PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CREATE A BINDING CONTRACT BETWEEN YOU AND STEALTHFORCE. FURTHER, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND STEALTHFORCE ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS.
1.1. The StealthForce Service is an online marketplace and service to enable connections between individuals or companies seeking business-related services (“Customers”) through the completion of specific identified projects or services (“Project(s)” or “Engagement(s)” or “Work”) and individuals who desire to provide such services (“Contractors”). Contractors make available their skills in the completion of Projects, as requested by Customers, in exchange for reasonable compensation upon the completion of specific milestones, to the extent agreed upon by Contractors and Customers, as discussed below. Customers and Contractors together are collectively referred to as “Users” and each individually as a “User.”
1.2. The Projects delivered by Contractors may include without limitation consulting services, professional services including architectural, legal, accounting, research and construction related services, business planning, marketing plans, real estate due diligence services, market research, financial analysis, financial modeling and projections, brand management, analytics or other business related assessment. Each User may receive ratings from other Users with whom such User transacts business, based on parameters specific to their role as either Contractor or Customer. StealthForce provides Contractors with Project summaries for Projects which appear relevant to their areas of expertise. With the permission of the Contractors, StealthForce then provides Customers with access to certain Contractors, along with each Contractor’s relevant qualifications and any information listed in the Contractor’s Profile or resume and Ratings (as defined below).
2. Acceptance of Terms
These Terms of Service are effective as of the date of last update as specified at the end of this document (“Effective Date”). StealthForce reserves the right to update or modify these Terms of Service at any time by providing notice on the Service, and Your agreement to the updated terms, through the continued use of the Service following any such change, or otherwise, constitutes Your agreement to the revised Terms of Service from and after that date. Your agreement to the Terms of Service also constitutes acceptance of the form of independent contractor services agreement (“Contractor Agreement”) available on the Service at the time that the Customer and Contractor agree to commence a Project, provided that Customer and Contractor may negotiate for an alternative written agreement in lieu of the Contractor Agreement (“Alternate Agreement”) that is mutually agreed upon and set forth in writing, provided said Alternate Agreement does not conflict with this Terms of Service, in which the provision of this Terms of Service that conflicts with the term in the Alternate Agreement shall control, but the Alternate Agreement shall otherwise remain in effect. Both Customer and Contractor agree to actively make a copy of each signed Alternative Agreement available to StealthForce within 48 hours of signing. The Contractor Agreement or Alternative Agreement shall be solely between You and the applicable third party Customer or Contractor; StealthForce is not a party to the Contractor Agreement nor any Alternate Agreement, but shall be deemed a third-party beneficiary to each such agreement. The Contractor Agreement is a template, which is provided AS IS, and without any warranty or guarantee of enforceability or suitability. StealthForce does not provide legal advice of any kind, and does not warrant or guarantee that the Contractor Agreement meets the needs of the parties or will not have adverse consequences. The parties understand and agree that its their sole obligation to consult with the legal counsel of their choosing before using the Contractor Agreement.
StealthForce may alter, suspend or discontinue the Services provided herein, in whole or in part, at any time and for any reason, with or without notice to You. The Service may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. StealthForce may provide access to third party services and products, or to StealthForce’s products or services, from time to time, through the Service. You acknowledge that the Service is evolving and that the form and nature of the Service may change from time to time without notice to You.
4. Access and Use Terms
4.4. Background Checks. If You are a Contractor, you grant to StealthForce the right, but not the obligation, to verify whether the information displayed in Your Account is accurate. You hereby grant to StealthForce the right to conduct background checks to confirm the accuracy of any User Information that is available on Your Account including without limitation Your name and address, e-mail address, telephone number, photographs, geographical location, billing information, Your professional degree program and institution and year of graduation, any post-graduation work experience, any other of Your qualifications, Your credit score and a criminal background check of You (collectively, “Background Checks”).
4.5. BY REGISTERING WITH STEALTHFORCE AS A CONTRACTOR, YOU HEREBY EXPRESSLY GRANT TO STEALTHFORCE THE RIGHT IN ITS SOLE DISCRETION TO CONDUCT A CREDIT CHECK AND/OR A CRIMINAL BACKGROUND CHECK ON YOU. STEALTHFORCE WILL DISTRIBUTE ANY INFORMATION ABOUT YOU THAT STEALTHFORCE MAY COLLECT FROM SUCH CREDIT OR CRIMINAL BACKGROUND CHECKS PERFORMED PURSUANT TO THIS PARAGRAPH, TO INTERESTED CUSTOMERS SEEKING YOU AS A POTENTIAL CANDIDATE TO PERFORM WORK FOR SUCH CUSTOMERS, ONLY UPON YOUR EXPRESS WRITTEN OR ELECTRONIC CONSENT. For the avoidance of doubt, StealthForce is under no obligation to conduct Credit or Background Checks, or other reviews of any kind, but StealthForce may conduct a Credit or Background Check as long as You maintain an account with the Service. StealthForce is under no obligation to share the results of any such background check with You. 4.6. Usage by Minors StealthForce’s Services are available only to, and may only be used by, individuals who are 18 years and older, and who can form legally binding contracts under applicable law. Individuals under the age of 18 may use the Service only in conjunction with and under the supervision of a parent or legal guardian. In such a case, the adult is the User and is responsible for any and all activities of the minor.
5. Transactions and Our Fees
5.1. A Customer may submit a request for a particular Project to StealthForce, free of charge, through the Service or other correspondence with StealthForce, if permitted (each a “Request for Work” or “Request”). When StealthForce receives such a Request from a Customer, StealthForce may, in its discretion, develop a Project Brief summarizing relevant information on the Project, and will work with Customer to finalize the Project Brief to the parties’ mutual satisfaction. Unless waived by StealthForce, the Project Brief shall at least include Customer’s name, a Project name, a description of the services (the “Consultant Services”) and deliverables (the “Deliverables”) to be provided by Consultant (collectively, the “Work”), an identification of the compensation to be paid to Consultant (the Compensation”), a description of the milestones of the Project, including milestones where payments of Compensation to Consultant are to be made and in what amounts (each a “Milestone”), and further specifications regarding the nature of the Work, including any acceptance criteria (the “Specifications”).
5.2. When finalized, if StealthForce and Customer desire to have StealthForce submit the Project Brief to Contractors on the Service, they shall so mutually agree, and Customer shall provide a deposit to StealthForce (the “Deposit”) in an amount identified at that time by StealthForce, on the Service of otherwise, and shall further provide to StealthForce valid bank or credit card information (“Payment Method”) for StealthForce to submit future charges for the Service and to make future disbursements to the Contractors on Customer’s behalf in connection with the subject Project.
5.3. StealthForce may use a third-party payment processor (the “Payment Processor”) to charge You through an online account for use of the Service elements involving fees. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. StealthForce is not responsible for error by the Payment Processor. You agree to pay us, through the Payment Processor or as otherwise stipulated by StealthForce, all charges for the Services that involve fees that you access and use, and you authorize StealthForce, through the Payment Processor or otherwise, to charge your chosen Payment Method in the times and amounts provided herein. StealthForce may automatically charge your Payment Method for payment obligations when due. STEALTHFORCE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE STEALTHFORCE REASONABLY COULD ACT.
5.4. Upon receipt of the Deposit, and Payment Method information, StealthForce may reach out to a set of Contractors to find a match based on the type of Work requested and may provide to the Project Brief to such Contractors.
5.5. Upon confirmation of interest from these Contractors, StealthForce may provide to Customer the Profile, Resume and qualifications, as determined by StealthForce, of potential Contractors as well as the Contractors’ Ratings, User Information, and Background Check information, excluding credit checks, without additional charge to Customer. Similarly, Contractors may view the Profiles of potential Customers for which they may perform Work, along with the Customer’s Ratings and User Information, without charge.
5.6. THE RELEASE OF A CONTRACTOR’S BACKGROUND CHECK INFORMATION REQUIRES THE EXPRESS WRITTEN OR ELECTRONIC CONSENT OF THE CONTRACTOR WHOSE INFORMATION IS BEING RELEASED. CUSTOMER SHALL NOT RELEASE SUCH BACKGROUND CHECK INFORMATION WITHOUT SUCH CONSENT, SHALL MAINTAIN THE CONFIDENTIALITY OF THE BACKGROUND CHECK, AND MAY ONLY USE THE BACKGROUND CHECK FOR THE PURPOSE OF EVALUATING THE CONTRACTOR’S
SUITABILITY FOR THE PROJECT.
5.7. If Customer terminates the Project before engaging a Contractor through StealthForce for the Project, StealthForce shall promptly refund the Deposit to Customer.
5.8. In response to the provision of Contractors’ information to Customer by StealthForce, if Customer determines that it would like to engage a particular Contractor , it shall notify StealthForce. StealthForce may ask for an additional Deposit at that time, in StealthForce’s discretion.
5.9. If acceptable to StealthForce, StealthForce may notify the applicable Contractor that Customer would like to work with them on the Project, whereupon, if mutually acceptable, Customer and Contractor will finalize the engagement for the Project in the form of the Contractor Agreement or Alternate Agreement, as the case may be, and Contractor will commence the Work.
5.10. Each party to the Contractor Agreement shall perform its duties and obligations thereunder. Contractor and Customer shall provide all Deliverables to StealthForce upon delivery of such Deliverables from Contractor to Customer, and otherwise keep StealthForce appraised of the status of the Project.
5.11. When during the course of the Project Contractor reaches a Milestone that involves payment of certain sums from Customer to Contractor (as determined by StealthForce, which may include confirmation from Customer), if StealthForce has the sums on-hand through the Deposit, StealthForce may, after deducting StealthForce’s commission on such Project (as defined below), distribute them to Contractor, and if StealthForce does not possess such sums from Customer, StealthForce may attempt to collect such sums from Customer and, after deducting StealthForce’s Commission, disburse them to Contractor. Customer agrees that StealthForce may charge such sums to Customer’s Payment Method at that time. Customer agrees to notify StealthForce when a Milestone that involves payment has been met, and shall authorize StealthForce to collect and disburse such sums; however, such notification and authorization shall not be required prior to StealthForce making a payment to Contractor if StealthForce concludes that a milestone has been met, and both Customer and Contractor agree to be bound by and shall not challenge such determination. Contractor acknowledges that StealthForce may decline to disburse sums to Contractor if StealthForce does not have Customer’s confirmation that such sums are due under the Project.
5.12. StealthForce’s Commission on amounts paid by Customer to Contractor for Projects shall be identified to Customer prior to the entry of Customer into the Contractor Agreement or Alternative Agreement with Contractor for each Project. In the event that Customer and Contractor mutually agree to modify the terms of a Project Brief, or to launch a new project after first being introduced by StealthForce, Customer and Contractor hereby acknowledge that that any agreed gross fee shall be inclusive of 20% to be remitted to StealthForce, with the balance of 80% of said quoted gross fee to remitted by StealthForce as net compensation to the Contractor. Any agreement which fails to include this 20% StealthForce fee will be in violation of these Terms Of Service.
5.13. Customer agrees that Customer’s sole recourse for any transfer of Compensation for a Project from StealthForce to Contractor shall be against Contractor, and Customer agrees to release StealthForce from any claim related to the transfer of any Compensation for a Project to Contractor made in good faith. Other than where StealthForce has not acted on the valid prior-received instructions of Customer, Contractor agrees that Contractor’s sole recourse for StealthForce’s refusal or failure to transfer any portion of the Compensation for a Project (after deduction of StealthForce’s Commission) to Contractor shall be with Customer. StealthForce reserves the right to return the Compensation (or any portion thereof) to Customer if, in StealthForce’s discretion, the Contractor will not or has not earn or earned the Compensation; in such event, Contractor shall not have any recourse against StealthForce, and must seek to obtain such Compensation directly from the Customer.
5.14. Customer agrees and acknowledges that StealthForce is not a bank, and that Deposits will not be insured, nor will such Deposits accrue interest. A Customer’s failure to make a Deposit, or to otherwise pay any required fees, shall constitute a material breach of these Terms of Service.
5.15. Customer agrees and acknowledges that in the event that the Customer hires a Contractor (who was introduced to the Customer through StealthForce) as a full-time employee within 12 months of the initial introduction via email or other method, StealthForce will be entitled to a Placement Fee equal to ten percent (10%) of the base guaranteed salary accepted by the Contractor for the full-time position. This amount will be due on the first day of the Contractor's full-time position, and will be refundable (less payment processing fees) in the event that this full-time employment is terminated within the first 20 business days for any reason, upon notification in writing to StealthForce. Any bonuses will not be included in the calculation of this Placement Fee.
6. StealthForce.com is Only a Marketplace for Customers and Contractors
6.1. The Service is a communications platform and service for enabling connections between Customers and Contractors for the completion of Projects. StealthForce disclaims any responsibility for selecting particular Contractors to perform Work, and Customer understands and agrees that the decision to use any Contractor or no Contractor is solely Customer’s. StealthForce disclaims all responsibility for the accuracy of any information listed in a Contractor’s Profile or provided to Customer, for any information or material circumstances that may have changed since StealthForce conducted Background Checks in the event that StealthForce did so, for the inaccuracy or incompleteness of any Background Checks that StealthForce conducts or provides, for StealthForce’s failure to conduct Background Checks, and for any Profile information upon which StealthForce may rely in matching Customers to Contractors. Customer agrees and acknowledges that Customer has no obligation to choose Contractors to perform Work, and that Customer’s decision to contract with a Contractor is solely at Customer’s own risk.
6.2. Except to the extent, if any, that StealthForce serves as a communications platform between Customers and Contractors, that StealthForce introduces potential Contractors to Customers for the performance of Work, and that StealthForce disburses payments between them, StealthForce does not take part in the interaction or rendering of services between Customers and Contractors or the production of any Deliverables provided by a Contractor to a Customer. StealthForce does not have control over the quality, timing, legality, non-infringement, fitness, suitability, accuracy, failure to provide, or any other aspect whatsoever of any Work delivered or performed by Contractors, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Users. StealthForce makes no representations about the suitability, reliability, timeliness, or accuracy of the Projects requested and provided by Users identified through StealthForce whether in public, private, online or offline interactions. StealthForce cannot confirm that Users are who they claim to be. StealthForce does not assume any responsibility for the accuracy or reliability of this information or any information exchanged between Users through the Service.
6.3. STEALTHFORCE IS NOT ABLE TO PROVIDE ANY ASSURANCES REGARDING THE TRUSTWORTHINESS OR SKILL OF CONTRACTORS OR CUSTOMERS AND THE INFORMATION THEY PROVIDE VIA THE SERVICE. WHEN INTERACTING WITH OTHER USERS YOU SHOULD EXERCISE CAUTION AND COMMON SENSE TO PROTECT YOUR WORK PRODUCT, PROPERTY AND INTELLECTUAL PROPERTY, JUST AS YOU WOULD WHEN INTERACTING WITH OTHER PERSONS WHOM YOU DO NOT KNOW. NONE OF STEALTHFORCE, STEALTHFORCE’S AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE.
7. Intellectual Property Rights; Restrictions
7.1.1. All of the content, including without limitation images, graphics, videos, audio, information, text, data, links, software, and all intellectual property rights therein (“Content”) on the Service, as well as the underlying software, networks and systems that support the Service and other material accessible through the Service, whether created by StealthForce, provided by You or provided by a third party, for display on or through the Services, is owned by or under license to StealthForce and is protected by applicable trademark, copyright, or other rights. Users have a non-transferable, non-sublicensable, non-exclusive, revocable, and limited right to access and use the Content provided through the Services solely for their internal business purposes or personal use, subject to these Terms of Service.
7.1.2. The Content may contain typographical errors, other inadvertent errors, or inaccuracies. StealthForce reserves the right to make changes to document names and content, descriptions or specifications, or other information, without obligation to issue any notice of such changes.
7.1.3. You may view, copy, download, and print Content that is available on or through the Services, subject to the following conditions: i. You may only use the Content for internal informational purposes in compliance with all laws and regulations that apply to You; and You may not reproduce or transmit any part of this Service or its Content in any form, by any means, electronic or mechanical, including photocopying and recording for any other purpose. ii. You may not modify, alter, or prepare derivative works based on the Content, or distribute copies of, publicly perform or display the Content, including without limitation by posting the Content on any network computer or distributing the Content on or in any media. iii. You may not remove copyright, trademark, and other proprietary notices from the Content. iv. You may not scrape or otherwise harvest information from the Service.
7.1.4. Nothing contained within the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Content provided through the Service, except: (a) as expressly permitted by these Terms of Service; or (b) with StealthForce’s prior written permission or the permission of the third party that owns the trademark or copyright of the Content displayed on this Service.
7.2. Content Ownership and License.
7.2.1. StealthForce does not claim ownership of any Content submitted by Users. By submitting or making available to StealthForce such Content, however, You hereby grant to StealthForce a world-wide, royalty-free, fully paid, perpetual, irrevocable, non-exclusive license, sub-licensable right, through multiple tiers, to use, translate, distribute, reproduce, modify, adapt, create derivative works from, publicly perform and/or display such Content as well as to commercially use the rights of publicity, persona, image and name of the individuals depicted in such Content.
7.2.2. By submitting any Content, You hereby agree, warrant and represent that: (a) You are authorized to submit the Content to StealthForce for republication through the Service and by StealthForce or its licensees, and You have secured any necessary licenses or permissions from rights owners relating to the Content, including but not limited to copyright licenses or licenses to rights of publicity; (b) the Content does not contain proprietary or confidential information; (c) the provision of the Content, and their use by StealthForce, is not and will not be a violation of any third-party’s rights; (d) the Content is accurate and true; (e) StealthForce is not under any confidentiality obligation relating to the Content; (f) StealthForce shall be entitled to use or disclose the Content in any way; and (g) You are not entitled to compensation in exchange for Content.
8. Prohibited Conduct
8.1. No Illegal Conduct: You agree that you will not violate any applicable law or regulation, or any contract you have with a third party, in connection with Your use of the Service. Without limiting the foregoing, You agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
8.2. No Interference with the Service: You shall not disturb or interfere with the operation of the Service in any manner including without limitation by imposing an unreasonable or disproportionate burden on the network, software or hardware infrastructure of the Service.
8.3. No Unauthorized Conduct: By accessing the Service, rating system, or any other service provided through the Service, You shall abide by the following standards of conduct. You shall not, and will not authorize or facilitate any attempt by another person, to use the Service, Ratings system or other service to: i. Transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by StealthForce; ii. Circumvent or manipulate StealthForce’s fee structure, the billing process, or fees owed to StealthForce or to the Contractor; iii. Manipulate the price of any Work or interfere with other Users’ Work; iv. Use a name or language that StealthForce, in its sole discretion, deems offensive; v. Post false, inaccurate, misleading, defamatory, or libelous content (including without limitation personal information); vi. Post hateful or racially or ethnically objectionable Content; vii. Post unsolicited advertising or unlawfully promote products or services; viii. Take any action that may undermine the ratings system (such as displaying, importing or exporting ratings information off of the Serviceor using it for purposes unrelated to StealthForce); ix. Harass, threaten or intentionally embarrass or cause distress to another User or entity; x. Impersonate another User; xi. Engage in disruptive activity such as sending multiple messages in an effort to monopolize a messaging forum; xii. Introduce viruses, worms, Trojan horses and/or harmful code into the Service; xiii. Obtain unauthorized access to any computer system or Confidential Information through the Service; xiv. Transfer Your StealthForce account (including Ratings) and Login Credentials to another party without StealthForce’s written consent; xv. Harvest, scrape or otherwise collect information about Users or other Content from the Service, including email addresses, without their consent; xvi. Invade the privacy of any person, including without limitation posting personally identifying or otherwise private information about a person without their consent; or xvii. Encourage conduct that would constitute a criminal or civil offense. You are not licensed to access any portion of the Service that is not public, and you may not attempt to override any security measures in place on the Service. Notwithstanding the foregoing rules of conduct, StealthForce’s unlimited right to terminate your access to the Services shall not be limited to violations of these rules of conduct.
9.1. Confidential Information. Other than information supplied by it to StealthForce, Customer and Contractor each agree and acknowledge that they will each keep strictly confidential any information that a either receives from StealthForce related to Services or Work requested or performed, including without limitation a Project Brief, the CV or background information on a Contractor, information exchanged in the course of performing Services and information concerning the business, operations, trade secrets or other proprietary information of a Counterparty (as defined herein) (collectively “Confidential Information”), using at least the same degree of care that such Party would use to protect his, her or its own confidential or proprietary information of a similar nature but in no event less than reasonable care. Notwithstanding anything to the contrary herein, as between a Contractor and Customer, all Deliverables shall be considered the Customer’s Confidential Information. Customer and Contractor may only use the Confidential Information for the purpose of consideration of entering into a Project between them and for performing any such Project. Customer and Contractor each agree not disclose or disseminate any Confidential Information to any person at any time, except to those of such Customer’s or Contractor’s directors, officers, employees, accountants, attorneys, advisers and agents whose duties reasonably require them to have access to such Confidential Information and are bound by obligations of confidentiality at least as stringent as those herein.
9.2. Limitations on Obligations. Notwithstanding the foregoing, “Confidential Information” shall not include any information: (a) that is generally available to the public or becomes generally available without violation of these Terms of Service; (b) that is lawfully received on a non-confidential basis from a third party that is not itself under any obligation of confidentiality or nondisclosure; (c) that can be shown to have been independently developed by without reference to the Confidential Information; or (d) that is possessed at the time of receipt.
9.3. Separate Agreement. Notwithstanding this Section, Customer and Contractor may agree to a separate agreement between Customer and Contractor with obligations regarding the protection and disclosure of any Confidential Information, and the provisions of any such Agreement shall override this Section, as between those parties.
10. Relationships; Exclusivity
10.1. Status as Independent Contractor.
10.1.1. User agrees and acknowledges that any transaction into which such User enters through the Service for the receipt or delivery of Work will create a relationship of independent contractors between such User and the other User(s) party to such agreement. User agrees that in any matter relating to Contractor’s performance under these Terms of Service, including the Contractor’s obligations with respect to StealthForce and any Customers for whom the Contractor completes Projects or offers to complete Projects, the Contractor shall be acting as an independent contractor, and nothing in these Terms of Service shall be construed as creating a partnership, joint venture, or employer-employee relationship, nor shall Contractor be construed as StealthForce’s or a Customer’s employee, agent, franchisee or servant. User also agrees that in any matter relating to Services among Customer or Contractor and StealthForce, StealthForce will be acting as an independent contractor to StealthForce’s Users and nothing in these Terms of Service will be construed as creating a partnership, joint venture, or employer-employee relationship, nor will StealthForce be construed as Customer or Contractor’s employee, agent, franchisee or servant.
10.1.2. Contractor will provide Work according to a manner and means of Contractor’s own choosing, or as agreed upon between Contractor and Customer. Contractor will, at its sole expense, purchase any tools or other equipment required to perform Services. Each of Contractor and Customer shall maintain a valid insurance policy commensurate with industry standards, to remain in effect during and through the time that such Party acts as an independent contractor with regard to other Users under these Terms of Service.
10.1.3. It is Customer’s sole responsibility to determine whether a Contractor is deemed an employee of Customer or otherwise entitled to any rights or benefits from Customer under applicable state or federal law and regulation. StealthForce disclaims any responsibility for determining whether a Contractor is an independent contractor or employee of Customer, and in the event that such a dispute arises between Customer and Contractor, Customer and Contractor are responsible for determining the status of Contractor.
10.2. Contractor-Specific Representations. If and to the extent that You utilize the Service as a Contractor:
10.2.1. Status as an Independent Contractor. You acknowledge and agree that in any matter relating to Your performance under these Terms of Service, including without limitation Your obligations with respect to StealthForce and any Customers for whom You perform Work or offer to perform Work, You will be acting as an independent contractor, as not as StealthForce’s, or a Customer’s, employee, agent, franchisee or servant. Accordingly, You will be solely responsible for all costs incurred by You or Your organization. You shall not hold Yourself out as having authority to make contracts or promises on behalf of any other party.
10.2.2. You represent and warrant to StealthForce that, for each Project You offer to complete for a Customer or StealthForce: (i) You have the right to provide such an offer, either for Yourself or on behalf of Your company for the purposes of these Terms of Service, and (ii) You are capable of fulfilling such offer for any applicable Projects;
10.2.3. You represent and warrant to StealthForce that You will keep all information related to Your Projects, including without limitation any offers to complete Projects, up to date on the Serviceby notifying StealthForce of any changes that would affect the accuracy of such information;
10.2.4. You acknowledge and agree that StealthForce may display advertisements on the Service or in connection with Your Account without any payment obligation to You;
10.2.5. You acknowledge and agree that StealthForce disclaims all responsibility for providing You with any specific volume of Work as a result of a contract that You may enter into with any Party; and
10.2.6. You agree to honor all commitments You make to Customers via the Service and in the Contractor Agreement or Alternate Agreement, as applicable.
10.3. Customer-Specific Representations. If and to the extent You utilize the Service as a Customer:
10.3.1. You agree to honor the commitments You make to Contractors via the Service and in the Contractor Agreement or Alternate Agreement, as applicable;
10.3.2. You represent and warrant to StealthForce that You are allowed to make purchasing decisions on behalf of Yourself or for the person or entity You represent, and that You will only request Work and submit and confirm Project Briefs for Projects that You have been authorized to request by such person or entity; and
10.3.3. You acknowledge and agree that StealthForce may display advertisements on the Service or in connection with Your Account without any payment obligation to You.
10.3.4. You agree that StealthForce may accurately identify you as a User of the Service in StealthForce’s advertising, such as on its website.
10.4. Exclusivity. You shall solely and exclusively use the Service in order to conduct and deliver all Work transactions arising out of Your relationship with a Contractor or a Customer, as the case may be (the “Counterparty”), including without limitation requesting and performing Projects, and requesting or making payments, from the date you were introduced to the Counterparty through the Services until the later of (a) twelve (12) months from such introduction, or (b) twelve (12) months after the date that You complete your last Project with with such Counterparty. Nothing in this Section shall be construed as preventing Contractor or Customer from transacting business related to Projects with other parties outside of StealthForce, or as restricting either Contractors or Customers to using StealthForce alone as an e-marketplace.
11. Rating System
11.1.1. As a User of the Service, You agree and acknowledge that You will rate (on the Service or through electronic communication with StealthForce, as determined by StealthForce) the performance of Counterparties with whom You transact business, and You understand that the Counterparties are required to rate Your performance (“Ratings”) on the Service. Contractors may be rated on various parameters including without limitation the quality of Work performed, adherence to deadlines and professionalism. Customers may be rated on various parameters including without limitation accuracy of direction, availability, payment history, and professionalism.
11.1.2. StealthForce reserves the right to remove any Ratings, in whole or in part, from StealthForce’s Service at any time and at its sole discretion, or to remove or decline to include certain reviews in a particular Rating.
11.2. No Liability for User Conduct or Content. StealthForce is not responsible or liable for the conduct of Users or for views, opinions and statements expressed in Content submitted for public display through its Service, such as through an online messaging system, or for Content that is privately displayed to registrants of the Service, such as Ratings of Customers and Contractors. StealthForce may not prescreen information exchanged by Users or listed in Customer and Client Ratings. With respect to such messaging systems and Ratings systems, StealthForce acts as a conduit for distribution and StealthForce is not responsible for the Content contained therein. Any opinions, advice, statements, services, offers, or other information in Content expressed or made available by Users of an online messaging system or Ratings system are those of the respective author(s) or distributor(s) and not of StealthForce. StealthForce neither endorses nor guarantees the accuracy, completeness, or usefulness of any such Content. You shall be solely liable for any damages resulting from infringement of copyrights, trade secret, or other intellectual property rights, or any other harm resulting from Your uploading, posting or submission of Content to the Service.
11.3. Monitoring. StealthForce has the right, but not the obligation, to monitor Content submitted to the Service through an online messaging, communication or Rating system to assess compliance with these Terms of Service and any other applicable rules that StealthForce may establish. StealthForce has the right in StealthForce’s sole discretion to edit or remove any material submitted to or exchanged in any online messaging system or Ratings system provided through the Service. Without limiting the foregoing, StealthForce has the right to remove any material that StealthForce, in its sole discretion, finds to be in violation of these Terms of Service or otherwise objectionable, and You are solely responsible for the Content that You post to the Service.
12.1. You are solely responsible for understanding and evaluating any tax liability related to the request or delivery of Projects and other use of the Service, and for determining the need to report any Project pursuant to the requirements of local, state, or federal law. StealthForce cannot and does not offer tax advice to Users; StealthForce recommends that You consult with a tax advisor. You are solely responsible for any taxes arising from Your use of the Service, any Content contained therein, and for the Work that You request or perform therein, excluding StealthForce’s income.
12.2. Users exclusively and solely agree to comply with applicable state, federal, and international laws, and to assume all responsibility for making payments related to social security, unemployment insurance, disability insurance, or worker’s compensation insurance. StealthForce disclaims any responsibility for the foregoing, and Contractor and Customer each agree to indemnify and hold StealthForce harmless against such taxes or contributions.
13. Disclaimer of Warranty
13.1. StealthForce disclaims all warranties, representations and liability in connection with any interactions, correspondences, transactions, and other dealings that You have with any third parties including without limitation Customers or Contractors found on or through the Service(including on or via linked websites or advertisements). Any such interactions, correspondences, transactions, and other dealings are solely between You and the third party (including without limitation issues related to the content of third party advertisements, payments, Services, delivery of Work, Projects or warranties, which include product warranties, privacy and data security, and the like). Under no circumstances will StealthForce be liable for any loss or damage caused by Your reliance on information in any Content on the Service. It is Your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Service. You are responsible for seeking the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other Content.
13.2. YOU ACKNOWLEDGE THAT THE SERVICE, TEXT, IMAGES, AND OTHER INFORMATION OR MATERIALS ON OR ACCESSIBLE FROM OR THROUGH THE SERVICE OR PROVIDED BY STEALTHFORCE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND ARE BASED IN PART ON WORK, OR OFFERS FOR WORK, PROVIDED BY CONTRACTORS, WHICH ARE NOT VERIFIED BY STEALTHFORCE, AND THAT ANY PROJECT, SERVICE, OR OTHER WORK ACQUIRED THROUGH THE USE OF THE SERVICE IS AT YOUR SOLE RISK AND DISCRETION.
13.3. STEALTHFORCE, STEALTHFORCE’S SUPPLIERS AND STEALTHFORCE’S LICENSORS ARE NOT LIABLE OR RESPONSIBLE FOR ANY RESULT GENERATED THROUGH THE USE OF THE SERVICE OR ANY OF STEALTHFORCE’S SERVICES.
13.4. STEALTHFORCE PROVIDES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED IN OR TO THE SERVICE OR ANY OF STEALTHFORCE’S SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, NONE OF STEALTHFORCE, ITS AFFILIATES OR LICENSORS REPRESENT OR WARRANT THAT: (I) THE INFORMATION AVAILABLE ON THE SERVICE OR STEALTHFORCE’S SERVICES IS FREE OF ERRORS; (II) THE FUNCTIONS OR SERVICES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) PROVIDED BY THE SERVICE OR STEALTHFORCE’S SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (III) DEFECTS WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR THE SYSTEM(S) THAT MAKES IT AVAILABLE, OR STEALTHFORCE’S SERVICES, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
13.5. WITHOUT LIMITING THE FOREGOING, NONE OF STEALTHFORCE, ITS AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR STEALTHFORCE’S SERVICES, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY SERVICES, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE OR STEALTHFORCE’S SERVICES.
13.6. None of StealthForce, StealthForce’s affiliates or StealthForce’s licensors is responsible for the conduct, whether online or offline, between Customers and Contractors.
13.7. None of StealthForce, StealthForce’s affiliates or StealthForce’s licensors guarantee that any of Your personal information, including without limitation User Information provided by You, results on any Background Checks that StealthForce and its affiliates and licensors conduct on You, as well as Ratings submitted by other Users about Your business performance, whether accurate or not, will not be misappropriated, intercepted, deleted, destroyed, or used by others.
14. Indemnification. You agree to indemnify, hold harmless and, at StealthForce’s option, defend StealthForce from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to attorneys’ fees and expert costs, resulting directly or indirectly from a claim that arises in connection with Your use of the Service or StealthForce’s services or any breach or alleged breach of this Terms of Service. StealthForce reserves the right to provide for its own separate defense and any claim against it at its own expense.
15. Limitation of Liability.
15.1. IN NO EVENT SHALL STEALTHFORCE BE LIABLE TO ANY USER OF THE SERVICE OR OF STEALTHFORCE’S SERVICES OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF THE SERVICE OR ANY INFORMATION CONTAINED THEREON, OR ANY OF STEALTHFORCE’S SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF STEALTHFORCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
15.2. YOU AGREE AND ACKNOWLEDGE THAT STEALTHFORCE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS OF SERVICE, THE SERVICE, STEALTHFORCE’S SERVICES, THE CONTENT, OR SERVICES REQUESTED OR RENDERED BETWEEN CONTRACTOR AND CUSTOMER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE COMMISSIONS RETAINED HEREUNDER BY STEALTHFORCE FOR THE PROJECTS IN WHICH YOU ARE A PARTY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY CLAIM, WITHOUT LIMITING STEALTHFORCE’S OBLIGATION TO PAY THE AMOUNT OF CUSTOMER’S DEPOSIT THEN IN THE POSSESSION OF STEALTHFORCE IN CONFORMANCE WITH THIS AGREEMENT.
15.3. Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
16. Third-Party Websites, Products, or Services
16.1. Links to Third Party Websites. The Service may contain links to non-StealthForce websites that are provided to You as a convenience. Any outside website accessed from the Service is independent from StealthForce, and StealthForce has no control over the content of such websites. StealthForce is not responsible for the content of any linked website or for any loss or damage incurred in connection with Your use of such links or dealings with the operators of such non-StealthForce websites.
16.2. No Implied Endorsements. In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by StealthForce of that third party or of any product or service provided by a third party. Likewise, a link to a non-StealthForce website does not imply that StealthForce endorses or accepts any responsibility for the content or use of such website. StealthForce does not endorse, warrant or guarantee any product or service offered by any third party through an online messaging service or link accessible through the Service and will not be a party to or in any way monitor any transaction involving any third party providers of products or services. As with the purchase of a product or service through any medium or in any environment, You are responsible for exercising appropriate judgment and caution.
17.1. Termination by StealthForce. StealthForce may terminate any User’s access to the Service, in StealthForce’s sole discretion, for any or no reason and at any time, with or without prior notice. Without limiting the foregoing or assuming additional legal obligations, StealthForce has a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law.
17.2. Termination by You. You may terminate Your Account at any time by deleting Your Account by e-mailing us as firstname.lastname@example.org, or use of the Service if such functionality is available. Termination of Your Account on the Service does not relieve you of any obligations between You and a Counterparty that may be in place under an active Consultant Agreement or Alternate Agreement. StealthForce disclaims all responsibility related to such transactions.
17.3. Reactivation. Provided that You deleted Your Account or You allowed Your Account to lapse by not using Your Account for a sufficiently long period, You may reactivate Your Account by following the process set forth by StealthForce from time to time, during a time period established by StealthForce from time to time following the deletion or deactivation of Your Account. If Your Account may no longer be reactivated, StealthForce may, in its discretion, permit You to create a new account.
17.4. Survival. In addition to accrued obligations, the following sections may survive the termination or expiration of these Terms of Service: Section 7.3 (Content Ownership and License), Section 9 (Confidentiality), Section 10 (Relationships; Exclusivity), Section 11.2 (No Liability for User Conduct or Content), Section 12 (Taxes), 13 (Disclaimer of Warranty), 14 (Indemnification), and 15 (Limitation of Liability), Section 17.4 (Survival), Section 18 (Governing Law), Section 19 (Disputes; Agreement to Arbitrate), and Section 20 (Miscellaneous).
18. Governing Law. These Terms of Service shall be governed and interpreted pursuant to the laws of the State of New York, United States of America, excluding: its conflicts of laws principles; the United Nations Convention on Contracts for the International Sale of Goods; the 1974 Convention on the Limitation Period in the International Sale of Goods; and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
19. Disputes; Agreement to Arbitrate.
19.3. For any claims where arbitration does not apply, you agree that the claims may be brought solely in a court within the State of New York, in the County of New York, and you expressly agree to the jurisdiction of such court and that it is not an inconvenient or inappropriate venue.
20.1. Jurisdictional Issues: StealthForce makes no representations that information on the Service is appropriate or available for use outside the United States. If You choose to access the Service from outside the United States, You do so on Your own initiative and at Your own risk and You agree and acknowledge that You are responsible for complying with all applicable United States laws as well as Your local laws and regulations. If You transact business through the Service with a party that is located outside the United States, You agree and acknowledge that You do so voluntarily, that You are responsible for complying with all applicable United States laws as well as any local laws and regulations that may impact Your transaction, and You understand that StealthForce disclaims all responsibility related to such transaction.
20.2. Severability: If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
20.3. No Waiver: The failure of either party to insist upon the performance of any provision herein or to exercise any right or privilege granted to it hereunder will not be construed as a waiver of such provision or any provisions herein, and the same will continue in full force. The various rights and remedies given to or reserved by either party herein or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered to condone any continuing or subsequent breach of the same provision.
20.4. Assignment: StealthForce may assign its rights under this Terms of Service, in whole or in part, to any person or entity at any time with or without Your consent. You may not assign the Terms of Service without StealthForce’s prior written consent, and any unauthorized assignment by You shall be null and void.
20.5. Entire Agreement: These Terms of Service constitute the entire agreement between, or, as appropriate, among, the Parties relating to the subject matter herein.
20.6. Notices: All notices given by you or required under this Agreement shall be in writing and addressed to: email@example.com. We have serve any notice on You under this Terms of Service by e-mail to the most recent e-mail address we have for You on record. Notice will be effective upon transmission.
20.7. Headings and Recitals: The paragraph headings in the Agreement are to be given no legal effect. The preamble recitals are included as an integral part of this Agreement and are to be given full legal effect.
21. How To Contact Us. Should you have other questions or concerns about these Terms of Service, please call us at (347) 903-2477, or send us an email at firstname.lastname@example.org
If you believe in good faith that any material posted on or through our Service infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following: • A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed; • Identification of the copyrighted work claimed to have been infringed; • Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing; • Information reasonably sufficient to permit us to contact you; • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and, • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid.
For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
Copyright Agent StealthForce, Inc. 79 Madison Ave., Suite 410 New York, NY 10016
e-mail: email@example.com Fax: 646-518-1667
COMPLAINT POLICY (INCLUDING TRADEMARK AND PRIVACY)
If you believe in good faith that any material posted on the Service infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to firstname.lastname@example.org, containing the following information: • Your name, physical address, e-mail address and phone number; • A description of the material posted on the Site that you believe violates your rights or is otherwise unlawful, and which parts of said materials you believe should be remedied or removed; • Identification of the location of the material on the Site; • If you believe that the material violates your rights, a statement as to the basis of the rights that you claim are violated; • If you believe that the material is unlawful or violates the rights of others, a statement as to the basis of this belief; • A statement under penalty of perjury that you have a good faith belief that use of the material in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and, • Your physical or electronic signature.
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.
Copyright © 2017 StealthForce, Inc. All rights reserved.
Last Updated: 2017-10-2
This Contractor Agreement (the “Agreement”) is entered into by and between the Customer (the “Customer”) and the Contractor (the “Contractor”), as defined in that certain StealthForce, Inc. (“StealthForce”) Terms of Service (the “ToS”) governing the StealthForce Service (as defined in the ToS) and is effective as of the date that Customer and Contractor indicate on the StealthForce Service, which may be by weblink acceptance, e-mail confirmation, or otherwise, that they both accept the engagement (the “Effective Date”). Capitalized terms used herein but not defined herein shall have their meanings from the ToS.
Customer and Contractor, intending to be legally bound by their signatures below, hereby agree as follows:
1. CONTRACTOR OBLIGATIONS.
(A) Services and SOWs. Customer agrees to purchase, and Contractor agrees to deliver, the Work as defined and described in the Project Brief on the StealthForce Service that has been exchanged between the parties (the “Services”). The Project Brief is incorporated herein by reference, and shall control over any conflict with this Agreement. Contractor will complete the Services in accordance with the Specifications in the Project Brief, and on the schedule, identified in the Project Brief. In the event that Customer desires to make changes to a given Project Brief during the term of this Agreement, Customer will so notify Contractor, and both parties shall agree in writing on necessary adjustments, if any, to the other terms of this Agreement required to accommodate such changes.
(B) No Subcontracting. Contractor will not subcontract or otherwise permit third persons to perform the Services without Customer’s specific prior written consent. Before any Contractor’s employee, contractor or agent performs services in connection with this Agreement or has access to Confidential Information, the employee, contractor or agent and Contractor must have entered subcontracting and confidentiality agreements sufficient to protect the Customer’s interests. Contractor will be responsible for all Services under this Agreement, whether performed by a subcontractor or Contractor.
(C) Performance of Work. Except to the extent expressly set forth in this Agreement (including the Project Brief), Contractor will have sole discretion and control over Contractor’s work and the manner in which the Services are performed, provided that the requirements of the Project Brief are met and that all such work and Services will be performed in a professional, workmanlike manner. Contractor will arrange the schedule or performance of the work and Services in compliance with the relevant Project Brief, and will handle all details and logistics of performance.
2. FEES AND PAYMENT.
(A) Compensation. Customer will pay to Contractor, through StealthForce, the amounts identified in the Project Brief at the times identified therein. All project fees quoted are gross, meaning that they are inclusive of a 20% StealthForce Commission. For the avoidance of doubt, 80% of gross project fees are remitted to the Contractor upon successful completion of a milestone or a project. The balance are remitted to StealthForce after any payment processing fees incurred.
(B) Reimbursement. Customer will reimburse Contractor at cost for out-of-pocket expenses incurred by Contractor in the performance of any Project Brief, provided that the expense item is (i) either included in the applicable Project Brief or otherwise approved in advance by Customer in writing, (ii) itemized by Contractor on each invoice submitted to Customer, and (iii) fully documented by Contractor along with such invoice.
(C) No Benefits; Responsibility for Taxes. Contractor hereby acknowledges that (i) Customer has no obligation to provide Contractor (or any contractor, employee or agent of Contractor, if applicable) with disability insurance, worker’s compensation, unemployment or other such insurance; (ii) Contractor shall provide, at Contractor’s expense, such insurance as is lawfully required; (iii) Contractor (and any contractor, employee or agent of Contractor, if applicable) will have no right to participate in Customer’s health insurance or other employee benefit plans. Customer will not withhold nor make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Contractor’s behalf. Contractor understands that, as an independent Contractor, Contractor is solely and exclusively liable for complying with, and making all payments under, all applicable state, federal and international laws, including laws governing self-employed individuals if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Contractor. Contractor hereby indemnifies Customer from any liability incurred or threatened, including interest and penalties, and the costs of defending administratively or judicially, and, if necessary, of settling any proceedings attempting to recharacterize Contractor’s status or to collect any amounts, including interest and penalties, alleged to be due from Customer.
3. CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY AND LIMITED NON-COMPETE.
(A) Definitions. The following capitalized terms have the following meanings:
“Background Technology” means all Inventions developed by Contractor other than in the course of providing services to Customer and all Inventions acquired or licensed by Contractor that Contractor incorporates into Work Product.
“Confidential Information” means all information related to Customer’s business and prospects or related to Work Product delivered or agreed to be delivered from Contractor to Customer, including information developed by Contractor, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (iii) information regarding the skills and compensation of Customer’s employees, contractors, and any other service providers; (iv) information designated by Customer, either in writing or orally, as Confidential Information, (v) the existence of any business discussions, negotiations, or agreements between Customer and any third party; and (vi) all such information related to any third party that is disclosed to Customer or to Contractor during the course of Customer’s business. Confidential Information shall not include information that was known to Contractor prior to Customer’s disclosure hereunder or that becomes publicly available through no fault of Contractor.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
“Work Product” means any and all work product developed by Contractor in the performance of the Services, excluding Background Technology.
(B) Background Technology. Contractor will disclose any Background Technology that Contractor proposes to incorporate into any Work Product prior to the use of any such Background Technology, and no such Background Technology may be used without Customer’s prior written consent. If Background Technology is not disclosed and approved, Contractor warrants that it will not incorporate Background Technology into Work Product provided pursuant thereto.
(C) License to Background Technology. Contractor hereby automatically grants to Customer a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in Background Technology incorporated into Work Product.
(D) Ownership of Work Product and Intellectual Property. Contractor agrees that the Work Product is work made for hire. If any Work Product does not qualify as work made for hire, Contractor agrees that, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be and is assigned to Customer. Except as set forth below, Contractor retains no rights to use, and agrees not to challenge the validity of Customer’s ownership in, such Intellectual Property Rights. Contractor hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product.
(E) License to or Waiver of Other Rights. If Contractor has any rights to the Work Product, including without limitation any Intellectual Property Rights, that cannot be assigned to Customer by Contractor, Contractor hereby automatically unconditionally and irrevocably grants to Customer during the term of such rights, an exclusive, even as to Contractor, irrevocable, perpetual, worldwide, fully paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Contractor has any rights to such Work Product that cannot be assigned or licensed, Contractor hereby automatically, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Customer or related to Customer’s customers, with respect to such rights, and agrees, at Customer’s request and expense, to consent to and join in any action to enforce such rights.
(F) Confidential Information. Contractor agrees that during the term of this Agreement and thereafter, except as expressly authorized in writing by Customer, Customer (a) will not use or permit the use of Confidential Information in any manner or for any purpose not expressly set forth in this Agreement; (b) will not disclose or permit others to disclose any Confidential Information to any third party without first obtaining Customer’s express written consent; and (c) will limit access to Confidential Information to Contractor personnel who need to know such information in connection with their work for Customer.
Contractor represents, warrants and covenants that:
(A) the Services performed by Contractor under this Agreement (including any and all Work Product provided or delivered to Customer) will and do comply with all applicable national, state and local laws and regulations.
(B) Contractor will perform the Services under this Agreement in a professional manner in accordance with the standards of the industry and any Work Product delivered or provided by Contractor to Customer will be and are of a high grade, nature and quality, and will and do conform with the Specifications for such Work Product as may be set forth in the Project Brief.
(C) The Work Product will be original work of Contractor and any third parties will have executed assignment agreement(s) consistent with this Agreement prior to being allowed to participate in the development of the Work Product;
(D) Neither the Work Product nor any element thereof will infringe or misappropriate the Intellectual Property Rights of any third party;
(E) Contractor has full right and power to enter into and perform this Agreement without the consent of any third party; and
(F) Contractor has sufficient right to grant the license to all Background Technology as set forth herein.
5. INDEMNIFICATION. Contractor will defend, indemnify, and hold Customer harmless against any damage, cost, loss or expense (including reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Customer (i) alleging that any Work Product infringes upon any Intellectual Property Rights, (ii) arising from Contractor’s breach of the terms of this Agreement or (iii) relating to any workmen’s compensation claim or unemployment insurance claim made by or on behalf of any Contractor employee. Customer will give prompt notice to Contractor of any claim to which this paragraph relates.
(A) Term and Termination. This Agreement will run until the Services are completed, the Agreement is terminated, or for the period identified in the Project Brief, whichever is earliest. This Agreement, or (unless contradicted therein) any Project Brief, may be terminated (i) by either party in the event of any breach or default in the obligations of the other party hereunder, which is not cured within thirty (30) days of notice to the other party; (ii) by either party upon written notice to the other, regardless of whether with or without cause, provided that any such termination for convenience shall not affect the validity or performance of any Services that have been performed prior to such termination; or (iii) due to the death or disability of Contractor or a key employee thereof which in either party’s judgment prevents Contractor from performing its obligations under this Agreement. Termination under (i) or (ii) above must be made by written notice to the non-terminating party. Any termination notice shall be sent to StealthForce as well as the other party. Termination will not affect obligations of either party which have accrued prior to such termination or under Sections 3-7, and all obligations under this Agreement will be binding upon and enforceable for the benefit of Customer, Contractor, and their respective successors and assigns to the extent permitted herein.
7. THIRD PARTY BENEFICIARY. The parties acknowledge and agree that StealthForce shall be an express third-party beneficiary to this Agreement.
(A) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
(B) Independent Contractors; No Agency. Nothing in this Agreement should be construed as creating an agency, partnership, joint venture, franchise, or employment relationship between the parties. Neither party will have the authority to make any statements, representations or commitments of any kind or to take any action binding on the other except to the extent (if any) expressly provided for in this Agreement. Customer will not be liable for any personal or business expense of Contractor, except to the extent (if any) expressly provided for in this Agreement, and Contractor is prohibited from incurring any liabilities or expenses on behalf of Customer except to the extent (if any) expressly provided for in this Agreement.
(C) Severability. If a court holds any term, covenant or restriction of this Agreement (or any Exhibit or appendix to it) to be illegal, invalid or unenforceable, in whole or in part, the remaining terms, covenants and provisions will remain in full force and effect.
(D) Assignment. Neither party may assign, subcontract, delegate or otherwise transfer this Agreement without the other’s prior written consent, whether through merger, change in control in stockholders or members, or otherwise. Notwithstanding the foregoing, Customer may, without the consent of Contractor, assign any rights and obligations under this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, or otherwise in connection with a reorganization, recapitalization, or other change of control transaction. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against Customer’s and Contractor’s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
(E) Notices. All notices, requests, consents, approvals, or authorizations in connection with this Agreement must be given in writing by e-mail to the e-mail address of the other party as provided by StealthForce.
(F) Entire Agreement; Amendments. This Agreement (including the Project Brief), constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications and proposals, whether electronic, oral or written, between the parties with respect to such subject matter. This Agreement may not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Customer and Contractor by their respective duly authorized representatives. No waiver of any provision of this Agreement will be effective unless it is in a writing, and no such waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.
(G) Counterparts; Execution. This Agreement shall be deemed executed and effective when Customer and Contractor indicate on the StealthForce Service or via e-mail between them that the Project Brief is acceptable and that work should commence.
Copyright © 2017 StealthForce, Inc. All rights reserved.
Last Updated: 2017-10-3