THIS CLIENT SERVICE AGREEMENT (the “Agreement”) is effective as of the day the client accepts and signs quote for services, (“Effective Date”) by and between Brivity VA, Inc, a Utah corporation (“Company”), and BrivityVA Client (“Client”). Collectively, Company and Client may be referred to herein as the “Parties” or separately as a “Party.”
WHEREAS, The Company operates a virtual assistant business that provides online support services to clients who reside in the United States and Canada (the “Clients”);
WHEREAS, Client desires to retain the services of one or more of the Company’s virtual assistants (“VA” or “VAs”) to support the Client’s business operations; and
WHEREAS, the Company desires to provide the Client with one or more VAs upon such terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1) Term. The term of this Agreement (“Term”) will commence on the Effective Date.
2) Services. Company shall use its best efforts to provide the Client with one or more VAs who, on a contract basis, will perform administrative support and other services for the Client’s business (the “VA Services”). In general, VA Services will include: scheduling appointments, managing calendars, online research, responding to email and phone messages, data entry, systems and tools management, and other online administrative tasks.
3) Client’s Relationship to VAs. In no case shall the VAs be deemed employees of the Client, including but not limited to the payment of taxes related to the VAs work, insurance, workers compensation, paid leave, pensions, severance, or any other employment benefit or obligation. Additionally, unless the Parties agree otherwise, the Client understands and agrees that the VAs may work for any third-party during the term of this Agreement and thus the working relationship between Client and the VAs shall not, unless agreed otherwise, be exclusive.
4) Selection of VAs. Upon request, the Company will provide Client with one or more VA candidates for the Client to interview (“VA Candidates”) via telephone or an online video or audio-conferencing application. If the Client requires a VA to have a specific skill set, the Client must provide the Company with prior written notification of Client’s requirements. Client has twenty-four hours from the conclusion of the interview process to accept or reject the VA Candidate(s). Upon written request, the Company will provide the Client with additional VA Candidates.
a) Prescreening. Prior to the Client-VA Candidate interview, all VA Candidates will be prescreened by the Company. This involves a at least two interviews between the VA Candidate and the Company, a criminal background check, English and typing proficiency tests, reference checks, and general screening to match the VA Candidate to the Client’s needs.
b) VA Training. A VA selected by the Client will, in most instances, be required to undergo extensive Brivity VA training, where the VA will receive training on the use of the Brivity platform, basic principles of real estate transactions, communication tools, and any specialized training required by the role the VA will fill in the Client’s business (“Brivity Training”). The Company may, at its sole and absolute discretion, elect to extend the training period to accommodate holidays, unforeseen interruptions in the training schedule, or to provide the VA with additional training.
c) Training Schedule. The training will commence on the date that the VA begins to perform the VA Services for the Client, and in most instances, continue for a period of four (4) weeks (the “Training Period”). During each workday of the Training Period, the VA will divide her or his workday between training and performing the VA Services for the Client. In most instances, this will mean that the VA provides the VA Services for four (4) hours each work day and spends the remaining four (4) hours undergoing training. The length of the Training Period and the division of hours between performing the VA Services and training may vary, depending upon the VA’s prior experience and the particular skillset required by the Client.
5) Compensating VAs. Except as otherwise provided herein, the Company shall be solely responsible for compensating the VAs. Clients are prohibited from paying gratuities or monetary gifts in any form directly to the VA, without first providing the Company with written notice. If the Client desires to pay a VA a bonus, the Client must submit this request in writing to the Company, and the Company will collect the bonus amount from the Client and remit the payment of the bonus to the VA.
6) Client’s Responsibilities and Restrictions. It is the Client’s sole responsibility to keep apprised of all laws, regulations, and ethical guidelines that pertain to the real estate industry. Client understands and acknowledges that the VAs are not licensed real estate agents, and as such, they may not be directed to perform activities restricted to persons holding a real estate license. Additionally, the Client is strictly prohibited from, directly or indirectly:
a) Sublicensing, reselling, renting, leasing, marketing, commercializing or otherwise transferring rights or usage of the VAs to any other party.
b) Instructing or coercing a VA to act in a manner that is unethical, immoral, hazardous, criminal, or to perform any act that violates any federal, state, or local law, including but not limited to, violating anti-Spam laws, the National Do Not Call Registry, or any other section of the US Telephone Consumer Protection Act.
c) Inviting a VA to visit the United States or, if the VA visits the United States on their own accord, permitting the VA to perform work of any kind; which includes but is not limited to, performing VA Services, attending work related events and meetings, or attending work related training.
d) Entrusting the VAs with cash, checks, negotiable instruments, credit card information, bank account numbers, or wire transfer information.
e) Communicating with the VAs in a manner that is hostile, threatening, demeaning, sexual in nature, or otherwise unprofessional. This includes, but is not limited to, the use of epithets, slurs or negative stereotypes, denigrating jokes, or the sharing of writings or graphic material that denigrates or shows hostility or aversion toward an individual or group based upon their race, national origin, religion, disability, familial status, sex, gender identity, or sexual orientation.
7) VA Tools and Equipment. Company shall ensure that the VAs will be equipped with the basic tools necessary to perform the VA Services: one computer, one headset, and access to a safe and reliable internet connection (the “Basic Tools”). Client will be responsible for any expense incurred by Company or the VAs in purchasing any additional tools or equipment that the Client deems necessary for the VAs to perform the VA Services.
8) VA Tasks and Monitoring. The assignment and monitoring of specific tasks assigned to each VA shall be the sole responsibility of the Client. And while the VA shall determine and have control over the method and means by which they accomplish the specific tasks assigned to them by the Client, the Client shall be responsible for providing the VAs with regular guidance, assistance, and access to the information and systems that the VA requires to complete their assigned tasks within a reasonable time period. The Client shall also be solely responsible for ensuring that any work product that the VAs provide to the Client or third-parties are acceptable to the receiving party, and do not violate or infringe upon any copyrights, patents, and/or trademarks. The Client understands and agrees that the Company shall not be responsible or liable for any infringing material created or distributed by the VAs. This responsibility rests solely with the Client, so the Client is encouraged to regularly review the work product created by the VAs.
9) Billing and Fees.
a) Billing Period Defined. The “Billing Period” is the standard billing cycle for all payments for VA Services under this Agreement. Each Billing Period is a thirty (30) calendar day period, meaning that the period includes both regular working/business days, weekends, and holidays. The first Billing Period for a particular VA will commence on the date that said VA begins to perform the VA Services for the Client. Each subsequent Billing Period begins on the day after the preceding Billing Period ends.
b) Billing Period Fee. Payment for the VA Services (the “BP Fee”) shall be due, in full, on the first day of each Billing Period. The BP Fee shall be calculated as the VA’s flat rate (see Pricing Addendum), plus any Premium Fees (see Section 9(e)) earned in the preceding month, plus any Premium Holiday Fees (see Section 9(f)(i)) earned in the preceding month, plus any discretionary bonuses requested by the Client during the preceding month (see Section 5), and minus any credits pre-approved in writing by Company.
c) Onboarding Fee. For each VA position requested by Client, the Client agrees to immediately pay to Company the VA’s first BP Fee, plus a non-refundable, three hundred fifty-dollar ($350.00) fee to cover the costs of setting up Client’s account, recruiting VA candidates, performing the prescreening, arranging and performing VA interviews, and other associated costs (the “Onboarding Fee”). Please note that while the Company collects the BP Fee for the first Billing Period up front, the first Billing Period will not commence until the VA begins to perform the VA Services for the Client (see Section 9(a)).
d) Minimum Commitment. By signing this Agreement, the Client agrees to use each VA assigned to the Client for a minimum period of three (3) Billing Periods (the “Minimum Commitment Period”). If the Client is unsatisfied with the performance of a VA, the Company will locate and train a replacement VA. Note that only days in which a VA performs VA Services count toward the satisfaction of the Minimum Commitment Period. If the Client refuses to select a replacement VA or causes unreasonable delays in the selection of the replacement VA, the Client will be in breach of this Agreement and any amounts due for the unsatisfied remainder of the Minimum Commitment Period will be immediately due and payable upon written notice by Company.
e) VA Schedule. Each week, the VAs shall make themselves available to perform the VA Services for the number of hours listed in the Pricing Addendum (the ‘Contract Hours”). The Client may require that VAs be generally available to provide the VA Services during Client’s normal business hours.
i) Exceeding Weekly Contract Hours. If, on any given week, the Client directs a VA to work a number of hours in excess of the Contract Hours, then the Client shall pay to Company an hourly Premium Fee listed in the Pricing Addendum. All Premium Fees are due on the first day of Billing Period that follows the Billing Period in which the VA worked hours in excess of the Contract Hours.
f) Holidays and Time Off. No work will be performed by the VAs on the following Philippine holidays (the “Observed Holiday”). Due to the 12-15 hour time zone difference between North America and the Philippines, these holidays will be observed in North America on the dates listed below.
The VAs are entitled an additional seven (7) days off per year, which they may use for sick days, emergencies, vacation, or other personal purposes (“Time Off”). Aside from sick days and emergencies, VAs are required to schedule their Time Off with Client at least one (1) week in advance. Client shall not receive a discount or reduction in the BP Fee for those months that include Observed Holidays and/or Time Off. Client understand and agrees that the Observed Holidays and Time Off is included as part of the cost of the BP Fee.
i) Work During Observed Holidays. Client may not direct a VA to perform VA Services during an Observed Holiday without first obtaining the express permission from the Company. If, with the permission of the Company, the VA performs VA Services during an Observed Holiday, the Client shall pay to Company the Premium Holiday Fee listed in the Pricing Addendum. All Premium Holiday Fees are due on the first day of Billing Period that follows the Billing Period in which the VA worked the holiday.
g) Payments. All payments from the Client to the Company, including both reoccurring fees and one-time payments, will be processed through the online billing service, Chargify (www.chargify.com).
i) Failure to Pay. In the event that the Company is prevented from collecting payment due to the actions or inactions of the Client, the Company will immediately direct all of the Client’s VAs to cease performing the VA Services. If the Client fails to make payment in full, within fourteen (14) days of the payment due date, the Client’s account with Company will be closed.
ii) Collecting Unpaid Fees. If the Client fails to make payment in full, within fourteen (14) days of the payment due date, the matter will be referred to collections and all legal remedies available to Company will be pursued, including reasonable attorneys’ fees, and any costs associated with collection and recovery of the unpaid amounts. The Company’s failure to seek such collection immediately shall not constitute waiver to do so at any time in the future.
iii) Reinstatement of Closed Account. Upon written request from Client, the Company may, at its sole and absolute discretion, reinstate Client’s account. Client will be charged a reinstatement fee of one hundred seventy-five dollars ($175.00) per VA so reinstated (the “Reinstatement Fee”), which in addition to any outstanding fees owed to Company, must be paid in advance.
a) Termination of a VA. Following the expiration of a VA’s Minimum Commitment Period, the Client may terminate the aforementioned VA with thirty (30) days written notice to the Company. This termination date may coincide with the last day of the Minimum Commitment Period of a particular VA, so long as the Client provided Company with no less than 30-days written notice prior to the last day of the Minimum Commitment Period for that particular VA. VAs terminated in this manner will not be replaced, as it is assumed that the Client no longer requires or desires the VA Services.
b) Termination of Agreement by Company. In the event Client violates any provision of this Agreement, which includes the failure to make any required payment, the Company may, at its sole and absolute discretion, immediately terminate this Agreement. In the event that the Company terminates the Agreement, the VAs assigned to the Client will be directed to immediately stop performing the VA Services and to return to the Client any Client property or data in the VA’s possession.
c) Termination of Agreement by Client. Client may terminate this Agreement by: (i) terminating all of its VA in the manner described in Section 10 (a); and (ii) providing the Company with written notice that it wishes to permanently close its account with Company.
d) VA’s Resignation. In the event that a VA resigns or is otherwise unable to perform the VA Services, the Company shall provide the Client written notice of such within two (2) business days of the Company’s receipt of the VA’s resignation or notice of inability to perform the VA Services.
e) Dissatisfaction with VA. Should the Client become dissatisfied with its assigned VA, then upon written request to Company, the Company will locate and train a replacement VA (see Section 10(f)).
f) Replacement VA. In the event that VA resigns or if the Client becomes dissatisfied with its assigned VA, the Company will expedite the recruitment and training of a replacement VA. The Client will not be charged an onboarding fee (see Section 9(a)) for the replacement VA, nor shall the Client be charged a BP Fee for the replacement VA, until said VA begins to perform VA Services for the Client.
11) Communications Between Company and Client. During the term of this Agreement Client consents to receive business and billing communications from Company in an electronic form via email, and that providing said communications to Client electronically satisfies any legal requirement that such communications would satisfy if it were in writing. Additionally, by signing this Agreement, Client understands and agrees that it is providing Company with express written consent to monitor and record any audio, video, written or SMS communications between the Client and any of Company’s employees, representatives, or VAs. These recordings may be used by the Company for purposes of training, collection of debts, legal actions, or any legitimate business purpose Company determines.
12) Confidential Information. The Client acknowledges that Client may, in the course of performing the Services, be exposed to or acquire Confidential Information of the Company, its affiliates, subsidiaries, or its VAs. "Confidential Information" means proprietary or non-public information that the Client obtains knowledge of or access to in connection with the transactions contemplated by this Agreement, including without limitation information related to the Company's business, business processes and practices, marketing strategy, products, services, inventions tools, scripts, finances, or other business information, in any form (whether tangible or intangible and whether in written, magnetic, optical, electronic or other form). "Confidential Information" will be deemed not to include information which (i) is or becomes publicly known or is publicly available, (ii) becomes known to the Client other than from the Company or its Client or becomes known to third-parties other than from Company or its Client (except for disclosures subject to a confidentiality agreement), or (iii) would otherwise constitute "Confidential Information" of the Company or its Client, but which the Company or its Client is required by court order or other legal process to disclose.
a) Non-Disclosure of Confidential Information. Client agrees to hold the Company's and/or its VAs’ Confidential Information in strict confidence and not to disclose such Confidential Information to third-parties or to use such Confidential Information for any purpose whatsoever, other than the provision of Services hereunder, during and after the term of this Agreement. Without limitation to the foregoing, Client will advise the Company immediately in the event that the Client learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and/or intends to disclose such Confidential Information to unauthorized persons. In such case, the Client will, at its expense, cooperate with the Company in seeking injunctive or other equitable relief in the name of the Company. Upon termination of this Agreement, Client will destroy or turn over to the Company all documents, papers and other matter in its possession or under its control that contain Confidential Information or summaries thereof.
13) Non-Solicitation. During the period commencing on the Effective Date and ending on the date two (2) calendar years after the termination of this Agreement (the “Non-Solicitation Period”), Client agrees not to attempt to influence or to encourage any other person who is employed or engaged by the Company or its subsidiaries, divisions, or affiliates, to terminate his or her own relationship with the Company, or their subsidiaries, divisions, or affiliates. Additionally, during the Non-Solicitation Period, Client will not, directly or indirectly, whether on Client’s own behalf or on behalf of any other person or entity, hire or attempt to hire for employment, or engage or attempt to engage under contract, any person employed or engaged under contract with Company or their subsidiaries, divisions, or affiliates. Additionally, in the event that Client introduces a VA to any third party during the Non-Solicitation Period and during the Non-Solicitation Period the third party hires or otherwise retains the VA to perform VA Services, the Client’s introduction shall constitute a breach of this Section 13.
14) Liquidated Damages. The Parties agree that a breach of Section 12 or 13 will cause serious and substantial damages to the Company, and it will be difficult, if not impossible to prove the amount of such damages. Consequently, in the event of breach of Section 12 or 13, the Client shall pay to the Company liquidated damages in the amount of twenty- five thousand United States Dollars ($25,000.00 USD) for each instance of breach. This sum is intended as liquidated damages and not as a penalty. The Parties agree that this liquidated damages amount is an estimate and agreed upon sum of the actual loss because of the difficulty of estimating the exact damages. This liquidated damages provision does not, in any way, limit the Company’s ability to seek equitable relief including an injunction.
15) Permanent Transfer of VA to Client. If Client desires to directly employ or contract with a VA without Company’s involvement, Client may do so by providing Company with the following for each VA it wishes directly employ or contract with:
a) The written consent of the VA;
b) Thirty (30) days written notice, during which the Client is obligated to continue to use and pay for the VA Services; and
c) a non-refundable, twenty thousand-dollar ($20,000.00) transfer fee (the “Transfer Fee”) per VA transferred
16) Assignment. Client understands that Client may not assign or transfer Client’s rights or obligations under this Agreement. Company may assign its rights under this Agreement whether by merger, sale of assets, reorganization or other form of business acquisition, disposition or business reorganization.
17) No Warranty. The Company makes no express or implied warranty, including, but not limited to, any warranty of quality, performance, merchantability of fitness for any purpose, with respect to any services performed or any goods, including, but not limited to, processes, procedures, or other proprietary property developed hereunder. In no event shall the Company be liable to Client or any other party for any damages, expenses, liabilities, fees, obligations, or losses ("Losses") arising out of this Agreement whatsoever, or the services provided hereunder, whether for work performed, goods or services developed, or otherwise, which are in the aggregate in excess of the applicable amount of fees actually paid to the Company by Client with respect to the assignment resulting in such Loss. In no event shall the Company be liable to Client or any party for any incidental, indirect, or consequential Loss (including, but not limited to, lost profits, business interruption or lost data) arising from or related to any services performed or goods developed pursuant to this Agreement.
18) Client’s Due Diligence and Disclosures. The Parties acknowledge and understand that the VA Services are not intended to be subject to the Federal Labor Standards. Nevertheless, Client has had the opportunity to consult with independent legal counsel in the jurisdiction where the Client's business will use the VA Services to ensure that the Client’s use of the VA is in full compliance with all relevant laws and regulations. Additionally, in the event VA performs any work under a government contract, state or federal law requiring higher and/or prevailing wages, or other similar contract, Client assumes all liability, responsibility, and obligation to disclose, and Client agrees to pay pro rata a price differential to reflect the higher and/or prevailing wages that may be due, if any. In the event Client directs a VA to handle, work with, or become otherwise exposed to confidential, financial or private information of third parties and such disclosure is required by contract, federal or local laws, statutes, codes or ordinances, Client assumes all liability, responsibility, and obligation to disclose to the government or other contracting party, the nature of its relationship with the VA.
19) Indemnification. To the fullest extent of the law, the Client agrees to indemnify, defend, and hold harmless the Company, including officers, directors, employees, and legal counsel from all losses, damages, injuries, costs, fees, awards, claims, demands, fines, suits, and actions, of whatever nature and description incurred or brought by any third party, which arise from any actual or alleged negligence, willful misconduct, violation of the law, infringement, or breach by Client in regards or in connection to the VA Services and/or this Agreement (“Claims”). The indemnity shall include, but not be limited to any and all costs, attorney’s fees, expenses and liabilities incurred in the defense of any such Claims, both at any alternative dispute resolution forum (i.e. arbitration, mediation, or the like), trial, and on appeal. In the event the Company is forced to any pay money as a result of any such Claim, the Company may recover said sum paid from the Client. This Section 19 shall survive the termination of this Agreement.
20) Conflicts of Interest. Client represents that Client is free to enter into this Agreement and that this engagement does not violate the terms of any agreement between the Client and any third party.
21) Choice of Law. This Agreement shall be governed by the laws of the State of Washington. Venue shall be the Superior Court of Whatcom County, Washington.
22) Attorneys’ Fees. In the event of any legal or equitable action, including any appeals, which may arise hereunder between or among the Parties hereto, the prevailing party shall be entitled to recover a reasonable attorneys’ fee. Attorneys’ fees shall also include hourly charges for paralegals, law clerks and other staff members operating under the supervision of an attorney.
23) Notices. Any and all notices, demands, or other formal communications required or desired to be given hereunder by any Party shall be in writing and shall be validly given or made to another Party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested.
Notices to Company:
Bryce Waldron, Director of U.S. Operations 2211 Rimland Drive, STE 124
Bellingham, WA 98226 firstname.lastname@example.org
24) Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
25) Singular and Plural. Unless clearly inappropriate, singular terms refer also to the plural number and vice versa.
26) Waiver. Failure of either party to insist on strict compliance with any of the terms, covenants, and conditions of this Agreement shall not be deemed a waiver of such terms, covenants, and conditions, or of any similar right or power hereunder at any subsequent time.
27) Modification or Amendment. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the Parties hereto.
28) Entire Understanding. This Agreement, this document and any exhibit attached constitute the entire understanding and agreement of the Parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
29) Force Majeure. Each Party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason of any event beyond such Party’s reasonable control, including but not limited to, Acts of God, fire, flood, explosion, earthquake, or other natural forces, war, civil unrest, any strike or labor disturbance. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in performance and provided that the Party has not caused such event(s) to occur. Notice of a Party’s failure or delay in performance due to force majeure must be given to the other Party within five (5) days after its occurrence.
30) Severability. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
31) Survival. All provisions that logically ought to survive termination of this Agreement shall survive.
32) Counterparts. This Agreement may be executed in any number of counterparts and by facsimile, each of which will be deemed an original, but all of which will constitute one and the same instrument.