Last Updated: December 7, 2022
This Freelancer Agreement (“Agreement”) is by and between:
you (hereinafter referred to as “you”, “your”, or “Freelancer”) and
Sales Innovator, LLC, a limited liability company governed by the laws of the State of Idaho, USA (hereinafter referred to as “Sales Innovator”, ”we", “our”, or “us”).
In consideration of the mutual covenants and promises contained herein, the parties agree as follows:
1. SERVICE; TRIAL PERIOD; WORK AND PROJECT PLANS; PARTIES’ OBLIGATIONS
1.1. Service. Sales Innovator is a company that matches its clients (and in some instances the clients’ clients) (individually, “Client”) with independent contractors specializing in sales. Sales Innovator identifies the needs of its clients and introduces the right independent contractors to such clients (“Service’”).
1.2. Project Plans and Work by Freelancer. Sales Innovator determines Clients’ business needs and outlines the needs in individual project plans (individually, “Project Plan”). If you are matched with a Client, you will have to provide all services outlined in the Project Plan assigned to you.
Each Project Plan will specify:
the description of the services to be provided by the Freelancer (“Work”),
the project’s start date,
the fees for the Work,
the applicable Trial Period, if any (as described below), and
other relevant information.
1.3. Trial Period; Replacing the Freelancer. A Client’s project may be eligible for a trial period for the initial engagement of the Freelancer if it satisfies certain criteria (“Trial Period”). The length of the Trial Period may be five (5) business days unless otherwise agreed in a Project Plan. If a project is estimated to be completed within five (5) business days, such project will not be eligible for the Trial Period. We will determine such eligibility and let you know before you consent to any such project.
The Client will be the sole judge of the performance, suitability, and capability of the Freelancer and may request the replacement of the Freelancer for any lawful reason if the Freelancer does not, in the Client’s sole discretion, meet its requirements under the Project Plan. Should the Freelancer be replaced during the Trial Period, the Freelancer will not be compensated for any Work completed under the Trial Period.
1.4. Freelancer’s Rights and Obligations; Client Contact. The Freelancer will report directly to the person designated as the Client’s contact under the assigned Project Plan (“Client Contact”). The Client Contact will provide such Freelancer with all necessary information, assistance, specifications, and requirements for the project under the Project Plan.
Specifically, the Client Contact will:
set, review, and monitor the project schedule and the Work performed by the Freelancer, and
coordinate the project directly with the Freelancer.
The Freelancer further agrees that the Client Contact shall provide the Freelancer with all applicable processes, policies, and resources necessary for the completion of Work under the Project Plan.
Notwithstanding the foregoing, the Freelancer is solely responsible for acquiring all rights and licenses to any software, code, tools, information, documentation, or other materials and intellectual property necessary for the Freelancer to complete the Work.
The Freelancer is solely responsible for the method, manner, and means of completing the Work. The Freelancer acknowledge and agrees that Sales Innovator will not oversee the Freelancer or the completion of the Work and will not control or direct the Freelancer. Accordingly, the Freelancer agrees that Sales Innovator will not be in a position to, and expressly does not, warrant or guarantee the quality or timeliness of the Work to be completed or that any Freelancer will meet any deadline set by the Client. The completion of Work in a timely and professional manner is the sole responsibility of the Freelancer.
1.5. Freelancer’s Time Off and Vacation Time. The Freelancer has the right to have a vacation or days off. However, neither the Client nor Sales Innovator will be liable to pay for any vacation time or other personal days off of the Freelancer. It is advised to discuss any upcoming vacation or days off with Sales Innovator before starting to work on any project.
1.6. No Employment Relationship; Taxes. The parties agree that nothing in this Agreement shall be interpreted as creating or establishing an employment relationship, partnership or joint venture between the Freelancer and Sales Innovator. The parties agree that Sales Innovator has no supervisory authority over the time, manner, and methods of services provided by the Freelancer. Neither party is authorized to and will attempt to bind the other party. Sales Innovator is only responsible to remit the fees and compensation payable to the Freelancer in connection with any approved and accepted Work. The Freelancer is responsible for all taxes and assessments, if any, in respect of this Agreement or any Work, including, without limitation, any sales, value-added, use or similar taxes, duties, or levies.
2. FEES; BILLING
2.1. Payment Terms. Clients are billed by Sales Innovator on a bi-weekly basis for the Work provided during the preceding two-week period. Once the Client pays to Sales Innovator for:
the approved and accepted Work under any Project Plan,
other out-of-pocket expenses incurred by the Freelancer under any Project Plan,
Sales Innovator will compensate the Freelancer in accordance with this Agreement.
Notwithstanding the foregoing, the Freelancer will not be compensated for any Work completed during the Trial Period if the Freelancer is replaced by another independent contractor during the Trial Period.
2.2. Compensation. Your compensation may vary from project to project. Before engaging in any project, you will be provided with the details on the earning fees it offers. You may accept or reject any project, at your own discretion.
You may not ask for a rate increase for any existing projects. In order to get a higher rate, you need to finish the existing project(s) and then renegotiate the rate for all the new ones.
3. NON-CIRCUMVENTION & NON-COMPETE
3.1. Non-Circumvention. You agree that Sales Innovator would be considerably harmed if Sales Innovator were to invest its time, energy, and resources to recruit, screen, and curate its independent contractor network and to introduce the Freelancer to a Client only for the Freelancer and such Client to circumvent Sales Innovator and enter into a direct or indirect arrangement outside of this Agreement. Therefore, you agree that you will not, directly yourself or indirectly through others, enter into any agreement, transaction, or arrangement with any of the Clients introduced to you under this Agreement (including their agents, principals, and affiliates) (i) during the period time the Freelancer conducts Work for such Client under this Agreement and twelve (12) months thereafter; or (ii) if you elect not to enter into any agreement, transaction, or arrangement with such Client, then within twelve (12) months after the date such Client is first introduced to you by Sales Innovator (the time period under (i) or (ii) shall hereinafter be referred to as the “Non-Circumvention Period”). For the avoidance of doubt, this restriction is not a general non-solicitation provision and will not apply to all Sales Innovator’s Clients, but only to those that are introduced to you by Sales Innovator. Any Non-Circumvention Period applicable to the Freelancer will survive termination of this Agreement until the expiry of such Non-Circumvention Period.
3.2. Non-Compete. The Freelancer hereby agrees that during the term of this Agreement and for a period of twelve (12) months following the termination of this Agreement, he/she/they will not hold a position as an owner, partner, shareholder, director, or investor of any business or activity that directly or indirectly competes with any current or planned business or activity of Sales Innovator, without the prior written consent of Sales Innovator. Notwithstanding the foregoing, the Freelancer shall have the right to work as an independent contractor for a competing business following the termination of the Agreement.
4. CLIENT’S OPTION TO BUYOUT AND HIRE FREELANCER
Any introduced Client may at its sole election, directly or indirectly, engage or employ the Freelancer subject to: (a) any such Client’s prior written notice to Sales Innovator; (b) the right for Sales Innovator to arrange for a reasonable wind-down period for the Freelancer; and (c) the Client’s full payment of the buyout fee as agreed between Sales Innovator and any such Client. A wind-down period may be thirty (30) days, but may be reasonably adjusted by Sales Innovator based on the Freelancer’s commitments to Sales Innovator, or, if any, commitments to other Sales Innovator’s Clients.
5.1. Material Breach. If there is a material breach of this Agreement by Sales Innovator, you may terminate this Agreement by giving Sales Innovator written notice and a ten (10) business-day cure period. If you breach this Agreement, Sales Innovator will have the right to terminate this Agreement by providing written notice and a ten (10) business day cure period.
5.2. For Convenience. Either Sales Innovator or the Freelancer may terminate this Agreement or a Project Plan at any time, with or without cause, upon ten (10) business days’ prior written notice to the other party.
5.3. Survival. Sections 2-4 and 7-10 will survive termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1. General. Sales Innovator makes no representation or warranty of any kind, express or implied, with respect to its Service or any Project Plan arising from or relating to this Agreement. Sales Innovator disclaims any other representations and warranties, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any representations or warranties arising from course of dealing, course of performance, or usage of trade.
6.2. Sanctions Status and OFAC Compliance. The parties each represent and warrant that they are not, and to the knowledge of such party, none of such party’s respective directors, officers, managers, members, or employees, or those of any of such party’s subsidiaries, as the case may be, is a person who (a) is directly or indirectly owned or controlled by any person currently included on the List of Specially Designated Nationals (SDN) and Blocked Persons or the Foreign Sanctions Evaders List maintained by the United States Treasury Department’s Office of Foreign Asset Control (OFAC), or (b) is directly or indirectly owned or controlled by any person who is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide or territorial sanctions imposed by any United States government sanctions authority.
6.3. Anti-Bribery. Each party represents and warrants that neither the party, nor any of its respective directors, officers, managers, members, or employees, or to such party’s knowledge, agents or any persons acting on such party’s behalf, has directly or indirectly made any bribes or other payments in the form of cash, gifts, or otherwise, or taken any other action in violation of the U.S. Foreign Corrupt Practices Act or other applicable anti-bribery or anti-corruption laws.
7. MUTUAL INDEMNIFICATION
Each party shall defend, indemnify, and hold harmless the other party and its subsidiaries and affiliates, and their respective directors, officers, employees, and agents, from and against all claims, causes of action, demands, losses, damages, liabilities, settlement amounts, and costs and expenses of any type whatsoever (including reasonable attorneys' fees and costs) arising from or related to any breach of any representation or warranty by the indemnifying party of this Agreement.
8.1. Protection of Proprietary Information. All business, technical or financial information of Sales Innovator and its Clients will be called the “Proprietary Information”. All Work completed by the Freelancer under any Project Plan is a Client’s Proprietary Information. The Proprietary Information of Sales Innovator includes the terms of this Agreement, Sales Innovator’s screening and selection criteria for independent contractors, as well as the names, contact information, technology enabling independent contractors to communicate or collaborate with Clients, and rates of the independent contractors in Sales Innovator’s network.
The Freelancer agrees to hold in confidence and not disclose or, except in performing his/her/their obligations under this Agreement or any Project Plan, use any Proprietary Information of a disclosing party.
8.2. Exclusions to Definition of Proprietary Information. Proprietary Information does not include any information the Freelancer can document: (a) is or becomes generally available to the public without restriction through no fault of the Freelancer; (b) was in the Freelancer’s possession or known by it without restriction prior to receipt from a disclosing party; (c) was rightfully disclosed to the Freelancer by a third party without restriction; or (d) was independently developed by the Freelancer without use or reference to any Proprietary Information. The Freelancer may make disclosures required by law or court order if the Freelancer provides (to the extent permitted by applicable law) a disclosing party with prompt, advance written notice of disclosure and an opportunity to limit or prevent disclosure.
8.3. Return of Proprietary Information. Upon termination of this Agreement, the Freelancer shall promptly return, to Sales Innovator and its Clients under any Project Plan, all Proprietary Information belonging to Sales Innovator and its Clients, respectively.
9. DISPUTE RESOLUTION AND ARBITRATION
9.1. General. In the interest of resolving disputes between you and Sales Innovator in the most expedient and cost-effective manner, and except as described in Section 9.2, you and Sales Innovator agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises before or after the termination of this Agreement. You understand and agree that, by entering into this Agreement, you and Sales Innovator are each waiving the right to a trial by jury or to participate in a class action.
9.2. Exceptions. Despite the provisions of Section 9.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
9.3. Arbitrator. Any arbitration between you and Sales Innovator will be settled under the Federal Arbitration Act and administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Sales Innovator. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
9.4. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by email with a copy via certified U.S. Mail or by Federal Express (signature required) ("Notice of Arbitration"). Sales Innovator's email address for the Notice of Arbitration is firstname.lastname@example.org and mailing address: Attn: Legal Department, Sales Innovator, LLC, 51 N. Hidden Valley Rd, Rexburg ID 83440. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Sales Innovator may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Sales Innovator must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
9.5 Fees. Any arbitration hearing will take place at a location to be agreed upon in Madison County, Idaho, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Sales Innovator for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
9.6. No Class Actions. You and Sales Innovator agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Sales Innovator agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
9.7. Enforceability. If any provision of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 9.1 will govern any action arising out of or related to this Agreement.
10. MISCELLANEOUS PROVISIONS
10.2. Force Majeure. Neither party shall be liable for failure to perform, or delay in performing, any obligation under this Agreement, if such failure or delay is due to force majeure, including, but not limited to, war, embargo, riot, or other civil unrest; fire, explosion, flood, or other natural disaster; government restraints or any other cause beyond the control of the affected party; provided, however, that the party so failing to perform shall (i) as soon as possible, inform the other party of the occurrence of the circumstances preventing or delaying the performance of its obligations, and describe at a reasonable level of detail the circumstances causing such delay, and (ii) exert reasonable efforts to eliminate, cure or overcome any of such cases and to resume performance of its covenants with all possible speed. In such event, the non-performing party will be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay.
10.3. No Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, SUCH PARTY’S PERFORMANCE HEREUNDER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE).
10.4. Limitations on Assignment. Neither party will have the right to assign this Agreement to another party without the other party’s written consent, except that either party may, upon written notice to the other party (and without the other party’s consent), assign this Agreement in its entirety to a parent company, any subsidiary of a parent company, or an affiliate in a common control group in connection with a corporate reorganization, entity conversion, acquisition, merger, or sale of or substantially all of its assets; provided that such assignee agrees in writing to be bound by the terms and conditions of this Agreement.
10.5. Complete Agreement; Amendments; Additional Agreement. This Agreement, inclusive of all Project Plans, constitutes the entire understanding between the parties regarding the subject matter of this Agreement and supersedes and completely replaces any prior written or oral agreement or any discussions or written communications with you, any of your agents or representatives and Sales Innovator and any of its agents and representatives. This Agreement will take precedence over any Project Plan unless any such Project Plan explicitly states that it wills override a specific provision of this Agreement. No waiver, change to, or amendment of this Agreement or a Project Plan will be effective unless it is in writing and signed by both parties.
10.6. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted under applicable law or decisional case law, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.
10.7. Authority to Bind. By accepting this Agreement, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions herein. You further acknowledge that this Agreement is a contract between you and Sales Innovator, even if it is electronic and is not physically signed by you and Sales Innovator, and that the terms and conditions of this Agreement govern your receipt of the Service and Sales Innovator’s provision thereof.