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customer agreement
CUSTOMER AGREEMENT
(the “Agreement”)
Customer has agreed to contract Services (defined in Section 1) from oolu, and oolu has agreed to provide such Services, subject to the terms, conditions and covenants herein contained.
In consideration of the foregoing recitals and the covenants and the conditions set forth in this Agreement, the parties agree as follows:
1. Scope of Services. oolu will diligently and in a professional manner provide the following services to Customer (the “Services”):
oolu may identify one or more potential candidates (each, a “Contractor”) to fill an open position(s) for an independent contractor to work with Customer (each, a “Job”). Provided that the Contractor consents to be matched with Customer, oolu will facilitate any third-party background checks that Customer selects (e.g. criminal, credit, education, professional designation, social media, vulnerable sector, references, personality and/or behavioral assessments) at Customer’s sole cost, and oolu will match the Contractor to Customer.
If oolu has facilitated any of Customer’s requested background checks with respect to a particular Contractor (the “Prior Background Checks”) within 90 days prior to Customer’s request, oolu will provide those Prior Background Checks to Customer following Customer’s request for such background checks, at Customer’s sole cost. Any Prior Background Checks facilitated more than 90 days prior to Customer’s request will not be provided to Customer, and new background checks will be facilitated following Customer’s request for such background checks. Customer may contact support@oolu.ai if it has any questions relating to background checks; however, oolu is not responsible for any background checks (other than facilitating same) or lack thereof, or for any related results.
oolu will exercise a degree of skill and care that would be expected from a competent service provider and shall use commercially reasonable efforts and such time, skills, energy, and attention as are required to satisfactorily, safely, and efficiently provide the Services.
2. Rights and Responsibilities of Customer. Customer will be responsible for:
(a) any interview, hiring, onboarding, orientation, training, and similar processes, as applicable, with the Contractor(s) relating to the Job, including entering into a written independent contractor agreement with any successful Contractor for the Job; and
(b) agreeing to, and contractually requiring the successful Contractor to agree to, the Payment Acknowledgement.
Further, as between oolu and Customer, Customer will be responsible for: (i) any insurance or other statutory or legal requirements, and all expenses, related to the Contractor and/or the Job; and (ii) all other requirements for and relating to the Job, including without limitation any devices required to perform the Job.
The Job may have no set end date (with termination for convenience upon 30 days’ written notice to oolu and the Contractor), or Customer may extend or renew the term of the Job, provided that any such extension or renewal shall be subject to the same compensation and payment terms as set out in this Agreement.
3. Compensation. As consideration for the Services:
(a) In the event the Customer elects to activate one or more position(s), thereby enabling access to (including unblurring or unlocking) Candidate profiles on oolu’s platform, the Customer shall pay the applicable subscription fee as set out on oolu’s platform, as may be updated from time to time.
(b) oolu will be compensated by Customer in an amount equal to 15% of the Contractor’s compensation (whether payable to the Contractor on an hourly basis or via weekly or monthly retainer) pursuant to the Job, unless such percentage is reduced by oolu in writing to Customer or through use of an active discount code. oolu will also retain 5% of the Contractor’s compensation to pay oolu’s administration fees. Customer will ensure all funds required to fully pay both oolu and the Contractor for the relevant payment period are in a bank account accessible by oolu’s third-party payment processor (the “Account”). Accordingly, a hold will be placed on the estimated funds on the Monday prior to the Contractor’s weekly work with respect to the Job. The hold will be removed, and oolu will make the applicable payment on or thereabout the following Wednesday, with oolu. As an example, if the Contractor provides services to Customer pursuant to the Job at an hourly rate of Cdn$100, and one hour of the Contractor’s services are provided to Customer pursuant to the Job, then oolu will withdraw Cdn$115 from the Account, retain Cdn$20, and pay the Contractor Cdn$95; plus applicable sales taxes as required (ie. GST, HST etc).
(c) In the event Customer enters into:
(i) an employment relationship with the Contractor; and/or
(ii) a contractor relationship with the Contractor for a role other than a Job, or any other contractor relationship not involving oolu;
any time within a period noted below, then Customer shall promptly pay to oolu, in addition to any other amounts due and owing to oolu pursuant to this Agreement, the single lump sum payment set out below, which shall be deposited into the Account or paid via any other method in which the parties may agree in writing:
Period: Payment (Cdn$)
0–90 days (inclusive) from the Effective Date: $60,000
91–180 days (inclusive) from the Effective Date: $40,000
181–270 days (inclusive) from the Effective Date: $20,000
271 days or greater from the Effective Date: $10,000
4. Expenses. Unless the relevant party obtains prior written authorization from the other party prior to incurring such expenses, each party shall be responsible for all expenses incurred by him, her, or it, whether related directly or indirectly to the performance of the Services. oolu will only process compensation due to oolu and/or Contractor as set out in Section 3.
5. Statutory Payments. oolu shall not be responsible for any Canada Pension Plan, Employment Insurance, source deductions or any other contributions or deductions associated with the Services.
6. Indemnity. Except as otherwise provided above and herein, each party shall indemnify and hold harmless the other party from all claims, demands and causes of action of any third party for any damage, cost, liability and expenses, including reasonable lawyer’s fees, arising from or in connection with the first party’s failure to comply with this Agreement, negligence or wilful misconduct.
7. Disclaimer. Although oolu will use its best efforts to match a Contractor(s) to Customer, oolu cannot guarantee that any match of a Contractor(s) to Customer will occur. To the fullest extent possible under applicable law, oolu does not make any, and disclaims all, representations, warranties, and guarantees, of any kind, whether express or implied, with respect to the Services and/or any Contractors it matches to Customer, including with respect to a Contractor’s background and performance pursuant to the Job. Additionally, unless otherwise expressly stated, no part of the Services shall be construed as providing advice (professional or otherwise) to Customer.
8. Liability; Limitation of Liability. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, INDEPENDENT CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, AS APPLICABLE, BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOST BUSINESS OPPORTUNITY) THAT THE FORMER PARTY MAY INCUR OR EXPERIENCE BY REASON OF HIS, HER, OR ITS HAVING ENTERED INTO OR RELIED ON THIS AGREEMENT, OR ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, EVEN IF EITHER PARTY WAS ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION WILL APPLY REGARDLESS OF THE FORM OF THE CLAIM(S), IN WHICH SUCH LIABILITY MAY BE ASSERTED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
9. Protection of Personal Information. Each party acknowledges that any information concerning the Contractor may be subject to requirements of the Personal Information Protection and Electronic Documents Act (Canada), as amended from time to time, and/or any other applicable federal, state, provincial, or territorial legislation (collectively, the “Privacy Legislation”). Each party agrees and covenants with the other party that it will comply with the Privacy Legislation in all respects with respect to the Contractor and the Contractor’s personal information (being information of an identifiable individual), including the collection, use, storage and disclosure of the Contractor’s personal information.
10. Term. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Agreement.
11. Termination. This Agreement may be terminated by either party on 30 days’ written notice to the other party or such other time period as may be agreed to in writing by the parties.
12. Confidentiality.
(a) For the purposes of this Agreement, “Confidential Information” shall mean any and all non-public information, including plans, models, ideas, processes, systems, procedures, techniques, expenses, and any other data or information disclosed by a party (in this Section, the “Disclosing Party”) to another party (in this Section, the “Receiving Party”) or of which the Receiving Party may otherwise acquire, see, or be informed of as a direct or indirect consequence of this Agreement, in connection with or relating to the Disclosing Party or this Agreement, regardless of whether such information is specifically designated as confidential and regardless of whether such information is in written, oral, electronic, or other form.
Confidential Information does not include information which the Receiving Party can demonstrate: (i) is or becomes publicly available through no action or fault of the Receiving Party; (ii) was known to the Receiving Party prior to the time of disclosure; (iii) was received from a third party that was not under an obligation of confidentiality to the Disclosing Party with respect to such information; (iv) was developed independently; or (v) which is required to be disclosed or offered in evidence in legal proceedings provided that the party involved in such proceeding provides prompt prior written notification to the other party of the requirement for such disclosure so as to permit such other party to take, at its own expense, any steps it may deem appropriate for the preservation of the confidentiality.
(b) All Confidential Information disclosed to the Receiving Party is and shall remain the property of the Disclosing Party and shall not be copied, reproduced or used in any manner for any purpose outside of the terms hereof, without the express prior written permission of the Disclosing Party.
(c) The Receiving Party agrees to keep in confidence and shall not distribute, disclose, disseminate, or use, for its own benefit or for the benefit of others, in any manner or form, any Confidential Information received from the Disclosing Party, including any purpose outside of the terms hereof, or using Confidential Information disclosed hereunder, unless and to the extent specifically authorized in writing by the Disclosing Party. The Receiving Party shall use its best efforts to protect and guard the Confidential Information from disclosure and/or use by any person in violation of this Agreement in no less than the same manner as it treats its own Confidential Information.
(d) No license or conveyance of any rights to the Receiving Party under any discoveries, inventions, trade secrets or patents now or hereinafter obtained is granted, agreed to be granted, or implied by either this Agreement or the transmission of Confidential Information.
(e) The Receiving Party shall ensure that any director, officer, independent contractor, employee or agent of the Receiving Party having access to Confidential Information shall undertake an obligation of confidentiality sufficient to enable the Receiving Party to comply with all of the terms of this Agreement and prevent the disclosure and/or use of the Confidential Information by any such person. The Receiving Party will be responsible for breaches of this Agreement by any such person as if such persons were a party hereto.
(f) Upon the earlier of: (i) the termination or expiration of this Agreement; or (ii) the written request of the Disclosing Party, the Receiving Party, at its sole cost, shall return to the Disclosing Party all originals, copies, and summaries of documents, materials, and all other tangible manifestations of Confidential Information in the possession or control of the Receiving Party. Notwithstanding the foregoing, no party shall be required to destroy or alter any computer archival/backup tapes or files, but such tapes or files shall be retained in accordance with the provisions of this Section.
13. Disputes.
(a) In the event of a dispute regarding this Agreement or any portion hereof, either party may provide written notice (the “Dispute Notice”) of such dispute to the other party. The parties shall then use best efforts to resolve the dispute within 30 days of receipt of the Dispute Notice.
(b) If the dispute is not resolved within 30 days of receipt of the Dispute Notice, or such other period as the parties may agree in writing, either disputing party shall serve written notice upon the other party of its request to mediate the dispute (the “Mediation Request”). Where a party has served a Mediation Request, such party shall nominate a mediator.
(c) If the parties cannot: (i) agree to mediate; (ii) agree upon a mediator; and (iii) resolve the dispute within 30 days of receipt of the Mediation Request, then the disputing party may provide its written notice of its intent to arbitrate the dispute (the “Arbitration Notice”). Any unresolved dispute which is subject of an Arbitration Notice shall be settled by arbitration before a single arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Such decision shall be final and binding on the parties. The arbitration proceedings shall be conducted in English and occur in Edmonton, Alberta or such other jurisdiction as the parties may agree upon in writing.
14. Notice. Any notice under this Agreement shall be effectively given if delivered personally or sent by registered mail. The names and addresses of the parties are as follows (and may be amended from time to time by providing notice to the other party as set out in this Section):
If to oolu:
2353098 Alberta Ltd. dba oolu
Suite 2020, Rice Howard Place, Tower 1, 10060 Jasper Avenue
Edmonton, Alberta, Canada T5J 3R8
Attention: Terri Davis
If to Customer:
To the address set out in Customer’s account or profile associated with the Services
15. Nature of This Agreement. oolu is, and shall be, an independent contractor, and nothing herein contained shall be construed so as to create an agency relationship, an employment relationship, a partnership or a joint venture between Customer and oolu. During the term of this Agreement, Customer shall not treat or hold oolu out as an employee of Customer, nor represent that oolu performs services on behalf of Customer on an exclusive basis.
16. Assignment. Neither party shall assign or transfer any interest or delegate any responsibility arising out of this Agreement without the prior written consent of the other party.
17. Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party.
18. Modifications. Any modification or amendments to this Agreement shall be mutually agreed upon by both parties in writing.
19. Binding Effect. This Agreement shall be binding upon the parties to this Agreement and their respective successors and permitted assigns, as applicable.
20. Unenforceability. The invalidity, illegality or unenforceability of any provision shall not in any way affect the validity, legality or enforceability of the remaining provisions of this Agreement.
21. Survival. Sections 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 19, 20, 21, 22, and 23 of this Agreement, and any other section of this Agreement (or portion thereof) that ought reasonably to survive termination or expiration will survive the termination or expiration of this Agreement. Specifically, provision of the Services will cease upon termination or expiration of this Agreement, but all rights and obligations accrued up to the date of termination, and any payment obligations due to oolu as a result of matching a Contractor to Customer for a Job or otherwise in accordance with this Agreement, will survive any termination of this Agreement.
22. Governing Law. This Agreement will be governed by the laws of the Province of Alberta and the laws of Canada applicable therein, without regard to conflict of laws principles. The parties agree to the exclusive jurisdiction of the courts of the Province of Alberta, judicial district of Edmonton.
23. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior negotiations, representations or agreements, either written or oral, between the parties.
