UPCALL, INC.
FREELANCE AGREEMENT

THIS UPCALL FREELANCE AGREEMENT, ALONG WITH THE TERMS OF CONDUCT LOCATED AT https://www.upcall.com/en/terms-of-conduct GOVERNS YOUR PROVISIONS OF THE SERVICES TO UPCALL, INC. (“UPCALL”) AND ITS CLIENTS. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU, AS FREELANCER (“FREELANCER”) AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR “FREELANCER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES

  1. Freelancer's Services

Upcall provides a platform for clients (“Clients”) to contract with freelance callers to conduct calling campaigns (“Upcall Platform”) and Freelancer has the resources to perform calling campaigns on behalf of Clients on calling outreach tasks connected with a call campaign (the “Services”). Upcall offers the availability and use of the Upcall Platform to retain Freelancer as an independent contractor, Freelancer hereby agrees to be retained and provide the Services through the Upcall Platform as an independent contractor. Freelancer accepts such retention to provide the Services on behalf of Upcall upon the terms and conditions set forth herein:

  1. In exchange for payment of the Fees, Freelancer shall undertake the Services on an as needed basis through the Upcall Platform.
  2. Freelancer represents and warrants that Freelancer's execution and delivery of this Agreement and the performance of its duties hereunder do not, and will not, breach or conflict with any obligation of Freelancer to a previous client or other person or any obligation to keep confidential any information acquired by Freelancer prior to the date hereof.  
  3. Freelancer agrees to devote sufficient time, attention and efforts in order to promptly and satisfactorily complete the services, without any commitment as to the number of hours or availability of Clients needing Services.  Consistent with this requirement and subject to the terms of this Agreement with respect to non-circumvention and non-solicitation, Freelancer may perform services for, or be employed by such additional persons or entities as Freelancer sees fit.
  4. Freelancer shall complete all certification procedures requested by Upcall prior to working on any work or project hereunder.  Freelancer's failure to do so shall constitute a material breach of this Agreement.
  5. Freelancer Obligations
  6. All Freelancer who provide Services to Client shall have the technical qualifications and capabilities as Upcall and its Clients reasonably require.

b Freelancer agrees to be bound by and strictly comply with the Upcall Terms of Conduct located at https://www.upcall.com/en/terms-of-conduct, which may be amended from time to time at the sole discretion of Upcall.  Failure to strictly comply with the Upcall Terms of Conduct may result in the immediate termination

  1. Freelancer may not subcontract its obligations under this Agreement.
  2. Freelancer acknowledges that any communications, including telephonic conversations made using the Upcall Platform may be recorded and consents to such recording. Freelancer shall notify any third parties contacted as part of a call campaign using the Upcall Platform that such conversations are being recorded.
  3. Upcall and Client shall have unrestricted access to all computer media containing Client data from time to time in connection with the performance of this Agreement or any applicable Statement of Work.  Freelancer at the request of Upcall, promptly shall deliver to Upcall or Client, as applicable, all computer programs, including source code, lists, scripts, files, media, documentation and related materials concerning any services provided by Freelancer before or after the date of this Agreement.
  4. Freelancer shall be legally authorized to work in the United States to provide services arising from or related to this Agreement.  To the extent permissible by law, Freelancer shall provide to Upcall evidence reasonably satisfactory to Upcall of (including, without limitation, contractor and such approved subcontractor’s employees and subcontractors, if any) authorization to work in the United States before such contractor, employee or subcontractor may be assigned to perform services pursuant to a Statement of Work.  
  5. Compensation
  6. Upcall agrees to pay Freelancer compensation for the Services at the rates set forth in the applicable call campaign profile, which may be amended at any time by Upcall.  Compensation shall be in accordance with the Code of Conduct and other Upcall policies and procedures, based on the reported progress entered into the Upcall Platform.  
  7. Upcall shall pay all amounts due to Freelancer within forty five (45) days after completion of the call campaign once a minimum threshold of $25 has been earned.  This provision shall survive the termination of any agreement between Upcall, Client and/or Freelancer.  
  8. Freelancer expenses will not be reimbursed and Freelance shall use its own equipment and networks to provide the Services.
  9. Notwithstanding the foregoing, if Client holds back any portion of amounts owed to Upcall due to what Upcall can reasonably demonstrate based on the warranties contained in this Agreement and/or the specifications set forth in the applicable Statement of Work was Freelancer’s non-satisfactory performance of the work for a call campaign, Upcall will hold back a like portion of amounts owed to Freelancer and Upcall will pay such unpaid portion of amounts owed to Freelancer within thirty (30) days of Upcall’s actual receipt of the amounts held back by Client. To the extent permitted by law, Upcall may change the time and date for payment at any time in its sole discretion.  Freelancer agrees not to impair Upcall’s ability to collect payment from its Clients.
  10. The fees listed in any call campaign, the applicable Statement of Work do not include taxes
  11. Freelancer shall not disclose its compensation or hourly rate to any third party, including without limitation any Client, employee or independent contractor of Upcall.  Any such disclosure shall constitute a material breach of this Agreement.
  12. Term of Agreement
  13. Either party may terminate this Agreement at any time, for any reason, by giving written notice to the other party.  
  14. If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the nonbreaching party may terminate this Agreement by giving written notification to the breaching party.  Termination shall be effective immediately upon receipt of notice pursuant to Section 12.  For purposes of this section, material breach of this Agreement shall include but not be limited to the following: (i) failure of Freelancer to provide the Services; and (ii) failure to comply with the Terms of Conduct or other Upcall policies
  15. Upcall may suspend a call campaign at any time.
  16. This Agreement terminates automatically on the occurrence of any of the following events: (i) bankruptcy or insolvency of either party; or (ii) dissolution of either party or termination of Upcall’s agreement with Client connected with the applicable Statement of Work; or (iii) the sale of the business of either party.
  17. Relationship of Parties
  • The parties intend that Freelancer shall render such services to Upcall as an independent contractor and not as an employee, agent, joint venturer, partner or otherwise.  Freelancer shall have the sole and exclusive right to control and direct the manner and method of performing the services hereunder, subject to Upcall’s right to ensure that the results are satisfactory to and in accordance with Upcall’s expectations.
  • Freelancer acknowledges that Upcall will not withhold any social security or income taxes or make any contributions to unemployment or workers’ compensation funds on behalf of Freelancer or its employees, agents or subcontractors.  Freelancer shall be responsible for filing all tax forms and shall pay all taxes, when and as due, on the compensation received under this Agreement, including payroll taxes and estimated taxes.  Freelancer shall provide Upcall with proof of payment of taxes on demand.
  • Freelancer shall not be entitled to any benefits accorded to Upcall's employees, including but not limited to medical, dental, vision, life, LTD, and 401(K) plans, and vacation or sick pay.  In the event that any governmental agency or court of competent jurisdiction reclassifies the employment status of Freelancer and its employees, agents and subcontractors, Freelancer hereby expressly waives any claim to any of the aforementioned benefits of Upcall for the period of time prior to the date of such reclassification.  Additionally, in the event that Freelancer’s waiver of any claim of entitlement to any of Freelancer’s benefits is determined to be unenforceable for any reason, in consideration for the payment received under this Agreement, Freelancer hereby agrees not to participate in any of the benefit plans listed in this section where participation is voluntary.
  1. Freelancer shall be responsible for procuring, at Freelancer's expense and in Freelancer's name, Workers’ Compensation and Employers’ Liability Insurance as prescribed by law, Comprehensive General Liability (Bodily Injury and Property Damage) Insurance and Professional Liability, and Errors and Omissions Insurance covering all services provided or contemplated hereby, as well as licenses and permits usual or necessary for performing the services.  In this regard, Freelancer agrees to comply with all applicable laws of the state having jurisdiction over Freelancer.  Freelancer will provide Upcall with satisfactory evidence of compliance with this requirement.  Freelancer further agrees that if Upcall should legally incur any cost whatsoever under any workers' compensation laws by reason of Freelancer's injury or death while engaged in performing the services, Freelancer will reimburse Upcall for such costs.
  2. Confidential Information/Intellectual Property
  3. Subject to subsection (e) below, each party acknowledges that all Confidential Information (defined below) which comes or has come into the knowledge or possession of such party, including any Confidential Information originated or developed by such party during the term of this Agreement, is maintained as a trade secret and is the exclusive property of the other party or its Clients.  Each party agrees, at all times, whether during or after termination of the term of this Agreement, unless specifically consented to in writing by the President (or equivalent officer) of the other party, to hold in strict confidence all Confidential Information and not to, either directly or indirectly, use for such party’s own benefit or for the benefit of any third party or divulge, disclose or communicate to any person or entity, in any manner whatsoever, any Confidential Information of any kind, nature or description concerning any matters affecting or related to the business of the other party or its Clients, except in the course and within the scope of performance under this Agreement.
  4. For purposes of this Agreement, “Confidential Information” includes any and all information which a party or its Clients may treat or designate as confidential, secret or proprietary including without limitation, customer lists, supplier lists, research, plans schematics, designs, drawings, models, computer programs, source code, object code, financial records, accounting records, sales and marketing data, cost or profit figures and projections, credit information, current, future or proposed products or services, processes, concepts, ideas, protocols, methodologies, discoveries, inventions and technical information included in or on tracings, flow charts, drawings, field notes, calculations, specifications and engineering data.  Notwithstanding the foregoing, the term Confidential Information shall not consist of any information which has been place in the public domain other than by a party in violation of this Agreement or a separate agreement regarding such subject matter.  
  5. Each party will notify the other party in writing immediately after such party receives a subpoena, notice to produce or other compulsory order or process of any court of law or government agency if such document requires or may require disclosure or other transfer of Confidential Information. In any such event, the receiving party will only disclose such Confidential Information that it is advised by counsel is legally required to be so disclosed and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information.
  6. "Confidential Information" shall not include information the receiving party can document (i) is in or (through no improper action or inaction by the receiving party or any affiliate, agent or employee) enters the public domain; (ii) is generally known or easily ascertainable by nonparties of ordinary skill in computer or process design or programming or in the business of disclosing party; (iii) is released by the disclosing party to any other person, firm or entity (including governmental agencies or bureaus) without restriction; (iv) was rightfully in its possession or known by it prior to receipt from the disclosing party, as evidenced by the receiving party’s written records in existence prior to the disclosure by the disclosing party; (v) was rightfully disclosed to it by another person without restriction; or (vi) was independently developed by it by persons without access to such information and without use of any Confidential Information of the disclosing party.
  7. It is the practice and policy of Upcall not to utilize the trade secrets of others. Accordingly, subject to subsection (f) below, Freelancer agrees not to utilize or disclose, directly or indirectly, any information or data the disclosure of which would constitute a violation of any obligation to, or infringe the rights of, any third party. Notwithstanding the above, the parties agree that the subsequent use by the receiving party of Residuals shall not constitute a breach of this Agreement but shall remain subject to the disclosing party's patent and copyright rights, if any, therein.  The term “Residuals” means information in non-tangible form, which may be retained in the unaided memories of the receiving party’s representatives who have had rightful access and exposure to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement, including general ideas, concepts, know-how or techniques contained therein.  An Employee of Upcall or Freelancer’s (referred to in this subsection as “Representative”) memory is unaided if the Representative can recall the information without reference to disclosing party’s Confidential Information in written, electronic or other fixed form and if the Representative has not intentionally memorized the disclosing party’s Confidential Information for the purpose of retaining and subsequently using it.   Neither party shall have any obligation to limit or restrict the assignment of such Representatives.   
  8. Work Product; Previously Developed Materials; Methodologies and General Software; Cross-Licenses; Future Work.
  9. Work Product.  Subject to the terms of this Section 6(e), (i) all deliverables created as a result of the Services performed under such Statement of Work (including software code and supporting documentation) which pertain specifically to the project set forth in the Statement of Work and do not have general applicability (collectively, the “Work Product”) and all Intellectual Property Rights (as defined below) therein, during any assignment with or project for a Client (the “Applicable Client”), shall be the sole and exclusive property of Upcall solely for the purpose of assignment to such Applicable Client, and (ii) Freelancer assigns all right, title and interest in Work Product to Upcall, which shall, in turn assign the applicable Work Product to, such Applicable Client. Freelancer also waives all “Moral Rights” in the Work Product.  For purposes of this Agreement, “Intellectual Property” means all patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, whether registered or unregistered.
  10. Except as disclosed in writing to Upcall and its Clients, Freelancer represents and warrants with respect to any tangible or intangible property assigned or licensed by Freelancer pursuant to this Agreement, the same is transferred and assigned to such Clients free and clear of all liens, claims and encumbrances of others and does not infringe upon or violate any patent, trademark, copyright, trade secret or other proprietary right of any third party.  If Freelancer intends to incorporate into any tangible or intangible property to be provided to a Client, any idea, invention or discovery which Freelancer claims is proprietary to any person other than Freelancer, Upcall or the Client (“Other Property”), Freelancer shall first notify Upcall and the Client of such intention and the basis for the right to such use and shall incorporate the Other Property only upon the written consent of Upcall and the Client.  If such Other Property is so incorporated, Freelancer hereby grants to the Client a perpetual, irrevocable, non-exclusive, world-wide, royalty free right to use (and sublicense to others to use) the Other Property so incorporated, but only to the extent of Freelancer’s rights in such Other Property and  Freelancer represents and warrants that the use by the Client of the Other Property will not infringe upon or violate any patent, copyright, trade secret or other proprietary right of any third party.
  11. Upon completion of each assignment with or project for a Client or upon termination of this Agreement, Freelancer agrees to immediately return to such client or to Upcall, as appropriate, all information, reports, notes, data, and any other materials (whether maintained in tangible, documentary form or in computer memory or other electronic format), in the possession or under the control of Freelancer, containing, incorporating or reflecting, in any way, any Confidential Information.
  12. Freelancer grants Upcall and applicable Client the right to use voice recordings of interactions through the Upcall Platform to improve services, conduct voice analytics reviews and assessments and internal research. Freelancer assigns all right, title and interest in such recordings to Upcall.  Freelancer also grants Upcall a, royalty-free, irrevocable, world-wide license to use such recordings and Freelancer’s likeness, image uploaded into the Upcall Platform for marketing and publicity purposes.
  13. Freelancer acknowledges that the use or disclosure of any Confidential Information or any other violation of the terms of Section 6 of this Agreement would cause immediate and irreparable injury, loss, and damage to Upcall and its Clients and that an adequate remedy at law for such injury, loss, and damage may not exist.  Therefore, Upcall or its Clients shall be entitled to institute and prosecute proceedings in a court of competent jurisdiction to obtain temporary and/or permanent injunctive relief to prevent any actual or threatened use or disclosure of Confidential Information or to otherwise enforce a provision of this Agreement, without being required to prove actual damages or being required to post any bond or undertaking.
  14. Except to the extent that any such waiver is prohibited by law, the Freelancer hereby forever waives and agrees never to assert in or with respect to any Intellectual Property assigned by Freelancer pursuant to this Agreement the benefits of any provision of law known as “moral rights” or “droit moral” or any similar law in any country of the world (including under Section 106A of the U.S. Copyright Act of 1976, as amended).  “Moral rights” or “droit moral” shall include any rights to claim authorship of Intellectual Property, to object to or prevent the modification of any Intellectual Property, or to withdraw any Intellectual Property from circulation, publication or distribution.
  15. Freelancer agrees that it shall not reverse engineer, decompile or use the Upcall Platform to sublicense, resell or reuse the Upcall Platform or offer it in a service bureau.
  16. Limitation on Conduct
  17. During the term of the Agreement and thereafter, neither party shall, without first obtaining the express prior written consent of the other party, render services for, engage in or enter into the employment of, or act as an advisor or consultant to, any person, firm or corporation engaged in or about to become engaged in a business anywhere in the United States competitive, directly or indirectly, with any business conducted or proposed to be conducted by the other party during the term of the Agreement, in each case where such direct or indirect competition would involve the use and/or disclosure by such party of any Confidential Information of the other party.
  18. During the term of the Agreement and for a period of one (1) year thereafter, neither party shall, without first obtaining the express prior written consent of the other party, either directly or indirectly, on behalf of such party or any other person or entity, (i) contact, solicit, interfere with or contract with (or attempt to do any of the foregoing) any person or entity with whom such party had contact with or became aware of in the course of performing the Services and that was a client, customer or supplier of the other party at any time during the Agreement regarding any matter involving or related to the Services, or (ii)  solicit, entice, induce, hire, employ, seek to employ, or employ, directly or indirectly any employee or consultant of the other party who was employed by the other party at any time during the Agreement and with whom such party had any contact with during the term of the Agreement.
  19. Without limiting the obligations set forth in subsection 7(b), Freelancer agrees that during the term of this Agreement: (i) Freelancer shall not provide services directly to any Client if Freelancer has first provided services to said Client under any existing or prior Statement of Work; and (ii) Freelancer shall not hire or otherwise contract for the services of any Key Upcall Employee (as defined below) to provide consulting services to any Client who has received consulting services from Upcall within the preceding calendar year of the hiring or contracting.  For purposes of this Agreement, a “Key Upcall Employee” shall mean a person directly associated, as a current or former employee or independent contractor, with either: (A) the past or present performance of this Agreement or other agreements between Freelancer and Upcall, or (B) the present performance of consulting services to a Client.  Freelancer's hiring of a Key Upcall Employee shall constitute a material breach of the Agreement and Freelancer shall pay Upcall liquidated damages equal to twelve (12) months of any such Key Upcall Employee’s compensation plus any legal expenses involved with the enforcement of this provision.  This provision shall not be considered a penalty.
  20. Freelancer's Representations and Indemnities
  21. In the event Freelancer is a business entity and not a sole proprietorship, Freelancer warrants and represents that it is a validly existing and in good standing under the laws of its state of formation and has the full power and authority to own or lease its properties and to carry on its business as it is now being conducted.  Freelancer warrants and represents has been actively engaged in the business of providing consulting services and maintains books and records in the ordinary course of its business.  Freelancer’s federal tax identification number, if any is set forth on the signature page to this Agreement.
  22. Freelancer shall perform the Services in a timely and workmanlike manner with due diligence, in accordance with the terms of this Agreement and such Statement of Work.  Freelancer, at its sole expense, shall promptly correct any defective or non-conforming services performed by Freelancer.
  23. Freelancer further represents and warrants that: (i) except as disclosed in accordance with Section 6(g), all deliverables or results of Freelancer’s services (“Work Product”) is or will be original to the Freelancer; (ii) the Work Product does not and will not infringe any intellectual property or other Confidential rights of any third party; (iii) Freelancer has not previously granted and will not grant any rights in the Work Product to any third party that are inconsistent with the rights granted to Upcall herein; (iv) Freelancer has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted to Upcall hereunder;  (v) Freelancer will comply with all laws and regulations during the term of this Agreement and (iv) Freelancer will comply at all times with the Terms of Conduct.
  24. Freelancer shall and does hereby indemnify, defend, and hold harmless Upcall, and Upcall's directors, officers, owners, employees, agents, representatives, its licensees and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, and reasonable attorneys fees and costs, that Upcall may incur or suffer and that result from, or are related to third party claims related to (i) any damage or injury to persons or property caused by or sustained in connection with Freelancer’s performance of services under this Agreement; (ii) any failure by Freelancer to comply with its obligations specified in Section 8 b or c above; (iii) any violation by Freelancer of any statute, rule, regulation, and (iv) any breach by Freelancer of any representation, warranty or agreement hereunder.
  25. DISCLAIMER: THE EXPRESS WARRANTIES GIVEN IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
  26. Limitations on Damages and Remedies of Upcall.
  27. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9(B) FOR DAMAGES OTHER THAN DIRECT DAMAGES, FOR BREACH OF CONFIDENTIALITY PROVISIONS OF ARTICLE 6, OR FOR UNDER THE INDEMNITY PROVISIONS CONTAINED IN SECTION 8(d) OF THIS AGREEMENT, CONTRACTOR’S ENTIRE LIABILITY FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT OF ALL PAYMENTS ACTUALLY MADE BY Upcall TO CONTRACTOR UNDER THE STATEMENT OF WORK FROM WHICH, AND FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH, THE CLAIM, LOSS, DAMAGE OR EXPENSE ARISES.
  28. EXCEPT FOR BREACH OF THE CONFIDENTIALITY PROVISIONS OF SECTION 6 OR UNDER THE INDEMNITY PROVISIONS CONTAINED IN SECTION 8(d) OF THIS AGREEMENT NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HERETO FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER INDIRECT LOSS OR DAMAGE, INCLUDING LOST PROFITS, ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM, OR THE USE OR PERFORMANCE OF ANY SERVICE, WHETHER IN AN ACTION FOR OR ARISING OUT OF ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
  29. The remedies provided in this section shall be cumulative and in addition to any other remedies which Upcall may have against Freelancer from time to time, and shall not limit Upcall’s ability to seek other remedies available to it at law or in equity.
  30. Arbitration and Class Action Waiver.

Freelancer and Upcall agree that, if a dispute arises from or in connection with this Agreement other than claims involving injunctive relief arising from any breach of Section 6, such dispute shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association then in effect.  The arbitration shall take place in Los Angeles, California and both Freelancer and Upcall agree to submit to the jurisdiction of the arbitrator selected in accordance with American Arbitration Association rules and procedures.  To the maximum extent permitted by law, Freelancer and Upcall agree that this arbitration procedure will be the exclusive avenue of redress for any disputes relating to or arising from Freelancer's performance of services for Upcall, including disputes over rights provided by federal, state, or local statutes, regulations, ordinances, and common law, including all laws that prohibit discrimination on any protected classification.  To the maximum extent permitted by law, Freelancer specifically agrees that this provision includes any claims for payment pursuant to or for breach of this Agreement.  The arbitrator shall have discretion to award monetary and other damages, or no damages, and to fashion such other relief as the arbitrator deems appropriate.  The arbitrator shall also have discretion to award the prevailing party reasonable costs and attorneys fees incurred in bringing or defending an action under this provision.  The parties waive their right to a jury trial and to participate in a class action against the other party.

 

  1. Miscellaneous
  2. This Agreement constitutes the entire agreement between the parties with respect to the matters contained herein and supersedes any and all prior and contemporaneous agreements, negotiations, correspondence, undertakings, and communications of the parties, oral or written, with respect to that subject matter.  
  3. Freelancer acknowledges that Upcall does not tolerate harassment or discrimination of any kind.  Freelancer agrees to read and abide by Upcall's policy against harassment as set forth in Upcall's Personnel Handbook, a copy of which is attached hereto.
  4. Except as otherwise provided in this subsection, Freelancer may not, without the express written permission of Upcall in its sole discretion, assign, subcontract or pledge any rights or obligations hereunder.   Freelancer may assign this Agreement and all Statements of Work hereunder in connection with the sale of Freelancer (whether by merger, sale of equity interests, sale of assets or otherwise) without the prior written consent of Upcall.  Such subcontractor may be removed at the request of Upcall or Client for any reason not prohibited by law.
  5. A waiver of a breach of any provision of this Agreement shall not constitute a waiver of any subsequent breach of that provision or a breach of any other provision of this Agreement.  Failure of Upcall or Freelancer to enforce at any time or from time to
  6. No amendment or modification of this Agreement shall be valid unless evidenced by a written instrument ex time any provision of this Agreement shall not be construed as a waiver thereof.
  7. The provisions of this Agreement and the covenants herein contained shall be construed independently of each other, it being the express intent of the parties hereto that the obligations of, and restrictions on, the parties as provided herein shall be enforced and given effect to the fullest extent legally permissible.
  8. This Agreement shall be governed by and construed in accordance with the laws of the state in which an activity occurred or threatens to occur and with respect to which legal and/or equitable relief is sought.  In no event shall the choice of law be predicated upon the fact that Upcall is incorporated or has its corporate office in a certain state.
  9. If any term, provision, or part of this Agreement is found by a court to be invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other terms, provisions, and parts of this Agreement shall nevertheless remain in full force and effect unless the provision found to be invalid or unenforceable is of such material effect that this Agreement cannot be performed in accordance with the intent of the parties in the absence thereof.  
  10. The termination of Freelancer’s retention with Upcall, for any reason, shall not relieve either party of any of that party’s obligation under this Agreement existing at, arising as a result of, or relating to acts of omission occurring prior to such termination.  Without limiting the generality of the preceding sentence, in no event shall the termination modify or affect any of Freelancer’s obligations under Sections 5, 6, 7, 8, 9, 10, 11 and 12, which shall survive termination of this Agreement.
  11. Notices

Except as provided below, any notice and other communication required or desired to be given to any party under this Agreement shall be in writing and shall be deemed given when delivered personally to that party, emailed, faxed (which is confirmed) to that party at the facsimile number for that party, mailed by certified mail (return receipt requested) to that party, or delivered to Federal Express or any similar express delivery service for delivery to that party at the address for that party (or at such other address for such party as such party shall have specified in a notice to the other parties).  Notwithstanding the foregoing, Freelancer agrees that communications made through the Upcall’s website, Upcall Platform and e-mail and messaging system, will not constitute legal notice to Upcall or any of its officers, employees, agents or representatives in any situation where notice to Upcall is required by contract or any law or regulation.

- If to Upcall: Upcall Inc. Attn: Samuel Devyver, Title:  Chief Executive Officer, E-mail: legal [at] upcall.com

- If to Freelancer: the information set forth in the registration.