I. The Parties. This Terms of Service, hereinafter referred to as the “Agreement,” is entered between any entity, referred to as Party B, that uses and/or pays for services rendered by Party A:

Party A described as a business entity known as Workergenix, LLC (“Party A”)
Party B described as an individual or business entity known as The Client (“Party B”) upon using and/or paying for services from Party A

II. Description of Services. Party A will provide Party B virtual professional services on a monthly subscription basis at the service level(s) selected by Party B. These services include (collectively, the “Services”):
Virtual Professional Staffing, IT Services for provided Virtual Professionals (hereinafter referred to as “VPs”) including email, chat, phone, web-based video conferencing, and task management systems.

III. Payment. Payment shall be made to Party A monthly in the amount due based on service level subscriptions selected by Party B (hereinafter referred to as “Monthly Billing”).
Regular Monthly Billing will commence upon the assignment of VPs to Party B by Party A. An initial/one-time month’s deposit must be paid upon candidate search and will be applied to the first month’s subscription on the start date of the virtual professional services.

In addition to any other right or remedy provided by law, if Party B fails to pay for the Services when due, Party A has the option to treat such failure to pay as a metering breach of this Terms of Service and may cancel this and/or seek legal remedies.

IV. Work Schedule. Workergenix virtual professionals can be expected to work up to 8 hours per day, with a 1-hour lunch break (in addition to their 8 hours of work). VPs typically work on the client’s regular business hours, however, clients can request custom hours to meet their needs as long as the daily work shift is contiguous (They are not available to work 4 hours in the morning, then have a 4-hour break, then work again another 4 hours. If the client needs a schedule like that, we can accommodate that through two or more service subscriptions.)

V. Holidays. As part of our mission to provide the highest quality of virtual professionals at the best value to our clients, we provide our VPs with 8 holidays and up to 9 personal days each year when they may be unavailable for work. For client planning, please refer to the Workergenix Holiday Calendar on our website. Clients may directly arrange make-up hours with their VPs for missed work days.

VI. Personal Days and Leave. VPs will provide clients with advanced notice of any personal day, with the exception of reasonable emergency situations. Clients may directly arrange make-up hours with their VPs for missed work days.

VII. Work Product Ownership. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by Party A in connection with the Services will be the exclusive property of Party B. Upon request, Party A will execute, within a reasonable period of time, all documents necessary to confirm or perfect the exclusive ownership of Party B to the Work Product.

VIII. Employment Restrictions. Employees of Party A may not be employed directly or indirectly by Party B except through the terms of this Agreement. Requests or solicitations for employment or contract work of any kind by Party B to Employees of Party A are expressly prohibited. Solicitations, suggestions, or requests for direct or indirect employment by Employees of Party A made to Party B must be immediately reported in writing to Party A. If Party B employs, contracts, or transacts with current or past employees of Party A outside of the terms of this Agreement, or has engaged in any way, then Party B will immediately owe and pay to Party A $12,000 per occurrence and be grounds for legal action.

IX. Default. The occurrence of any of the following shall constitute a material default under this Contract:

• A. The failure to make a required payment when due.
• B. The insolvency or bankruptcy of either party.
• C. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application, or sale for or by any creditor or government agency.
• D. The failure to make available or deliver the Services in the time and manner provided for in this Contract.

X. Confidential Information. The term “Confidential Information” includes, but is not limited to, all proprietary information owned by the Parties and not generally known to the public or in the relevant trade or industry that is communicated orally, written, printed, electronically or any other form or medium, or which was learned, discovered, developed, conceived, originated, or prepared by the Parties in the scope and course of their relationship, relating directly or indirectly to business processes, technical data, trade secrets, know-how, advice, consultations, proprietary information, client lists, client instructions, assets, business operations, specifications, designs, plans, drawings, hardware, software, data, prototypes or other business and technical information belonging to any client of the Parties, operational methods, economic and business analyses, models, strategies, and projections, promotion methods, trade show information and contacts, and other proprietary information relating to the business of the Parties and any and all other concepts, as such Confidential Information pertains personally to principals or other information that has independent economic value.

XI. Non-Disclosure. The Parties agree that they shall have the obligation to:

• (a) hold the Confidential Information in the strictest of confidence;
• (b) not use the Confidential Information for any personal gain nor detrimental to the other Party;
• (c) take all steps necessary to protect the Confidential Information from disclosure and to implement internal procedures to guard against such disclosure;
• (d) not disclose the fact that the Confidential Information has been made available or that discussions and negotiations are taking place or have taken place or any of its terms, conditions, or other facts with respect to the transaction; and
• (e) not disclose or make available all or any part of the Confidential Information to any person, firm, corporation, association, or any other entity for any reason or purpose whatsoever, directly or indirectly, unless and until such Confidential Information becomes publicly available other than as a consequence of a breach by any of the Parties and their confidentiality obligations hereunder.

This Section shall survive and continue after any expiration or termination of this Agreement and shall bind the Parties, its employees, agents, representatives, successors, heirs, and assigns.

XII. Exceptions to Confidential Information. The Parties shall not be restricted from disclosing or using Confidential Information that:

• (a) was freely available in the public domain at the time it was communicated between the Parties;
• (b) subsequently came to the public domain through no fault of the Parties;
• (c) is in either Party A’ s or Party B’s possession free of any obligation of confidence at the time it was communicated;
• (d) is independently developed by either Party A or Party B or its representatives without reference to any information communicated to or by the Parties;
• (e) is provided by either Party A or Party B in response to a valid order by a court or other governmental body, as otherwise required by law; or
• (f) is approved for release by written authorization of an officer or representative of Party A or Party B;

XIII. Use or Disclosure of Confidential Information. The Parties shall only use the Confidential Information as directed and not for its own purposes or the purposes of any other party. Party A and Party B shall disclose the Confidential Information received under this Agreement to persons within their organization only if such persons are on a “need to know” basis. The Parties shall advise each person to whom disclosure is permitted that such information is the confidential and proprietary property and may not be disclosed to others or used for their own purpose. This Section shall survive and continue after any expiration or termination of this Agreement and shall bind the Parties, including but not limited to, their employees, agents, representatives, successors, heirs, and assigns.

XIV. Notice of Disclosure. In the event that any of the Parties receive a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or similar process) to disclose all or any part of the Confidential Information, the Parties agree, if legally permissible, to (a) promptly notify the other Party of the existence, terms, and circumstances surrounding such request or requirement, (b) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request or requirement and (c) assist the other Party in seeking a protective order or other appropriate remedies; provided, however, that the disclosing Party shall not be required to take any action in violation of applicable laws.

In the event that such protective order or other remedy is not obtained or that one of the Parties waives compliance with the provisions hereof, the disclosing Party shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a previous disclosure by the disclosing party not permitted by this Agreement.

XV. Term. The Terms of Service term begins immediately and is valid until it is ended by mutual agreement or superseded by a new agreement. This Agreement, with respect to Confidential Information, will remain in effect for perpetuity.

XVI. Termination. Either party may terminate the Agreement, without cause, by providing fourteen (14) days’ written notice to the other party prior to the start of the upcoming month’s billing cycle. This Agreement may, however, be terminated immediately for Party B’s failure to timely pay all amounts owed to Party A (see section “Remedies”).

XVII. Return of Confidential Information. Upon request from any of the Parties or upon the termination of negotiations and evaluations, both Parties will promptly deliver to each other all originals and copies of all documents, records, software programs, media, and other materials containing any Confidential Information. Both Parties shall also return to each other all equipment, files, and other personal property belonging to one another. Party A and Party B shall not be permitted to make, retain, or distribute copies of any Confidential Information and shall not create any other documents, records, or materials in any form whatsoever that includes the Confidential Information.

XVIII. Indemnification. The Parties agree to defend and indemnify each other at all times in respect of any and all claims, demands, losses, damages, liabilities, costs, and/or expenses of any kind whatsoever incurred by an entity not mentioned in this Agreement except to the extent caused by the negligence or an unauthorized disclosure of Confidential Information by one of the Parties or their respective employees, agents, representatives, successors, heirs or assigns.

XIX. Notice. Any notice provided in this Agreement must be in writing to the Parties at the electronic addresses they provided.

XX. Direction and Control. Except as otherwise provided in this Agreement, the management, supervision, and control of the Employer’s operation and the direction of the working force shall remain the exclusive function of Party A provided that such management and direction do not contravene the express provisions of this Agreement.

XXI. Hold Harmless. Each Party agrees to indemnify and hold harmless, to the fullest extent allowed by law, the other Party and its principals, officers, and employees from and against all claims, demands, suits, actions, payments, liabilities, judgments, and expenses (including court-ordered attorneys’ fees), arising out of or resulting from the acts or omissions of their principals, officers, or employees in the performance of this Agreement. Liability includes any claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement that results in any claim for damage whatsoever including any bodily injury, civil rights liability, sickness, disease, or damage to or destruction of tangible property, including the loss of use resulting therefrom. Further, each Party shall maintain a policy or policies of insurance (or a self-insurance program), sufficient in coverage and amount to pay any judgments or related expenses from or in conjunction with any such claims. Nothing in this Agreement shall require either Party to indemnify or hold harmless the other Party from liability for the negligent or wrongful acts or omissions of said other Party or its principals, officers, or employees.

XXII. Remedies. In addition to any and all other rights a party may have available according to the law if a party defaults by failing to substantially perform any provision, term, or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 10 business days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such a time period shall result in the automatic termination of this Agreement.

XXIII. Force Majeure. If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, plague, epidemic, pandemic, outbreaks of infectious disease, or any other public health crisis, including quarantine or other employee restrictions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within a party’s reasonable control if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

XXIV. Covenants. The parties hereto agree that the covenants, agreements, and restrictions (hereinafter “this covenant”) contained herein are necessary to protect the business goodwill, business interests, and proprietary rights of the Parties hereto and have independently discussed, reviewed and had the opportunity of legal counsel to consider this Agreement.

XXV. Enforcement. The Parties acknowledge and agree that due to the unique and sensitive nature of the Confidential Information, any breach of this Agreement would cause irreparable harm for which damages and or equitable relief may be sought. The violated Party shall be entitled to all remedies available at law.

XXVI. Attorney’s Fees To Prevailing Party. In any action arising hereunder or any separate action pertaining to the provisions or validity of this Agreement, the prevailing party shall be awarded reasonable attorney’s fees and costs, both in the trial court and on appeal.

XXVII. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

XXVIII. Construction and Interpretation. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.

XXIX. Authority. This Agreement sets forth the entire Agreement and understanding between the Parties and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. This Agreement may not be modified or discharged, in whole or part, except by consent in writing signed by the Parties.

XXX. Assignment. This Agreement may not be assigned or otherwise transferred by either party without the prior written consent of the non-transferring party.

XXXI. Binding Arrangement. This Agreement will be binding upon and inure to the benefit of the parties hereto and each Party’s respective successors and assigns.

XXXII. Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties hereto shall be construed and enforced as if the Agreement did not contain the particular provision(s) held to be unenforceable.

XXXIII. Governing Law. This Terms of Service shall be governed by and construed in accordance with the laws in the State of Tennessee.

XXXIV. Authority. Each party hereto represents and warrants that it has the full power and authority to enter into and perform this Terms of Service, and each party knows of no law, rule, regulation, order, agreement, promise, undertaking, or other fact or circumstance which would prevent its full execution and performance of this Agreement.

XXXV. Counterparts. This Terms of Service may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement. By paying the initial Workergenix invoice and using Workergenix services you are implicitly agreeing to these terms of service.