Contract to Hire

WORCA CONTRACT-TO-HIRE AGREEMENT

Last updated October 18th, 2022

These Worca Global Talent Contract-to-Hire Terms (these “Contract-to-Hire Terms”), together with the Worca Terms of Service Agreement available at www.gusto.com/terms-of-services (the “Worca Terms”) (collectively, the “Contract-to-Hire Agreement”), set forth the terms and conditions under which Worca, Inc., a Delaware corporation doing business as Worca (“Worca”), agrees to provide to User certain payroll services and other related services (the “Payroll Service”), which are provided through Worca’s website, www.worca.io.

WHEREAS, Company is engaged in the business of providing global workforce to perform services for clients on a contract-to-hire basis; and

WHEREAS, Client desires to engage Company to provide such services.

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Company’s Duties and Responsibilities.

Company shall:
‍
(a) review applicable job requirements specified by the Client and collaborate with the Client’s designated hiring manager to discuss interview questions for interviewing qualified candidates;

(b) recruit, screen, source, interview potential candidates that meet the Client’s talent descriptions and requirements;

(c) assign its talents (the “Assigned Employees”) to perform the work described in Exhibit A for Client for the term specified in Exhibit A;

(d) pay Assigned Employees wages and provide other benefits as the Company deems appropriate;

(e) pay, withhold, and transmit payroll taxes, provide unemployment insurance and workers’ compensation in an amount no less than required by law, and handle workers’ compensation and unemployment claims involving Assigned Employees;

(f) require Assigned Employees to acknowledge in writing that they are employees of the Company alone and that they are not employees of the Client;

(g) require Assigned Employees to sign an agreement acknowledging that they are not entitled to holidays, vacations, disability, insurance, pensions or retirement plans, or any other benefits offered or provided by Client to its employees

(h) require Assigned Employees to sign a confidentiality agreement (substantially in the form of Exhibit C) before they begin their assignments to Client; and

(i) require Assigned Employees to sign an assignment of intellectual property rights agreement (substantially in the form of Exhibit C) before they begin their assignments to Client.Company shall:
Company represents that:

(a) it is solely responsible for all required training of Assigned Employees under federal, state, and local laws, including those regarding anti-harassment, anti-retaliation, anti-discrimination, workplace safety training, and any other applicable laws;

(b) it has, and during the term of this Agreement shall maintain, anti-harassment, anti-retaliation, and anti-discrimination policies, and appropriate complaint procedures in place;

(c) it is solely responsible for the supervision of Assigned Employees;

(d) it is solely responsible for all pre-employment screening and testing of Assigned Employees, as may be required or allowed by law, including Form I-9 verification, criminal background checks, industry-specific checks, other background checks, and related recordkeeping; and

(e) it is solely responsible for performance managing, disciplining, and terminating its Assigned Employees.
Company represents and warrants that Assigned Employees will have the qualifications specified by Client. If Client in its sole discretion finds any Assigned Employee’s qualifications or general work-related behavior lacking, or the Client finds that any Assigned Employee’s performance fails to meet the Client’s expectation, the Client shall advise and notify the Company in writing within 7 days of discovering the insufficiency or performance issue. Upon receiving such notification, the Company will make reasonable efforts to replace the Assigned Employee(s) promptly. If the Company cannot replace the Assigned Employee(s) within seven (7) days after the Company terminates the Assigned Employee(s) for performance failure, the Company will not charge Client for the service fee of this Agreement for the terminated Assigned Employee(s) until a replacement Assigned Employee(s) is assigned.

2. Client Duties and Responsibilities.

Client shall:

(a) conduct final interviews and applicable testing or examination of the qualified candidates presented by the Company;

(b) inform Assigned Employees of the Client’s work to be performed, and Client shall be responsible for its business operations, products, services, and intellectual property;

(c) properly safeguard and control its premises, processes, or systems, and shall not permit Assigned Employees to operate Client’s vehicles or mobile equipment, or entrust them with unattended premises, property, or other valuables, without Company’s express prior written approval or as required by the job described in Exhibit A; and

(d) provide Assigned Employees with appropriate information and equipment.
Client shall not:

(a) include Assigned Employees in Client’s benefits plans, policies, or practices, or make any offer or promise relating to Assigned Employee compensation or benefits without the Company’s express prior written approval; or

(b) change Assigned Employee job duties without Company’s express prior written approval.

3. Payment for Services.

Company shall invoice Client for services provided in accordance with this Agreement at the rates and terms set forth in Exhibit A. Payment is due upon receipt of the invoice. If any portion of any invoice is disputed, Client shall pay the undisputed portion as the parties attempt to resolve any disputed amounts.
Company acknowledges and agrees that Assigned Employees are all exempt from laws requiring overtime pay. Assigned Employees under this Agreement will not be paid a premium for any time worked more than forty (40) hours in any workweek. Company acknowledges and agrees that it is solely responsible for ensuring all hours worked by Assigned Employees are paid at the legally required rate and assumes all liability for any non-payment of wages.
Client agrees to pay late charges on any unpaid balances after 5 days from the due date at the rate of 10% per month or the maximum legal rate, whichever is less.

4. Rate Increase.

The parties agree to review rates in 6 months and make any adjustments to rates, unless the parties agree otherwise in writing.

5. Conversion Fees.

The Client may hire directly onto its own payroll or engage as an independent contractor any Assigned Employee at any time by promptly notifying the Company in writing. Depending on the number of months that the Assigned Employee then assigned to the Client upon the Client’s conversion request, the Client shall pay Company a conversion fee based on the new annualized base salary or compensation of the Assigned Employee offered by the Client, accepted by the Assigned Employee, at the rate set forth in the Conversion Fees Schedule under Exhibit B.
Notwithstanding any other provision of this Agreement, if Client terminates this Agreement or notifies Company of its intent to terminate this Agreement, and Client desires to hire directly onto its own payroll or engage as an independent contractor any Assigned Employee then assigned to Client, Client must promptly notify the Company in writing and pay Company a conversion fee based on the Assigned Employee’s new annualized base salary or compensation offered by the Client, accepted by the Assigned Employee, at the rate set forth in the Conversion Fees Schedule under Exhibit B.
For the purpose of calculating the conversion fees, at the request of the Company, the Client shall provide a copy of the employment offer letter or agreement setting forth the new annualized salary or compensation of the Assigned Employee (“Transfer Employment Agreement”). The Client shall not execute or enter into any employment agreement or contract with the Assigned Employee until the Client pays the conversion fee in full to the Company pursuant to Section 5. After the Client pays the conversion fee and executes the Transfer Employment Agreement, upon the Company’s request, the Client must provide a copy of the same Transfer Employment Agreement, fully executed, to the Company.

6. Relationship of the Parties.

The services that Company renders to Client under this Agreement will be as an independent contractor with respect to Client. Nothing contained in this Agreement will be construed to create a joint venture or partnership, or the relationship of principal and agent, or employer and employee, between Company and Client.

7. Indemnification.

Client shall defend, indemnify, and hold harmless Company and Company’s affiliates and their officers, directors, employees, agents, successors, and permitted assigns from and against all claims, losses, and liabilities, including reasonable attorneys’ fees arising out of or resulting from:

(a) bodily injury, death of any person, or damage to real or tangible personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of Client; and

(b) Client’s material breach of any representation, warranty, or obligation of Client set forth in this Agreement.
The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any claim, suit, action, or proceeding and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such claim, suit, action, or proceeding and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any claim, suit, action, or proceeding in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent , which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this 7.2 shall not relieve the indemnifying party of its obligations under this 7 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own expense.
The parties agree that this 7 constitutes the complete agreement between the parties with respect to indemnification and each party waives its right to assert any common law indemnification or contribution claim against the other party.

8. LIMITATION OF LIABILITY.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Confidential Information.

Both parties may be given access to or acquire information which is proprietary or confidential to the other party and its affiliated companies, clients, and customers. Any and all such information obtained by either party or the Assigned Employees shall be deemed to be confidential and proprietary information. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than the providing of services under this Agreement. Company agrees to require Assigned Employees to keep such information confidential and to enter into confidentiality agreements in the form of Exhibit C before being assigned to Client.

10. Compliance with Law.

Both parties represent and warrant to each other that they are in compliance with all applicable laws.
Client and Company affirm and agree that they are equal employment opportunity employers and are in full compliance with any and all applicable anti-discrimination laws, rules, and regulations. Client and Company agree not to harass, discriminate against, or retaliate against any employee of the other because of his or her race, national origin, age, sex, religion, disability, marital status, or other category protected by law; nor shall either party cause or request the other party to engage in such discrimination, harassment, or retaliation. In the event of any complaint of unlawful discrimination, harassment, or retaliation by any Assigned Employee, Client and Company agree to cooperate in the prompt investigation and resolution of such complaint.
Client and Company affirm and agree that for purposes of all statutory and regulatory requirements for employee leaves of absence, including the Family and Medical Leave Act and any similar state or local law, Client and Company shall cooperate in compliance with any such requirements.

11. Ownership of Intellectual Property Rights.

Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables created by Assigned Employees on Client’s behalf, including all Intellectual Property Rights therein. Company agrees, and will cause its Assigned Employees to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire,” Company hereby irrevocably assigns, and shall cause the Assigned Employees to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. Company shall cause the Assigned Employees to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Assigned Employees may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables. All Assigned Employees shall sign an agreement, attached hereto as Exhibit C, confirming the provisions contained in this 11.1.
Upon the reasonable request of Client, Company shall, and shall cause the Assigned Employees to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.

12. Cooperation.

Client and Company agree to cooperate fully and to provide assistance to one another in the investigation and resolution of any complaints, claims, actions, or proceedings that may be brought by or involve any of the Assigned Employees.

13. Term and Termination.

This Agreement shall commence as of the Effective Date and shall continue thereafter for an initial period of 3 months, unless sooner terminated.
This Agreement may be terminated by either party upon thirty (30) days’ written notice to the other party.
Notwithstanding the above 13.2, either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:

(a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or

(b) (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
The terms and conditions of this clause and 6, 7, 8, 9, 10, 11, 14, 15, 17, and 20 shall survive the expiration or termination of this Agreement.

14. Governing law, jurisdiction, and venue.

This Agreement and all related documents including all exhibits attached hereto and all matters arising out of or relating to this Agreement and the services provided hereunder, whether sounding in contract, tort, or statute, for all purposes shall be governed by and construed in accordance with the laws of the State of California (including its statutes of limitations, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in any state or federal court located in the State of California, County of Los Angeles. The parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.

15. Remedies.

In the event of a breach or threatened breach by either party of 9 of this Agreement, the parties hereby acknowledge and agree that the non-breaching party shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any court of competent jurisdiction, and that money damages would not afford an adequate remedy, without the necessity of showing actual damages , and without the necessity of posting any bond or other security. This equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.

16. Attorneys’ Fees.

In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

17. Arbitration.

Any dispute, controversy, or claim arising out of or relating to this Agreement or any breach or termination of this Agreement, including but not limited to services provided under this Agreement, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, whether sounding in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be administered by JAMS and held in Los Angeles, California before a single arbitrator, in accordance with the JAMS’s rules, regulations, and requirements. Any arbitral award determination shall be final and binding upon the parties. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction.
The arbitrator, not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of any dispute between the parties, except for any dispute relating to the enforceability or scope of any class and collective action waiver, which shall be determined by a court of competent jurisdiction.

18. Non-Solicitation.

Client and Company agree not to directly or indirectly solicit or induce for employment, or employ or engage as an independent contractor, any personnel of the other party during the term of this Agreement and for a period of 12 months thereafter without the prior written consent of the other party. Any party violating this paragraph will pay to the other party a fee in the amount of 25% of the employee’s annualized compensation with the new employer. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for purposes of this Section 18, and the hiring of any such employee or independent contractor who freely responds thereto shall not be a breach of this Section 18.

19. Force Majeure.

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation:

(a) acts of God;

(b) flood, fire, earthquake, or explosion;

(c) war, invasion, hostilities (whether war is declared or not), terrorist threats or act, riot, or other civil unrest;

(d) actions, embargoes, or blockades in effect on or after the date of this Agreement;

(e) national or regional emergency; or

(f) compliance with any law or governmental order, rule, regulation, or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota, or other restriction or prohibition, or failing to grant a necessary license or consent;

(g) strikes, labor stoppages or slowdowns, or other industrial disturbances;

(h) shortage of adequate power or telecommunications or transportation facilities;

(i) Epidemics, pandemics, and quarantines, such as the events connected with COVID-19; or

(j) any other event which is beyond the reasonable control of such party

(each of the foregoing, a “Force Majeure Event”). A party whose performance is affected by a Force Majeure Event shall give notice to the other party within 10 days of the Force Majeure Event, stating the period of time the occurrence is expected to continue.
The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause. If the affected party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this 19, either party may thereafter terminate this Agreement upon thirty (30) days’ written notice.

20. Miscellaneous.

Each party shall, upon the reasonable request , and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party , which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Agreement, together with all Schedules, Exhibits, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits, and any other documents incorporated herein by reference shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
Captions and headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email , facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Exhibit A
NATURE AND LOCATION OF WORK; PAYMENT FOR SERVICE

Assigned Employee’s Nature of Work:
Payment for Service:
Payment Terms:

Exhibit B
CONVERSION FEES SCHEDULE

Depending on the months that the Assigned Employee then assigned to the Client upon Client’s exercising its conversion option, the conversion fees payable to the Company by the Client is calculated at the following rates based on the new annualized base salary or compensation of the Assigned Employees offered by the Client, accepted by the Assigned Employee, upon conversion. By way of example, if the Client exercises its conversion option under Section 5 in Month 4 of the Assignment Employee’s assignment to the Client, and the Client agrees to pay the Assigned Employee a new annualized salary of $100,000, the conversion fees due and payable to the Company will be $19,000.

The Month of the Assigned Employee with the Client

Percentage of the New Annualized Base Salary or Compensation of the Assigned Employee in Calculating Conversion Fees

Month 1

25%

Month 2

23%

Month 3

21%

Month 4

19%

Month 5

17%

Month 6

15%

Month 7

13%

Month 8

11%

Month 9

Month 10

Month 11

Month 12

Month 13

Month 14

EXHIBIT C

Confidentiality and Assignment of Proprietary Rights Agreement

Contract to Hire Terms