Last Updated: April 2024

 

1. Services Provided.
   
   a. Kolective LLC shall provide strategic outsourced HR and operational services (the “Services”) set forth in statement of work “SOW” attached. The Parties may enter into one or more SOWs throughout the Term in connection with Kolective’s provision of additional Services, each of which shall be deemed incorporated into this Agreement. Should the Parties desire to amend any existing SOW, they will enter into a “Change Order.”
   
   b. Kolective will provide the Services in a professional manner using employees or other personnel of a level of skill commensurate with the requirements of this Agreement, but provides no warranty or guarantee as to the results of such Services, including, but not limited to guarantees of revenue generation, customer or client acquisition, increased sales/profits, or increased market share/reputation.
    

2. Client Responsibilities.
   
   a. Client agrees to provide Kolective with a Client email address, and all logos, copy, and other creative assets required for Kolective to provide the Services, in a timely manner.
   
   b. Client shall approve or reject all deliverables within three (3) days of submission by Kolective. Client’s approval shall not be unreasonably withheld. Any delay by Client may result in a delay of any schedule agreed-to by the parties.
   
   c. Harassment of any Kolective employee or other personnel by Client will not be tolerated and will be deemed a material breach of this Agreement incapable of cure.
   
   d. No course of dealing between Kolective and Client's customers shall be construed to create a contractual, legal, or equitable relationship between Kolective and such customers. Client warrants that Kolective shall bear no liability to such third parties for actions performed at Client’s direction.
    

3. Fees; Payment Terms. 
   
   a. To the extent applicable, the following categories of fees for Services (collectively “Fees”) will be set forth in an SOW. Unless otherwise specified in the applicable SOW, the payment terms for each category of Fees will be as set forth below:
   
   i. Commencement Fee: A flat fee equal to two times the Monthly Fee. The Commencement Fee is applicable toward the Monthly Fee for the first and last month of the SOW Term. The Commencement Fee is due upon execution of the applicable SOW.
   ii. Monthly Fee: A flat fee per month. The initial Monthly Fee is due no later than the Services Start Date, prorated based on the number of days remaining in that month. Each subsequent Monthly Fee is due on or before the first day of each month in advance.
   iii. Project Fee: A project-based fee that is generally calculated ad hoc for various projects beyond the scope of ongoing services. Project Fees must be paid as outlined and on the schedule outlined in the additional SOW, and upon receipt of invoice.
   
   b. Kolective accepts payment by wire or ACH. Any Monthly Fees that remain outstanding as of fifteen (15) days after the due date shall be subject to a 3.5% charge added to the following invoice. In addition to the foregoing, if Fees remain outstanding twenty-one (21) days after the due date, Kolective shall also have the right to suspend the provision of all Services until full payment is made. Client acknowledges and agrees that during such suspension, Kolective has the right to reassign Kolective personnel to other clients. Client acknowledges and agrees that upon full payment of such late Fees, Kolective shall have fifteen (15) business days during which to locate new personnel to assign to Client. For the avoidance of doubt, all Fees shall continue to accrue during the suspension and reassignment periods.
   
   ​c. All third-party costs, including but not limited to, costs for paid additional services, paid tools, and subscription services, must be paid directly by Client, to the applicable third party, upfront. Client agrees to grant administrative access to Kolective for all such third-party accounts and hereby authorizes Kolective to make changes to expenditures as agreed to by the Parties in writing.
   
    

4. Intellectual Property. Provided that all applicable Fees have been received by Kolective, Client shall own, and Kolective assigns to Client, all right, title, and interest, in and to all works of authorship, and the results and proceeds of all Services.
   
    

5. Limited License. Client hereby grants Kolective a limited license to use Client’s approved logos and other materials to provide the Services during the Term, subject to Client’s prior approval. In marketing its products and services, Kolective may also use Client’s name, logo, or service mark in promotional materials and published case studies.
   
    

6. Non-Solicitation. During the Term, and for twelve (12) months after its expiration or earlier termination, the Parties agree that they will not, directly or indirectly, for themselves or on behalf of any other person or entity, solicit or attempt to solicit any employee from the other Party.
   
    

7. Confidentiality; Non-Disclosure.
   
   a. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; including, but not limited to business and marketing plans, software and technical information, product plans and designs, and business processes. The terms and conditions of this Agreement (including pricing and other terms described in an SOW) is the Confidential Information of Kolective. Notwithstanding the foregoing, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
   
   b. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
   
    

8. Term; Termination.
   
   a. Term
   
   i. This Agreement is effective as of the Effective Date and, shall remain in effect until terminated in accordance with this Section (“Term”).
   
   ii. Kolective shall commence providing the Services on the Service Start Date set forth in the SOW. The initial term of an SOW shall be one hundred and eighty (180) days (“SOW Initial Term”). The SOW shall automatically renew for successive ninety (90) day periods (each a “SOW Renewal Term”) unless Client provides Kolective with written notice of non-renewal no later than thirty (30) days prior to the expiration of the SOW Initial Term or the then-current SOW Renewal Term The Initial Term and all Renewal Terms shall be collectively referred to as the “SOW Term”.
   
   b. Termination Without Cause. During any SOW Renewal Term after the Initial Term, either party shall have the right to terminate the Agreement and/or an SOW Without Cause upon no fewer than thirty (30) days prior written notice to the other. Upon such termination, Client shall remain obligated to pay Kolective that portion of the Fees prorated through the date of termination.
   
   c. Termination For Cause. Either Party may terminate this Agreement and/or any SOW hereunder immediately in the event of a material breach by the other Party that remains uncured fifteen (15) days from notice of breach. Upon such termination, Client shall remain obligated to pay Kolective all Fees prorated through the date of termination.
   
    

9. Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement (excluding payment obligations) resulting from causes beyond that Party’s control, in which event the non-performing Party shall be excused from its obligations for a reasonable period of time.
   
    

10. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KOLECTIVE BE LIABLE TO CLIENT FOR DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO THE FEES PAYABLE TO KOLECTIVE UNDER THE SOW GIVING RISE TO THE CLAIM.
    
     

11. Indemnification.
    
    a. Each party (the “Indemnifying Party”) agrees to indemnify, hold harmless, and defend the other Party, its affiliates and its officers, directors, employees, contractors, and agents (each, an “Indemnified Party”) from and against any damages, liabilities, costs, expenses, and losses (including reasonable outside attorney fees and costs) (collectively, “Losses”) arising from a third party claim (“Claim”) relating to (a) the Indemnifying Party’s gross negligence, willful misconduct, or violation of applicable law in connection with this Agreement, (b) the Indemnifying Party’s breach of its nondisclosure obligations, or (c) the Indemnifying Party’s infringement of any patent, trademark, copyright, or other intellectual property rights (including trade secrets) of a third party.
    
    b. In addition to the foregoing, Client shall indemnify Kolective for all Losses arising from Claim relating to actions performed by Kolective at Client’s direction.
    
    c. This Section shall survive the expiration or earlier termination of this Agreement.
    
     

12. General Terms
    
    a. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Delaware, without reference to its conflict of laws principles. Each party irrevocably consents to jurisdiction of state and federal courts located in Delaware for purposes of the dispute resolution process described herein and waives all claims that such courts do not constitute convenient or appropriate venues for such actions. In the event of a dispute between the parties, the parties will first attempt to resolve such dispute through active communications for no less than fifteen (15) business days prior to submitting such dispute to such courts. In the event of any suit or action based on this Agreement, the prevailing party is entitled to recover reasonable attorney fees.
    
    b. Notice. All notices, requests, consents and other communication hereunder shall be in writing, shall be addressed to the receiving party's address as listed above or as a party may designate by notice hereunder, and shall be deemed to have been given (i) if made by e-mail transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, or (ii) if sent by overnight courier, on the next business day following the day such mailing is made.
    
    c. Waiver; Modification. No modification to this Agreement, nor any waiver of any rights, will be effective unless consented to in writing that references this Agreement and that is signed by both parties. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default.
    
    d. Severability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.
    
    e. Independent Contractors. Neither party is or will be deemed to be an agent of, representative of, partner of, employee of, or joint venturer with, the other. Neither party will have the authority (or will represent that it has the authority) to enter into any contract or agreement to bind the other, or to assume or create any obligation, express or implied, on behalf of the other, or to represent the other party as agent, or employee, or in any other capacity. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes and will maintain appropriate worker’s compensation for its employees. For the avoidance of doubt, Kolective and Kolective’s workers are not employees of Client and are not entitled to tax withholding, workers’ compensation, unemployment compensation or any employee benefits, statutory or otherwise.
    
    f. Assignment. Neither party may assign or delegate its rights or obligations under this Agreement, either in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement to any successor in interest in or to all or substantially all of such party’s equity securities, assets or business relating to the subject matter of this Agreement. Any attempted assignment in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and permitted assigns.
    
    g. Entire Agreement. This Agreement, including each SOW executed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.