THIS MASTER CONTRACTOR AGREEMENT (the “Agreement”), is by and between White Cloud Concierge, LLC, a Utah limited liability company, with an address of 15263 Steep Mountain Mountain Drive, Draper Utah 84020 (“White Cloud”), and you (the “Contractor”). You and White Cloud are individually or collectively referred to hereafter as a “Party” or the “Parties.” By checking the box indicating you agree with these terms, you acknowledge that you have read and understood this Agreement and that you agree to be bound by its terms. You also represent that you are of a sound mind and legal age to enter into this Agreement and legally able to provide the Services as an independent contractor without the need for any special accommodation or attention. You represent that you are available to provide the Services to White Cloud and that you will provide above-average, high-quality Services to White Cloud Customers and that any and all work you perform on behalf of White Cloud will be subject to and in accordance with these terms.
WHEREAS, White Cloud is in the business of providing concierge type solutions for customers who are in the need of the type of services that Contractor provides throughout your local region (the “Service Area”); and
WHEREAS, Contractor is in the business of providing high-quality services (the “Services”) to customers throughout the Service Area; and
WHEREAS, the Parties anticipate that each Party will identify one or more current or prospective customers (each, a “Customer”) that may seek the provision of White Cloud solutions (an “Opportunity”); and
WHEREAS, for each Opportunity that White Cloud converts to a customer order that could fall within the scope of Contractor Services, White Cloud may issue a Work Proposal to Contractor in accordance with this Agreement; and
WHEREAS, to the extent Contractor and White Cloud agree to turn such a Work Proposal into a Statement of Work for the Contractor to perform the Services on behalf of White Cloud’s Customer, the terms and conditions of this Agreement will apply.
NOW, THEREFORE, in consideration of the foregoing and the covenants and conditions set forth herein, the Parties mutually agree as follows:
1. Availability and Commitment to Provide Services. This Agreement is based on Contractor’s representations to White Cloud, including that Contractor is available to, and desires to, complete work on behalf of White Cloud, to provide Services to White Cloud’s Customers.
1.1 White Cloud agrees to provide Work Proposals to Contractor in accordance with this Agreement at its discretion, so long as Contractor agrees that for each Work Proposal that is converted into a Statement of Work, Contractor will perform the Services in a professional and competent manner, all the while promoting White Cloud to its existing and potential customers.
1.2 Contractor acknowledges that White Cloud is a high quality company with a strong brand. Contractor agrees to conduct itself in a professional manner at all times while performing the services hereunder. This includes, but is not limited to, Contractor’s commitment to the following standards:
1.3 By entering into this Agreement, White Cloud does not commit to sending any particular quantity of Work Proposals or Statements of Work to the Contractor; this is not a requirements contract. However, in White Cloud’s assessment of Contractor, its professionalism and competency and other factors, at White Cloud’s discretion it may seek to provide more opportunities for work to Contractor and the relationship between the parties may become a basis for frequent and ongoing business between them. The more Contractor sets itself apart from other White Cloud contractors, the more White Cloud may call upon Contractor to service White Cloud Customers.
2.1 If White Cloud enters into an Order with its Customer for services that falls within the scope that White Cloud reasonably believes in its discretion that Contractor has the ability and capacity to fulfill, then White Cloud may send Contractor, for Contractor’s prompt acceptance or rejection, a Work Proposal. An example of a Work Proposal is provided in Exhibit A. If Contractor accepts to undertake the work or job outlined in such a Work Proposal, it must promptly notify White Cloud and enter into a Statement of Work. The Statement of Work is any work instruction, whether or not based on a Work Proposal, that provides the details for Contractor to complete work for White Cloud’s Customers. A Statement of Work can be as simple as a few text messages to clear up any extra needed details not provided in the Work Proposal. After accepting a Work Proposal, Contractor is obligated to fulfill the job or work indicated by the Work Proposal and the Statement of Work. The Contractor Services to be provided shall be consistent with those described in the Work Proposal, Statement of Work, and most importantly by the most recent instructions and updates or modifications provided by White Cloud.
2.2 Contractor will, through the individual(s) designated in the Statement of Work, perform, the Services and such individual(s) shall not be removed from the work without White Cloud’s prior written consent. Contractor will provide appropriate and high quality technical personnel to perform the Services for the Order. If White Cloud notifies Contractor of White Cloud’s or Customer’s dissatisfaction with any Contractor personnel, Contractor will, upon request, either replace such personnel with other qualified personnel or provide White Cloud with an option to utilize a different White Cloud contractor to fulfill the services under the applicable Statement of Work.
2.3 Changes in the scope of the Services shall be notified to Contractor and Contractor shall promptly reply to acknowledge the changes before commencing work in connection with a change. White Cloud will use commercially reasonable efforts to reflect the scope of the change and any fee and/or schedule adjustment in writing.
2.4 Contractor agrees to use its best efforts to complete all Services and assignments by the respective times and dates specified in the Statement of Work.
2.5 White Cloud will have final decision-making authority in connection with the Order. Decisions in areas related to the Statement of Work will be made in consultation with the Contractor.
2.6 Contractor will discuss all issues, recommendations, and decisions related to the Services under the Statement of Work with White Cloud prior to discussions with the Customer.
2.7 Any contacts made by Contractor with the Customer relating to a Statement of Work shall be only with the full knowledge, prior approval and/or participation of White Cloud.
2.8 The Services performed under the Statement of Work by the Contractor shall be performed in a good and professional manner and in accordance with this Agreement. Services not in compliance with the foregoing shall be reperformed by the Contractor at no additional cost to White Cloud provided White Cloud notifies the Contractor of any noncompliance within thirty (30) days from delivery of the nonconforming Service.
2.9 The tangible material developed hereunder by the Contractor shall hereinafter be referred to as the “Work Product.” Contractor shall, and hereby does, grant to White Cloud a royalty-free, worldwide, nonexclusive, nontransferable, perpetual license to use the Work Product and grants to White Cloud the right to sublicense the Work Product to any White Cloud Customer. Contractor shall use its best efforts to obtain any documents or licenses required to perfect White Cloud’s license under this provision. Moreover, Contractor shall indemnify White Cloud and any White Cloud customer from any and all claims of infringement by such Work Product.
2.10 Contractor will invoice White Cloud for Services rendered on a monthly basis or as otherwise set forth in the Statement of Work. Invoices must be accompanied by as much detail as the Parties determine in their reasonable judgment. Invoices for Services performed in accordance with this Agreement will be paid within thirty (30) days of receiving such invoice.
2.11 White Cloud will reimburse the Contractor for all reasonable Order-related expenses incurred in providing the Services. If specified in the Statement of Work, Contractor will invoice White Cloud for expenses within sixty (60) days after incurring the same and no expenses will be billed later than sixty (60) days from completion of the Services. White Cloud will pay such invoices for expenses within thirty (30) days of receiving such invoice.
2.12 During the term of a Statement of Work and for a period of three (3) years from the expiration or termination thereof, Contractor shall maintain books and records relevant to the charges and, if applicable, the hours worked, and upon White Cloud’s request, shall allow White Cloud to inspect such books and records.
3.1 The Parties shall act as independent contractors in the performance of this Agreement. Neither Party shall act as agent for or partner of the other Party for any purpose whatsoever, and any employees or workers of one shall not be deemed the employees or workers of the other Party.
3.2 Nothing in this Agreement shall be construed to grant either Party the right to make commitments of any kind for or on behalf of the other Party without the prior written consent of the other Party.
3.3 Contractor may not engage any other firm to perform the work included in Contractor’s Statement of Work. Contractor shall not subcontract to third parties any portion of its responsibilities without prior written consent of White Cloud.
3.4 Fees and expenses related to the Services under a Statement of Work will be as specifically set forth in the Statement of Work.
4.1 Associated Third Party Confidential Information. The Parties acknowledge that they will have access to confidential and proprietary materials and information of the Customer. The Parties agree that all such materials and information of the Customer, in any form, disclosed in connection with this Agreement and/or any Statement of Work will be deemed to be Confidential Information, as defined below. Contractor recognizes that White Cloud has received, and in the future may receive, from third parties (for example, customers, suppliers, licensors, licensees, partners, and collaborators) as well as its subsidiaries and affiliates (“Associated Third Parties”), information which White Cloud is required to maintain and treat as confidential or proprietary information of such Associated Third Parties (“Associated Third Party Confidential Information”), and Contractor agrees to use such Associated Third Party Confidential Information only as directed by White Cloud and to not use or disclose such Associated Third Party Confidential Information in a manner that would violate White Cloud’s obligations to such Associated Third Parties. By way of example, Associated Third Party Confidential Information may include information enabling access to a customer’s home (like key codes, door codes, location of keys, etc.), the habits or practices of Associated Third Parties, the technology of Associated Third Parties, requirements of Associated Third Parties, and information related to the business conducted between White Cloud and such Associated Third Parties.
4.2 Confidential Information. White Cloud “Confidential Information” means information (including any and all combinations of individual items of information) that White Cloud has or will develop, acquire, create, compile, discover or own, that has value in or to White Cloud’s business which is not generally known and which White Cloud wishes to maintain as confidential. Confidential Information includes both information disclosed by White Cloud to Contractor, and information developed or learned by Contractor related to White Cloud and its business during the course of this Agreement. White Cloud Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interests of White Cloud, whether or not such information is identified as White Cloud Confidential Information. By way of example, and without limitation, White Cloud Confidential Information includes any and all non-public information that relates to the actual or reasonably anticipated business and/or products, research or development of White Cloud, or to White Cloud’s technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding White Cloud’s products or services and markets therefor, customer lists and customers (including, but not limited to, customers of White Cloud on which Contractor called or with which Contractor may become acquainted during the term of this Agreement), software, developments, inventions, discoveries, ideas, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by White Cloud either directly or indirectly in writing, orally or by drawings or inspection of premises, parts, equipment, or other White Cloud property.
4.3 Exceptions to Confidentiality. Notwithstanding the foregoing, White Cloud Confidential Information shall not include any such information which Contractor can establish (i) was publicly known or made generally available prior to the time of disclosure by White Cloud to Contractor; (ii) becomes publicly known or made generally available after disclosure by White Cloud to Contractor through no wrongful action or omission by Contractor; or (iii) is in Contractor’s rightful possession, without confidentiality obligations, at the time of disclosure by White Cloud as shown by Contractor’s then-contemporaneous written records; provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception.
4.4 Maintenance of Confidentiality. During and after the Term of this Agreement, Contractor will hold in the strictest confidence and take all reasonable precautions to prevent any unauthorized use or disclosure of White Cloud Confidential Information. Contractor will not: (i) use White Cloud Confidential Information for any purpose whatsoever other than for the benefit of White Cloud, (ii) disclose White Cloud Confidential Information to any third party without the prior written authorization from White Cloud. Contractor agrees that Contractor obtains no title to any White Cloud Confidential Information, and that White Cloud retains all Confidential Information as the sole property of White Cloud. Contractor understands that its unauthorized use or disclosure of White Cloud Confidential Information may lead to and include, immediate termination and legal action by White Cloud. Contractor understands that Contractor’s obligations under this section shall continue after termination of this Agreement and also that nothing in this Agreement prevents Contractor from engaging in activity protected by law.
This Agreement is effective as of the Effective Date and continues in effect for a period of five (5) years, provided, however, either Party may terminate this Agreement upon fourteen (14) days’ prior written notice. The five (5) year term of this Agreement is automatically renewed for successive one (1) year terms unless either party provides the other with fourteen (14) days written notice to terminate by either Party. With respect to any Statement of Work, the performance of which extends beyond the termination of this Agreement, the provisions of this Agreement applicable to the performance of the Statement of Work, will be deemed to survive the termination of this Agreement and continue in effect for the purpose of the performance of the Statement of Work.
6.1 This Agreement shall terminate upon the happening of the first to occur of the following events:
6.2 White Cloud may terminate a Statement of Work upon failure of White Cloud to consummate a Contract with Customer.
7.1 Contractor agrees to indemnify and hold White Cloud harmless from and against any and all claims, loss, liability, damages, judgments, expenses, and costs, including reasonable attorneys’ fees (individually or collectively, a “Liability”), for injury or damage to real and/or tangible personal property or persons, including wrongful death incurred while performing the Services and arising out of or caused by the negligent acts or omissions or willful misconduct of Contractor, its agents, servants, or employees, except to the extent that a Liability was caused by or arose out of the negligent acts or omissions or willful misconduct of White Cloud, its agents, servants or employees.
7.2 Contractor will provide White Cloud with a certificate of insurance, evidencing compliance to the following requirements, prior to work beginning under a Statement of Work, and prior to each insurance renewal. Insurance limits noted below are minimum policy limits only and do not limit a Party’s responsibilities. Failure by White Cloud to review a certificate of insurance will not be considered a waiver of Contractor’s contractual requirements to provide insurance, as set forth below.
$100,000 each occurrence;
$300,000 general aggregate;
$300,000 products liability/completed operations aggregate.
2. Automobile Liability, including coverage for all owned, hired, and nonowned vehicles, in the minimum amount of $1,000,000 combined single limit, each accident.
3. To the extent applicable to Contractor under later, Workers’ Compensation and Employer’s Liability in the following minimum limits:
Employer’s Liability — $100,000 each employee, $500,000 disease policy limit, $100,000 disease each employee ($100,000/$500,000/$100,000).
Certificate Holder, as appropriate:
*Contractor must include Contractor’s business and individual name and address and then have White Cloud included as a certificate holder as follows:
White Cloud Concierge, LLC
15263 Steep Mountain Mountain Drive
Draper Utah 84020
“Certificate Holder, its officers, directors, and employees are named additional insureds for General Liability, Automobile Liability, and excess or Umbrella Liability insurance.”
Waiver of Subrogation:
“Each policy of insurance noted above waives all right of subrogation against Certificate Holder, its officers, directors, and employees, and Certificate Holder’s subsidiary and affiliated companies, and their respective officers, directors, and employees.”
“Each policy of insurance noted above is primary, and noncontributory to any insurance or self-insurance of Certificate Holder, or Certificate Holder’s subsidiary and affiliated companies.”
The cancellation section of the certificate of insurance will be amended by providing both:
White Cloud’s limitation of liability in any manner related to this Agreement, for any and all claims shall not in the aggregate exceed the profits obtained from the Customer to White Cloud with respect to the work related to such claim, but in any event not to exceed White Cloud’s profits earned directly from the respective Statement of Work. In no event shall either Party be liable for consequential, incidental or punitive loss, damage or expenses (including lost profits or savings) even if it has been advised of their possible existence.
Neither this Agreement nor any of the rights or obligations thereunder may be assigned, delegated, or otherwise transferred by either Party, in whole or in part, without the other Party’s prior written consent. Any attempted assignment in contravention hereof shall be null and void.
10.1 Any notices will be in writing and sent by certified U.S. mail, postage prepaid, return receipt requested, and addressed to the Parties as follows, or as otherwise designated by written notice from one Party to the other:
If to White Cloud:
White Cloud Concierge, LLC
15263 Steep Mountain Mountain Drive
Draper Utah 84020
Attn: Ben White
If to Contractor, to any email address, or text number, electronic messaging services, or other contact information provided by Contractor.
With the exception of any electronic means of notifying Contractor, any notice given pursuant to this Article will be effective three (3) days after the day it is mailed or upon receipt, whichever is earlier.
10.2 This Agreement and its Exhibits may be executed in duplicate counterparts and each such counterpart will be an original and both together will constitute one and the same document.
10.3 This Agreement will be governed by and construed in accordance with the law of the state of Utah without regard to its conflict of laws provisions.
10.4 Headings are for convenience only and will not be used to interpret the terms of this Agreement.
10.5 The invalidity, in whole or in part, of any Article or paragraph of this Agreement will not affect the validity of the remainder of this Agreement.
10.6 This Agreement and its Exhibits constitute the entire understanding and agreement of and between the Parties regarding the subject matter, and supersedes any prior or contemporaneous representations and agreements, verbal or written. It may not be modified, except in writing, executed by an authorized representative of each Party.
10.7 The rights and obligations provided by paragraphs 2.8, 2.9, 2.12, 4, 5, 7.1, 8, and 10.8 will survive the termination of this Agreement.
10.8 If there is any dispute or litigation as a result of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees.
10.9 No dispute under this Agreement may be brought before any judicial or quasi-judicial entity unless the Party aggrieved notifies the other Party of the claim and attempts to resolve the dispute as follows. Upon notification of a dispute or claim, representatives of each Party will meet within sixty days of notification to attempt to resolve the dispute in good faith. Prior to the meeting, the Parties will investigate the circumstances of the dispute. The representatives will attend the dispute resolution meeting with reasonable authority to resolve the claim. If there is no resolution of the dispute by this means, or the non-aggrieved Party refuses to cooperate, the aggrieved Party may then take other steps permitted by law to seek redress for its claim.
10.10 Neither Party shall be liable for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of civil or military authority, fires, epidemics, floods, earthquakes, riots, wars, sabotage, labor shortages or labor disputes, and governmental actions; provided that the delayed Party (i) gives the other Party prompt written notice of such cause; and (ii) uses its reasonable efforts to correct such failure or delay in its performance.
The first image above is an example of a text message of link to Work Proposal (on left) and second image is an example of a Work Proposal (on right). Must click “accepted” and click “submit” to be considered to receive Statement of Work
[The above form of a Work Proposal is provided as an example only in this Exhibit A to the Agreement. Work Proposals must be filled out and authorized by the White Cloud to become effective.]