Terms & Conditions
This Master Services Agreement (“Agreement”) was last updated Dec 30, 2022 and defines the general operating agreement between Howdy (as defined below) and any counterparty entering into an SOW or other ordering document that references this Agreement (“Partner”).
RECITALS
WHEREAS, Howdy.com, Inc., a Delaware C-corporation, and its affiliated entities in Colombia, Howdy S.A., and Uruguay, Teorun S.A. (together with its other subsidiaries, affiliates, predecessors, successors and assigns, “Howdy”) is in the business of staffing technology, financial, marketing, and administrative professionals (“Howdy Professional(s)”) for its clients.
WHEREAS, Partner (together with Howdy, the “Parties”) desires to engage Howdy to staff Howdy Professionals for Partner.
AGREEMENT
NOW THEN, for and in consideration of the mutual promises and covenants herein contained, the Parties agree as follows:
1. SERVICES
Howdy will staff it’s Howdy Professionals for Partner (the “Services”) as described in any applicable statement of work (“SOW”) entered into between Howdy and Partner. Any conflict or inconsistency between the provisions of this Agreement and any executed SOW shall be resolved in favor of the SOW.
2. TERM AND TERMINATION
2.1. Term. This Agreement commences on the effective date of the first SOW between the Parties and shall remain in effect until termination or expiration of the last SOW in effect between the Parties (the “Term”). Each SOW will continue until terminated as set forth herein. If an SOW lists a set duration, it will automatically renew on a month-to-month basis until terminated as set forth herein (unless the SOW expressly states that it will not automatically renew). Any SOW may be terminated by either Party upon 14 days’ prior written notice to the other Party. Partner may terminate any SOW immediately with no charge during the first week of such SOW by providing written notice thereof. Additionally, all Howdy Professionals terminated by Partner must be given at least 2 weeks notice at full cost. If Partner terminates SOW within the first 4 weeks, then the 2 week notice will not be required. Termination notice can come from the Partner or Howdy. The notification of termination of Howdy Professional should be discussed with Partner and Howdy in advance of notification.
2.2. Termination. The terms of this Agreement will continue to apply to any active or outstanding SOWs as of the date of expiration or termination of this Agreement. Upon termination of this Agreement or any SOW for any reason, Partner shall immediately pay to Howdy all amounts owed to Howdy pursuant to Section 3 hereof for Services performed up to the effective date of termination. The termination or expiration of this Agreement will not affect any obligations or liabilities accruing prior to such termination or expiration. Sections 2.2, 5, 7.2, 8, 10, 11, 13, and 14 will survive the expiration or termination of this Agreement.
3. FEES & PAYMENT
3.1. Fees. Partner shall pay Howdy the fees stated in the SOW (the “Fees”). The Fees consist of Salary, Benefits, Taxes & Fees (each as defined below), and a management fee that Howdy retains for the Services, each as stated in the SOW.
“Salary” means the Howdy Professional’s net income. “Benefits, Taxes & Fees” means (i) all the benefits that the Howdy Professionals receive including, without limitation, premium healthcare, gym and/or wellness membership, office space and/or local co-working reimbursement, MacBook Pro (or equivalent if requested by partner), and needed accessories (mouse, keyboard, earphones, monitor), English lessons, education platforms, coaching & mentoring – additional benefits may vary from country to country; (ii) when required by certain countries and where it applies, any required taxes levied by governments where the Howdy Professional is located (e.g. the Howdy Professional’s income or on Howdy’s engagement of the Howdy Professional) and (iii) fees and charges for currency conversion, bank transfers, credit card processing, and other operational expenses related to the employment and payment of the Howdy Professionals (fees vary by country and type of working relationship with Howdy, the Howdy Professional, or any of Howdy’s LatAm subsidiaries).
3.2. Time Off. Howdy will charge a flat weekly rate to the Partner as reflected and agreed in the SOW. Howdy Professionals will be entitled to take sick days, vacation days, and government-mandated holidays off. The number of days off a year will be detailed in the applicable SOW. The Partner will approve any vacation days before the Professional is allowed to take them. Excessive time taken off by the Howdy Professional outside the scope of the pre-determined time-off shared in the SOW can result in automatic termination of the SOW based on the Partner’s discretion.
3.3. Automatic Payment. Partner will pay Howdy by automatic payment as further described herein. Partner will set up a form of automatic payment (EFT, ACH, or CC, the “Automatic Payment”) and hereby authorizes Howdy to charge the Automatic Payment on a weekly basis in arrears (on Friday) for each week’s work.
3.4. Declined Automatic Payment. If Partner’s Automatic Payment is declined, Partner will pay the outstanding invoice within seven (7) days of the declined payment, plus a 2.5% late fee that will increase by 5% every 30 days until payment is made in full. Howdy reserves the right to immediately cancel this Agreement or any SOW, or suspend services, upon failed Automatic Payment.
3.5. Annual Salary Increase. To remain competitive in the marketplace and retain qualified talent, Howdy’s standard practice is to recommend an increase in Salary for Howdy Professionals on their annual anniversary. Howdy will notify Partner of any such proposed increase at least 90 days in advance. Partner may elect to increase the Salary of their Howdy Professional at any time by notifying Howdy of such decision. This increase in their salary will be reflected in the next applicable pay cycle for the Howdy Professional after an updated SOW with the new salary and associated fees is execute.
4. STAFFING
The Partner will retain the selected Howdy Professional throughout the duration of the SOW. However, Howdy may remove a Howdy Professional for cause, and Howdy Professionals may from time to time voluntarily end their relationship with Howdy. In such an event, Howdy will have the right (but no obligation) to replace such a Howdy Professional with another Howdy Professional of substantially similar qualification and experience. If Howdy is unable to find a suitable replacement on the same terms, Partner’s sole remedy will be to terminate the SOW and, if desired, enter into a new SOW for a replacement resource.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. Definitions. “Deliverables” means any work product or deliverables created by Howdy Professionals in the course of work for Partner hereunder. “Background Materials” means any developments or intellectual property owned by Howdy or Howdy Professionals prior to the start of the SOW or subsequently acquired or developed by Howdy or any Howdy Professional outside of the scope of any work for Partner hereunder.
5.2. Ownership of Deliverables. Subject to timely payment of any applicable fees hereunder, Howdy hereby assigns and will automatically assign to Partner all right, title, and interest in and to all Deliverables, including all copyrights therein. To the extent permitted by copyright laws, all Deliverables will be considered “works made for hire” owned by Partner. Background Materials will remain owned by Howdy, but to the extent any Background Materials are included in any Deliverables, Howdy hereby grants Partner a non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use such Background Materials as incorporated in the Deliverables.
5.3. Partner Materials. Partner shall retain ownership of all content and materials (including, without limitation, graphics, audio, copy text, video, and images) provided by it hereunder (“Partner Materials”). Partner is responsible for, and represents and warrants that it has the right to provide, any Partner Materials it provides for use in the Services and Deliverables.
6. TAXES
Partner shall be responsible for any and all taxes levied on its receipt of Services under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on Howdy’s net income. In the event that Howdy is required at any time to pay any tax for which Partner is responsible, Partner shall promptly reimburse Howdy for such payments, subject to the provision to Partner of supporting documentation evidencing such payments. This clause is not in relation to any taxes Howdy is legally required to pay for it’s subsidiaries or the professionals they hire and/or employs.
7. WARRANTIES
7.1. Warranties. Howdy represents and warrants that: (a) it has full authority to enter into this Agreement and to consummate the transactions contemplated hereby; (b) this Agreement is not in conflict with any other agreement to which Howdy is a party or by which it is bound; (c) each Howdy Professional assigned under an SOW shall have appropriate skills, training and background for his or her level of competence as specified in the SOW, so as to be able to perform in a competent and professional manner; and (d) unless otherwise specified in an SOW (and excluding any Partner Materials), the Deliverables will constitute original work of the applicable Howdy Professional(s).
7.2. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, ALL DELIVERABLES AND SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS”, AND “AS AVAILABLE” BASIS AND HOWDY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT ANY SERVICES OR DELIVERABLES WILL BE COMPLETE, ACCURATE, OR ERROR-FREE. HOWDY DOES NOT GUARANTEE ANY PARTICULAR RESULTS FROM USE OF THE DELIVERABLES, AND PARTNER WILL BE SOLELY RESPONSIBLE FOR ITS TESTING, MODIFICATION, USE, DISTRIBUTION, AND RELIANCE ON ANY DELIVERABLES.
8. LIMITATION OF LIABILITY
Except for liabilities resulting from either Party’s intentional misconduct, each Party’s liability hereunder shall not exceed the fees paid or payable by Partner within the one-year period immediately preceding the date that the alleged wrongful act first occurred. NEITHER PARTNER NOR HOWDY SHALL BE LIABLE TO ONE ANOTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND OR ANY LOST OR IMPUTED PROFITS ARISING OUT OF THIS AGREEMENT OR ANY AGREED UPON SOW OR ITS TERMINATION, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. EACH PARTY HERETO WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
9. INDEMNIFICATION
9.1. Scope. Each Party shall indemnify, defend, and hold harmless the other Party, its affiliates, and their respective directors, officers, employees and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) incurred in connection with any third-party claim to the extent arising from or relating to the indemnifying Party’s: (a) breach of any provision of this Agreement or any SOW or (b) violation of any applicable law.
9.2. Procedure. As a condition to these indemnification obligations, a Party seeking indemnification hereunder must: (i) provide the indemnifying Party prompt notice of the assertion of any claim, (ii) permit the indemnifying Party to assume the full control of the defense and/or settlement thereof, and (iii) cooperate with the indemnifying Party in defending or settling such claim. Notwithstanding the foregoing, an indemnifying Party shall not enter into a settlement which would affect any rights of the indemnified Party without such indemnified Party’s prior written consent, which may not be unreasonably withheld.
10. CONFIDENTIALITY
10.1. Definition. “Confidential Information” means any non-public information that is either identified as confidential information at the time of disclosure or should otherwise be reasonably understood to be confidential based on the nature of the information or circumstances of the disclosure, and may include a Party’s business, technical, and financial information such as source code and documentation for software, trade secrets, know how, customer lists, vendor information, pricing strategies, marketing and business plans, and the terms of this Agreement and each SOW. Confidential Information does not include: (a) information that is in the public domain prior to disclosure to the receiving Party, or becomes part of the public domain through no wrongful act of the receiving Party; (b) information that was in lawful possession of the receiving Party prior to the disclosure by the other Party; (c) information that was independently developed by the receiving Party without use of any Confidential Information of the other Party, or (d) information that was disclosed to the receiving Party by a third party who was in lawful possession of the information.
10.2. Protection. The receiving Party will hold the other Party’s Confidential Information in confidence using at least the same degree of care it uses to protect its own sensitive information, and in no event less than reasonable care. The receiving Party will: (a) only use the other Party’s Confidential Information to fulfill its obligations or exercise its rights in connection with this Agreement or any SOW, and (b) not disclose the other Party’s Confidential Information except to its personnel and agents who have a “need to know” in connection with this Agreement or such SOW and who are bound by reasonable obligations of confidentiality regarding such information. A Party may disclose Confidential Information to the extent required by law, provided it shall reasonably cooperate with the other Party (at the other Party’s request and expense) so that the other Party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
11. NO EXCLUSIVITY
This Agreement is non-exclusive, meaning: (a) Howdy and its affiliates may provide similar services to any third party, including competitors of Partner; and (b) Partner and its affiliates may obtain similar services from any third party (subject to Section 13 below), including competitors of Howdy.
12. NON-SOLICIT; NON-INTERFERENCE
12.1. Non-Solicit. Partner acknowledges that Howdy invests significant resources in identifying, recruiting, training, and retaining Howdy Professionals. During the Term and for one year thereafter (the “Restricted Period”), Partner shall not directly or indirectly solicit, hire, or engage any Howdy Professional (other than under this Agreement) without Howdy’s express written consent. A hiring fee equivalent to fifty-two (52) weekly Fees will apply to any hiring of an Howdy Professional by Partner during the non-solicit period described above, unless such fee is expressly waived or modified by Howdy in writing and in its sole discretion.
12.2. Non-Interference. During the Restricted Period, Partner shall not induce or attempt to induce any customer, client, vendor, or supplier of Howdy to cease, or reduce its level of, engagement with Howdy.
13. FORCE MAJEURE
Neither Party will be liable for any failure or delay in performance of any obligation (other than payment obligations) due to causes beyond such Party’s reasonable control, including the elements, acts of God, labor disputes, acts of the public enemy and/or terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power systems, sabotage, armed hostilities and riots.
14. MISCELLANEOUS
14.1. Relationship of the Parties. The Parties are independent contractors, and no fiduciary, agency, partnership, joint venture, or employment relationship is created or will be implied as a result of this Agreement. Partner does not have any authority to bind Howdy in any respect whatsoever as relates to any third parties.
14.2. Publicity. Each of Howdy and Partner may use the name and logo of the other Party in commercially reasonable marketing, advertising and/or publicity releases, so long as the relationship between the Parties is accurately portrayed.
14.3. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.4. Assignment. This Agreement is not assignable, transferable or sublicensable by Partner except with Howdy’s prior written consent. Howdy may transfer and assign any of its rights and obligations under this Agreement without consent.
14.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
14.6. Governing Law; Mandatory Arbitration. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any dispute arising out of this Agreement will be settled exclusively through binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The location of the arbitration will be reasonably agreed by the Parties. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened breach of confidentiality. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
14.7. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
14.8. Electronic Signature; Counterparts. SOWs hereunder may be executed by electronic signature, and in counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute one and a single instrument. Execution of any SOW referencing this Agreement will constitute acceptance of the terms and conditions of this Agreement.