This Boosting Services Agreement (“Agreement”) by and between you, the party clicking through to accept this Agreement, (“You”) and Macro Solutions LLC. (“BoostCheetah”) constitutes a binding agreement among the Parties. Upon the date of Your acceptance of this Agreement (“Effective Date”), You agree to be bound by the terms and conditions of this Agreement. You and BoostCheetah may each be referred to as a “Party” or collectively, the “Parties.”
If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to BoostCheetah that You have the authority to bind that Entity and its affiliates to this Agreement, in which case the term “You” or related capitalized terms herein will refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not agree to be bound by this Agreement and may not perform Services (defined below) hereunder.
1. Scope. Pursuant to BoostCheetah’s Terms of Service agreed to by BoostCheetah’s customers (each a “Customer”), Customer is purchasing the BoostCheetah service for the provision of boosting services (“Services”). You agree to provide the Services to Customer pursuant to the terms and conditions of this Agreement and in accordance with the Customer’s order (“Order”). In order to provide the Services hereunder, You are required to use the online BoostCheetah platform (“Platform”), which is subject to separate terms and conditions.
2. Customers. As between the Parties, BoostCheetah will retain ownership of the Customers. You acknowledge and agree that You will not contact or provide Services to Customers other than as permitted hereunder. The foregoing will not apply to any of Your customers to whom you provided services prior to the Effective Date or that You otherwise acquire outside of this Agreement (“Your Clients”).
3. Performance of Services.
(a) Booster represents to the Company that Booster has the knowledge and skills required to
undertake all Services.
(b) Booster agrees that the Services will be performed in accordance with the commercial
business standards in Booster’s business for such Services, and that any software, reports,
documentation, artwork or other results of the Services will be fit for their respective
(c) Booster agrees that during the term of this Agreement Booster will diligently perform
Booster’s assigned duties, and abide by the provisions not otherwise provided for herein of
the published policies of the Company which are currently in effect, if any, and as they are
from time to time changed by the Company in such manner as not to conflict materially
with the provisions of this Agreement. Booster’s duties are to include those duties specified
in the applicable Statement of Work as well as other related duties assigned by the
Company from time to time.
(d) Subject to the terms of this Agreement: (i) Booster has the sole and exclusive right to
control and direct the manner and means by which Booster renders the Services, provided
that such manner and means must produce deliverables of a quality reasonably satisfactory
to the Company; (ii) Booster may perform the duties at any time or pursuant to any
schedule, provided that the Services are completed within the time periods (including any
interim time periods) indicated within the description of the Services, or otherwise specified
by the Company; and (iii) Booster will have no obligation to follow any particular sequence
in performing the Services.
4. Relationship of the Parties.
You are an independent contractor and will maintain complete control of and responsibility for your personnel, methods, and operations. At no time will You hold yourself out as an agent, subsidiary or affiliate of BoostCheetah for any purpose, including reporting to any government authority. This Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Fees, Expenses, or other amounts paid by BoostCheetah to You will not be considered salary for pension or wage tax purposes and neither You nor Your personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of BoostCheetah. Unless otherwise required by law, BoostCheetah will not be responsible for deducting or withholding from Fees or Expenses any taxes, unemployment, social security or other expense.
You expressly consent to be contacted by BoostCheetah for any and all purposes arising out of or relating to this Agreement and the Services hereunder, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree BoostCheetah may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from BoostCheetah at the specific number(s) You have provided to BoostCheetah, or numbers BoostCheetah can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about this Agreement and the Services. You certify, warrant and represent that the telephone numbers that You have provided to BoostCheetah are your contact numbers. You represent that You are permitted to receive calls at each of the telephone numbers You have provided to BoostCheetah. You agree to promptly alert BoostCheetah whenever you stop using a particular telephone number. You acknowledge that Your cellular or mobile telephone provider may charge you according to the type of plan you carry. You agree that in the event of any dispute with a Customer, BoostCheetah has your consent to give the Customer the information about you in this Section.
5. Warranties, Limitation of Liability.
- You hereby represents and warrants that:
- You have all authority, licenses, permits, and consents necessary to enter into and perform its obligations under this Agreement, and will fully comply with all applicable laws and regulations in performing the Services;
- Your personnel are, and will have the ability to prove on demand that they are, legally entitled to work in the United States;
- the Services will be performed in a timely, professional, and workman-like manner by You and Your personnel, consistent with generally-accepted industry standards; and
- You are under no contractual or other restrictions or obligations which are inconsistent with the execution of this Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, BOOSTCHEETAH EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-SATISFACTORY QUALITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. THESE DISCLAIMERS AND EXCLUSIONS WILL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
- UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL BOOSTCHEETAH, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY YOU OR A THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
- BOOSTCHEETAH’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SERVICES, WILL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF YOU WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
- Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE JURISDICTIONS, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6. Indemnification. You will indemnify and hold BoostCheetah harmless, from and against any claim against BoostCheetah by a third party, including a Customer, related to this Agreement or Your provision of Services (each a “Claim”). You will, at Your expense, defend a Claim and pay damages finally awarded against BoostCheetah in connection therewith, including the reasonable fees and expenses of the attorneys engaged by BoostCheetah for the defense, provided that (a) BoostCheetah promptly notifies You of the threat or notice of a Claim, and (b) BoostCheetah will have the sole and exclusive control and authority to select defense attorneys, defend or settle any Claim. You will fully cooperate with BoostCheetah in connection with any Claim.
By virtue of this Agreement, the Parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential Information will be limited to the terms of this Agreement, your data residing in the Platform environment, Customer data, and all information clearly identified as confidential at the time of disclosure.
A Party’s Confidential Information will not include information that: (a) is or becomes a part of the public domain through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (d) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information.
Non-Solicitation. During the Term and for a period of one year thereafter, each Party agrees that it will not: (a) directly or indirectly induce any Customer or Your Client, as applicable, to patronize that Party or any similar business; (b) directly or indirectly request or advise any Customer or Your Client to withdraw, curtail, or cancel their business with the other Party; or (c) make any statement disparaging the other Party, any member, principal, officer, director, shareholder, employee or agent thereof, to any person, firm, corporation or other business organization whatsoever. Nothing herein will prohibit either Party from performing Services to Customers or Your Clients who (x) respond to general advertising by a Party, (y) voluntarily withdraw or cancel their business with a Party, or (z) contact a Party directly.
9. No Waiver. Neither Party waives any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the Party granting such waiver.
10. Feedback. In the event You provide suggestions, comments, or other feedback (“Feedback”) to BoostCheetah with respect to the Services or the Platform, You hereby assign to BoostCheetah all right, title, and interest in and to the Feedback and BoostCheetah will be free to reproduce, make, use, create derivative works of, display, import, transmit, distribute, license, sell, offer to sell, or otherwise dispose of Feedback (and derivative works thereof) without obligation of any kind to You.
11. Assignment and Change of Control. You may not assign any part or all of this Agreement without BoostCheetah’s prior written consent. BoostCheetah may assign this Agreement at any time without notice or consent. Any attempt to assign in violation of this Section is void in each instance.
12. Governing Law, Venue, and Jurisdiction. This Agreement is governed by North Carolina law, excluding its conflicts of law rules. Developer irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Travis County, North Carolina, for any dispute arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts.
13. Dispute Resolution. Any controversy or claim arising out of this Agreement, including any controversy or claim as to requirement of arbitration, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted in Raleigh, North Carolina. There shall be one arbitrator to be mutually selected by the Parties. If the Parties are unable to agree upon an arbitrator within 30 days of the demand for arbitration having been filed, an arbitrator shall be appointed by AAA. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. In any such arbitration proceeding, the Parties shall have the right to conduct all discovery allowed under the North Carolina Code of Civil Procedure. The arbitrator in any such arbitration proceeding shall make a determination as to the prevailing party and award such prevailing party its reasonable attorneys’ fees, expenses, and other litigation costs incurred in bringing or defending such arbitration. In the event the dispute to be arbitrated is for disputed Fees, the arbitrator shall take into account the amount in dispute in determining how much discovery to allow and how extensive the briefing and hearings may be. In no event shall the awardable attorneys’ fees and costs incurred in such dispute exceed more than fifty percent (50%) of the amount in dispute. YOU ACKNOWLEDGE AND AGREE THAT YOU AND BOOSTCHEETAH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND BOOSTCHEETAH OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. IF THIS SPECIFIC PARAGRAPH IS HELD UNENFORCEABLE, THEN THE ENTIRETY OF THIS “DISPUTE RESOLUTION” SECTION WILL BE DEEMED VOID. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, THIS “DISPUTE RESOLUTION” SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
14. Severability. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the Parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
15. Notice. Except as expressly provided herein, all notices, requests, demands, and other communications under this Agreement will be delivered in writing and will be deemed to have been duly given: (i) on the next day if delivered personally to the Party, (ii) on the date three days after mailing if mailed by registered or certified mail, or (iii) on the next day if delivered by courier. The Parties will send all notices to addresses listed on the Platform or at another address as may be provided by a party from time to time.
16. Entire Agreement. This Agreement constitutes the complete and final agreement of the Parties pertaining to the subject matter herein and supersedes the parties’ prior agreements, understandings and discussions relating to subject matter herein. No modification of this Agreement is binding unless it is in writing and signed by both Parties.
AGREEMENT BETWEEN GENERAL CONTRACTOR AND SUBCONTRACTOR TO ESTABLISH INDEPENDENT RELATIONSHIP
Notice of Agreement
The undersigned General Contractor and the undersigned Subcontractor hereby declare that:
- the Subcontractor meets the qualifications of an General Contractor under NC General Statutes Section 87-1;
- the Subcontractor is operating as an independent contractor as that term is defined under Section 87-1 of the Act;
- the Subcontractor assumes the responsibilities of an employer for the performance of work; and
- the Subcontractor and Subcontractor’s employees are not employees of the General Contractor for purposes of the Act.
NC General Statutes Section 87-1 defines “General contractor” as follows: For the purpose of this Article any person or firm or corporation who for a fixed price, commission, fee, or wage, undertakes to bid upon or to construct or who undertakes to superintend or manage, on his own behalf or for any person, firm, or corporation that is not licensed as a general contractor pursuant to this Article, the construction of any building, highway, public utilities, grading or any improvement or structure where the cost of the undertaking is thirty thousand dollars ($30,000) or more, or undertakes to erect a North Carolina labeled manufactured modular building meeting the North Carolina State Building Code, shall be deemed to be a “general contractor” engaged in the business of general contracting in the State of North Carolina.