Terms of Service
(a) These Master General Terms and Conditions (these “Terms”) are the only terms that govern the provision of services by WORKFORCE CONNECT, LLC DBA SHORALINK, an INDIANA corporation (“SHORALINK”) to the Client named in the Order Confirmation (“Client”). WORKFORCE CONNECT, LLC DBA SHORALINKis referred to as “SHORALINK” (b) The accompanying (i) Order Confirmation and any subsequent Order Confirmations that are executed by the parties hereto from time to time shall be sequentially numbered and shall specify that they are made subject to these Terms (each, an “Order Confirmation”), and (ii) these Terms (collectively, this “Agreement”), comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, proposals, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern unless the Order Confirmation expressly states that a particular provision of the Order Confirmation shall control (and in such event, only the identified provision in the Order Confirmation shall control concerning that Order Confirmation only, and not to any other or subsequent Order Confirmations, and the balance of these Terms shall otherwise control). (c) These Terms prevail over any of Client’s general terms and conditions regardless of whether Client has submitted its request for proposal, purchase order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms or the Agreement. (d) If Client has previously executed an agreement with SHORALINK regarding the provision of SHORALINKPersonnel to Client (“Prior Agreement”), then this Agreement shall supersede and replace in its entirety the Prior Agreement from and after the Effective Date of this Agreement.
(i) This Agreement shall commence upon the Effective Date specified in Order Confirmation No. 1. It shall be in effect for a period of one (1) year (the “Initial Term”), which shall be automatically extended on a year-to-year basis (such Initial Term and all extensions, the “Term”). (b) Services. SHORALINK shall provide, and Client shall accept, the services to Client as described in this Agreement (the “Services”) in accordance with these Terms. (ii) Specifications; SHORALINK Personnel. A member of SHORALINK hires or otherwise engages individuals who reside outside of the United States pursuant to certain specifications requested by Client, including the number of individuals required, education, technical skills, experience, roles, responsibilities, and other qualities, desired working hours and times as specified by Client from time to time (“Specifications,” and each or all of such individuals hired or engaged by SHORALINK, the “SHORALINK Personnel”). SHORALINK shall use commercially reasonable efforts to meet any performance dates specified in this Agreement, provided that such dates shall be only estimates. (iii) Client Work. The work performed and deliverables provided by the SHORALINK Personnel shall be pursuant to Client’s guidance and supervision of the SHORALINK Personnel and is referred to as the “Client Work.” The term “Services” as used in this Agreement does not include “Client Work.” Unless otherwise agreed upon by the parties hereto, the SHORALINK Personnel shall perform the Client Work using such SHORALINK Personnel’s own facilities, computers, and communications equipment. SHORALINK is not obligated to provide the same. (IV) Trial Period and Recruitment Services Guarantee. (a) Trial Period and Recruitment Services Guarantee. The member SHORALINK shall hire or engage each SHORALINK Personnel on an initial ninety (90) day trial period (“Trial Period” and such SHORALINK Personnel under the Trial Period, the “Trial SHORALINK Personnel”). If Client does not notify SHORALINK by the 90th day of the Trial Period that Client desires that such Trial SHORALINK Personnel be terminated and/or replaced, then it shall be deemed that Client desires that such Trial SHORALINK Personnel continue to be permanently employed or engaged beyond such Trial Period. If Client does notify SHORALINK that the Trial SHORALINK Personnel needs to be terminated or replaced, then SHORALINK shall provide additional recruitment services to source a new Trial SHORALINK Personnel with the same requirements and qualifications as those originally provided. If Client changes its requirements in any way or form, this services guarantee will be voided.
SHORALINK shall perform the following Services: (a) coordinate with the Client in providing the Client’s Specifications for the recruitment and selection of the prospective SHORALINK Personnel. Subject to Section 6(d), such recruitment activities for the SHORALINK Personnel shall be performed for a flat fee negotiated with Client, and (b) coordinate with the Client in the hiring, engagement, or termination of the SHORALINK Personnel; (c) coordinate with SHORALINK for the provision of general HR duties, including time, attendance, benefits, etc. (collectively, “HR Activities”); and (d) act as Client’s the “one point of contact” with SHORALINK with respect to the transactions under this Agreement. SHORALINK’ initial contact person is specified in the Order Confirmation.
Client shall timely: (a) provide Client’s Specifications to SHORALINK for the recruitment of proposed SHORALINK Personnel; (b) provide Client’s input to SHORALINK for the approval of the proposed SHORALINK Personnel to be hired or engaged; (c) provide such access to Client’s systems, telecommunications and computer equipment, including IT systems, as may reasonably be required for the SHORALINK Personnel to perform their Client Work; (d) provide such Client materials, information or policies, as SHORALINK or SHORALINK Personnel may require to carry out the Services or the Client Work, as appropriate, in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; (e) provide, and maintain as necessary, such Client equipment, including laptops, samples, manuals, sales materials, computer or communications equipment and other materials or equipment as the SHORALINK Personnel may require to carry out the Client Work (“Required Equipment”); (f) obtain and maintain all necessary licenses and consents, and comply with all applicable Laws, in relation to the Services and Client Work, including the access to any software required by Client to be used by SHORALINK Personnel in performing the Client Work; (g) provide such guidance to, as well as training and supervision of, the SHORALINK Personnel as shall be required to carry out the Client Work in a timely and effective manner; (h) provide to SHORALINK, as necessary, information regarding unsatisfactory performance of any SHORALINK Personnel as specified in Section 6 below; (i) provide to SHORALINK information as to perceived or actual labor conflicts between Client and SHORALINK Personnel on such forms as to be provided by SHORALINK; (j) cooperate with SHORALINK in all matters relating to this Agreement; (k) comply with all applicable laws, ordinances and regulations, including those relating to privacy of personal information (collectively, “Laws”); (l) specify normal working hours for the SHORALINK Personnel (unless otherwise agreed upon, such normal working hours shall be limited to 9 am to 5 pm, Monday through Friday, excluding Federal or State holidays); and (m) respond promptly to any SHORALINK request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for SHORALINK to provide the Services in accordance with the requirements of this Agreement. Client’s initial contact person is specified in the Order Confirmation.
If SHORALINK’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, SHORALINK shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
Client acknowledges that the SHORALINK Personnel recruited and hired by the member of SHORALINK pursuant to Client’s Specifications are hired or engaged thereby for Client’s account, unless Client’s Specifications require part time SHORALINK Personnel, in which case such SHORALINK Personnel may also be assigned to other SHORALINK clients. Accordingly, the following provisions shall apply if Client wishes to increase the number of SHORALINK Personnel assigned to Client’s account, terminate Client’s use of one or more SHORALINK Personnel assigned to Client’s account, or substitute new SHORALINK Personnel for SHORALINK Personnel deemed unsatisfactory to Client: (a) Increase in SHORALINK Personnel. Client must notify SHORALINK in writing at least fifteen (15) days in advance (“SHORALINK Personnel Change Request”) of the date that Client requires the new desired SHORALINK Personnel to commence their employment or engagement with the member of SHORALINK. Such SHORALINK Personnel Change Request shall provide the Client’s Specifications to enable SHORALINK to recruit, provide for Client’s final determination, the proposed SHORALINK Personnel and to hire/engage and onboard the new SHORALINK Personnel. (b) Substitution of SHORALINK Personnel. If Client is not satisfied with the performance of a particular SHORALINK Personnel after the expiration of the Trial Period, and desires to terminate the existing SHORALINK Personnel and substitute a new SHORALINK Personnel, then Client must follow the procedures set forth in Section 6(c) (Unsatisfactory Performance; Termination of SHORALINK Personnel) and make a SHORALINK Personnel Change Request pursuant to Section 6(a) above for the new proposed SHORALINK Personnel. In any event, including where a SHORALINK Personnel voluntarily leaves the employment of the member of SHORALINK after the Trial Period, Client shall be required to pay to SHORALINK (i) the Termination Fee and any additional amounts described in Section 6(d) below for each terminated SHORALINK Personnel; and (ii) a recruiting fee for the prospective substituted new SHORALINK Personnel equal to the original recruitment fee that was negotiated (the “Substitute SHORALINK Personnel Recruiting Fee”). The Substitute SHORALINK Personnel Recruiting Fee is due and payable to SHORALINK at the time when Client submits a request to initiate a new recruitment process. (c) Unsatisfactory Performance; Termination of SHORALINK Personnel. (i) Warning to SHORALINK Personnel of Unsatisfactory Performance. Client acknowledges that certain procedures must be followed when the Client desires to no longer receive the Client Work from a particular SHORALINK Personnel, including the provision of tangible and sufficient evidence to justify termination of such SHORALINK Personnel with cause. Such requirements may include one or more written warnings by SHORALINK to such SHORALINK Personnel of unsatisfactory performance (“Unsatisfactory Performance Warning”). 1. Client may provide oral feedback directly to SHORALINK Personnel about their performance, provided that Client shall document any unsatisfactory performance in a form to be provided to Client by SHORALINK (“Unsatisfactory Performance Form”), and Client shall forward such Unsatisfactory Performance Form to SHORALINK. SHORALINK shall ensure that SHORALINK provides to the SHORALINK Personnel the Unsatisfactory Performance Warnings as may be required per internal SHORALINK policies. Client acknowledges that because the SHORALINK Personnel are not employees of Client, Client is not authorized to provide such Unsatisfactory Performance Warnings to, or terminate, the SHORALINK Personnel. 2. Client may at any time advise SHORALINK about the provision of Client Work, indicating the specific situations of any incident or the quality of the Client Work provided by any SHORALINK Personnel to allow SHORALINK to take such actions to sanction or attempt to improve the performance of such SHORALINK Personnel as may be required per internal SHORALINK policies. (d) Termination Fee. In any event, with respect to any SHORALINK Personnel who have been hired or engaged by a member of SHORALINK but who have been terminated after the Trial Period (a “Terminated SHORALINK Personnel”), Client shall pay to SHORALINK, pursuant to an invoice to be provided to Client, a “Termination Fee” of the salary and benefits owed to the SHORALINK Personnel; and (2) a twenty percent (20%) administrative expense fee (“Administrative Fee”). It is understood that under this Independent Pay Structure, there is no obligation to pay severance to SHORALINK, or that Client will need to pay to the “Terminated SHORALINK Personnel”. SHORALINK shall ensure that the Terminated SHORALINK Personnel are paid the termination fees. Client acknowledges that SHORALINK has hired or engaged the SHORALINK Personnel to service Client’s account and that if, for any reason, there are Terminated SHORALINK Personnel, SHORALINK will be obligated to pay termination fees and incur other costs and expenses with respect to such Terminated SHORALINK Personnel. Accordingly, Client agrees that it would be impracticable or extremely difficult to fix actual damages, therefore the Termination Fee, including any Administrative Fee, is not a penalty, but constitutes services rendered by the SHORALINK Personnel. Client agrees that in addition to such Termination Fee, any additional termination fee required by Law in excess of the Termination Fee (“Additional Termination Fee”) shall be invoiced to Client and shall be paid by Client within ten (10) days after the date of SHORALINK’ invoice therefore, plus an Administrative Fee based on such Additional Termination Fee. In the event that SHORALINK obtains from such Terminated SHORALINK Personnel a settlement or other termination agreement, each of SHORALINK, SHORALINK and Client shall be named as a releasee of all claims by such Terminated SHORALINK Personnel. (e) Change in Services. Notwithstanding anything to the contrary, SHORALINK may, from time to time, change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
(a) Fees. In consideration of the provision of the Services by SHORALINK and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Order Confirmation (“Fees”). Such Fees to an annual increase of the greater of (i) five percent (5%) over the then-current year’s Fees, (ii) such increase as may be required by applicable Law or needs; or (iii) as otherwise may be mutually agreed upon by Client and SHORALINK. As part of the Fees, overtime work to the extent agreed upon by the SHORALINK Personnel, shall be invoiced by SHORALINK and paid by Client to SHORALINK. (b) Expenses. Client agrees to reimburse SHORALINK for all reasonable travel and out-of-pocket expenses incurred by SHORALINK in connection with the performance of the Client Work or Services to the extent pre-approved by Client (“Expenses”). If such Expenses are incurred by SHORALINK Personnel, then SHORALINK shall invoice Client for such Expenses, including a twenty percent (20%) markup. (c) Recruitment Fee. Client shall pay to SHORALINK a standard recruitment fee of $500, from which 50% will be required in advance in order for SHORALINK to start a new recruitment process, and the remaining 50% will be due once a candidate has been selected. The Recruitment Fee is deemed earned when paid to SHORALINK and is non-refundable. (d) Invoicing and Payment Terms. SHORALINK shall invoice Client every two weeks in advance for Fees and Expenses, and Client shall pay all invoiced amounts due to SHORALINK within ten (10) days from the date of SHORALINK’ invoice. Client shall make all payments hereunder in US dollars by wire transfer, ACH transfer, check, or credit card. All payments made by Client via credit card shall incur a processing fee which is payable by Client at the time of processing such credit card payment. (e) Payment Default. In the event payments are not received by SHORALINK within seven (7) days after the date of SHORALINK’ invoice (a “Payment Default”), SHORALINK may do any or all of the following: (i) charge a $100 late fee on each of the subsequent invoices; (ii) suspend performance for all Services until payment has been made in full, provided however that all normal service fees and expenses shall continue to accrue during such suspension period; and (iii) terminate all or part of this Agreement pursuant to a notice from SHORALINK to Client specifying the termination date in such notice (“Payment Default Termination Notice”). (f) Termination for Payment Default. In addition to SHORALINK’ rights under Section 7(e) above, if there is a Payment Default which results in SHORALINK terminating this Agreement, then Client shall pay SHORALINK for each SHORALINK Personnel assigned to Client’s account (1) a Termination Fee and such other fees and expenses pursuant to Section 6(d); (2) an “Early Termination Fee” equal to ten percent (20%) of the amounts specified in Section 7(f)(1); (3) all Fees and expenses then due and payable to SHORALINK, up to and including the termination date specified in the Payment Default Termination Notice; (4) such other fees, costs and expenses that may be incurred by SHORALINK with respect to Client’s Payment Default or other default; and (5) Default Interest with respect to the foregoing.(g) Buy out. Following six (6) months of continuous services offered to Client, Client shall have the option to buy out SHORALINK Personnel under this Management Agreement for an amount equal to $10,000 if buying out between 7 and 12 months; $7,000 if past 12 months or $5,000 if past 24 months. If Client decides to buy out SHORALINK Personnel, Client needs to provide SHORALINK with a written notice 30 days prior.
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
“Intellectual Property Rights” means all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights. Prior to the member of SHORALINK making an offer of employment to the prospective SHORALINK Personnel, Client may provide SHORALINK with Client’s reasonable form of assignment of Intellectual Property Rights and non-disclosure agreement (“Client Documents”) for the SHORALINK Personnel to execute and deliver in favor of Client with respect to Client Work generated by such SHORALINK Personnel; provided however that SHORALINK cannot guarantee that such SHORALINK Personnel will execute or deliver such Client Documents. Client shall notify SHORALINK prior to making such offer to prospective SHORALINK Personnel whether the execution and delivery of such Client Documents shall be a condition of SHORALINK offer to such prospective SHORALINK Personnel. Notwithstanding anything to the contrary, no member of SHORALINK shall be liable in any way, or makes any representation or warranty whatsoever with respect to the non-infringement or misappropriation of any Intellectual Property Rights.
“Confidential Information” means all non-public, confidential or proprietary information of the Discloser, including trade secrets, technology, information pertaining to business operations, plans and strategies, financial information, and information pertaining to customers, pricing, marketing, or Discloser’s employees or independent contractors, whether disclosed orally or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.” (a) Non-Disclosure of Confidential Information. Each of SHORALINK, for itself and the other members of SHORALINK, and Client (each, a “Recipient”) recognizes that in carrying out this Agreement, they may receive, develop, or otherwise acquire Confidential Information of the other party to this Agreement (each, a “Discloser”). All Confidential Information which the parties may now possess, obtain or create during or after the term of this Agreement will be held confidential by the parties for the benefit of the other, using the same standard of care that each uses to protect its own confidential and proprietary information to prevent the disclosure of the Confidential Information, but in no event less reasonable care. Except to the extent expressly authorized herein, Recipient will not directly or indirectly reveal, report, publish or disclose such Confidential Information to any person or entity not expressly authorized by the Discloser to receive such Confidential Information, except for the benefit of the Discloser and in the course of their work hereunder. Recipient will not disclose any of Discloser’s Confidential Information, except to Recipient’s, its affiliates and their respective employees, officers, directors or agents, who have a need to know, and who agree to abide by non-disclosure terms at least as comprehensive as those set forth herein (collectively, “Authorized Recipients”). For the purposes of this Section 10 (Confidential Information), the term “employees” shall include independent contractors. Recipient will not make any copies of the Confidential Information received from Discloser except as necessary for the Authorized Recipients to perform their duties pursuant to this Agreement. Recipient shall ensure that each copy of the Confidential Information allowed hereunder contains and states the same confidential or proprietary notices or legends, if any, which appear on the original. (b) Disclosure Exception. The foregoing will not apply to the extent (i) Recipient is required to disclose any Confidential Information by applicable law or legal process (provided that the Recipient promptly notifies Discloser so that it may, at Discloser’s expense, employ all legal means to quash such disclosure); (ii) Recipient can demonstrate such allegedly Confidential Information (1) is, as of the time of its disclosure, or hereafter becomes part of the public domain without violation of this Agreement by the Recipient; (2) is already in Recipient’s possession, without the fault of the possessing party, as evidenced by written documents prior to the disclosure thereof by the Discloser, or (3) is subsequently learned, without violation of this Agreement by the Recipient, from a third party not under a confidentiality obligation to the Discloser. Client agrees that although the member of SHORALINK hiring or engaging the SHORALINK Personnel requires that such individual enter into non-disclosure agreements with such member of SHORALINK for the protection of Confidential Information, SHORALINK shall not be liable for the unauthorized disclosure by SHORALINK Personnel of any Confidential Information belonging to Client, its affiliates or subsidiaries, and their respective employees, officers, directors or agents. In addition, SHORALINK may use Client’s name, logo and general description of Client’s business in SHORALINK’s marketing materials in any media. (c) Recipient agrees to use the Confidential Information only to provide, or make use of the Services in accordance with this Agreement. (d) Discloser shall be entitled to injunctive relief for any violation of this Section.
(a) Non-Circumvention. It is expressly understood by Client and SHORALINK, for itself and each member of SHORALINK, that the disclosures contemplated herein are for purposes of furthering the purposes of this Agreement, in which each party takes an active role and profits more than either party might have, absent engagement in, or facilitation of, this Agreement. During the Term and for twelve (12) months after the expiration or termination of this Agreement, Client shall not, directly or indirectly, except in collaboration with or with the prior express written consent of SHORALINK: (i) enter into any transaction with any party introduced to Client by any member of SHORALINK (the “Introduced Party”) similar to, in competition with, or which otherwise could have the effect of preventing SHORALINK from receiving the full benefit of, the transactions contemplated by this Agreement; (ii) solicit the Introduced Party to enter into any such transaction; or (iii) induce, solicit, procure, or otherwise encourage its agents, employees, directors, officers and the employees of Client’s affiliates, parent company and subsidiaries, or any third party, to enter into any such transaction. (b) Non-Circumvention through Commercialization. It is expressly understood by the parties that the discussions and disclosures of Confidential Information are for purposes of furthering this Agreement. During the Term and for twelve (12) months after the expiration or termination of this Agreement, Client hereby expressly agrees not to, based on SHORALINK’s Confidential Information (a) circumvent this Agreement; (b) improve Client’s own products or services; (c) create new products or services related to the discussions and disclosures; (d) enable any third party to develop or improve such third party’s own products or services that result in competition with any member of SHORALINK; or (e) otherwise commercialize anything related to the subject matter covered in the discussions and disclosures outside of the confines of this Agreement. (b) No Solicitation. Client acknowledges and agrees that SHORALINK has spent considerable time, money, and effort in searching for, hiring or engaging and training its employees and subcontractors for the provision of the Services and that such investment constitutes trade secrets belonging to SHORALINK, which trade secrets would be lost if Client appropriated the same, causing harm to SHORALINK. Accordingly, to the extent allowed by applicable Law, during the Term and for twelve (12) months after the expiration or termination of this Agreement, neither Client, nor its parent, affiliates or subsidiaries will directly or indirectly solicit or offer employment to, or engage any, employee or subcontractor of SHORALINK who is involved in the provision or facilitation of the Services or Client Work; provided however that a general solicitation made by Client via any media format that is not directed at a particular individual shall not be deemed a violation of this provision. In the event that Client, its parent, affiliates or subsidiaries, or anyone on behalf of Client (“Client Hirer”) does hire or engage any of the afore-described personnel of SHORALINK (“Subject Person”), then Client shall pay SHORALINK a fee equal to: (i) the salary and benefits paid by any member of SHORALINK to the Subject Person over the twelve (12) month period immediately prior to the hiring or engaging of the Subject Person by Client Hirer, or (ii) if the Subject Person was a subcontractor, the amount paid by the member of SHORALINK previously engaging the Subject Person to the Subject Person as the subcontractor’s fee over the twelve (12) month period immediately prior to the engagement of the Subject Person by Client Hirer.
THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND SHORALINK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, NONE OF SHORALINK MAKES ANY WARRANTY OF ANY KIND THAT THE SHORALINK PERSONNEL, SERVICES, DELIVERABLES, CLIENT WORK, THIRD-PARTY SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, INCREASE CLIENT’S SALES OR REVENUE, OR RETURN ON INVESTMENT, OR THAT ANY CLIENT WORK WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR PRODUCTS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE, OR COMPLY WITH PRIVACY LAWS OR ACCESSIBILITY LAWS. CLIENT ACKNOWLEDGES AND AGREES THAT WITHOUT THIS WARRANTY DISCLAIMER SET FORTH IN THIS SECTION, SHORALINK WOULD NOT ENTER INTO THIS AGREEMENT WITH CLIENT.
(a) IN NO EVENT SHALL ANY OF SHORALINK BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, 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 DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SHORALINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b) IN NO EVENT SHALL SHORALINK’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 AGGREGATE AMOUNTS PAID OR PAYABLE TO SHORALINK PURSUANT THE APPLICABLE ORDER CONFIRMATION IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. (c) The limitation of liability set forth in Section 13(b) above shall not apply to (i) liability resulting from SHORALINK’s gross negligence or willful misconduct; and (ii) death or bodily injury resulting from SHORALINK’s negligent acts or omissions.
(a) Termination for Convenience. At any time during the Term of this Agreement, with at least thirty days (30) days prior written notice, either party may notify the other party that it shall terminate this Agreement (and all Order Confirmations) on the termination date specified in the notice (which shall be no fewer than 30 days from the other party’s receipt of such notice). (b) Other Rights to Terminate. (i) SHORALINK Default. Client may terminate this Agreement and all Order Confirmations thereunder, if SHORALINK has breached any material term of this Agreement and has not cured the same within fifteen (15) days after SHORALINK receives Client’s written notice of such breach, provided, however, that if the default is of a nature that requires more than 15 days to cure, SHORALINK shall not be in default of this Agreement if it has commenced to cure during such initial 15 day period and thereafter diligently prosecutes such cure to completion. (ii) Client Default. In addition to any remedies that may be provided under this Agreement, SHORALINK may terminate this Agreement with immediate effect upon written notice to Client, if Client: (1) other than with respect to a Payment Default which is covered by Sections 7(e) and 7(f), fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment; (2) other than with respect to a Payment Default which is covered by Sections 7(e) and 7(f), has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (3) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
(a) Client’s Indemnification. Client agrees to defend, indemnify, and hold harmless SHORALINK, each of its respective directors, officers, employees and agents (“SHORALINK Parties”) from and against any claim, demand, obligation cause of action, debt, or liability (including reasonable attorneys’ fees) (collectively, “Losses”) arising from: (i) Client’s breach of any warranty, representation or obligation of Client under this Agreement; (ii) any claim that Client or SHORALINK Personnel has violated any Laws or that any Client Materials or Client Work infringe or violate the publicity right, privacy right or the Intellectual Property Rights of a third party; (iii) any claim that the Client Work or Services do not comply with applicable Laws, including the Americans with Disabilities Act, as amended (“ADA”), or any similar state, federal or international Laws with respect to accessibility of the Client Work, Services or Deliverables by disabled or physically disadvantaged users (collectively “Accessibility Laws”); or (iv) any claim by SHORALINK Personnel, governmental agencies, or third parties with respect to this Agreement whatsoever, including SHORALINK Personnel’s employment, engagement or termination by any of SHORALINK, Client Work, or any actions or inactions by Client, its affiliates and their respective employees, officers, directors, agents or contractors. (b) Conditions to Indemnity. In claiming any indemnification hereunder, SHORALINK shall promptly provide the Client with written notice of any claim which SHORALINK believes falls within the scope of the indemnifications provided by this Section 16. SHORALINK, shall at Client’s expense, reasonably assist in the defense of such claims, provided that the Client shall control such defense and all negotiations relative to the settlement of any such claim, and further provided that any settlement intended to bind, or impose any liability or admission of liability upon, any member of SHORALINK, shall not be final without such member of SHORALINK’s prior written consent. (c) Claims by SHORALINK Personnel. (i) If any SHORALINK Personnel, its successors, assigns or dependents file in any Latin-American country or in the United States, any labor action against Client, Client will immediately notify SHORALINK of such situation and Client will have the right to: (i) submit its defense to the appropriate forum; (ii) negotiate and, when appropriate, resolve and settle the labor dispute, provided that any settlement intended to bind, or impose any liability or admission of liability upon, any member of SHORALINK, shall not be final without such member of SHORALINK’s prior written consent. In any event, Client shall pay all amounts that the competent authority awards. (ii) If any SHORALINK Personnel, its successors, assigns or dependents, files, any legal action against SHORALINK, SHORALINK shall ensure that SHORALINK will respond to such legal action, subject however to Sections 16(a) and (b) above. (d) Certain Definitions. As used herein: “Client Materials” means, collectively, all Content and all other information in any form or media, including documents, data, know-how, ideas, specifications, software code, and other materials provided to SHORALINK or SHORALINK Personnel by or on behalf of Client, whether or not the same: (i) are owned by Client, a third party, or in the public domain; or (ii) qualify for or are protected by any Intellectual Property Rights. “Content” means any data, information, audio, visual, and audiovisual content, including illustrations, graphics, pictures, images, music, sound effects, lyrics, narration, text, film, symbols, video, animation, characters, and interface layouts and designs, whether or not the same qualify for or are protected by any Intellectual Property Rights.
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 of Client to make payments to SHORALINK hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of SHORALINK. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. SHORALINK Personnel are not, and shall not be deemed to be, employees of Client, but instead are solely employees of the member of SHORALINK who hires such SHORALINK Personnel.
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 or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
Subject to Section 23(a), any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Indiana in each case located in the City of Indianapolis, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by email (with confirmation of receipt). Notices may also be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid), provided that such Notices are also delivered via email. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. Either party may change its notice address by providing notice to the other party pursuant to this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including the following provisions: Section 6(d), Section 7(c), Section 7(f), Sections 8-13 inclusive, Section 16, and Sections 20-30 inclusive.
No waiver by SHORALINK or Client of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the party to be charged. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
The term “including” shall mean, “including, without limitation.” Headings and titles shall not be used to interpret this Agreement but are only for convenience. The parties to this Agreement have had the opportunity to obtain counsel of their choice in the review, negotiation, and documentation of this Agreement, accordingly, this Agreement shall not be interpreted against one or the other party as the drafter of this Agreement. U.S. English shall be the only language for the interpretation and enforcement of this Agreement.
This Agreement does not create an exclusive relationship between SHORALINK and Client. Any member of SHORALINK may provide similar services to other clients and Client may obtain similar services from other providers.
This Agreement may be executed in any number of counterparts, but all counterparts hereof shall together constitute but one agreement. Acceptance of this Agreement, including any Order Confirmation, may be made or evidenced by (i) a manually signed copy of this Agreement delivered to the other party by facsimile, email, or other means of electronic transmission; or (ii) by DocuSign or similar, and is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
