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Terms & Conditions
SPARK COMPANIES LLC AFFILIATE AGREEMENT Spark Companies LLC, and any of its affiliated companies under its management collectively referred to as (the “Company”), with its principal office located at 901 Wilshire Drive, Ste. 585, Troy, MI 48084, 48084 and _______________________. (“Affiliate”), with an address ________________________________enter into this Affiliate Agreement (the “Agreement”) effective _____________(“Effective Date”), and agree to be bound by its terms. WHEREAS, the Company is in the business of providing workforce solutions, which includes; staffing, recruiting, screening, training, and the provision of support services related thereto, including without limitation time and attendance, risk mitigation, governmental compliance, payroll, onsite support, HR consulting, and reporting. WHEREAS, the Company desires that the Affiliate provide advice and assistance to the Company related to its area of expertise in the recruiting and staffing industry, and Affiliate is willing to provide such advice and assistance to the Company; and WHEREAS, the parties agree that Affiliate will be permitted to perform limited services for Company clients subject to and in accordance with the terms of this Agreement. NOW, THEREFORE, the Company and Affiliate agree as follows: 1. Affiliate Services and Expectations a) The Company will retain Affiliate to perform the duties, obligations and services set out in Exhibit A to this Agreement, which is incorporated herein and is made part of this Agreement (the “Services”). Affiliate agrees, subject to the terms and conditions of this Agreement, to render the Services outlined in Exhibit A while this Agreement is in effect. Affiliate shall render the Services at such times and places that are mutually agreed upon by Company and Affiliate. The parties acknowledge and agree that Exhibit A and the Services set forth therein may be amended in writing from time to time. b) Affiliate will be compensated for Services provided under this Agreement pursuant to the terms set forth below; 1. 10% of gross profit for any completed services; 2. Completed services will be defined as any work that has passed through guarantees, and that funds are collected; 3. Guarantees will be based signed service agreements with referred clients c) Affiliate agrees that it is required to provide accurate, truthful and complete information to the Company, as may be requested from time to time, as part of the Services being rendered pursuant to this Agreement. To that end, Company shall provide Affiliate with accurate, sufficient information on an as needed basis, in Company’s sole discretion. 2. Affiliate Compensation a) The Affiliate compensation equals 10% of the gross profit generated by the Company under the respective agreement for 18-months per each company referred through affiliate link that is not an existing or former client who has within the past 18-months executed a service agreement with the company or the company made a placement at. The 18-month affiliate begins when the referred prospective client signs up using the Affiliates custom link. Affiliate Compensation is considered earned and subject to payment to Affiliate when the Company receives a payment from the prospective client and the time period for any guarantees under the Services Agreement has expired. The parties agree that Affiliate will receive monthly compensation for profits received under the respective Agreement for the first 18 months of utilizing the designated Affiliate link only, at which time the Company’s obligation to pay Affiliate a Referral Fee for the applicable Services Agreement shall terminate. b) Compensation schedule: Affiliate will be paid within 30 days of company receiving funds that are paid in full and clearing any applicable guarantee language in service agreement that the company has with referred potential client. c) Reporting schedule: Affiliate dashboard will be updated bi-weekly (subject to change at Company discretion). 3. Confidential Information and Non-Disclosure of Confidential Information The parties understand and acknowledge that Company will be providing Affiliate with access to proprietary and valuable information that Affiliate would not otherwise receive or have access to so that Affiliate may perform Services under this Agreement (“Confidential Information”). Confidential Information may include, but is not limited to, the Company’s know-how; the Company’s strategies and processes; the Company’s marketing plans; data from the Company; the Company’s past, present and future business plans; the Company’s forecasts of sales and sales data, the Company’s clients and prospective clients, including the names and contact information of key individuals, methods of doing business, pricing, costs, bill rates, trade secrets, know-how, and business, technical, or proprietary information and proprietary processes and any terms or subjects addressed in this Agreement. Contractor acknowledges and agrees that Confidential Information constitutes valuable and unique property belonging to the Company. Contractor also acknowledges and agrees that the Company derives significant benefit from the fact that the Confidential Information is not readily available to the Company's competitors or the public in general. Contractor acknowledges and agrees that the Company has used reasonable efforts to maintain the secrecy of its Confidential Information, that it is not generally known to the Company's competitors and the general public, and that if misused, shared with or otherwise divulged to anyone not authorized to receive it, including the Company's competitors or members of the general public, the Company would suffer material financial damage and irreparable harm. Accordingly, Contractor agrees that during the term of this Agreement and any time thereafter, it will not use for Contractor’s own benefit or disclose to any person or company (except under the authority of Company or if ordered to do so by a Court of competent jurisdiction) any Confidential Information obtained during the term of this Agreement for any reason or purpose except to render Services under this Agreement. The Parties also agree that they will use due care and diligence to prevent any unauthorized use or disclosure of such information. The Affiliate acknowledges that the Company does not desire to acquire any trade secrets, know-how, confidential information, or other intellectual property that the Affiliate may have acquired from or developed for any third party. 4. Return of Property and Confidential information Upon termination of the Agreement, or upon Company’s request, Affiliate shall immediately return all records and other documents pertaining to any Confidential Information of the Company, whether prepared by Affiliate or others, and any material, equipment, tools or other devices owned by the Company then in Affiliate’s possession, and all copies of any documents. 5. Agreement not to Solicit or Interfere Contractor acknowledges and agrees that in rendering Services under this Agreement, the Company will provide Contractor with access to and information about Company’s clients, prospective clients, and client opportunities that Contractor would not otherwise have access to but for the parties entering into this Agreement. Contractor further acknowledges and agrees that the Company will be at a competitive disadvantage and suffer substantial damage if Affiliate attempts to continue, usurp or interfere with these relationships on behalf of itself, the Company's competitors or in an otherwise competitive capacity. Accordingly, Affiliate agrees that while this Agreement is in effect and for a period of 12 months following the termination of this Agreement, regardless of the reason for termination, Affiliate will not, directly or indirectly: a) contact, solicit or accept business from any of the Company’s clients, customers, prospective clients or customers, or companies that the Company has indicated or revealed to Affiliate that it desires to obtain business from, that is known to Affiliate because of its association with the Company pursuant to this Agreement, for the purposes of obtaining business on behalf of itself or the Company's competitors, or some other third-party; b) interfere with, disrupt, or reduce the amount of business that the Company is doing with its existing or prospective clients or customers; c) interfere with, disrupt or usurp the Company’s business opportunities with prospective clients learned of through Affiliate’s business relationship with the Company; d) induce any employees, independent contractors or agents of the Company to leave the Company, or solicit the services of any of these individuals for non-Company matters. Affiliate acknowledges and agrees that the restrictions imposed by this Section are fair and reasonably required for the protection of the Company. 6. Remedies Affiliate acknowledges and agrees that its obligations and the rights and privileges granted under this Agreement are of a special, unique and extraordinary character, that they are reasonably related to the legitimate business interests of the Company. Affiliate further acknowledges and agrees that a failure to perform any of the obligations or a violation of the obligations of one or more of these Sections will cause irreparable injury to the Company, which is not adequately compensated by money damages alone. Therefore, Affiliate agrees that the Company shall, in addition to any other rights and remedies it may have, be entitled to immediate appropriate injunctive relief, or decree of specific performance of this Agreement, without the necessity of showing any actual irreparable injury or special damages. Affiliate also agrees that in the event any dispute arises under this Agreement, the Company shall be entitled to recover from Affiliate all of the costs and expenses, including reasonable attorney's fees, the Company expends to enforce any portion of this Agreement. If any portion of Sections 3, 4, 5 or 6 of this Agreement are found by a court to be invalid or unenforceable because it is too broad or unreasonable in any respect, the Agreement shall be narrowed by the court to the extent required to be enforceable. Sections 3, 4, 5 and 6 shall be considered independently. It shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise if it pursues equitable and/or injunctive relief under this Agreement. The various rights and remedies of the Company under this Agreement or as provided by law shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law. 7. Term and Termination a) This Agreement may be terminated by either party, with or without cause, upon thirty (30) days prior written notice to the other (“Notice Period”). Affiliate agrees that it will work cooperatively and in good faith with the Company to transition any knowledge, information or work product that Affiliate possesses and that is requested by the Company during the Notice Period. b) During the Notice Period, Affiliate will receive any unpaid Placement Fees earned pursuant to the terms of this Agreement and its Exhibit A. The parties agree that upon Immediate Notice or the expiration of the Notice Period, which is the effective date of termination of this Agreement, Affiliate is not entitled to and will not receive any further Placement Fees or compensation from Company for any reason whatsoever. 8. Indemnification Contractor agrees to indemnify, defend, and hold harmless Company and its directors, officers, employees and agents from and against any and all demands, claims, actions, causes of actions, assessments, losses, damages, judgments, arbitration awards, liabilities (whether absolute or accrued, contingent or otherwise), costs and expenses, including but not limited to, interest, penalties and attorney fees and expenses (collectively “Damages”), to the extent caused by any negligent act or failure to act on the part of Contractor, Contractor’s negligence, reckless disregard, or willful intentional acts, in the performance of Services, including any Damages caused by the negligent, intentional or reckless acts or omissions of Contractor, or its employees or agents. Contractor’s obligations to indemnify, defend and hold harmless Company are reduced to the extent of Company’s or its employees’ intentional acts or willful misconduct. Contractor agrees to notify Company of any claims filed against Contractor or Company that arise out of the performance of Services under this Agreement immediately and no later than five (5) business days following Contractor’s knowledge of same. Contractor agrees that Company may choose its legal counsel and that Contractor will pay the Company’s counsel’s fees and costs as part of its duty to defend. 9. Governing Law and Jurisdiction This Agreement will be governed by the laws of the State of Michigan, in the county of Oakland without reference to the conflict of laws provisions thereof. Each party hereby irrevocably consents and submits to the exclusive jurisdiction of any appropriate venue in any federal or state court located in Michigan. 10. Notice Any notice or other communication by one party to the other hereunder shall be in writing and shall be given, and be deemed to have been given, if either hand delivered or mailed, postage prepaid, certified mail (return receipt requested), or transmitted by email or facsimile, addressed as follows: If to Affiliate: _____________________ Attn: ____________________ _____________________ _____________________ _____________________ If to the Company: Spark Companies LLC Attn: Aaron Opalewski 901 Wilshire Dr, Ste. 585 Troy, MI, 48084 Office: 586.930.5000 11. Amendments No amendments, alterations or modifications may be made to this Agreement, including Exhibit A, unless made in writing and executed by Affiliate and the Company. 12. Assignment and Delegation The parties acknowledge that the Services are personal in nature, and that from Affiliate’s perspective the specific identity of the Company, including its leadership, corporate culture, staff and reputation, is material to Affiliate’s choice to enter into this Agreement. Therefore, the parties expressly agree that no party may assign or delegate this Agreement, or the Services being performed pursuant to this Agreement without the written consent of the other. 13. Performance of Services Affiliate and Company mutually represent that to the best of their knowledge neither currently has any agreement with, or any other obligation to, any third party that conflicts with the terms of this Agreement. The parties agree that they shall not intentionally and knowingly enter into any such agreement without the prior written approval of the other 14. Waiver No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies. 15. Entire Agreement This Agreement and any of its exhibits set forth the full and complete understanding of the parties with respect to the Agreement between Company and Affiliate, and supersedes any and all prior agreements and representations. The parties’ rights, responsibilities, and remedies shall be exclusively those which are expressly stated in this Agreement. No termination or expiration of this Agreement affects or impairs the obligations, duties, indemnities, and liabilities of the Contractor. Authorized representatives of the parties have executed this Agreement below to express the parties’ agreement to its terms.