HANDLE, INC. DUTIES AND RESPONSIBILITIES.
 

HANDLE, INC. shall:

• Use commercially reasonable efforts to recruit, test, interview, engage on an independent contractor basis, and assign one or more skilled computer engineers, programmers, and developers (each, a “Talent”) to perform work under CLIENT’s active supervision, direction and control (the “Services”); and

• Upon the written request of CLIENT, use commercially reasonable efforts to replace Talent who does not meet CLIENT’s performance and/or capability requirements. It is agreed by the parties that the Talent is an independent contractor of HANDLE, Inc. and HANDLE, Inc. shall not have any obligations towards the Talent that are applicable to an employer-employee relationship.

 

CLIENT DUTIES AND RESPONSIBILITIES.

CLIENT shall:

• Set, review, and monitor Talent schedules and all other aspects of each engagement for which CLIENT shall be solely and exclusively responsible for managing;

• Use Talent only in assignments that match the job descriptions for which HANDLE, INC. places them and not change Talent’s job duties without HANDLE, INC.’s express prior written approval;

• Properly inform and supervise Talent while performing work under this Agreement (including without limitation notifying Talent of CLIENT’s processes and policies applicable to CLIENT’s contracted resources) and be solely and exclusively responsible for CLIENT’s business operations, products, services, confidential information and intellectual property;

• Comply with all applicable laws with respect to its engagement with Talent; and

• Be responsible for acquiring all rights and licenses to any software, code, information, documentation, or other materials and intellectual property that CLIENT acquires from third parties and/or furnishes to Talent and for ensuring that CLIENT has all rights and licenses necessary to enable the Services to be performed. CLIENT shall also provide the Talents

• who are billed on fixed monthly basis and are working full time with the CLIENT, 1.25 days of paid leave per completed month; and

• who are billed on a fixed monthly basis working part time with the CLIENT 0.625 days of paid leave per completed month; which such Talent can avail from the start of the fourth continuous month of Services to the CLIENT. Any unused paid leave time at the end of the engagement shall be paid on the next billing statement.

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PAYMENT TERMS, BILL RATES, AND FEES

• CLIENT will pay HANDLE, INC. for its performance at the rates set forth  and will also pay any additional costs or fees set forth in this Agreement. All payments will be made electronically via bank wire or ACH transfer. HANDLE, INC. will invoice CLIENT for Talent’s work at such times as HANDLE, INC. requires, currently the 15th and last day of the month. CLIENT agrees to pay within ten (10) days of the date of each invoice (“Net 10”) and to pay interest on any unpaid balances after ten (10) days from the date of the invoice at the compounded rate of one and a half percent (1.5%) per month calculated daily (Annual Percentage Rate of 18%) or the maximum legal rate, whichever is higher, calculated from the date of the invoice. Additionally, CLIENT agrees to pay or reimburse HANDLE, INC.’s costs of collection for unpaid balances (including, without limitation, reasonable attorneys’ fees). It is clarified that in the event of any break in Services not owing to an act or omission of the CLIENT, such accumulated leaves shall be reset to zero.

• Any time off, downtime, or breaks in the Services, or work performed by Talent, must be mutually agreed to by CLIENT and HANDLE, INC.. Such agreement must be evidenced by a writing, which may include email, and shall include any relevant documentation and appropriate fee adjustments. CLIENT shall remain liable for the Talent time and rate(s) unless such a mutual written agreement is reached.

• Unless CLIENT makes arrangements directly with Talent for expenses, CLIENT agrees to remit to HANDLE, INC. all pre-approved, actual and reasonable travel, lodging, and other out of pocket expenses incurred in connection with this Agreement. CLIENT shall pay any such expenses to HANDLE, INC. within ten (10) days of the date of HANDLE, INC.’s invoice.

 

TRIAL PERIOD
The parties may desire to contract on a trial basis for a limited initial time period (the “Trial Period”). The Trial Period will be set as fourteen (14) calendar days. If CLIENT is not satisfied with the Talent at the end of the Trial Period, CLIENT must provide HANDLE, INC. with prompt written notification describing the basis for its dissatisfaction in reasonable detail prior to the end of the Trial Period (the “Trial Notice”). Subject to the Trial Notice being timely received, HANDLE, INC. will not invoice CLIENT for the unsatisfactory work performed during the Trial Period, as described in the Trial Notice, and HANDLE, INC. will provide 1 different Talent for an additional Trial Period. If CLIENT does not timely deliver the Trial Notice in proper form, the Talent will be deemed accepted and CLIENT will be invoiced for the Trial Period(s) (and subsequent work). In the event CLIENT requests the Talent be replaced, or if such Talent becomes unavailable during or after a Trial Period, HANDLE, INC. will, as its sole obligation and CLIENT’s exclusive remedy, use commercially reasonable efforts to promptly replace such Talent. HANDLE, INC. will provide such replacement subject to the trial program described in this Section 4 (the “Trial Program”). For the avoidance of doubt, the Trial Program will only apply to Talent’s initial engagement with CLIENT.

 

NON-CIRCUMVENTION AND DAMAGES
During the term of this Agreement and for twenty-four (24) months thereafter (the “Restricted Period”), CLIENT shall not, directly or indirectly, encourage, solicit, hire, or otherwise contract or engage for the performance of services, any Talent who CLIENT becomes aware of from HANDLE, INC., or in connection with this Agreement (a “Restricted Talent”). CLIENT also agrees that it will not refer Restricted Talent, directly or indirectly, to any related parties or affiliates, including without limitation subsidiaries, parent companies, partnerships, holdings or investors without the prior written consent of HANDLE, INC. The restrictions set forth in this Section 5 shall not prohibit any form of general advertising or solicitation that is not directed at a specific person or entity. CLIENT acknowledges and agrees that any breach of this Section 5 shall be deemed to be a willful, material breach of this Agreement, shall not be subject to any limitation on liability or exclusion of any form of damages, and shall entitle HANDLE, INC. to injunctive relief in addition to all damages suffered by HANDLE, INC. in relation to such breach and HANDLE, INC.’s response to such breach (including attorney’s fees and investigation costs, lost commercial opportunities, internal costs, and others).

 

CONVERSION

• CLIENT understands that HANDLE, INC. has invested in Restricted Talent and that, in the event CLIENT is interested in directly hiring Restricted Talent, CLIENT must first notify HANDLE, INC. of its intent to directly hire Restricted Talent and, if agreed to by HANDLE, INC. in writing, CLIENT may hire such Restricted Talent notwithstanding Section 5 and shall pay to HANDLE, INC. a fee of twenty-five thousand dollars ($25,000) per individual (the “Conversion Fee”) less a discount of 10% of the aggregate spend in all CLIENT engagements with HANDLE, INC.. The Restricted Talent must be in an engagement for a minimum of 3 months to be eligible for conversion, and aggregate spend applied to a previous conversion shall not qualify for future conversions. Such conversion Fee shall be paid by CLIENT within three (3) days of hiring or engaging Restricted Talent.

• The Conversion Fee represents a reasonable estimate of HANDLE, INC.’s expenses incurred to recruit, test, interview, engage on an independent contractor basis, and assign Restricted Talent. The parties mutually agree that the Conversion Fee is in no way a penalty or constraint upon the commercial activities or prospective employment of CLIENT or Talent; only reasonable compensation for HANDLE, INC.’s lost commercial investment in its Service in originally sourcing and screening RestrictedTalent.

• Subject to the prior written approval of HANDLE, INC., a reasonable wind-down period (as determined by HANDLE, INC. in its sole discretion), and full payment of the Conversion Fee, CLIENT may, during the Restricted Period, directly engage or employ Restricted Talent.

 

OWNERSHIP
The Parties agree that all work created by Talent under this Agreement shall be owned by the CLIENT and shall be considered “work made for hire” under the U.S Copyright Act , 17 U.S.C, paragraph 101,et, seq. CLIENT may provide its desired form of invention assignment and confidentiality agreement for Talent to sign in connection with the performance of any work by Talent on behalf of CLIENT; HANDLE, INC. shall use commercially reasonable efforts to assist CLIENT and Talent in entering into such an agreement. If CLIENT does not enter into such an agreement with Talent, then (i) Talent will assign ownership of the work output it produces for CLIENT to HANDLE, INC. pursuant to Talent’s agreement with HANDLE, INC.; (ii) subject to CLIENT paying all fees due and fully performing CLIENT’s other material obligations hereunder, HANDLE, INC. hereby assigns to CLIENT all right, title, and interest in and to such work output, and (iii) CLIENT shall be a third-party beneficiary of Talent’s confidentiality obligations to HANDLE, INC., solely with respect to the confidential information of CLIENT. The assignment in (ii) above does not include any of HANDLE, INC.’s existing or background technology, HANDLE, INC.’s confidential and proprietary methodologies, know-how and intellectual property existing now or otherwise arising outside of work under this Agreement.

 

TERM OF AGREEMENT

The Agreement may be terminated after the completion of the original engagement period by either party upon thirty (30) calendar days’ written notice to the other party, except that, if a party becomes bankrupt or insolvent, discontinues operations, fails to make any payments as required by the Agreement, or otherwise materially breaches any of the terms of this Agreement, either party may terminate this Agreement immediately. Upon termination of this Agreement, CLIENT agrees to pay HANDLE, INC. all amounts then due or accrued as of the effective date of such termination.

 

CONFIDENTIAL INFORMATION
Both parties may receive information that is proprietary to or confidential to the other party or its affiliated companies and their clients. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than performing under this Agreement or as required by law. No knowledge, possession, or use of CLIENT’s confidential information will be imputed to HANDLE, INC. as a result of Talent’s access to such information. Information shall not be deemed confidential if it is

• available to the public,

• independently developed by the other party,

• is obtained by the receiving party from a source other than the disclosing party, which source is not under any confidentiality obligation, or

• is required to be disclosed by law. For the avoidance of doubt, HANDLE, INC.’s confidential information includes, but is not limited to, the names, contact information, HANDLE, INC.’s screening and selection criteria for, rates and particular skills of Talent in HANDLE, INC.’s network. Upon termination of this Agreement, if requested by the disclosing party, the receiving party will promptly return to the disclosing party all items and copies containing or embodying proprietary or confidential information of the other party (including, without limitation, all work output and all work-in-progress, provided that CLIENT has paid HANDLE, INC. all fees due and owing).

 

PUBLICITY
HANDLE, INC. may refer to CLIENT (including any CLIENT affiliates) and may use CLIENT’s logo on HANDLE, INC.’s website or other marketing materials that display clients of HANDLE, INC. and may use CLIENT as a possible reference.

 

INDEMNIFICATION

• HANDLE, INC. will defend CLIENT from (i) any claim by Talent that HANDLE, INC. breached its agreement with such Talent and (ii) any act or omission by HANDLE, Inc. (including its employees, contractors, agents, supervisors or personnel) that results in a claim against any CLIENT Indemnitee under any applicable law governing the employment of the Talent, and shall indemnify and hold CLIENT harmless from and against any amounts paid in settlement or awarded in a final judgment by a court of competent jurisdiction, in each case with respect to a claim so defended.

• CLIENT will defend, indemnify, and hold harmless HANDLE, INC., including its parents, affiliates and subsidiaries, and its and their directors, officers, employees, members, shareholders, partners, agents and its and their heirs, successors and assigns (hereinafter, the “HANDLE, INC. Indemnitees”) from, against and in respect of any damages, claims, losses, charges, actions, suits, proceedings, deficiencies, taxes, interest, penalties and reasonable costs and expenses (including without limitation reasonable attorneys’ fees and disbursements), related to or arising out of the following: (i) any act or omission by CLIENT (including its employees, contractors, agents, supervisors or personnel) that results in a claim against any HANDLE, INC. Indemnitee by a third-party; and/or (ii) any act or omission by CLIENT (including its employees, contractors, agents, supervisors or personnel) that results in a claim against any HANDLE, INC. Indemnitee under any applicable law governing the employment of the Talent.

• As a condition precedent to indemnification, (i) the party seeking indemnification will promptly inform the other party after it receives notice of any claim, loss, liability, or demand for which it seeks indemnification from the other party (provided that delay in promptly informing the other party shall not result in a waiver of a party’s right to seek indemnity if such delay did not materially prejudice the defense of the applicable claim), (ii) the indemnifying party shall have control of the defense or settlement of the action using counsel acceptable to the indemnifying party, and (iii) the party seeking indemnification will reasonably cooperate in the investigation and defense of any such matter, at the indemnifying party’s cost.

• The provisions in this Section 11 constitute the complete agreement between the parties with respect to indemnification, and each party waives its right to assert any common-law indemnification or contribution claim against the other party.

 

LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES

• EXCEPT FOR A BREACH OF SECTIONS 5 OR 9,, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, OR LOST PROFIT DAMAGES THAT ARISE IN CONNECTION WITH THIS AGREEMENT, SUCH PARTY’S PERFORMANCE HEREUNDER, THE USE OR INABILITY TO USE THE SERVICES PROVIDED, WORK OR WORK PRODUCT, OR ANY INTERRUPTION OR DISRUPTION OF OR BY ANY OF THE FOREGOING, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) AND REGARDLESS OF HOW CHARACTERIZED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

• THE AGGREGATE LIABILITY OF HANDLE, INC. WITH REGARD TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION ACTUALLY RECEIVED BY HANDLE, INC. FROM CLIENT UNDER THIS AGREEMENT WITH RESPECT TO THE APPLICABLE SOW DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM ARISES RELATING TO SUCH SOW.

• EXCEPT AS EXPRESSLY PROVIDED IN SECTION 1, HANDLE, INC. MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO (i) THIS AGREEMENT OR THE SERVICES (WHICH ARE PROVIDED ON AN “AS-IS” and “AS-AVAILABLE BASIS”) OR (ii) TALENT, ANY WORK, WORK OUTPUT OR OTHER RESULTS ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY DIRECT AGREEMENT BETWEEN TALENT AND CLIENT. HANDLE, INC. HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. CLIENT ASSUMES ALL RISK WITH RESPECT TO CLIENT’S TECHNOLOGY, WEBSITES, PRODUCTS AND RELATED MATERIALS, INCLUDING ALL WORK, WORK OUTPUT AND MATERIALS INCORPORATED THEREIN.

 

ARBITRATION
Any dispute, controversy, or claim arising out of or relating to this Agreement or any breach or termination of this Agreement, including but not limited to the Services, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, whether sounding in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be conducted in accordance with the Judicial Arbitration and Mediation Services (“JAMS”) Comprehensive Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, will govern the arbitrability of disputes. The costs of the arbitration, including the arbitrator’s fees, will be shared equally by the parties; provided, however, that each party will bear the cost of preparing and presenting its own claims and/or defenses (including its own attorneys’ fees). The venue for arbitration will be San Diego County, California. A single arbitrator engaged in the practice of law, who is knowledgeable about the subject matter of this Agreement, will conduct the arbitration. The arbitrator is bound to apply and enforce the terms of this Agreement. The arbitrator’s decision will be final, binding, and enforceable in a court of competent jurisdiction. If a party is required to enforce compliance with this Section (e.g., submission of dispute to arbitration or nonpayment of an award), then the noncomplying party must reimburse all of the costs and expenses incurred by the party seeking such enforcement (including reasonable attorneys’ fees).

 

MISCELLANEOUS

• The Services that HANDLE, INC. renders to CLIENT under this Agreement will be as an independent contractor with respect to CLIENT. Talent is and shall be an independent contractor HANDLE, INC.. HANDLE, INC. will only be responsible for collecting the fees payable to Talent and HANDLE, INC.’s income taxes in connection with this Agreement and CLIENT will be responsible for all other taxes and assessments, including, without limitation, sales, value-added, use, and similar taxes, if any. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto or constitute or be deemed to constitute any party the agent or employee of the other party for any purpose whatsoever, and neither party shall have authority or power to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.

• Accrued obligations, defined terms and Sections 2 (Client Duties and Responsibilities), 3 (Payment Terms, Bill Rates, and Fees), 5 (Noncircumvention and Damages), 6 (Conversion), 9 (Confidential Information), 10 (Publicity), 11 (Indemnification) 12 (Limitation of Liability; Disclaimer of Warranties), 13 (Arbitration) and 14 (Miscellaneous) of this Agreement will remain effective after expiration or termination of this Agreement.

• No provision of this Agreement may be modified, amended, or waived unless agreed to in a writing signed by the parties.

• Each provision of this Agreement will be considered severable, such that if any one provision or clause conflicts with existing or future applicable law or may not be given full effect because of such law, no other provision that can operate without the conflicting provision or clause will be affected.

• This Agreement and the exhibits attached to it contain the entire understanding between the parties and supersede all prior agreements and understandings relating to the subject matter of the Agreement.

• The provisions of this Agreement will inure to the benefit of and be binding on the parties and their respective representatives, successors, and assigns.

• The failure of a party to enforce the provisions of this Agreement will not be a waiver of any provision or the right of such party thereafter to enforce each and every provision of this Agreement.

• Neither this Agreement nor any rights or obligations under this Agreement may be assigned or delegated by CLIENT (by operation of law or otherwise) without the prior written consent of HANDLE, INC.. Any purported assignment in derogation of the foregoing shall be void. A change of control of CLIENT shall be deemed to have resulted in an assignment of this Agreement by operation of law.

• Any and all notices required to be made or given under this Agreement shall be in writing, signed by the party giving such notice and shall be delivered personally, by facsimile transmission or sent by overnight courier or by email, to the other party to the appropriate address as shown on the first page of this Agreement or communicated otherwise.

• This Agreement shall be governed, construed and interpreted in accordance with the internal laws of the State of Delaware without giving effect to principles of conflicts of laws.

• Neither party will be responsible for failure or delay in performance of this Agreement if the failure or delay is due to labor disputes, strikes, fire, riot, war, terrorism, acts of God, pandemics or any other causes beyond the control of the nonperforming party.

• This Agreement may be executed in one or more counterparts each of which will be deemed an original, but all of which together shall constitute one and the same instrument. The exchange of signature pages to this Agreement (in counterparts or otherwise) by facsimile transmission or other electronic transmission shall be sufficient to bind the parties to the terms and conditions of this Agreement.

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CONTACTING US

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If you have any questions or concerns about this Privacy Policy, please contact us at frontdesk@buildwithhandle.com or by mail: HANDLE, INC, 2093 Sequoia Crest, Vista, Ca. 92081

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We will make every effort to resolve issues and concerns that might arise.