Terms of Service

These Terms of Service (“Terms of Service”) govern your use of all EliteCoders Talent Corp (“Company” or “EliteCoders”) software, platform, technology and/or services, as well as contain the fundamental terms and conditions by means of which EliteCoders renders its services. By accepting these Terms of Service, and/or by using EliteCoders software, platform, technology and/or services, you agree to the Terms of Service.

You represent that you are entering into this agreement on behalf of the entity identified upon registration (“Client”) and that you have the capacity and authority to act on behalf of Client and bind Client to this agreement.

EliteCoders reserves the right to periodically modify these Terms of Service upon written notice to Client, and such modification shall automatically become effective thirty (30) days after such modification. In case you do not agree with a given modification to these Terms of Service, you shall notify EliteCoders within thirty (30) days as of receipt by Client of the notice of the relevant modification. In the event Client provides such written notice, your agreement will continue to be governed by the version of the Terms of Service prior to the relevant modification or, if EliteCoders chooses so, immediately terminates the Agreement.

Upon your acceptance of these Terms of Service as described above, Client automatically enters into a Services Agreement with EliteCoders (“Agreement”), which shall be binding to Client as per the terms below. In case such Agreement conflicts with the terms and conditions set forth in the Master Services Agreement (“MSA”) occasionally entered into by Client and EliteCoders, the terms and conditions of the MSA shall prevail.

WHEREAS:

(A) EliteCoders is a technology company that, through its platform and search engine, renders services of sourcing, matching and introducing experts to the Client and allowing the management of the ongoing engagement of such experts by the Client (“Experts”), in accordance with its clients’ needs and requests;

(B) Client desires to engage EliteCoders to perform the Services for Client; and

(C) Once Client decides to retain the services of a chosen Expert, services will be provided by Expert in accordance with the applicable Statement of Work (“SOW”),

THEREFORE, the Parties agree as follows:

1. DEFINITIONS

1.1 Definitions. For the purposes of these Terms of Service, the terms and expressions in quotes listed below, when beginning with capital letters, whether in plural or singular, masculine or feminine form, shall have the following meanings:

“Client” means EliteCoders clients, on behalf of which you accept these Terms of Service.

“Company” means EliteCoders Talent Corp.

“Confidential Information” has the meaning ascribed to in Section 5.1.1.

“Contract” means the individual services agreement to be entered into by Client with each one of the chosen Experts, once Client decides to engage a chosen Expert, by means of which such Expert referred to Client by EliteCoders shall be hired, directly or indirectly, for any position, as a consultant or independent contractor.

“Documents” has the meaning ascribed to in Section 2.1.

“Experts” means specialized technology experts, personnel and service providers.

“Fees” means the fees set forth in the applicable SOW.

“Losses” has the meaning ascribed to in Section 9.1.

“Master Services Agreement” or “MSA” means the master services agreement that occasionally may be entered into between Client and EliteCoders in order to further specify terms and conditions that shall govern the legal relationship between Client and EliteCoders, which shall be in addition and complementary to these Terms of Service.

“Party” means, individually and indistinctly, EliteCoders and the Client, and “Parties” means EliteCoders and the Client together.

“Services” has the meaning ascribed to in Section 2.1.

“SOW” means each Statement of Work which will be signed between the Client and EliteCoders for each engaged Expert to provide Services to Client under this Terms of Service.

“Terms of Service” means this Terms of Service.

2. SERVICES

2.1 Services. EliteCoders will: (a) search, source and introduce Experts to the Client, using commercially reasonable efforts; and (b) where applicable, allow the management of the ongoing engagement by the Client of some Experts as further described in these Terms of Service and the applicable SOW (“Services”). Experts presented by EliteCoders to Client, whether verbally or in writing, shall be classed as an Expert, and therefore subject to the terms and conditions of these Terms of Service, regardless of the term such Expert remains hired, engaged, or otherwise contracted by Client in connection with EliteCoders services. In addition to this Agreement, Client and EliteCoders may enter into a Master Services Agreement to further detail the relationship between Client and EliteCoders; which jointly with the SOW and the Contract are together herein referred to as the “Documents”.

2.1.1 Once Client decides to engage a chosen Expert, such Expert referred to Client by EliteCoders shall be engaged to perform services, as a consultant or independent contractor, by Client, its affiliates, parents or subsidiaries, by means of individual services agreement to be entered into with each one of the chosen Experts (“Contract”), as described in one or more SOW.

2.1.2 The Parties acknowledge and agree that the Services will be rendered on a non-exclusive basis.

2.1.3 EliteCoders shall be responsible for the quality and high standards of the candidates’ recruiting process assuring the accuracy of information provided to Client regarding the candidates and conducting background checks, as it deems necessary, to verify candidates’ information or to obtain such other information, as it may deem relevant.

2.1.4 Notwithstanding the above, Client, at its sole discretion, may conduct its own further lawful background checks, at any time, regarding the candidates, and EliteCoders shall provide reasonable assistance to Client on such lawful background checks. During the recruiting process, Client may reject any candidate, at its sole discretion.

2.1.5 As part of the Services, EliteCoders shall be responsible for administrative tasks in connection with the Contract, including the facilitation of the Client’s payments to the Experts and/or any taxes to authorities, if applicable.

2.1.6 Client understands and agrees that EliteCoders shall not: (i) make decisions regarding engagement, termination or changes in the compensation of the Experts; (ii) control or direct the Expert in any way regarding scope, schedules, deliverables and/or other expected results from the Expert work; nor (iii) be responsible for the performance of any Expert, as the Experts work depends in significant part on Client's information, assistance, specifications and requirements. As a result, EliteCoders expressly does not warrant or guarantee the quantity of the deliverables and/or the Experts' behavior while performing the work and EliteCoders is not liable for any claim, loss, or liability as a result of an Expert's acts or omissions.

3. ELITECODERS FEES

3.1 Client will pay EliteCoders the fees set forth in the applicable SOW (“Fees”), which shall describe the compensation to which the Expert is entitled and any other costs and/or benefits, if applicable.

4. EXPERTS FEES

4.1. Client will pay each relevant Expert the fees set forth in the relevant SOW (“Experts Fee”), which shall be inclusive of any taxes and contributions arising from the rendering of the Services and/or the Expert’s services.

4.2. EliteCoders or one of its payment providers will be responsible for carrying out the payment of the Experts Fee to the relevant Experts on behalf and as instructed by the Client, therefore acting in the capacity of agent of the Client. The payment of the Experts Fee will be set forth in each individual SOW.

5. CONFIDENTIALITY, INTELLECTUAL PROPERTY AND DATA PROTECTION

5.1. Each Party may be given access to the Confidential Information, as defined below, of the other Party in order to perform its obligations under this Terms of Service and the Documents.

5.1.1. A “Confidential Information” is any and all non-public information of whatever nature disclosed directly or indirectly by a Party to the other Party, including (without any limitation whatsoever) any information relating to its business affairs, customers, suppliers, products and services, technical information and data, financial information, marketing information, analyses, documents, data, formulae, processes, designs, know-how, source code, object code, trade secrets and intellectual property rights which information is designated in writing to be confidential or proprietary, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.

5.2. A Party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving Party;

(b) was in the other Party’s lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

(d) is independently developed by the receiving Party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by any laws, by any court of competent jurisdiction or by any regulatory or administrative body, provided that the receiving Party, where legally permissible, notifies the disclosing Party and cooperates with such Party to limit the disclosure to what is legally necessary.

5.3. Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than for the purposes envisaged or permitted by this Terms of Service, save that in the case of EliteCoders, the Client agrees that limited and pre-agreed Confidential Information can be disclosed to Experts.

5.4. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Terms of Service (and each Party shall be responsible for any such breach by their employees or agents).

5.5. The Contract shall establish that any and all modifications to intellectual property of Client or its customers as well as the development of new intellectual property arising from the services to be provided by each Expert will be the exclusive property of the Client, without any additional payment of fee due by the Client. Additionally, the Parties acknowledge that each deliverable by the Experts shall be considered as a ‘work made for hire’ to the extent allowed by, and as defined under, applicable law. EliteCoders agrees to execute, and to cause all Experts to execute, such agreements as Client may require to accomplish and/or formalize the foregoing ownership.

5.6. EliteCoders guarantees that it adopts all reasonable measures of a technical, administrative and organizational nature and compatible with the nature of its activities and the Services in order to protect the confidentiality, integrity, availability of its software, systems and assets of information technology, Confidential Information (including those of Client’s property occasionally used by EliteCoders in the performance of the Services) and of all personal data occasionally subject to treatment (including collection, production, reception, classification, use, access, reproduction, transmission, distribution, processing, archiving, filing, storage, deletion, evaluation or information control) of any information that, directly or indirectly, identify or may identify a natural person, related to candidates, Experts, clients or employees of the Client, or third parties, in accordance with the principles and main guidelines of the General Data Protection Regulation (GDPR) and other applicable data protection laws. EliteCoders will provide Client with reasonable assistance in its compliance with applicable data protection laws with respect to personal data shared with EliteCoders as part of the Services.

6. NO EXCLUSIVITY

6.1. EliteCoders Services, including but not limited to as such are described under the terms of these Terms of Service and of the Documents, are not and shall not be deemed to be exclusive to Client. EliteCoders is and shall remain free to render similar services to other entities (even if competing entities), and to engage in all such activities as EliteCoders deems appropriate, provided that in doing so EliteCoders does not breach any covenants or obligations expressly set forth in these Terms of Service.

6.2. EliteCoders shall not have any duty or obligation to disclose to Client any confidential or proprietary information that EliteCoders may acquire about the business, operations or activities of any other person or entity, even if such information could be deemed material and relevant information to the Client.

6.3. EliteCoders recognizes that the Client may engage other consultants to perform similar services, and these Terms of Service and the Documents shall not prevent the Client from using such consultants.

7. NON-SOLICIT AND RECRUITMENT FEE

7.1. The Client acknowledges that EliteCoders invests significant resources with the Services. A recruitment fee will be due to EliteCoders, if the Client, directly or indirectly, encourages or solicits to hire, or otherwise hires or engages for services (excluding the Contract entered under this Agreement), encourages or otherwise induces to terminate a relationship with EliteCoders, any Expert who is introduced to the Client by EliteCoders (“Recruitment Fee” and to “Solicit”).

7.1.1. The Recruitment Fee shall be equivalent to 18 (eighteen) months of EliteCoders Fees agreed upon at the SOW, discounted of the total EliteCoders Fees paid by the Client related to the corresponding SOW, with a minimum of USD 10,000 (ten thousand American Dollars). If the Expert introduced to the Client is directly hired or engaged for services before the execution of a SOW, the Recruitment Fee shall equal 18 (eighteen) months of the standard EliteCoders Fees. This Recruitment Fee shall be due within 15 (fifteen) days as from a notice from EliteCoders to Client informing on the breach of this non-Solicit obligation.

7.1.2. In case Client desires to directly hire, contract or engage an Expert in a manner that its relationship with such an Expert no longer requires EliteCoders Services as per this Agreement, Client shall deliver to EliteCoders a detailed notice in this regard, requesting termination of the relevant Contract, if applicable, and the correspondent SOW, which termination shall have immediate effect.

8. LIMITATION OF LIABILITY

8.1. Client acknowledges that, provided that EliteCoders has satisfied its obligations under these Terms of Service and the Documents, EliteCoders is not responsible or liable for results obtained from the work with/of the Experts, and for conclusions drawn from such work. EliteCoders shall have no liability for: (i) any damage (whether compensatory, incidental, consequential, nominal, liquidated or punitive) caused by errors or omissions in any information, instructions, widgets, or scripts provided to EliteCoders by Client in connection with the Services, or any actions taken by EliteCoders, and (ii) any failure of Client to observe and perform its obligations under these Terms of Service.

8.2. Neither Party shall be liable to the other Party for any loss or damage which may be suffered by the other Party (or any person claiming through or under the other Party) whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise, which falls within the following categories:

(a) loss of profits or turnover;

(b) loss of anticipated savings;

(c) loss of business opportunity;

(d) loss of goodwill; or

(e) loss or corruption of data or information;

(f) damage to reputation; or

(g) any kind of incidental, consequential, nominal, liquidated or punitive damages.

8.3. Each Party’s liability for direct damages to the other shall be limited to compensatory damages of an amount equal to the amount of the Fees that have been paid to EliteCoders by Client in the 12 months immediately preceding the events giving rise to the claim or, during the first Terms of Service/Master Services Agreement year, the amount of Fees anticipated to be spent under executed SOWs in respect of the first Terms of Service/Master Services Agreement year.

8.4. The limitations of liability set out in this Section 7 do not apply to either Party’s gross negligence, willful misconduct, breaches of confidentiality or security.

9. INDEMNIFICATION

9.1. EliteCoders shall indemnify and hold the Client and its directors, officers, affiliates, employees, personnel and agents harmless against any and all compensatory losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), and shall defend Client in any suit, claim, or proceeding, brought by any third party or governmental agency, arising from: (a) EliteCoders breach of any provision of these Terms of Service or any applicable Document; (b) EliteCoders violation of any applicable law or regulation; (c) a claim from an Expert that it has not been paid for the Expert services, provided that Client has paid EliteCoders the Fees set out in the applicable SOW; (d) EliteCoders gross negligence or willful misconduct; or (e) a finding that EliteCoders or any Expert is an employee, dependent contractor or agent of Client, including any alleged failure to pay, deduct or remit any amounts owing in respect of these Terms of Service including, without limitation, HST, income taxes, employer health taxes, workers’ compensation payments, employment insurance contributions, Canada Pension Plan contributions and any other taxes, amounts or expenses.

9.2. Client shall indemnify and hold EliteCoders and its directors, officers, affiliates, employees, personnel and agents harmless against any and Losses, and shall defend EliteCoders in any suit, claim, or proceeding, brought by any third party or governmental agency, arising from: (a) its gross negligence or willful misconduct; or (b) its failure to pay undisputed Fees resulting in a claim form the applicable Expert for payment for Expert services rendered.

9.3. The indemnifying Party must provide to the indemnified Party prompt notice of the assertion of any claim and permit the indemnified Party to assume the full control of the defense and/or settlement thereof. Notwithstanding the foregoing, the indemnifying Party shall not enter into a settlement that would affect any rights of the indemnified Party without the indemnified Party’s prior written consent.

10. REPRESENTATIVE

10.1. Client hereby appoints EliteCoders as its representative for signing each Contract that the Client expressly decides to sign with the chosen Experts, under the exact same conditions as outlined in each corresponding SOW signed by the Client, including for any consents or the exercise of any rights under or in connection with each Contract. Any amendment to the Contract, or its termination, must be formally approved in writing by the Client, which may be carried out in digital or electronic format, including through EliteCoders Platform.

11. TERM

11.1. These Terms of Service shall remain in effect until the relationship between the Parties is terminated or the Parties agree otherwise.

11.2. This Agreement may be terminated by either Party upon thirty (30) days written notice to the other Party, except that any Expert on assignment shall remain on assignment at the sole discretion of Client.

11.3. The termination of this Agreement or any SOW shall not affect any rights and/or obligations of the Parties which arose prior to any such termination, including, without limitation, indemnification obligations, limitations of liability and other obligations which, by their nature, shall extend beyond the termination of this Agreement.

12. MISCELLANEOUS

12.1. Relationship. EliteCoders (its partners, officers, agents and employees) recognizes that: (i) is not and shall not be considered as an employee of the Client and/or affiliates, partner or representative for any effective (except for the purposes set forth in Section 10) and (ii) shall not be entitled to any labor rights during the Term. The execution of this Agreement does not entail the constitution of a partnership, joint venture or association between the Parties, nor a distributor agreement, employment or any other relationship between EliteCoders and the Client, at any heading for any purpose whatsoever.

12.2. Assignment and Successors. Parties may assign any or all of their rights and duties under this Agreement to any of its affiliates at any time without the consent of the other Party. The Parties agree that this Agreement shall be binding upon the Parties and their successors and shall insure to their benefit, that the Agreement is enforceable by the Parties and their successors.

12.3. Waiver. The Parties lawfully recognize that, except as otherwise provided herein: (i) the singular or partial performance, the nonperformance, the concession of a term, forbearance, or delay in connection with any right available to it hereunder and/or by law, shall neither operate as an amendment or waiver of such rights, nor shall it jeopardize the exercise thereof; (ii) the waiver of any such rights shall not be valid unless granted in writing; and (iii) the waiver of any right shall be construed restrictively and shall not be deemed as waiver of any other right conferred hereby to any of the Parties.

12.4. Severability. If for any reason, one of or more provisions herein are deemed or become invalid, illegal, null or non-enforceable in any aspect, or if a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid or unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties. In this case, the Parties shall negotiate in good faith the replacement of the illegal, invalid, or unenforceable provision. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity, illegality, or unenforceability of any such provision by a court of competent jurisdiction shall not affect any other provision thereof.

13. GOVERNING LAW AND DISPUTE RESOLUTION

13.1. This Terms of Service is governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions. The settlement of any disputes or conflicts that may arise in connection with this Terms of Services must be submitted to the exclusive jurisdiction of the courts of the State of New York.