MASTER SERVICES AGREEMENT
1. Parties
This Master Services Agreement (Agreement) is made by and between:
A) Gigarator Ltd (hereinafter the Company)
c/o Maria01, Lapinlahdenkatu 16, 00180 Helsinki, Finland
Business ID: 3153482-2
B) Customer that uses the contractor services within the platform (hereinafter Client)
The Company and the Client are jointly referred to as the Parties and each individually as a Party.
This Master Services Agreement is agreed to when a client agrees to engage a Talent through the platform.
2. BACKGROUND AND PURPOSE
2.1 The purpose of this Agreement is to set forth the terms and conditions applicable to any provision of Resource Hiring Services by the Company to the Client. For the purposes of this Agreement, Resource Hiring Services shall mean both of the following two services, which may be provided by the Company to the Client under this Agreement: (i) the searching and presenting of Talents to the Client as further described under Section 4 below (Search Services), as well as (ii) the engaging, and the forwarding of one or more Talents for the Client’s use in its own business for its own work, for the engagement defined in the applicable Offer (Talent Engagement) for the period of time agreed upon in the applicable Offer (Talent Forwarding Services).
2.2 For the purposes of this Agreement, Talent(s) shall mean computer engineers, programmers, and other individuals with technical skills. The Talents forwarded to the Client are not employees or direct consultants of the Company. The contractual arrangement in relation to the Talent may vary. The Company may engage Talents via hiring service providers. A Talent may also be employed by a company with whom the Company has entered into a subcontracting agreement.
2.3 Nothing in this Agreement obligates the Client to order any Resource Hiring Services from the Company or the Company to deliver any Resource Hiring Services to the Client. This Agreement is non-exclusive in all respects.
2.4 This Agreement shall apply to all Offers entered into between the Parties during the validity of this Agreement, unless the Parties have otherwise specifically agreed in writing by explicitly stating that the specifically agreed shall constitute an exception to this Agreement.
3. APPENDICES AND ORDER OF PRECEDENCE
3.1 The following appendices form an integral part of this Agreement: Offer
3.2 Each Offer entered into between the Parties also forms an integral part of this Agreement. An Offer can be entered into between the Client and the Talent on the platform. An Offer can not be entered into without accepting the terms in this Agreement.
3.3 In the event of any discrepancy between the content of this Agreement document and an Offer, the content of the Offer shall prevail provided such discrepancy has been agreed in writing as set out in Section 2.4.
4. SEARCH SERVICES
4.1 The Client may request the Company to search for a Talent who could potentially be suitable for the Client’s Talent Engagement. The Company may search in its proprietary SaaS service Hashlist (SaaS Service) or look for Talents in other sources, as the Company deems appropriate. The Client makes the request in writing (e.g. by email) by providing the Company all relevant information on its needs regarding the Talent, at least the following:
i) Talent’s engagement at the Client,
ii) Requested Talent Engagement start date, and
iii) Requested duration of Talent Engagement.
4.2 The aforementioned information as well as any other information and instructions provided by the Client to the Company in relation to the requested Talent and Talent Engagement shall for the purposes of this Agreement be defined as Client Information. The Company will perform the Search Services and present Talents based on Client Information. The Client is responsible for ensuring that any and all Client Information is correct and complete.
4.3 Based on the provided Client Information, the Company will search for Talent candidates. If the Company finds Talent candidates which it deems might suit the Client’s needs based on the Client Information, the Company will present such Talent candidates to the Client in the way it sees fit.
4.4 The Client shall assess that each Talent is suitable for the Talent Engagement and that it fulfils any other criteria the Client may have.
4.5 The Client acknowledges and agrees that the Talent candidate may become unavailable for Talent Forwarding Services before the Offer is entered into. The Client is encouraged to perform Talent candidate assessments and enter into Offers without undue delay in order to minimize the risk of the Talent finding other engagements. The Talent is not reserved for the Client until an Offer regarding that Talent has been entered into.
4.6 For clarity, the Company does not guarantee that suitable candidates are found, the entry into an Offer, or any Talent’s willingness to perform work for the Client.
4.7 For the avoidance of doubt, the Client shall not, during the term of this Agreement or thereafter, disclose the Talent candidate's CV or other details to any third party other than its affiliates as may be necessary for the Talent Forwarding Services contemplated upon or agreed upon under an Offer. The Client may seek references in respect of the Talent candidate with the Talent candidate's permission.
4.8 Unless an exception set out in Section 4.9 below applies, the Client shall pay the Company a recruitment fee for directly, or otherwise without involving the Company, engaging or employing a Talent that has been presented to the Client by the Company or regarding whom the Parties have entered into an Offer, which shall be calculated as follows: (the hourly Fee of the relevant presented Talent) x 240 (Recruitment Fee).
4.9 The Client shall, however, not have the obligation to pay the Recruitment Fee for directly, or otherwise without involving the Company, engaging or employing a Talent that has been presented to the Client by the Company or regarding whom the Parties have entered into an Offer, provided that: (i) in respect of non-engaged Talents, over 12 months have passed since the Talent candidate has for the last time been presented to the Client by the Company, or (ii) in respect of engaged Talents, the Company has been paid Fees amounting to at least 240 hours of that Talent’s Talent Engagement.
5. OFFERS
5.1 Talent Forwarding Services are ordered by the Client by a written Offer (each an Offer).
5.2 Having assessed to its satisfaction that a Talent presented by the Company is suitable for the Talent Engagement and that such Talent fulfils any other criteria the Client may have, the Client shall on the platform prepare an Offer for the Talent. The Client’s signature of the Offer shall be a binding offer which cannot be withdrawn by the Client during ten business days following upon the Company’s receipt of the Offer signed by the Client.
5.3 After receipt of the Offer signed by the Client, the Company shall without undue delay attempt to engage the relevant Talent for the Talent Engagement set out in the Offer. In the case that the Talent is still available for the Talent Engagement under the proposed terms, the Company will itself sign the Offer. An Offer shall become binding when accepted by the Talent.
6. TALENT FORWARDING SERVICES
6.1 The Talent Forwarding Services shall be performed in accordance with this Agreement and the applicable Offer.
6.2 For clarity, no part of the Talent Forwarding Services includes project delivery or similar services. The Client shall set, review, supervise and monitor Talent work and time schedules and all other aspects of each Talent Engagement, which the Client shall be solely and exclusively responsible for. The Client shall properly inform and supervise the Talent while it performs work under a Talent Engagement (including without limitation notifying the Talent of the Client’s processes and policies applicable to the Client’s contracted resources). The Talent shall always be deemed to work under the Client’s active supervision, direction and control. Under an Offer, the Client purchases working hours of a Talent, not results. Therefore, the Company is not responsible for, and does not give any warranties relating to, the provision of the Resource Hiring Services nor does the Company provide any warranties or bear any liability in relation to any Talent Engagement or any Results (as defined under Section 12.1 below) (e.g. warranty of fitness for a particular purpose, non-infringement or error-freeness).
6.3 The Client is solely and exclusively responsible for the Client’s business operations, products, services, Confidential Information and intellectual property rights. The Client shall be responsible for acquiring all rights and licenses to any software, code, information, documentation, and other materials and intellectual property rights that Client acquires from third parties and/or furnishes to the Talent and for ensuring that the Client has all rights and licenses necessary to enable the Talent Engagement
6.4 One full-time working day is 8 hours and a full-time week of work is 40 hours. Unless otherwise agreed in the Offer, the Talent shall work full-time, 40 hours per week, excluding pre-announced training days, sick days, annual holidays and other similar absences. Public holidays in the country where the Talent is located are not working days.
6.5 If the Company and the Client have agreed that the Talent will work in the facilities of the Client, the Client is responsible for such facilities and their suitability for the work of the Talent(s). Among other things, the Client is responsible for occupational safety and direction of the Talents. The Talent(s) may also work remotely. The Client is also responsible for the training of any Client-specific methods and tools, as well as for the provision of appropriate workspaces, tools and equipment for use by the Talent(s).
6.6 The Talent(s) will report the amount of time spent on the Talent Engagement to the Company or Client that will invoice the Client for the Talent Forwarding Services in accordance with the said reports.
6.7 During the validity of the applicable Offer, the Client agrees to discuss every four weeks with the Talent(s) how their work has met the expectations of the Client.
7. GENERAL OBLIGATIONS
7.1 Both Parties undertake to take decisions and other measures that are necessary for the execution of the Agreement without undue delay.
7.2 The Client shall provide the Company with all information, materials and feedback that the Company deems necessary in order to execute the Agreement. The Client shall be responsible for ensuring that the information, materials and feedback given to the Company are correct and accurate.
7.3 The Client shall comply with all applicable laws with respect to its engagement with each Talent. The Client is responsible for obtaining work permits and other permissions as may be required for the Talent, Talent Engagement or hiring a resource as well as for the arrangement of any medical examinations and requirements, qualifications or permissions required by the law of the country in which the Talent is engaged to work. The Company shall be responsible only for such statutory obligations that may be based on the Company’s contractual relationship with the employer or broker of the Talent.
8. PAYMENT AND FEES
8.1 The Client shall pay the Company fees for its performance of Resource Hiring Services (Fees) as agreed herein.
8.2 Unless otherwise agreed in the Offer, the Company shall invoice the Talent Forwarding Services on a time and material basis in accordance with the hourly rates specified in the Offer based on actual hours of work spent on the Talent Engagement. The Client agrees to be invoiced at least once every two weeks by no more often. The payment term is 14 days net from the date of the invoice.
8.3 The Fees do not include any applicable sales tax, value added tax or other taxes, governmental charges or bank charges, which shall be added to the amounts invoiced by the Company in accordance with the relevant legislation.
8.4 Unless otherwise agreed in writing, all Fees shall be payable in EUR and the Client shall bear all costs associated in making the payment. A payment is considered as accepted only when the funds are cleared in full in the bank account specified in the Company’s invoice.
8.5 Work of a Talent which exceeds normal daily working times is charged for as follows: the normal rate plus: (i) a 50% increase of the unit price on weekdays for each hour of work that exceeds 7.5 hours per day, (ii) a 100% increase of the unit price for any work on Saturdays, and (iii) a 200% increase of the unit price for any work on Sundays and public holidays. Night work i.e. work done between 22:00 and 06:00, shall be agreed separately in writing and is always charged by at least a 100% increased unit price.
8.6 Any time off, downtime, or interruptions in the Talent Engagement, must be mutually agreed in writing in advance by the Parties in order to be applicable.
8.7 To the extent the Talent or a representative of the Company is required to travel for the execution of any Resource Hiring Services, the Company shall invoice the actual travel and accommodation costs and expenses and daily allowances separately from the Client. Travel time shall be invoiced at 50 % of the applicable hourly rates of the Company.
8.8 In case of late payment by the Client, the Company is entitled to late payment interest in accordance with the Finnish Interest Act. Additionally, the Client agrees to pay or reimburse the Company’s costs of collection of unpaid balances (including, without limitation, reasonable attorneys’ fees).
8.9 Notwithstanding anything to the contrary in this Agreement, if the Client has failed to pay any outstanding invoice after 14 days has elapsed from the due date of such invoice, the Company is entitled to at its sole discretion suspend delivering and executing Resource Hiring Services, or demand prepayment until all unpaid invoices have been settled.
9. CHANGES TO TALENTS
9.1 The Company shall not change the forwarded Talent without the prior written consent of the Client, unless the change is due to reasonable reasons such as resignation or long-term illness.
9.2 The Company shall notify the Client without undue delay if it becomes aware that a Talent must be changed. The Company shall be entitled to change any of the Talent(s) due to reasonable reasons such as resignation and long-term illness, or with the prior written approval of the Client, which may not be unreasonably withheld. The Company shall take reasonable measures to minimize adverse effects of a change of a Talent to the provision of the Talent Engagement.
9.3 The Company shall replace a Talent working for the Client pursuant to an Offer with another Talent assessed and approved by the Client under Section 5.2, if the Client reasonably considers and demonstrates that the Talent lacks the qualifications, competence or experience required by the Client.
9.4 In case a replacement Talent is provided for the Client, the Company shall use reasonable efforts to ensure that such Talent has at least equal qualifications, competence and experience as the previous Talent.
9.5 If the Company is unable to provide a replacement Talent within a reasonable time period, the Client shall have the right to terminate the Project Order in question with immediate effect. In such case, the Company shall, however, be entitled to payment for all hours of work performed by the Talent up to the point of termination.
10. PERSONAL DATA
10.1 As regards personal data of Talents and Talent candidates presented by the Company and personal data which is stored in its systems and services or used by the Company for the Resource Hiring Services, the Company shall be regarded as a data controller. Further, the Client processing a Talent or Talent candidate’s data for the purpose of its candidate review process and for the purpose of the Talent Engagement shall also be regarded as an independent data controller in such capacity. The Company and the Client undertake to comply with the applicable data protection and privacy legislation applicable to their operations.
11. AGREEMENTS BETWEEN THE CLIENT AND THE TALENT
11.1 The Client may provide its desired form of intellectual property rights assignment agreement and confidentiality agreement for the engaged Talent to sign in connection with an Offer. The Company does not warrant that such agreements will be entered into and the Company does not participate in the negotiations of such agreements, which may take place between the Client and the Talent.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Even if an intellectual property rights assignment agreement has not been entered into between the Client and the Talent, subject to the Client’s compliance with this Agreement and upon the Client paying all Fees due, the Client shall be the owner of all rights, title and interest in and to all intellectual property rights (e.g., copyrights, related rights, database rights, trademarks, patents, design rights, domain names as well as any applications for the foregoing) created or developed by the Talent solely in the course of the performance of the Talent Engagement and clearly pertaining to the business of the Client during the term of the relevant Offer (Results). Such rights granted to the Client shall include the right to amend the said intellectual property rights created or developed by the Talent as well as the right to assign such rights to third parties.
12.2 No Pre-Existing Material is assigned to the Client. For the purposes of this Agreement, Pre-Existing Material shall mean: (i) existing or background technology, open source software, third-party software or standard software, confidential or proprietary methodologies, know-how or intellectual property rights existing before the Offer or not created or developed by the Talent solely in the course of the performance of the Talent Engagement and clearly pertaining to the business of the Client during the term of the relevant Offer, (b) any derivatives, improvements, enhancements or extensions of the foregoing that are conceived, reduced to practice, or developed in the performance of the Offer, and (c) any intellectual property relating to any of the foregoing.
12.3 To the extent the Results include or require open source software, third-party software, standard software or other Pre-Existing Material, all rights to the Pre-Existing Material belong to and remain the property of the applicable rightsholder. Such Pre-Existing Material shall be provided exhaustively in accordance with its applicable terms and conditions.
12.4 The Client is responsible for the management and storage of all Results.
13. CONFIDENTIALITY
13.1 The Parties shall keep confidential and not disclose to any third party any Confidential Information received from the other Party or otherwise learned in connection with this Agreement. A Party (Receiving Party) shall not use Confidential Information received from the other Party (Disclosing Party) for any other purposes than the fulfilment of its rights and obligations under this Agreement. The Client’s Confidential Information will not come to the knowledge or possession of the Company as a result of the Talent’s access to such information.
13.2 Confidential Information shall for the purposes of this Agreement mean all confidential or proprietary information, concerning the business of the Disclosing Party, disclosed in any form whatsoever by the Disclosing Party to the Receiving Party in connection with this Agreement, labelled as “confidential” or with a similar remark or which by its nature must otherwise be understood as confidential, including, financial, technical, and commercial information. The Company’s Confidential Information includes, but is not limited to, the names, contact information, fees and particular skills of a Talent in the Company’s network as well as the Company’s general fees, contractual terms, screening methods and criteria, and Talent selection methods and criteria.
13.3 The Receiving Party shall ensure the confidentiality of the Disclosing Party’s Confidential Information at least with the same degree of security as it applies to its own Confidential Information. The Receiving Party has the right to copy any Confidential Information only to the extent necessary for the fulfilment of its rights and obligations under this Agreement and only disclose Confidential Information to its employees, other representatives, subcontractors (including the Talent(s)) and advisors on a strict need-to-know basis for the sole purpose of fulfilling the Receiving Party’s rights and obligations under this Agreement.
13.4 The obligation of confidentiality shall not apply to material and information which:
i) is or becomes generally available or otherwise public due to a reason other than the breach of this Agreement;
ii) the Receiving Party has lawfully received from a third party without any obligation of confidentiality;
iii) the Receiving Party has developed independently without using material or information received from the Disclosing Party; or
iv) the Receiving Party shall disclose pursuant to law, decree or other order issued by a competent regulatory or governmental body or other public authority or a judicial order, in which case the Receiving Party shall, to the extent reasonably possible, inform the Disclosing Party in writing of the disclosure of information prior to its disclosure.
13.5 The Parties shall promptly upon termination of this Agreement or when a Party no longer needs the Confidential Information received from the other Party for the purposes of this Agreement, cease using the Confidential Information and, unless the Parties separately agree on destruction of the Confidential Information, at the request of the other Party, return the Confidential Information received from the other Party. However, the Receiving Party: (a) may keep one copy of the Confidential Information in the files of its legal department or outside counsel for the sole purpose of determining its legal obligations, (b) will not be required to destroy or return archival computer backups maintained as part of its reasonable IT policy and containing further copies of the Confidential Information or any part thereof, and (c) shall be entitled to retain copies required by mandatory laws or regulations.
13.6 The rights and obligations defined in this Section 13 do not limit the Company’s reference right agreed upon in Section 19.2 below, or the Talent(s)’ right to use the expertise and know-how acquired by it in connection with the Agreement.
13.7 The rights and obligations of the Parties under this Section 13 shall remain in force during the term of this Agreement and for a period of two years from the termination of this Agreement, unless applicable law imposes a longer confidentiality obligation term.
14. LIMITATION OF LIABILITY
14.1 Neither Party shall be liable towards the other Party for any consequential or indirect damage or loss, including but not limited to loss of profits, business or data.
14.2 Each Party’s total and aggregate liability under this Agreement is limited to 30 % of the total amount of Fees (excluding VAT) paid by the Client to the Company for the Resource Hiring Services (i.e. the Offer, if applicable) to which the claim relates in the 12-month period immediately preceding the date of the first claim. This limitation shall not apply to any fees or reimbursements payable by the Client hereunder.
14.3 The aforementioned limitations of liability shall not apply to damage or losses caused by a breach of the obligations of confidentiality agreed upon in Section 13 (Confidentiality), or to damage or losses caused intentionally or resulting from gross negligence.
15. NO WARRANTY
15.1 The Company hereby excludes and disclaims all conditions, warranties, guarantees and representations that are not expressly set out in the Agreement or which are implied, statutory or customary and which, but for this exclusion and disclaimer, would or might subsist in favour of the Client, including any warranties as to fitness for purpose or merchantability.
16. FORCE MAJEURE
16.1 Neither Party shall be held liable for any failure of or delay in performance of its obligations if performance is prevented or delayed by a cause beyond such Party’s control, which the Party could not have foreseen at the time of conclusion of the Agreement and the consequences of which such Party could not have reasonably avoided or overcome (Force Majeure). Such causes shall include disturbances in public transportation or data communication, lack of energy resources or their delivery, war, riot, terrorist attack or acts or orders of any competent civil or military authority, strike, blockade and other labour disputes, pandemic, fire, flood and natural disaster and other similar causes and defects, as well as delays in performance and non-performance by a subcontractor if caused by Force Majeure.
16.2 The Party whose performance is so prevented shall promptly inform the other Party of the Force Majeure event and such Party shall use all reasonable efforts to mitigate damages to the extent possible. If a Force Majeure event prevents the performance of the Agreement for more than 90 days, each Party has the right to terminate the Agreement by written notice to the other Party.
17. TERM AND TERMINATION
17.1This Master Services Agreement shall enter into force when the Client agrees to it. This Master Services Agreement (excluding any Purchase Order) shall remain in force until terminated by a Party with three months’ prior written notice. Notwithstanding the termination of this Master Services Agreement, the Offers concluded under this Master Services Agreement shall survive such termination for their respective terms.
17.2 Regardless of the above, each Party may terminate this Agreement with immediate effect if the other Party is in material breach of this Agreement and does not remedy such breach within 14 days from receipt of a written notice thereof from the other Party. The Client’s failure to make a payment by the due date of an invoice shall be considered a material breach if full payment of the undisputed part of the invoice has not been made within 14 days of its due date.
17.3 The terms of this Agreement, which owing to their nature should survive termination of this Agreement (including without limitation Sections 12-13 and this Section 17.3) shall survive the termination hereof and be binding on the Parties and their respective permitted assigns and successors.
18. APPLICABLE LAW AND DISPUTE RESOLUTION
18.1 This Agreement shall be governed by and construed in accordance with the laws of Finland without regard to its principles and rules on conflict of laws.
18.2 Any disputes arising out of or relating to this Agreement must primarily be settled in negotiations between the Parties.
18.3 If the Parties fail to settle the dispute in their mutual negotiations within 60 days from the written notification to the other Party of the claiming Party’s claim, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English.
19. OTHER PROVISIONS
19.1 Notices
19.1.1 All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or:
i) upon receipt, if delivered personally to the Party to be notified;
ii) once sent, if sent by email during a business day of the recipient, and if not sent during a business day, then on the recipient’s next business day;
iii) five business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or
iv) one business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
19.1.2 All communications shall be sent to the respective Parties at their postal or email address
19.2 Reference Right
19.2.1 The Company shall have the right to use the Client’s name and logo as its customer reference on the Company’s website, social media platforms and in its marketing materials.
19.3 Export Restrictions
19.3.1 The Client shall comply with any export restrictions in force in any jurisdiction that may be applied to the Talent Engagement or hiring of resources.
19.4 Entire Agreement
19.4.1 This Agreement constitutes the entire agreement between the Parties and supersedes any prior written or oral agreement between the Parties.
19.5 Severance
19.5.1 If any provision of this Agreement is declared by any judicial or other competent authority to be void, illegal, or otherwise unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
19.6 Amendments
19.6.1 All changes and amendments to this Agreement are separately sent to the Client and must be agreed to to continue using the Talent Forwarding Services.
19.7 Assignment
19.7.1 Neither Party shall have the right to assign or transfer this Agreement or any of the rights or obligations under this Agreement to any third-party without the prior written consent of the other Party, which consent shall not be unreasonably withheld. The Company may, however, assign all or any of its rights or obligations hereunder in whole or part to an affiliate company or successor or to a purchaser or acquirer of its business assets without the Client’s prior consent. The Agreement shall be binding on the successors and permitted assigns of the Parties hereto.
