Last updated on August 2, 2021. Services and Payment.
1.1 Level Company is the creator of a technology platform and service (the “Level Platform”) that enables users, which may be individuals or companies (”Clients”) to arrange for service providers to provide advisory services to Clients, and Advisor wishes to provide such services to Clients through Level Company as set forth in this Agreement, and one or more written orders accepted or executed by Advisor that reference and implement this Agreement (“Client Arrangement”).
1.2 By entering into this Agreement with Level Company, Advisor hereby agrees to undertake and complete the Services (as defined in an applicable Client Arrangement) in accordance with and on the schedule specified in such Client Arrangement (as may be amended from time to time by mutual agreement of Level Company and Advisor). As the only consideration due to Advisor regarding the subject matter of this Agreement, Level Company will pay Advisor as set forth in a Client Arrangement. If there is a conflict between the terms of this Agreement and the terms of a Client Arrangement, the terms of this Agreement will control. Promptly after execution of this Agreement, Advisor shall deliver to Level Company a properly completed and duly executed Department of the Treasury IRS Form W-9 or W-8BEN.
2. Feedback; Rights; Proprietary Information; Publicity.
2.1 Advisor shall from time to time, at Level Company’s request, provide comments, suggestions, improvements, ideas or other feedback relating to Level Company and/or the Services (“Feedback”). Advisor shall, and hereby does, assign to Level Company all right, title and interest (including all related intellectual property and other proprietary rights) in and to the Feedback, and acknowledges and agrees that Level Company will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback as Level Company sees fit, without obligation or restriction or further consideration of any kind.
2.2 Nothing in this Agreement will give Advisor or any of its personnel any rights in respect of any of the intellectual property or the goodwill associated with Level Company or its business, including without limitation the Level Platform. Neither Advisor nor its personnel may, directly or indirectly, use any content or information provided or made available by Level Company to create any product or service that is similar to or competes with any aspect of the Level Platform.
2.3 Advisor and its personnel may receive certain private and/or confidential information or materials from and/or in respect of Clients (“Client Proprietary Information”), and will also receive or have access to proprietary and/or confidential information or materials relating to Level Company and its business (“Level Proprietary Information,” and together with Client Proprietary Information, “Proprietary Information”). Level Proprietary Information shall include, without limitation, the terms of all Statements of Work, and the Feedback. Advisor agrees (a) to use the Proprietary Information solely as reasonably necessary to perform the Services for Clients and performance of this Agreement, and not for any other purpose; (b) to maintain the Proprietary Information as confidential, and exercise all reasonable precautions to prevent unauthorized access, use or disclosure; (c) not to copy the Proprietary Information, except as reasonably necessary to perform the Services for Clients and performance of this Agreement, (d) not to disclose the Proprietary Information to any third party other than Advisor’s personnel who have a need to know for the purpose of providing the Services and who are similarly bound (consistent with the restrictions in this Agreement) to protect the Proprietary Information, (e) not to decompile, disassemble or otherwise reverse engineer any Proprietary Information, or use any similar means to discover its underlying composition, structure, source code or trade secrets and (f) not to export or re-export (within the meaning of U.S. or other export control laws or regulations) any Proprietary Information or product thereof in violation of U.S. or other export control laws or regulations. Except upon order of government authority having jurisdiction, or upon written consent by Client, Provider agrees, and shall require its personnel to agree, not to use or disclose, for its own benefit or the benefit of any third party, any of the above-described information. Advisor shall promptly notify Level Company of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of its confidentiality obligations by its employees and agents.
Notwithstanding the foregoing, Advisor understands that this Agreement does not affect Advisor’s immunity under 18 USC Sections 1833(b) (1) or (2), which read as follows: (1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. (2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
2.4 Advisor is aware of, and shall advise its personnel and any agents or representatives who are informed of the matters that are the subject of this Agreement or that receive Client Proprietary Information, as to any restriction imposed by applicable securities laws on (a) the purchase or sale of securities by any person or entity who has received material, non-public information regarding the issuer of such securities and (b) the communication of such information to any person or entity when it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.
2.5 Upon termination and as otherwise requested by Level Company, Advisor will promptly return to Level Company or Client (as applicable) all items and copies containing or embodying Proprietary Information, except that Advisor may keep its personal copies of its compensation records and this Agreement.
2.6 Notwithstanding anything in the foregoing, if Advisor enters into one or more agreements with a Client (each, a “Direct Client Agreement”), Advisor shall also adhere to the terms and conditions of such Direct Client Agreement. Nothing in the foregoing shall limit or qualify the terms of such Direct Client Agreement with respect to Client Proprietary Information (including any Client intellectual property). In the event of any conflict between the terms of this Agreement and the terms of any such Direct Client Agreement, the terms of such Direct Client Agreement shall control to the extent relating to the applicable Client Proprietary Information.
2.7 As additional protection for Level Proprietary Information, Advisor agrees that during the period over which Advisor is (or is supposed to be) providing the Services, Advisor will not, directly or indirectly, (a) encourage or solicit any employee, consultant or personnel of Level Company to leave Level Company’s employment or terminate such party’s engagement with Level Company for any reason without the prior consent of Level Company, or (b) circumvent or attempt to circumvent Level Company’s relationship with any Client, provided that to the extent such restrictions are not permitted under laws applicable to Advisor, they shall not apply. Further, Advisor agrees that it shall inform Level Company immediately in the event that a Client attempts to induce or solicit Advisor into circumventing such Client’s relationship with Level Company (including without limitation by extending an offer of employment to Advisor). Advisor may be engaged or employed in any other business, trade, profession, or other activity which does not place Advisor in a conflict of interest with Level Company or any Client.
2.8 Level Company will explicitly request the use of Advisor's consent for use of Advisor's name in any marketing material. Advisor will confirm, in writing, any such ratifications and consents when requested by Level Company.
3. Warranty. Advisor warrants that: (i) all information provided bv or on behalf of Advisor to Level Company is true and correct to the best of Advisor’s knowledge; (ii) the Services will be performed in a professional and workmanlike manner, by personnel of required skill, experience, certifications, accreditations and qualifications, exercising a level of professional care customarily observed by highly skilled professionals rendering similar services, and devoting adequate resources to meet Advisor’s obligations with respect to the Services; (iii) none of the Services or any part of this Agreement is or will be inconsistent with any obligation Advisor may have to others; (iv) all work under this Agreement shall be Advisor’s original work and will not infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Advisor); (v) Advisor has the full right to provide the Level Company with the assignments and rights provided for herein; (vi) if Advisor’s work requires a license, Advisor has obtained that license and the license is in full force and effect; (vii) all past and existing employees, independent contractors/consultants and personnel of Advisor who have participated or will be participating in the Services or the creation or development of Inventions (“Contributors”) have executed written agreements pursuant to which each such Contributor has (A) assigned to Advisor free and clear of all liens and encumbrances his or her entire right, title, interest in and to all work product which are made or reduced to practice by the Contributor during his or her employment or engagement and (B) agreed to terms and conditions substantially similar to Section 2.3 of this Agreement not to disclose or use any proprietary rights, trade secrets or Proprietary Information generated, learned or acquired during the course of such employment or engagement; (viii) Advisor shall comply with all Level Company and applicable Client policies, procedures, and safety rules in the course of performing the Services; and (ix) Advisor is an independent business and is either a sole proprietorship or duly organized, validly existing and in good standing as a corporation or other entity under the laws and regulations of its jurisdiction of incorporation or organization.
4. Authorization for Background Check, Consumer Reports. Advisor acknowledges that engagement by Level Company to provide Services is contingent upon the successful verification of information provided by or on behalf of the Advisor to Level Company during Consultant’s application process, as well as a background check performed by Level Company to confirm Advisor’s and Advisor personnel’s suitability for engagement. For purposes of this Agreement, “background check” means one or more of the following, in Level Company’s sole discretion: conducting a criminal background check, performing a drug test, checking references, and using such other commercially reasonable methods, if any, to determine the qualifications of Advisor and its personnel for engagement to perform Services as a reasonable and prudent Level Company might utilize under the circumstances. By accepting this Agreement, Advisor agrees that it and any relevant personnel shall execute any and all documentation necessary for Level Company to conduct a background check and you expressly release Level Company from any claim or cause of action arising out of Level Company’s verification of such information.
5. Termination. If either party materially breaches a material provision of this Agreement, the other party may terminate this Agreement upon five (5) days written notice unless the breach is cured within the notice period. Level Company also may terminate this Agreement at any time, with or without cause, upon ten (10) days’ notice, but, if (and only if) without cause, Level Company shall upon termination pay Advisor all unpaid and undisputed amounts due for Services completed prior to notice of termination. Sections 2 (subject to the limitations on Section 2.3 stated therein), 3, and 5 through 9 of this Agreement and any remedies for breach of this Agreement shall survive any termination or expiration. Level Company may communicate such obligations to any other (or potential) client or employer of Advisor.
6. Relationship of the Parties. Advisor is providing the Services as an independent business and is customarily engaged in the business of providing services. Advisor shall be responsible for hiring, firing and supervising the personnel providing the Services hereunder. Subject to the terms of this Agreement, Advisor, and not Level Company or Client, shall determine the manner and means by which Advisor performs the Services, the location of the performance of the Services and the schedule on which the Services are performed. Unless otherwise specified in a Client Arrangement, Advisor shall be responsible for providing all necessary supplies, materials and equipment required for the performance of the Services. Advisor agrees to comply with all rules, policies and procedures for accessing and using any Client’s premises and equipment, including those related to safety and security. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not a partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Advisor shall bear sole responsibility for all acts and omissions of Advisor and its personnel. Advisor shall bear sole responsibility for payment of compensation to its personnel. Advisor shall withhold (if applicable), pay and report, for all personnel assigned to the Services, federal, state and local income tax withholding, social security taxes, employment head taxes, unemployment insurance, and any other taxes or charges applicable to such personnel. Advisor shall bear sole responsibility for any health or disability benefits, retirement benefits, or welfare, pension or other benefits (if any) to which such personnel may be entitled. Neither Advisor nor any of its employees or subcontractors will be eligible for any benefits normally provided by Level Company to its employees, including but not limited to compensation, insurance and unemployment insurance, and Level Company has no obligation to furnish any such benefits. Neither Advisor nor any of its personnel may claim benefits from Level Company under applicable workers’ compensation laws for injuries sustained while providing Services. Advisor agrees to defend, indemnify, and hold harmless Level Company, its Clients, and their respective officers, directors, employees and agents, affiliates, any benefit plan sponsored by either of them, and any fiduciaries or administrators of any such benefit plan, from and against any claims, liabilities, or expenses relating to any claim by Advisor’s personnel for compensation, tax, insurance, or benefits.
7. Assignment. This Agreement and the Services contemplated hereunder are personal to Advisor and Advisor shall not have the right or ability to assign, transfer or subcontract any obligations under this Agreement without the written consent of Level Company. Any attempt to do so shall be void. Level Company may fully assign and transfer this Agreement in whole or part.
8. Notice. All notices under this Agreement shall be in writing, and shall be deemed given when sent by confirmed electronic means, or three (3) days after being sent by prepaid certified or registered U.S. mail. All notices under this Agreement shall be sent to the address of the party to be noticed as set forth on the applicable Client Arrangement or such other address as such party last provided to the other by written notice.
9. Miscellaneous. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware without regard to the conflicts of laws provisions thereof. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in New York County, New York (or if Advisor is an individual residing in the State of California, the state or federal courts of San Francisco County, California], and each party consents to the jurisdiction thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. Any breach or threatened breach of Sections 2, 3 or 6 of this Agreement will cause irreparable harm to Level Company for which damages would not be an adequate remedy, and, therefore, Level Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.
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