Proprietary Information will not be utilized for the detriment or intended detriment of the Disclosing Party, including the solicitation of any of that party’s customers, members or employees.  Upon written request of the Disclosing Party after expiration or earlier termination of this Agreement, unless otherwise stated in this Agreement, each party will destroy, and provide written certification of such destruction, or return to the other party all Confidential Information provided to it during the course of or in connection with this Agreement and which is in its possession.  The parties acknowledge that no license is created by the use of the Confidential Information beyond that which is contemplated within the scope of this Agreement.  

Work Product.  The parties hereby agree and acknowledge the Services and resulting Work Product (as defined below) are performed by Instant Teams under the doctrine of work-for-hire under the U.S. Copyright Act. The entire right, title, and interest in and to any intellectual property created by Instant Teams under this Agreement (the “Work Product”), together with all proprietary rights relating thereto, excluding Instant Teams Intellectual Property (defined below) in the completed Work Product as a whole and in part (collectively, the “Intellectual Property”) are the exclusive property of Client. Instant Teams hereby assigns to Client all Intellectual Property that may be embodied in the Services and Work Product, excluding Instant Teams Intellectual Property, 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 5.3, such Work Product and Intellectual Property defined herein does not include for purposes of this Agreement 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 Instant Teams in performing the Services hereunder. Further, the parties acknowledge and agree that all right, title, and interest in and to the Instant Teams Intellectual Property will remain with Instant Teams, subject only to the limited license set forth in Section 5.4 below, if applicable.

Instant Teams Intellectual Property.  Instant Teams is the sole owner of all Intellectual Property owned or licensed by Instant Teams before the Effective Date or developed independent of and exclusive from the Services and this Agreement, including without limitation data processing and management systems, operating policies and procedures, and the Arti platform, and all copyrights and other intellectual property rights pertaining thereto (collectively, the “Instant Teams Intellectual Property”).  Moreover, it is acknowledged and understood that Instant Teams will have a royalty-free, perpetual license to use or incorporate into the Instant Teams Intellectual Property any suggestions, enhancements requests, recommendations or other feedback provided by Client.  Instant Teams hereby grants to Client a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferable, worldwide license to use the Instant Teams Intellectual Property as necessary to fully enjoy the Services.

 6. Resolution of Disputes

 Duty to Negotiate in Good Faith.  If a party has reason to believe the existence of a dispute in connection with this Agreement and the Services provided hereunder, it will give written notice to the other party, describing the dispute and a proposed resolution.  The parties will then meet as soon as practicable thereafter and negotiate in good faith to resolve the dispute.  The parties shall continue to honor their respective obligations (including delivering services and making payments) under the terms of the Agreement at all times during any dispute process under this Section 6 and until such dispute is resolved.  

Dispute Venue.  Client and Instant Teams 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.

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.

 7. Indemnification; Limitation of Liability; and Disclaimer

Mutual Indemnification.  Each party will indemnify and hold harmless 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 (a) any negligent, reckless, or intentionally wrongful act or omission of a party; (b) any breach by a party of any provision of this Agreement

Additional Indemnification of Client.  Additionally, Instant Teams will indemnify and hold Client harmless 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 Instant Teams will have no obligations under this section with respect to claims to the extent arising out of: (a) any Client instruction, information, designs, specifications, or other materials provided by Client in writing to Instant Teams, (b) use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Instant Teams in writing, if the infringement would have been avoided by the use of the Deliverables not so combined, or (c) any modifications or changes made to the Deliverables by or on behalf of any person other than Instant Teams or an RTM.

Process for Indemnification. The party seeking indemnification hereunder will 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 will 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 will 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 will not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this section does 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

Limitations of Liability.  Except for any intentional infringement of a party’s proprietary rights as provided in Section 5, in no event will either party hereto be liable to the other party under this Agreement or otherwise for any special, consequential, punitive, exemplary, reliance, indirect or incidental damages, whether under theories of contract, tort, or otherwise, even if such damages were foreseeable.  In addition, in no event will either party’s liability arising out of or related to this Agreement exceed the sum of fees paid by Client, under the applicable SOW, for the Services giving rise to the liability during the one-year period immediately preceding the date the cause of action/claim arose.

Disclaimers.  Except as expressly provided herein, Instant Teams  makes no warranties of any kind, whether express, implied, statutory, or otherwise and specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.  

 8. Miscellaneous

Waiver.  No failure or delay in (i) exercising any right or remedy; or (ii) requiring satisfaction of any condition under this Agreement, and no course of dealing between the parties, operates as a waiver or estoppels of any right, remedy or condition.  A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person.  The rights and remedies of the parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity or by statute.

Notices.  All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by electronic mail (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and numbers set forth on the signature page below (or to such other addresses and numbers as a party may designate by notice to the other party).

Mutual Agreement Not to Solicit Employees.  During the term of this Agreement and for a period of 24 months thereafter, neither party will, either directly or indirectly, on its own behalf or on behalf of others, solicit, divert or hire away, or attempt to solicit, divert, or hire away, any person employed by the other party, whether or not such employee is a full-time employee or a temporary employee of, consultant to, or independent contractor to such other party and whether or not such employment or engagement is pursuant to written agreement and whether or not such employment or engagement is for a determined period or is at will.  Notwithstanding the foregoing, this provision is not intended to preclude a party from hiring persons responding to a general solicitation, provided such party does not knowingly violate the provisions of this Section 8.3 or conduct such general solicitation in a manner intended to circumvent the terms thereof.   Any hiring by Client directly of Assigned Remote Team Members will result in a conversion fee as described in Section 3 of this Agreement.  

Entire Agreement and Modification.  This Agreement, together with all referenced and attached exhibits, contains the entire agreement between the parties hereto, supersedes all prior agreements, arrangements, or understandings between the parties and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter.  This Agreement may not be modified or amended except by a written agreement duly signed by persons authorized to act on behalf of the party to be charged with the amendment.  

Assignments, Successors and Third-Party Rights.  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.

Force Majeure.  Neither party will be liable to the other or be deemed to be in breach of this Agreement for any failure or delay in rendering performance arising out of causes beyond its reasonable control and without its fault or negligence.  Such causes may include acts of God or of a public enemy, acts of terrorism, earthquakes, floods, fires, epidemics, riots, quarantine restrictions, shortage of adequate power or telecommunications, strikes, freight embargoes, unusually severe weather, or any other event which is beyond the reasonable control of a party (a “Force Majeure Event”).  A party whose performance is affected by a Force Majeure Event will 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.  The non-affected party may terminate this Agreement if such failure or delay continues for a period of 30 days or more and, if the non-affected arty is the Client, receive a refund of any amounts paid to Instant in advance for the affected Services. Unless this Agreement is terminated in accordance with Section 4, the term of this Agreement or any applicable SOW will be automatically extended by a period equal to the period of suspension

Severability.  If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect.  Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

Section Headings, Construction.  The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation.  All words used in this Agreement will be construed to be of such gender or number as the circumstances require.  Unless otherwise expressly provided, the word “including” does not limit the words or terms preceding it.

Governing Law and Venue.  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.

Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same instrument, and will become effective when there exist copies hereof (by facsimile, electronic mail, or otherwise) which, when taken together, bear the authorized signatures of each of the parties.

 

EEO and Harassment Statement

Instant Teams provides equal employment opportunities (EEO) to all applicants, contractors, and employees without regard to race, color, religion, gender, sexual orientation, gender identity or expression, national origin, age, genetic information, disability, or veteran status. This policy applies to all terms and conditions of work, including recruiting, hiring, placement, promotion, termination, layoff, recall, transfer, leaves of absence, compensation, and training.

Instant Teams expressly prohibits any form of workplace harassment. Improper interference with the ability of Instant Teams’ contractors, employees, partners, customers, or any other people working with us in a professional capacity, to perform their job duties may result in discipline up to and including discharge.