White Label Agreement
THIS WHITE LABEL AGREEMENT (the “Agreement”) is made and entered into on this (the “Effective Date”), by and between BA Enterprises, LLC, a New Mexico Limited Liability Company (the “Company”) and , a organized under the laws of the State of (“White Label Partner”). Company and White Label Partner may each be referred to herein as a “Party” or collectively as the “Parties”.
WHEREAS, Company has engaged individuals from around the world and, principally, in the Country of Venezuela (“Independent Contractors”) who are willing to remotely provide services to other businesses (“Customers”);
WHEREAS, Company offers White Label services (the “Services”) through which other companies or individuals can market Company’s Independent Contractors to receive an ongoing commission on Customers referred to Company; and
WHEREAS, White Label Partner wishes to create an Independent Contractor Reseller Agency (the “ICRA”) using the Services;
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein and for other good and valuable consideration, the existence and sufficiency of which is acknowledged by all parties hereto, the Parties hereby agree as follows:
1. Description of Services; Company Obligations and Restrictions.
a. Company, when requested, shall make reasonable efforts to consult White Label Partner on strategies for the successful establishment of its ICRA, except that Company shall not be liable for the failure of White Label Partner to launch or maintain its ICRA, nor shall Company be liable for any failure of the ICRA.b. The Company will provide and make available its Independent Contractors for use by the Customers referred by White Label Partner in accordance with the terms of Company’s Service Agreement. c. The Company will provide ongoing customer support to Customers referred by White Label Partner.d. The Company will manage billing with Customers as well as the distribution of White Label Partner’s commission earnings in accordance with the terms and conditions outlined in this Agreement.
2. White Label Partner Obligations and Restrictions.a. White Label Partner shall be solely responsible for determining and implementing its own branding and marketing strategy, including, for example and without limitation, the development of any websites or social media accounts through which it will advertise its ICRA, the curation of any email lists of potential Customers, and the design and procurement of advertisements, whether digital or otherwise, through which White Label Partner will market its ICRA.b. White Label Partner will solicit Customers who will contract separately with the Company for use of one or more Independent Contractors. Unless otherwise agreed to with Company in writing, Customers referred by White Label Partner will sign the Service Agreement provided by Company and will be subject to all of the terms, conditions, and obligations outlined therein. White Label Partner acknowledges and agrees that a Customer’s sole contractual relationship will be with the Company and that the Company may cease working with any Customers introduced by White Label Partner at the Company’s sole and absolute discretion and in accordance with the applicable Service Agreement. c. White Label Partner shall not:(i) make any false or misleading claims or representations about the Independent Contractors, their capabilities, or the services that they or the Company provide;(ii) use any branding that may reasonably be considered deceptive or that may mislead Customers or the general public to believe that White Label Partner is related to or associated with the Company;(iii) make representations that it is in any way related to the Company or that there exists common ownership between White Label Partner and the Company;(iv) make inquiry of the Independent Contractors about their compensation or the hiring, retention, training, or other internal processes of the Company; or(v) inquire into or deliberately obtain any contact information (including, for example and without limitation, addresses, phone numbers, email addresses, social media profiles, or Skype/conferencing/chat addresses or IDs) of or pertaining to any Independent Contractor. Any breach of this section shall be deemed for purposes herein as a breach of the Prohibition of Solicitation contained in Section 13 herein.
3. Resale Rates; Compensation.a. Per the separately executed Service Agreement between Customers and the Company, the Company shall automatically bill and receive payment from the Customers for each Independent Contractor used on a per-hour basis at the rate determined by White Label Partner (the “Resale Rate”). White Label Partner shall be entitled to determine the initial Resale Rate (subject to agreement by each Customer), which shall be outlined in Exhibit A hereto. The Resale Rate charged to each Customer shall not be less than the minimum costs defined in Exhibit A (the “Reseller Labor Cost”). The Company reserves the right, in its sole and absolute discretion, to change the Reseller Labor Cost at any time upon written notice to White Label Partner.b. The Company shall be entitled to and shall retain one hundred percent (100%) of the Reseller Labor Cost.c. White Label Partner shall, as “Compensation”, be entitled to the difference between the Resale Rate and the Reseller Labor Cost collected, less (i) any transaction fees incurred by the Company when billing Customers and (ii) any transaction fees related to payment of White Label Partner.d. White Label Partner’s Resale Rate (as outlined in Exhibit A) may not be changed by White Label Partner unless any such change is agreed to in writing by the Company.
4. Payments to White Label Partner. White Label Partner shall be entitled to the Compensation as either (i) a monthly payment made to White Label Partner’s PayPal account, subject to any applicable transaction fees, or (ii) as a credit against White Label Partner’s own account with the Company (if White Label Partner is itself a Customer of the Company) without application of any transaction fees.
5. Initial Deposits. Each Customer shall be required to pay an initial deposit to the Company (the “Deposit”) as per the Company’s Service Agreement which will be signed by each Customer prior to the provision of Independent Contractor services. The Deposit shall serve as a credit against the Customer’s account with the Company and shall be refundable as per the terms in the Company’s Service Agreement.
6. Failure to Pay. If a Customer referred to the Company by White Label Partner fails to pay the Company pursuant to the terms of its Service Agreement, the Company may, in its sole and absolute discretion, withhold Compensation to White Label Partner equal to the amount of Compensation White Label Partner would have received from that Customer’s payment. For example, if such a Customer owes the Company $100 and White Label Partner would have earned $50 in Compensation from that amount, a total of $50 may be withheld by the Company. The Company may also cease the provision of Independent Contractor services to any such Customer in accordance with its Service Agreement.
7. Taxes. All payment obligations are exclusive of all taxes, duties or levies that may be owed by either Party. The Parties shall each be responsible for meeting and satisfying any reporting obligations and paying any and all tax obligations imposed upon them by governmental agencies or entities. Neither Party shall be liable for the other Party’s failure to comply with these requirements, and any Party in breach of them agrees to defend, indemnify, and hold the non-breaching Party harmless from and against any such claims or issues that arise as a result of the breach.
8. Term. The initial term of this Agreement shall begin on the Effective Date and continue for a period of one (1) year. Thereafter, this Agreement will automatically renew annually, unless and until terminated by either Party per the terms of this Agreement. The initial term and any renewals shall be collectively herein referred to as the “Term”.
9. Breach of Agreement; Default. In the event of a breach of the terms of this Agreement by either Party, that Party shall, if it fails to cure its breach within fifteen (15) days following written notice by the non-breaching Party (the “Cure Period”), be in default of this Agreement. Any breach of Section 2(c), Section 13, or Section 21 of this Agreement shall constitute an immediate Default without a Cure Period or other opportunity for White Label Partner to cure.
10. Termination by White Label Partner. White Label Partner may terminate this Agreement at any time, with or without cause, by providing written notice of termination to the Company.
11. Termination by the Company. The Company may terminate this Agreement at any time, with or without cause, by providing written notice of termination to White Label Partner.
12. Effect of Termination. Upon termination of this Agreement, the following shall apply:a. White Label Partner shall cease to market the Independent Contractors and other services of the Company. If any photos of Independent Contractors have been provided to White Label Partner for use on their website or in other marketing materials, White Label Partner shall immediately cease such use and remove all references to the Independent Contractors associated with Company.b. Any Service Agreements between Customers and the Company shall remain in full force and effect.c. In the event of White Label Partner’s default per Section 9 of this Agreement, to be determined by the Company in its sole and absolute discretion, the Company reserves the right to terminate this Agreement with immediate effect and shall owe no further Compensation to White Label Partner.d. The Parties agree that any definitions contained herein and any provisions that would customarily survive termination of an agreement similar to this Agreement, including Sections 13, 21, 23, 24, 26, and 29 hereof, shall survive termination of this Agreement.
13. Prohibition on Solicitation. White Label Partner agrees that, during the term of this Agreement and for a period of twenty four (24) months following its conclusion or termination, White Label Partner shall not, directly or indirectly, on White Label Partner’s own behalf or on behalf of any other person, firm, corporation or other entity, solicit, divert, or take away, or attempt to solicit, divert or take away, (i) any Customers of the Company (including those introduced to Company by White Label Partner) or (ii) any Independent Contractors currently or previously sourced or engaged by the Company, nor shall White Label Partner persuade or attempt to persuade any such Customer or Independent Contractor to not do business or work with the Company or its other white label partners.
14. Liquidated Damages. White Label Company acknowledges and agrees that any violation of Section 13 will result in damages to the Company that are difficult to determine with certainty. Therefore, in the event of such a breach, White Label Partner agrees to pay the Company, as reasonable compensation for the Company’s damages, an amount equal to the following: for each Customer solicited, three (3) times the highest monthly fee paid to the Company by Customer in the preceding six (6) months, times twenty-four (24) months per breach; and for each Independent Contractor solicited, three (3) times the highest monthly earnings generated for Company by Independent Contractor in the preceding six (6 months), times twenty-four (24) months per breach.
15. Sourcing of Independent Contractors. White Label Partner agrees that it shall not source Independent Contractors or other persons who provide substantially similar services for its ICRA from any parties other than Company during the Term of this Agreement. Following termination, White Label Partner shall cease to operate its ICRA and shall not attempt to source persons providing substantially similar services to those provided by the Independent Contractors for a period of six (6) months, after which White Label Partner is free to resume operation of its ICRA.
16. Intellectual Property. The Parties intend and agree that ownership in any and all Intellectual Property remain with the Party that created or introduced the relevant material, except that any intellectual property which was created by, pertains to, or identifies the Company shall belong to and remain with the Company. Any and all Proprietary Information shall be treated as Confidential (as defined below).
17. Ownership. The Parties hereto expressly agree that the domain iWorker.co shall remain the sole and exclusive property of the Company, and that White Label Partner shall not be entitled to any rights of license or ownership thereto.
18. Supplied Material. Nothing in this Agreement shall be construed to convey rights or title to the Company of materials that are supplied by, or created by, White Label Partner or any Customer. Any and all rights in and to any such trademarks, graphics, content, and data shall belong to their respective owners.
19. Right to Assign. The Company reserves the right to either delegate the rights or duties of this Agreement or to assign this Agreement to a third party. White Label Partner agrees that this Agreement may be transferred by the Company to another without limitation, and White Label Partner’s duties and obligations under this Agreement shall not diminish under any circumstances involving an assignment or change of control.
20. Confidential Information.a. “Confidential Information” shall mean all information disclosed by either Party to the other Party in oral, written, or machine-readable form, which has value because it is not generally known and the owner uses reasonable efforts to protect it and identify it in writing as confidential. Confidential Information also includes any information that has been disclosed by a third-party as confidential. Confidential Information does not include any information which: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) 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; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party; or (v) is disclosed by operation of law. All Confidential Information shall remain the exclusive property of the disclosure or its licensors. Confidential Information shall include the examples listed below.b. The Parties both recognize and acknowledge that, prior to and during the term of this Agreement, it may be necessary for a Party (the “Receiving Party”) to acquire trade secrets or proprietary and confidential information of or concerning the other Party (the “Disclosing Party”), as well as its clients, partnering entities, partners, vendors, agents, and representatives (collectively “Affiliates”). Said proprietary and confidential information shall include, for example and without limitation, the Disclosing Party’s and its Affiliates’ business models, business plans, recruitment methods, methods of operation, business and marketing techniques, strategies and developments, sales volume, sales methods, the identity of customers, suppliers, and prospective customers and suppliers, profit and loss information, margins, credit and other sales terms and conditions, computer programs, system documentation, special hardware, related software development, manuals, formulas, processes, methods, business transaction strategy, ideas, improvements, inventions, personnel, pricing and account information, information concerning litigation or pending litigation, or any other confidential or proprietary information or trade secrets concerning the business or affairs of Disclosing Party or its Affiliates (“Confidential Information”). Confidential Information shall also include any contact information pertaining to any Independent Contractors, including, for example and without limitation, addresses, phone numbers, email addresses, social media profiles, or Skype, conferencing, or chat addresses or IDs. Said Confidential Information shall not include any information known generally to the public or any information of a type not otherwise considered confidential by persons engaged in the same business or a business similar to that of the Disclosing Party.
21. Covenants Regarding Confidential Information. Receiving Party acknowledges and agrees that: (i) any Confidential Information provided to it is the property of the Disclosing Party and/or its Affiliates; (ii) the use, misappropriation, or disclosure of Confidential Information would constitute a breach of trust and could cause irreparable injury to the Disclosing Party and/or its Affiliates; (iii) it is essential to the protection of Disclosing Party’s good will and to the maintenance of Disclosing Party’s competitive position that the Confidential Information be kept confidential; and that (iv) except to the extent authorized in writing by Disclosing Party or required by any court order, during or subsequent to the term of this Agreement, Receiving Party shall not, directly or indirectly, disclose to any person or entity or make use of any Confidential Information, whether for Receiving Party’s own account or for the account of others, for any purpose whatsoever other than the performance of services according to the terms of this Agreement.
22. Certain Disclosures Permitted. Receiving Party shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Furthermore, if Receiving Party files a lawsuit for retaliation by Disclosing Party for reporting a suspected violation of law, Receiving Party may disclose the trade secret to Receiving Party’s attorney and use the trade secret information in the court proceeding, if the Receiving Party (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
23. Return of Confidential Information. Receiving Party acknowledges and agrees that all property of Disclosing Party and its Affiliates, including Confidential Information and any copies of the same, belong to the Disclosing Party and shall be promptly returned to the Disclosing Party upon completion or termination of this Agreement. The foregoing notwithstanding, any biographical and contact information pertaining to any Independent Contractor shall remain the sole intellectual property of the Company and shall be returned thereto upon termination of this Agreement; its return may be effected by White Label Partner (i) notifying the Company of White Label Partner’s possession of any such information and (ii) promptly destroying any recordings or copies of such information in White Label Partner’s possession.
24. Injunctive Relief; Remedies. White Label Party acknowledges and agrees that, as material inducement for the Company to enter into this Agreement, the Company shall, if White Label Partner materially breaches or threatens to commit a material breach of this Agreement, have the following rights and remedies, each of which shall be independent of one another and severally enforceable, and all of which rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity: (i) the right and remedy to have this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that monetary damages alone will not prove adequate remedy to the Company; and (ii) the right and remedy to require White Label Partner to account for and pay over to the Company all compensation, profits, monies, accruals, increments, or other benefits derived or received by White Label Partner as the result of any transactions, partial performance, or non-performance of this Agreement.
25. Acknowledgement. The Parties hereto acknowledge and agree that the preceding restrictions on their activities are, under all of the circumstances, reasonable and necessary to safeguard the ability of the Company to realize the benefit of its bargain and goodwill in connection with this Agreement, to safeguard the Company’s competitive position in the marketplace, and to safeguard the Confidential Information of all Parties hereto.
26. Indemnification by White Label Partner. White Label Partner agrees to release, indemnify, and hold the Company harmless from and against any and all claims, demands, actions, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with this Agreement and the subject matter contained herein, including, for example and without limitation, for damages, injuries, or other harm to any Customer, Independent Contractor, third party, the Company, or White Label Partner itself resulting from or connected to this Agreement or the Services provided pursuant hereto, whether physical, emotional, reputational, financial, or otherwise, and for any legal or regulatory fines, fees, penalties, or other financial costs incurred by the Company in connection with this Agreement or the services provided pursuant hereto.
27. Indemnification Procedures. If either Party becomes aware of a claim which may require indemnification, they agree to promptly notify the other Party in writing of the claim and will allow the indemnified Party to assume full control of the defense of the claim unless the claim is against both Parties. If a claim is made against both Parties, each shall be entitled to a separate defense and control over their own defense, except that the obligation to indemnify in Section 26 shall remain unchanged.
28. Warranty. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
29. Limitation of Liability.a. Notwithstanding any other part of this Agreement, the Company shall not be liable, whether to White Label Partner, Customer, or any third party, for any accidental communications between the Company and any Customer or for the discovery by Customer of the existence of iWorker.co or the Company’s other white label partners, whether by Customer’s own initiative or by accidental disclosure by the Company, White Label Partner, or any third party. White Label Partner acknowledges and agrees that, though Company will take commercially reasonable steps to avoid such communications, such communications or discovery may accidentally occur and are a natural risk of this Agreement. White Label Partner releases and agrees to hold the Company harmless from and against any such damages or claims that may arise due to such communications or due to disclosure to Customer of the existence of iWorker.co or Company’s other services or white label partners.b. IN NO EVENT SHALL THE COMPANY BE LIABLE TO WHITE LABEL PARTNER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THE SERVICES, INDEPENDENT CONTRACTORS, THIS AGREEMENT AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY (INCLUDING ATTORNEY FEES) FOR DAMAGES HEREUNDER OR ANY CAUSE WHATSOEVER RELATING TO THE SERVICES, INDEPENDENT CONTRACTORS, OR ANY APPLICATIONS THEREOF, SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY WHITE LABEL PARTNER TO THE COMPANY.c. The Company cannot and does not guarantee the quality of the work provided by Independent Contractors, regardless of the party to whom the work is provided. White Label Partner further acknowledges and agrees that one or more Independent Contractors provided to a Customer may experience delays or impediments to providing services that are beyond the Company’s ability to control or mitigate, including, for example and without limitation, failure of internet, power, or other utilities or infrastructure that would prevent an Independent Contractor from providing remote services. The Company shall not be liable for any failure of an Independent Contractor to provide services in accordance with a Customer’s or White Label Partner’s expectations, whether such failure is the result of exigent circumstances as previously described, an Independent Contractor’s inability or unwillingness to timely perform the tasks assigned to them with a sufficient level of quality, or otherwise, and White Label Partner agrees to release, defend, indemnify, and hold the Company harmless for the same in accordance with Section 26 of this Agreement.
30. Relationship between the Parties. This Agreement does not and shall not be deemed to create an employment relationship between the Parties. To whatever extent a relationship between the Parties is deemed to exist, said relationship shall be deemed to be that of an independent contractor relationship and shall not be an employment relationship, partnership, joint venture, or any other form of association. All Parties hereto remain responsible for their own taxes and other such obligations, neither Party shall enjoy those rights and benefits reserved for employees of the other, and neither Party intends that any partnership or other joint venture be formed between the Parties.
31. Severability. In the event any provision of this Agreement are held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
32. Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New Mexico, without regard to the conflict of laws principles thereof. Parties agree that personal jurisdiction shall exist in the State of New Mexico and that the State of New Mexico shall have subject-matter jurisdiction over any issues arising from interpretation or enforcement of this Agreement.
33. Headings. The headings preceding the text of Sections of this Agreement are for convenience of reference only and shall not be deemed part of this Agreement.
34. Advice of Counsel. White Label Partner represents and warrants to the Company that they have been advised of their right to obtain the assistance of legal counsel with respect to their rights and obligations under this Agreement, and they are not relying on the Company or its directors, officers, shareholders, attorneys, accountants, or other agents of the Company for any advice with respect to or in connection with White Label Partner’s rights and obligations under or in connection with this Agreement.
35. Entire Agreement; Amendment; Waiver; Assignment. This Agreement and any Schedules attached hereto constitute the entire agreement between the parties with respect to the subject matter contained herein. This Agreement completely replaces and supersedes all prior written or verbal agreements between the Parties with regard to the subject matter contained herein, except that, if the Parties have also executed a separate Service Agreement between them, the terms of this Agreement shall not supersede them. This Agreement may not be modified or amended except in a writing signed by both parties except as otherwise provided herein. No waiver or discharge of any breach of this Agreement shall be effective unless contained in a written waiver or discharge that is signed by both Parties. Any waiver of any breach of any provision of this Agreement shall not be a waiver of any subsequent breach of the same or of any other provision of this Agreement. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by White Label Partner without the written consent of the Company. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assigns.
36. Notice. Any notice or other communication required under this Agreement will be deemed to be properly given only when sent via email to email@example.com when to the Company, and to White Label Partners’ email address on file with the Company. White Label Partner represents and warrants that it will keep a valid and up-to-date email address on file with the Company, and that the Company is not responsible for returned mail or email bounces or other causes of non-delivery of emails outside of its control. The effective date of notice shall be the date notice is sent.
37. Force Majeure. A Party will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including, for example and without limitation, acts of God, earthquake, labor disputes and strikes, riots, war, disruptions of electricity or internet service, and governmental regulations. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay provided that such Party will give notice of such force majeure event to the other Party as soon as reasonably possible.
38. Counterparts; Execution; Electronic Signature and Delivery. This Agreement may be executed in multiple counterparts by the Parties. All counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart. Each counterpart shall be deemed an original to this Agreement, all of which shall constitute one agreement to be valid as of the date of this Agreement. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. This Agreement, any other document necessary for the consummation of the transaction contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on each party as if it were physically executed.
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Document Name: White Label Agreement
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