7.1 Description of Service
Growth Engineers offers you an online service that allows you to meet, review, and engage Providers for one or more projects (“Projects”). Under this Agreement, Growth Engineers provides services to you, including operating and providing the Platform, curating Providers, and functioning as a payment processor for you and your Providers. As a Client, you post Projects and invite Providers to submit a bid. Providers, in turn, post their professional profiles and bid on Projects. Once you choose a Provider and agree on terms, a contract is formed directly between you and the Provider (“Service Contract”) subject to the provisions set forth in Section 7.3 (Service Contract Terms).
7.2 Content Policy
7.2.1 Your Content
7.2.2 Workspace and Work Product
During the course of your Projects, we will provide you storage space on the Platform (“Workspace”) for the exchange of documents and other information related to your Projects between you and the applicable Provider, including any Client Materials and Work Product (as defined in Section 3). We reserve the right to delete your Workspace and all data therein thirty (30) days after the end of the associated Project.
7.2.3 Disclosure of Your Content
You acknowledge and agree that we may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any of your Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Growth Engineers, its affiliates, officers, employees, representatives and agents, as well as Platform users and the general public.
7.2.4 Prohibited Content
You are solely responsible for all of your Content, and agree not to upload any Content prohibited by applicable law or the restrictions in this Section. We reserve the right to investigate and take appropriate legal action against any Provider who violates this Section. Specifically, you represent and warrant that none of your Content: (a) infringes any intellectual property, proprietary, contractual or privacy rights of any party; (b) constitutes material, non-public information about any company and/or constitutes information the disclosure of which would be in violation of securities laws; (c) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes”, or any other form of solicitation; (e) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or (f) in the sole judgment of Growth Engineers, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose Growth Engineers or its users to any harm or liability of any kind. We have the right, but not the obligation, to monitor your use of the Platform, your Content and the services you perform to determine your compliance with this Agreement.
7.3 Service Contract Terms
Unless otherwise agreed to in a writing signed by both Client and Provider, the terms and conditions of the Service Contract are as set forth in this Section.
7.3.1 Services Under Contract
Provider will perform services in a professional and workmanlike manner and timely deliver any agreed-upon Work Product.
7.3.2 Client Payments and Billing
Client will pay Growth Engineers the fees for services completed by Provider under (a) Service Contracts where Client is charged based on an hourly rate (“Hourly-Rate Service Contracts”) or (b) Service Contracts where Client is charged a fixed fee (“Fixed-Price Service Contracts”). For payments under Hourly-Rate Service Contracts, Client is billed on a periodic basis. For payments under Fixed-Price Service Contracts, Client is billed immediately after Client has accepted work.
7.3.3 Dispute Resolution
It is Client’s responsibility to review Provider’s time charges on Hourly-Rate Service Contracts. Client must approve or dispute time charges and associated fees within one week of their submission by Provider. Once the time charges are accepted by Client, they can no longer be disputed. If Client objects to the claimed time spent by the Provider, the Client will inform Growth Engineers as soon as is reasonably practicable. We will promptly investigate the time charges to determine, in our sole discretion, whether an adjustment is appropriate. Our determination will be final.
Disputes can only address the hours billed, not the quality of the work performed or deliverables. Client will not decline payment of fees on the basis that it is dissatisfied with the services performed by the Provider. In cases of unsuitable or unsatisfactory work the provisions of clause 7.3.4 will apply.
7.3.4 Termination of a Service Contract
For Hourly-Rate Contracts, either party may terminate a Service Contract at any time for any reason. However, Client remains obligated to pay for any time Provider worked prior to termination.
For Fixed-Price Contracts, Client may terminate a Service Contract at any time but may not recover any payments already made. Provider may terminate a Fixed-Price Service Contract at any time if Client has not yet made any payment for Provider’s services. If Client has made a payment, Provider may terminate only with Client’s prior written consent or after the payment has been refunded.
7.3.5 Client Materials
Client hereby grants Provider a limited, non-exclusive, revocable (at any time, at Clients sole discretion) license to use instructions, materials, and information that Client provides to Provider in connection with a particular Service Contract, and any intellectual property rights contained therein (collectively, the “Client Materials”) solely for Provider’s performance of the services. Client reserves all other rights and interest in and to the Client Materials. Upon completion or termination of the Service Contract, or upon written request by Client, Provider will immediately return all Client Materials to Client and further agrees to purge all copies of Client Materials and Work Product contained in or on Provider’s premises, systems or any other equipment otherwise under Provider’s control. Within ten (10) days of Clients request, Provider agrees to provide written certification to Client that all Client Materials have been returned or purged.
7.3.6 Work Product
Provider will make full and prompt disclosure to Client of all discoveries, inventions, designs, methods, products, processes, computer programs, techniques, graphics, images, audio or visual works, and other works of authorship (collectively, “Developments”), whether or not patentable or copyrightable, that are created, made, or conceived by Provider for Client during the term of the Service Contract that results from performing the services (“Work Product”). Provider acknowledges that all work performed by Provider is on a “work for hire” basis, and Provider hereby assigns and transfers to Client all Providers’ right, title, and interest in the Work Product and all related intellectual property rights.
The Provider, however, is unable to assign rights to pre-existing intellectual property conceived or developed prior to the date of the Service Contract. Only Developments created specifically for and paid for by the Client will be assignable to the Client. The Provider hereby agrees that, in consideration of the Client’s agreement to engage Provider and Provider’s compensation for the services rendered to the Client, Provider will not reuse components of the Work Product in the Client’s field of interest. The Client will specify its field of interest in the project description narrative when posting the Project on the Platform. Developments, as defined above, will be owned by Provider until payment has been made by Client, at which time Provider will be deemed to have assigned all Developments to Client.
7.3.7 Confidential Information
- “Confidential Information” means any nonpublic or proprietary information or data that is disclosed by a Client or a Provider (the “Disclosing Party”), regardless of whether in tangible, electronic, verbal, graphic, or other form. To the extent a Client or Provider provides Confidential Information to the other party, the recipient will protect the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and will not: (i) disclose Confidential Information to anyone except to Client or Provider engaged in a Service Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through the Platform for use by Provider).
- Additional Restrictions. Provider will not disclose to Client any information that constitutes material, non-public information about any third party, information that Provider has a duty or obligation to keep confidential (whether by agreement, law, rule, regulation, fiduciary duty, or other similar obligation or restriction), information the disclosure of which would be in violation of securities laws and/or information that is proprietary to a third party (including past or present employers or companies for which Provider has worked) and not owned solely by Provider.
- If and when Confidential Information is no longer needed for the performance of services for the relevant Service Contract, or at Client’s or Provider’s written request (which may be made at any time at Client’s or Provider’s sole discretion), Client or Provider (as the case may be) will promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Provider, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this section within ten (10) days after the receipt of Disclosing Party’s written request to certify.
- Without limiting the confidentiality obligations set forth in this section, Client and Provider will not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of services for a Service Contract or except as the Disclosing Party will permit.
7.3.8 Worker Classification
Client agrees that:
- Client does not in any way supervise, direct, or control Provider’s services;
- Client does not, in any way, supervise, direct, or control Provider’s work hours and location of work; and
- Client does not provide Provider with training or equipment for any Project. Notwithstanding the foregoing, Client assumes all liability for proper classification of Provider s as independent contractors or employees based on applicable legal guidelines. A Service Contract does not create a partnership or agency relationship between Client and Provider. Provider does not have authority to enter into written or oral — whether implied or express — contracts on behalf of Client. Client and Provider will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Provider’s performance of the services. Client may not require an exclusive relationship between Client and Provider. Provider, as an independent contractor, is free at all times to provide services to persons or businesses other than Client, including any competitor of Client.
7.3.9 Audit Rights
Client and Provider each will: (a) create and maintain records to document satisfaction of its obligations under any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (b) provide copies of such records to Growth Engineers upon request. Growth Engineers, or Growth Engineers’ advisors or agents, will have the right, but not the obligation, to routinely, but no more frequently than annually, audit Provider’s operations and records to confirm compliance. Nothing in this provision should be construed as providing Growth Engineers with the right or obligation to supervise or monitor the actual services performed by Provider.
7.3.10 Third Party Beneficiary
Growth Engineers is hereby named as a third party beneficiary of each Service Contract. Clients and Providers understand and agree that Growth Engineers has the right to enforce all rights and obligations under the Service Contract on its own behalf.
7.3.11 Side Agreements
Client and Provider may enter into any supplemental or other written agreements (“Side Agreements”) that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions in this Section 3, however, will govern and supersede any term or condition in a Side Agreement that purports to expand our obligations or restrict our rights under this Agreement.
7.3.12 Entire Agreement
The terms and conditions set forth in this section, together with any additional or different terms expressly agreed to by Client and Provider (in a Side Agreement or otherwise), will constitute the entire agreement and understanding of Client and Provider with respect to each Service Contract and will cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
7.4 Relationship to Growth Engineers
As a Client, you acknowledge and agree that your relationship to Growth Engineers is that of a customer receiving professional services, and that (a) you have no authority to act on behalf of Growth Engineers; (b) Growth Engineers does not, in any way, supervise, direct, or control the performance of the services by Providers; and (c) Growth Engineers is not a party to any contract you may enter into with Providers and will not have any liability or obligations whatsoever under any such contracts.
For 12 (twelve) months after the end of any Project (the “Exclusivity Period”), you must only use the Platform to engage any Provider formerly provided by Growth Engineers and make all payments, directly or indirectly, to that Provider or arising out of your relationship with that Provider. Upon expiration of the Exclusivity Period, you are free to directly deal with the applicable Provider outside of the Platform and independently from this Agreement.
7.6 Fees and Payments
7.6.1 Our Fees
The Platform is free to join, and there are no charges to post Projects. We charge Clients a fee for the services of connecting them with Providers once a Provider has been engaged (the “Project Fee”). This fee is equal to 15% of Client’s payments for each Project. The fee is exclusive of Value Added Tax, which, where applicable, shall be added to the fee at the prevailing rate.
7.6.2 Payment Methods
We function as the payment processor for fees you pay to Providers for services on the Platform. If you elect to pay by credit card, you authorize us to (a) run, or have run, credit card authorizations on all credit cards provided by you; (b) store your credit card details as your method of payment for services; and (c) charge your credit card (or any other form of payment authorized by Growth Engineers or mutually agreed to between you and Growth Engineers) in payment of any fees you incur on the Platform.
7.6.3 Refund of a Project Fee
If (1) a Client engages a Provider and terminates the engagement based on unsatisfactory performance within two weeks of the start date, or (2) a Provider voluntarily terminates his or her engagement within two weeks of the start date, (each, a “Termination Event”), Growth Engineers will fully refund to the Client the Project Fee related to the Provider who was the subject of the Termination Event if such Project Fee was paid by Client prior to the Termination Event.
7.6.4 Not an Escrow Service
Growth Engineers does not operate an escrow service. Growth Engineers does, however, allow for advance payments to be made with respect to a Project to Provider which will be retained in an account nominated as a trust account and remain pending until: (a) Client instructs Growth Engineers to pay Provider that performed services for the Client; or (b) Client and Provider have concluded the process of dispute resolution.
You are required to make all payments relating to or in any way connected with a Project through the Platform. During the Exclusivity Period, you will not make complete or partial payments to Providers for services outside of the Platform, or otherwise circumvent our role as payment processor or the Platform’s payment methods, and any violation of the foregoing restrictions is a material breach of this Agreement. By way of illustration and not in limitation of the foregoing, within the Exclusivity Period you will not: (a) accept proposals from, receive services from, or make payments to any Providers except via the Platform; or (b) pay or report on the Platform a payment amount lower than that actually agreed between you and a Provider through the Platform. You will notify us immediately if a Provider contacts you or suggests making payments outside of the Platform within the Exclusivity Period. If you become aware of a breach or potential breach of this disintermediation policy, please report the issue to us by sending an email message to email@example.com.
Should a Client be found in violation of this disintermediation policy, Client will owe Growth Engineers an amount with respect to each Service Contract equal to the greater of a) $10,000 or b) twice the applicable fees had the payments been processed through the Platform.
7.6.6 Introduction Fee
A Client may offer traditional employment to or otherwise contract with a Provider outside of the Platform during the Exclusivity Period, provided Client pays Growth Engineers a one-time fee of 15% of the annualized base salary, excluding any bonuses or other compensation, payable to the said Provider (“Introduction Fee”). Introduction Fee becomes payable upon executing an employment offer letter or a contract between Client and Provider, a copy of which must be provided to Growth Engineers. In the event the Provider terminates employment with you, whether voluntarily or involuntarily, within thirty (30 days) of employment, Growth Engineers will fully refund the Introduction Fee.
All introductions are confidential and personal to the Client. Any communication by the Client to a third party which results in the engagement of the Provider by such third party outside of the Platform within the Exclusivity Period will render the Client liable to pay Growth Engineers the Introduction Fee.
If Client fails to pay amounts due under this Agreement, whether by cancelling Client’s credit card, initiating an improper chargeback, or any other means, Client’s account on the Platform will be suspended, no additional payments will be processed, and any work in progress will be stopped. Without limiting other available remedies, Client must reimburse Growth Engineers for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest on the overdue amount at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, Growth Engineers may set off amounts due against other amounts received from or held for the Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.