EMBED SERVICES AGREEMENT
THIS EMBED SERVICES AGREEMENT GOVERNS CLIENT’S USE OF MAGICPACE’S EMBED SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (EACH AN “EMBED ORDER”), CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
AGREEMENT.
Services:
Scope of Services. Subject to the terms of this Agreement and in consideration of Client’s agreement to pay the fees set out in this Agreement and each Embed Order, MagicPace agrees to provide Client with personnel engaged directly by MagicPace as independent contractors (“Embedded Personnel”) for the role(s) (“Roles”) set out in each Embed Order, (together, the “Services”). Each Embed Order incorporates and is subject to the terms of this Agreement. The matching process for selecting Embed Personnel shall be as set out in Schedule 1.
Performance of Work. Client understands that Embedded Personnel’s performance of services on behalf of Client (the “Work”) depends on Client’s active involvement and facilitation. Accordingly, Client must provide Embedded Personnel with all information, cooperation, and assistance reasonably required in connection with the successful performance of the Work. Embedded Personnel will report directly to personnel designated by Client (“Client Contact(s)”). The Client Contact(s) will be solely responsible for establishing and communicating the requirements and specifications of the project to Embedded Personnel, and for setting, reviewing, and monitoring Embedded Personnel schedules, and the other salient aspects of each engagement/project with Embedded Personnel, who will otherwise be responsible for the method, manner, and means of performing the Work. Client will coordinate with Embedded Personnel to generate the desired tangible results of the Work (the “Work Output”).
Direction of Embedded Personnel. Client acknowledges and agrees that MagicPace’s Service does not include directing the Work or generating Work Output. Since MagicPace does not perform or manage the Work, MagicPace is not in a position to, and thus cannot, guarantee the quantity or quality of the Work, the Work Output, or that the Embedded Personnel will meet any desired goals or deadlines. Client is solely responsible for determining whether Embedded Personnel meets Client’s needs and will be solely responsible for evaluating the on-going progress, performance, and capability of engaged Embedded Personnel. Client may, if they have reasonable concerns, request the replacement of Embedded Personnel who does not meet Client’s performance and/or capability requirements. Upon such reasonable request, MagicPace will use commercially reasonable efforts to promptly furnish a replacement satisfactory to Client. While MagicPace will use all reasonable endeavours to maintain the appointment of Embedded Personnel for specific Roles, MagicPace shall not be responsible for any unavailability caused by the illness, resignation or other unavailability of Embedded Personnel outside of its reasonable control.
Client Representation and Warranty. Client represents, warrants, and covenants to MagicPace that the role(s) requested by Client to be fulfilled by Embedded Personnel are lawful in the jurisdiction(s) of Client’s operations and/or are not intended to and will not interfere with the privacy, contractual, or constitutional rights of third parties.
MagicPace Representation and Warranty. MagicPace represents, and warrants that: (a) Embedded Personnel has successfully completed MagicPace’s screening process; and (b) MagicPace has full power, right, and authority to enter into and carry out its obligations under this Agreement. Client represents and warrants that it has full power, right, and authority to enter into and carry out its obligations under this Agreement.
Client Responsibility. Client is solely and exclusively responsible for directing, facilitating, monitoring and overseeing Embedded Personnel, the Work and the Work Output. Client agrees that it is responsible for notifying Embedded Personnel of processes and policies applicable to its contracted resources. Client is responsible for acquiring all rights and licenses to any software, code, information, documentation, or other materials and intellectual property that it acquires from third parties and/or furnishes to Embedded Personnel in connection with the Work and for ensuring that Client has all rights and licenses necessary to enable the Work. CLIENT ASSUMES ALL RISK WITH RESPECT TO WORK, WORK OUTPUT, CLIENT’S TECHNOLOGY, WEBSITES, PRODUCTS AND RELATED MATERIALS, INCLUDING ALL WORK, WORK OUTPUT AND MATERIALS INCORPORATED THEREIN.
Indemnity. Client agrees to defend, indemnify, and hold harmless MagicPace and its affiliates and their officers, directors, employees, agents, successors and assigns from and against all losses, damages, liabilities, deficiencies, actions judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out, resulting from or in connection with Client’s conduct relative to a Embedded Personnel, the performance of the Embedded Personnel, and/or from any liability arising from any questions and/or complaints relative to the Client’s conduct relative to a Embedded Personnel and/or the Embedded Personnel’s performance or conduct.
Fees
Fees: MagicPace’s nonrefundable fee (the “Fee”) for Client for the Services are as set out in applicable Embed Order or as otherwise updated by MagicPace from time to time on not less than [30] days’ advance written notice. Unless Client makes arrangements directly with Embedded Personnel for expenses, Client agrees to remit to MagicPace all pre-approved, actual and reasonable travel, lodging and other out of pocket expenses incurred in conjunction with the Services. Payment of Fee: Fees are payable in advance, with the first invoice for each Embedded Personnel provided being for the first month and thereafter on a two-weekly basis. Fees in respect of each Embedded Personnel are subject to a minimum commitment of three (3) months from initial engagement. Client shall pay MagicPace the Fee on the invoice date. To facilitate such payment, Client agrees to and instructs MagicPace to charge the Fee against the credit or debit card used by Client to make the Deposit. Client acknowledges that its card will be charged automatically pursuant to this section. If the credit or debit card is declined, MagicPace will attempt to charge the card on file the following business day. If Client’s card is declined a second time, MagicPace will contact Client to pay the invoice manually with a new card. If the Fee is not paid to MagicPace within 3 days of invoice date, Client agrees to pay interest on the unpaid balance at the lesser of eighteen percent (18%) per annum or the maximum interest rate available by law, along with MagicPace’s collection expenses, including reasonable attorney’s fees. Further, and without limiting any of MagicPace’s rights and remedies (including without limitation the minimum three-month commitment), in the event of any failure to pay within 3 days of invoice date MagicPace reserves the right to suspend the provision of the affected Embedded Personnel.
Taxes. All fees are exclusive of taxes. Client shall pay all sales, use, excise or similar taxes related to the Services, excluding taxes based on or measured by MagicPace’s income, unless Client is exempt from payment of such taxes and provides MagicPace with evidence of such exemption. MagicPace shall pay all taxes collected from Client to the relevant taxing authority Client shall be responsible for all taxes, fees, licenses required to employ or contract with the Embedded Personnel.
CONFIDENTIALITY
“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential;
Confidentiality. Each party shall maintain in confidence all Confidential Information of the other party, shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under this Agreement, and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted hereunder or make any unauthorized use thereof. Each party shall treat the Confidential Information of the other party with the same degree of care against disclosure and/or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Supplier shall be entitled to provide Confidential Information of Customer to Subcontractors that have agreed in writing to confidentiality obligations at least as protective as those contained in this Agreement. The obligations of confidence set forth in this Agreement shall extend to any Affiliates of the parties that have received Confidential Information of the other party and shall also cover Confidential Information disclosed by any Affiliate of a party.
Exemptions. No party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information of the other party, or any part thereof, which: (i) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (ii) was generally publicly available prior to its disclosure, or becomes generally publicly available other than through a breach of this Agreement by the receiving party; (iii) was disclosed to the receiving party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently designed and developed by the receiving party without the use of any Confidential Information of the other party or any infringement or misappropriation of any Intellectual Property or other rights of the other party.
NON-CIRCUMVENTION.
Subject to section 4.2, during the term of this Agreement and for twelve (12) months thereafter, Client will not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for performance of services (excluding the Work hereunder) any Embedded Personnel who Client is introduced to by MagicPace in connection with this Agreement. Client also agrees that it will not refer such Embedded Personnel directly or indirectly to any related parties or affiliates including without limitation subsidiaries, parent companies, partnerships, holdings or investors related to Client in any form without processing such request through MagicPace’s client intake processes. Client also agrees that it will not induce any such Embedded Personnel to recruit or refer Embedded Personnel of any kind to Client or third parties nor will Client cooperate with any efforts of such Embedded Personnel to do the same.
Notwithstanding section 4.1, Client may engage any Embedded Personnel directly as an employee or independent contractor where: (i) they notify MagicPace in writing that they will engage such Embedded Personnel directly, either as an employee or independent contractor; and (ii) pay MagicPace $8,000 US if directly engaging Embedded Personnel within the first year or $4,000 US if engaging Embedded Personnel in the second year or later.
INTELLECTUAL PROPERTY.
In respect of Intellectual Property Rights (i) Embedded Personnel will assign ownership to MagicPace pursuant Embedded Personnel’s agreement with MagicPace; (ii) this Section 5 shall affect a transfer from MagicPace to Client, and (iii) Client shall be a third- party beneficiary of Embedded Personnel’s confidentiality obligations. The assignments and license rights provided to Client by MagicPace in this Section 5 are expressly conditioned on Client paying all fees due and full performance of its other material obligations hereunder. Subject to the foregoing, MagicPace hereby assigns to Client all rights, title and interest owned by and vested in MagicPace, in and to all Work Output provided to Client by Embedded Personnel in performance of the Work hereunder and all intellectual property rights MagicPace has (including without limitation, patents, copyrights, trade secrets, moral rights and all other intellectual property or proprietary rights) therein. Such assignment does not include any Underlying Technology. “Underlying Technology” will mean (a) MagicPace technology, methodologies, know-how and intellectual property existing as of the Effective Date or otherwise arising outside of Work under this Agreement, (b) any derivatives, improvements, enhancements or extensions of the foregoing that are conceived, reduced to practice, or developed in performance of this Agreement that have general applicability in MagicPace’s business, and (c) any intellectual property relating to any of the foregoing. To the extent any Underlying Technology is incorporated into or otherwise reasonably necessary to use any such Work Output, subject to the terms and conditions of this Agreement, MagicPace grants to Client a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to fully exercise and exploit the Underlying Technology and to make derivative works of the same in connection with the exploitation of the Work Output. MagicPace will (and will use commercially reasonable efforts to cause Embedded Personnel to) reasonably assist Client, at Client’s request and expense, to further evidence, record, perfect, and maintain any rights assigned.
TERM
Term. This Agreement shall be deemed to be effective upon execution by both parties of an Embed Order Form and shall be valid until the roles of all Embed Personnel have been terminated or this Agreement has been terminated, in each case pursuant to the provisions hereof.
Termination. Subject to Client engaging each Embedded Personnel for a period of not less than 3 (three) months, either party may at its sole discretion without assigning any reason or without incurring any liability whatsoever to the other party, terminate any role or the entirety of this Agreement after giving one (1) month’s written notice to the other party; provided, however, that Client’s obligations (i) to pay MagicPace in full for its Services (including without limitation the three-month minimum commitment for Embedded Personnel), (ii) to indemnify MagicPace, in each case as set forth in this Agreement, and (iii) otherwise under sections 1.6, 2, 3, 4, and 7 shall survive any termination of this Agreement.
MISCELLANEOUS
Limitation of liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MAGICPACE (INCLUDING ITS AGENTS, CONSULTANTS, DIRECTORS AND/OR EMPLOYEES) MAKES NO REPRESENTATIONS AND GIVES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, CUSTOM OF DEALING, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH PARTY'S (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS AND/OR EMPLOYEES) MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY OR IN TORT, INCLUDING NEGLIGENCE, WILL BE LIMITED TO THE AMOUNT PAYABLE OR RECEIVED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE APPLICABLE LIABILITY FOR THE DELIVERABLE OR SERVICE THAT IS THE SUBJECT MATTER OF THE CLAIM UP TO A MAXIMUM OF FIVE HUNDRED DOLLARS ($500). LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ANY PARTY (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS AND/OR EMPLOYEES) HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 1.4, MAGICPACE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE MAGICPACE SERVICE (WHICH IS PROVIDED ON AN “AS-IS” and “AS-AVAILABLE BASIS”), EMBEDDED PERSONNEL, ANY WORK, WORK OUTPUT OR OTHER RESULTS ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY DIRECT AGREEMENT BETWEEN EMBEDDED PERSONNEL AND CLIENT. MAGICPACE 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.
Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
Entire Agreement. This Agreement, including each Embed Order and all Schedules, contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to such terms, provisions or conditions. This Agreement may not be amended, except by a writing signed by both parties.
Headings; Interpretations. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. This Agreement shall be construed fairly according to its terms, without regard to the drafter of any provision hereof.
Independent Contractors. The parties to this Agreement are independent contractors. No relationship of principal to agent, master to servant, employer to employee or franchisor to franchisee is established between the parties.
Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the Province of British Columbia and the Federal Laws of Canada without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the provincial and federal courts located in Vancouver, British Columbia, Canada, and each party hereby consents to the personal jurisdiction thereof.
Schedule 1
Matching Procedure
Matching. The Relationship under this Agreement shall proceed in the following order, unless otherwise specified in the Agreement:
Client shall execute this Agreement and pay a $1000 deposit.
Client will fill out a detailed Intake Form and supply MagicPace with all the information needed to source and match Embedded Personnel.
Client will interview and select Embedded Personnel—supplied by MagicPace—to move forward with.
MagicPace will acquire a start date from the Client and confirm the final Embedded Personnel cost with the Client.
Upon matching with Embedded Personnel, an email will be sent to the Client’s nominated email address. The email advice—and any attachments—shall serve as binding documents as to the beginning of the partnership between Client and Embedded Personnel, the latter acting on behalf of Company, pursuant to this agreement.
Services shall be deemed rendered by MagicPace at the earliest of a virtual kick-off call or the agreed start date (articulated in Section 1.5) of the Embedded Personnel.
Rematching. In the event that a new Embedded Talent is requested by Client, a rematch may occur, wherein steps 1.3, 1.4 and 1.5 of the foregoing process (Clause A of this Schedule 2) shall be repeated to replace the Embedded Personnel first matched with Client (“outgoing” Personnel). The binding partnership between the outgoing Personnel and Client shall automatically cease once the new Personnel (“incoming” Personnel) and Client have their kick-off call or agree to a start date.
For avoidance of doubt, in case of rematching, the name of the selected incoming Personnel will be advised by MagicPace to Client through the latter’s nominated email address provided in Schedule 2 hereof. The email advice shall be a binding document as regards Client’s selection of incoming Personnel and the beginning of the partnership between Client and the incoming Personnel, the latter acting on behalf of MagicPace, pursuant to this Agreement. Services to Client of the incoming Personnel on behalf of MagicPace shall be deemed rendered to Client upon the latter and incoming Personnel’s agreed-upon start date or kick-off call (whichever is earlier).