Effective 1st of July, 2020 (“the Awake Market Member”) and Awake Market Inc. (“Company”) agree as follows:
1. Services; Payment; No Violation of Rights or Obligations
The Awake Market Member agrees to undertake and complete the Services (as defined in Exhibit A) in accordance with and on the schedule specified in Exhibit A. As the only consideration due the Awake Market Member regarding the subject matter of this Agreement, Company will pay the Awake Market Member in accordance with Exhibit A. Unless otherwise specifically agreed upon by Company in writing (and notwithstanding any other provision of this Agreement), all activity relating to Services will be performed by and only by the Awake Market Member or by employees of the Awake Market Member and only those such employees who have been approved in writing in advance by Company. The Awake Market Member agrees that it will not (and will not permit others to) violate any agreement with or rights of any third party or, except as expressly authorized by Company in writing hereafter, use or disclose at any time the Awake Market Member’s own or any third party’s confidential information or intellectual property in connection with the Services or otherwise for or on behalf of Company.
2. Warranties and Other Obligations
The Awake Market Member represents, warrants, and covenants that:
- The Services will be performed in a professional and workmanlike manner and that none of such Services nor any part of this Agreement is or will be inconsistent with any obligation the Awake Market Member may have to others
- All work under this Agreement shall be the Awake Market Member’s original work and none of the Services or Inventions nor any development, use, production, distribution, or exploitation thereof will infringe, misappropriate, or violate any intellectual property or other right of any person or entity (including, without limitation, the Awake Market Member)
- The Awake Market Member has the full right to allow it to provide Company with
the assignments and rights provided for herein (and has written enforceable
agreements with all persons necessary to give it the rights to do the foregoing
and otherwise fully perform this Agreement)
- The Awake Market Member shall comply with all applicable laws and Company safety rules in the course of performing the Services; and
- If the Awake Market Member’s work requires a license, the Awake Market Member has obtained that license and the license is in full force and effect.
The term of this Agreement will begin on the effective date and will last for the duration specified in Exhibit A; if no duration is specified, the term will last until the Services are completed or the Agreement is terminated, whichever comes first. If either party breaches a material provision of this Agreement, the other party may terminate this Agreement upon ten (10) days’ notice, unless the breach is cured within the notice period. Company also may terminate this Agreement at any time, with or without cause, upon thirty (30) days’ notice, but, if (and only if) such termination is without cause, Company shall upon such termination pay the Awake Market Member all unpaid, undisputed amounts due for the Services completed prior to notice of such termination. Sections 2 through 7 and Sections 9 and 10 of this Agreement and any remedies for breach of this Agreement shall survive any termination or expiration. Company may communicate the obligations contained in this Agreement to any other (or potential) client or employer of the Awake Market Member.
4. Relationship of the Parties; Independent Contractor; No Employee Benefits
Notwithstanding any provision hereof, the Awake Market Member is an independent contractor and is not an employee, agent, partner, or joint venturer of Company and shall not bind nor attempt to bind Company to any contract. the Awake Market Member shall accept any directions issued by Company pertaining to the goals to be attained and the results to be achieved by the Awake Market Member, but the Awake Market Member shall be solely responsible for the manner and hours in which the Services are performed under this Agreement. the Awake Market Member shall not be eligible to participate in any of Company’s employee benefit plans, fringe benefit programs, group insurance arrangements, or similar programs. Company shall not provide workers’ compensation, disability insurance, Social Security or unemployment compensation coverage, or any other statutory benefit to the Awake Market Member. the Awake Market Member shall comply at the Awake Market Member’s expense with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state and local income tax laws, and all other applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors. the Awake Market Member will ensure that its employees, contractors, and others involved in the Services, if any, are bound in writing to the foregoing, and to all of the Awake Market Member’s obligations under any provision of this Agreement, for Company’s benefit and the Awake Market Member will be responsible for any noncompliance by them. The Awake Market Member agrees to indemnify Company from any and all claims, damages, liability, settlement, attorneys’ fees and expenses, as incurred, on account of the foregoing or any breach of this Agreement or any other action or inaction by or for or on behalf of the Awake Market Member.
This Agreement and the services contemplated hereunder are personal to the Awake Market Member and the Awake Market Member shall not have the right or ability to assign, transfer, or subcontract any rights or obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void. Company may fully assign and transfer this Agreement in whole or part.
All notices under this Agreement shall be in writing and shall be deemed given when (a) sent by electronic means, including, but not limited to, email or a messaging service (e.g. WhatsApp); (b) personally delivered, or (c) three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice.
8. Review of Reassignment Agreement
By signing below, you affirm that you have had the opportunity to consult legal counsel concerning this Agreement, whether or not you availed yourself of such opportunity.
9. Terms and Conditions
By signing this agreement, you agree to be bound by the Awake Market, Inc. (“Shoptype”) Terms of Service and all related agreements linked to or related to the Terms of Service.
A breach or violation of any term in the Shoptype Terms of Service, including the Acceptable Use Policy, as determined in the sole discretion of Shoptype may result in the immediate termination of this Agreement.
Except for any claim for injunctive relief arising out of a breach of a party’s obligations to protect the other’s proprietary information or for violating the non-disparagement clause, the parties agree to arbitrate, in Santa Clara County, California, through Judicial Arbitration and Mediation Services (JAMS), any and all disputes or claims arising out of or related to the validity, enforceability, interpretation, performance, or breach of this Agreement, whether sounding in tort, contract, statutory violation or otherwise, or involving the construction or application or any of the terms, provisions, or conditions of this Agreement. Any arbitration may be initiated by a written demand to the other party. The arbitrator’s decision shall be final, binding, and conclusive. The parties further agree that this Agreement is intended to be strictly construed to provide for arbitration as the sole and exclusive means for resolution of all disputes hereunder to the fullest extent permitted by law. The parties expressly waive any entitlement to have such controversies decided by a court or a jury.
11. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
Any breach of Section 3 will cause irreparable harm to Company for which damages would not be an adequate remedy, and therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies. 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. 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.