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THIS SUB-CONTRACTING AGREEMENT is entered into on
BETWEEN
(1) whose principal place of business is at (the Sub-Contractor)
(2) whose principal place of business is at (the Company)
WHEREAS
A. The Company requires that (“Services”) be provided to Company’s customers (“Customers”); and
B. Sub-Contractor is willing to provide professionals to perform the Services for Customers, on the terms and conditions stated in this Agreement and in the applicable Job Order(s).
Therefore, the parties intending to be bound hereby agree as follows:
1. Interpretation
Definitions
Agreement means any agreement made subject to the terms and conditions below;
Agreement Price means the agreed price in accordance with the price or bill rate in the relevant Job Order.
Completion Date means or as may otherwise be agreed between the Company and the Sub-Contractor (including any extended date for completion fixed hereunder);
Job means to be carried out by the Sub-Contractor, and more specifically as described in the Job Order;
Job Order shall mean the document describing the Services required, the contractor(s) assigned, the Customers for which Services shall be provided, the bill rate, the work products to be delivered, method of knowledge and skills transfer, and if applicable, any training required, or travel and per diem expenses.
2. Sub-Contractor's obligations
2.1 The Sub-Contractor hereby agrees to perform the Services, as specified in one or more Job
Orders which are signed by the parties pursuant to this Agreement, directly for Company’s
Customer, and Company agrees to pay for such Services as specified in this Job Orders. At the
Company’s discretion, the Company agrees to refer Sub-Contractor’s contractor(s) to
Company’s Customer for evaluation and possible retention of Sub-Contractor’s Services. The Company will negotiate a rate for those services, invoice its Customer for such Services in the event the parties execute a Job Order, and otherwise perform as stated herein.
2.3 The Sub-Contractor shall with due care and diligence and in a good and professional manner carry out the Job with good quality and high standard output.
2.4 The Sub-Contractor shall also comply with any instructions or variations issued by the Company (or any authorised representative of the Company) in relation to the Job.
2.5 The Sub-Contractor shall comply with, and give all notices required by, any statute, any statutory instrument, rule or order or any regulation or bylaws applicable to the Job.
3. Job Orders
3.1 Each Job Order that is subject to this Agreement shall be considered part of this Agreement and binding upon both parties. An original copy of the Job Order shall be retained by the Company and the Sub-Contractor.
3.2 Each Job Order shall be dated, signed by Company and Sub-Contractor and shall specifically refer to this Agreement as the governing contract for the Job Order. The Sub-Contractor shall not be required to commence Services until Company has executed and returned the appropriate Job Order.
3.3 The Job shall be completed by the Completion Date in the Job Order. If it becomes apparent that the Job will not be completed by the Completion Date for good reason, then the Company may grant such an extension of the time for completion as it thinks fair and reasonable to take account of the reasons for the delay.
3.4 If the Job is not completed by the Completion Date, then the Company shall be entitled to liquidated damages at the rate specified in the Job Order (if any) specified in the Agreement for every week or part of a week during which the Job remains uncompleted.
4. Warranties from Sub-Contractor
4.1 Any quality issue of the work product which appears within months of completion of the Job and are due to materials or workmanship not of the correct standard shall promptly be made good by the Sub-Contractor at its own expense.
4.2 Sub-Contractor warrants to the Company that it has secured all licenses and bonds necessary for the performance of the Services and that the Services will be performed in a manner in accordance with ordinary business custom and usage and any statutes, regulations, ordinances or contracts applicable to the Services.
4.3 Sub-Contractor warrants that neither the performance of its duties under this Agreement and / or any Job Orders, nor any deliverable or the use thereof, will infringe any patent, copyright, trade secret or other proprietary rights of any third party. Sub-Contractor warrants that no deliverable shall contain any material owned by any third party, except as disclosed to the Company in writing prior to Sub-Contractor's incorporating such material into any deliverable, and that as to any such material, Sub-Contractor shall have all rights necessary to provide to the Company the full, unrestricted benefits to such material as incorporated into the deliverable, including without limitation the right to use, market, distribute, license and copy, and to provide such rights to others.
5. Qualifications of Sub-Contractors
5.1 Sub-Contractor shall provide Company’s Customer with contractor(s) having the professional qualifications stated in the applicable Job Order. Customer and Company may interview contractor(s) assigned to perform the Services, and either may request substitutions or removal of contractor(s) (consistent with applicable law) immediately upon notice by Company to Sub-Contractor.
5.2 Sub-Contractor shall ensure that all Sub-Contractor's contractor(s) are properly trained and fully equipped to perform their assigned tasks. Sub-Contractor shall provide any necessary reasonable accommodations to enable Sub-Contractor’s contractor(s) to perform assigned tasks. While on Customer premises, Sub-Contractor’s contractor(s) shall be under the direction and control of the Customer. Customers shall be responsible for managing the work and deliverables. Notwithstanding that the work is under the Customer’s direction and control, Sub-Contractor’s contractor(s) shall at all times remain the employees or subcontractors of Sub-Contractor. In particular, Sub-Contractor shall be responsible for all wages, benefits and other compensation to its employees and subcontractors.
5.3 If Sub-Contractor supplies employees of Sub-Contractor to Company, the Sub-Contractor shall be solely responsible for paying salary and benefits and complying with all other applicable laws, rules and regulations with regard to its employees. Sub-Contractor has advised its employees that Sub-Contractor and its contractor(s) are not employee(s) of the Company or Customer and are not entitled to (and also hereby waive) any benefits provided or rights guaranteed by the Company or Customer, or by operation of law, to their respective employees. In the event of any claims brought or threatened by any party against the Company or any
Customer relating to the status, acts or omissions of Sub-Contractor or its contractor(s), Sub-Contractor agrees to cooperate in all reasonable respects, including to support the assertions of independent contractor status made in this Agreement. Sub-Contractor hereby agrees to indemnify, defend and hold harmless Company and Customer from and against any and all liability relating to the employment status of such Sub-Contractor contractor(s).
6. Conflict of Interest and Non-solicitation
6.1 The Sub-Contractor shall not, during the term of this Agreement shall not become, a party to any agreement or subject to any obligation which would impede or prohibit its proper execution and observance of this Agreement or may create potential conflicts with the Customers.
6.2 During the term of this Agreement and for 24 months thereafter, the Sub-Contractor will not, directly or indirectly, recruit, solicit, or induce, or attempt to recruit, solicit, or induce, any of the Customers.
6.3 Company shall not solicit the staff of the Sub-Contractor, without the Sub-Contractor’s prior written consent, as an employee, subcontractor, or independent contractor of Company for work to be performed for Customer. This section will not extend to prohibit solicitations for employment of contractor(s) by Company’s Customers. Sub-Contractor and Company agree not to solicit for employment, employ or contract with each other’s contractor(s) (including employees and subcontractors) throughout the term of any Job Order, and for a one-year period after the termination of this Agreement.
6.4 The Sub-Contractor is free to provide services to other clients, so long as such other clients are not in competition with the Company and so long as there is no interference with the Sub-Contractor’s contractual obligations to the Company or the Customers.
7. No Modification Unless in Writing
No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties.
8. Payment
The Company shall pay the Agreement Price to the Sub-Contractor within days of completion of the Job and the issue of invoice in accordance with the Job Order.
9. Independent Contractor
9.1 The Sub-Contractor agrees that as an independent contractor, the Sub-Contractor will not be qualified to participate in or to receive any employee benefits that the Company may extend to its employees.
9.2 The Sub-Contractor has no authority to and will not exercise or hold itself out as having any authority to enter into or conclude any contract or to undertake any commitment or obligation for, in the name of or on behalf of the Company.
10. Sub-Contractor Responsibility for Personnel
All personnel used by the Sub-Contractor shall be deemed employees or subcontractors of
Sub-Contractor and will not be considered employees, agents or subcontractors of the Company for any purpose whatsoever. Sub-Contractor assumes full responsibility for the actions of all such personnel while performing Services and for the payment of their compensation (including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes), workers' compensation, disability benefits and the like to the extent applicable to the personnel involved.
11. Rights in Work Product
As between the Company and Sub-Contractor, all computer software programs and documentation, algorithms, program code, any inventions and ideas, written material or other property, tangible or intangible, arising out of or resulting from the performance of this
Agreement, whether developed by Sub-Contractor, Sub-Contractor's employees, subcontractors or otherwise, and all proprietary rights thereto, including copyright rights therein, (the “Work Product”) shall belong jointly to the Company and the Sub-Contractor.
12. Confidentiality
As between the Company and Sub-Contractor, any and all computer programs, program code, specifications, drawings, sketches, models, samples, data, algorithms, or other technical or business information furnished or disclosed to Sub-Contractor hereunder, including any and all related documentation (all of the foregoing hereinafter referred to collectively as “Confidential
Information”) shall be deemed the property of the Company. Unless such Confidential Information was previously known to Sub-Contractor free of any obligation to keep it confidential, or has been or is subsequently made public by the Company or a third party which had the right to do so, it shall be held in confidence by Sub-Contractor, shall be used only for the purposes of performing the Services and may be used for other purposes only upon such terms and conditions as may be mutually agreed upon by both parties hereto in writing.
13. Termination
13.1 Either party may by notice in writing forthwith terminate the Agreement if the other party becomes bankrupt or makes any composition or arrangement with his creditors or has a winding-up order made or (except for the purposes of reconstruction) a resolution for voluntary winding up is passed or a receiver or manager of its business or undertaking is duly appointed or possession is taken by or on behalf of any creditor of any property the subject of a charge.
13.2 The Company may also terminate the Agreement by notice in writing to the Sub-Contractor if the Sub-Contractor without reasonable cause fails to proceed diligently with the Job or wholly suspends the carrying out of the Job before completion. The right of termination shall be without prejudice to any other rights or remedies which the Company may possess.
13.3 In the event of termination, the Sub-Contractor shall immediately give up possession of the site of the Job and deliver any copies of any drawings or plans prepared or held by the Sub-Contractor for the purpose of the Job. The Company shall have no further liability to pay any sums to the Sub-Contractor save for such fair and reasonable sum to compensate for the value of the Job which has been completed at the date of termination.
14. Assignment
The Sub-Contractor shall not assign the Agreement or sub-contract the performance thereof without the prior written consent of the Company.
15. No Rights under Contracts for Third Parties
A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Ordinance to enforce any of its terms.
16. Dispute Resolution
The parties shall use all reasonable endeavours to resolve any dispute amicably and in good faith.
17. Notices and service
17.1 Any notice so served by hand, e-mail or post shall be deemed to have been duly given:
a. in the case of delivery by hand, when delivered;
b. in the case of fax or electronic mail on a Business Day prior to 5.00 pm, at the time of receipt ;
c. in the case of prepaid recorded delivery, special delivery or registered post, at 10am on the second Business Day following the date of posting
provided that in each case where delivery by hand or by e-mail occurs after 5pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.
17.2 The addresses of the parties for the purpose of clause 17.1 are as follows: Sub-Contractor
Address:
E-mail:
For the attention of:
Company
Address:
E-mail:
For the attention of:
As witness this Agreement has been signed by the duly authorised representatives of the Parties the day and year first before written.
The Schedule
Job Order No:
Order Date:
JOB ORDER FORM
