Sourced Talent Matching Agreement

Date of Last Revision: December 20, 2021

This is a Sourced Talent Matching Agreement (“Agreement”) by and between you, the entity agreeing to the terms of and executing this Agreement (“you” or “Client”) and Toptal, LLC, a Delaware limited liability company, with a mailing address at 2810 N. Church St. #36879, Wilmington, DE 19802-4447 (“Toptal”).

In consideration of the mutual covenants, terms, and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the above-named parties agree as follows:


1. Service; Trial Period; Work and TOPs; Client Cooperation.

1.1. Service. Toptal is a company that matches its clients with select freelancers. More specifically, Toptal curates and operates a proprietary network of select independent contractors (individually and collectively, “Talent”). Toptal matches and sources such Talent to its clients on a time and materials, staff augmentation basis. You agree that Toptal will find and match Talent in Toptal’s talent network using commercially reasonable efforts and make such Talent available to you, facilitate payments between you and Talent, and facilitate (if you request) with onboarding or related administrative tasks in connection with a Talent engagement (the “Service”).

1.2. Work and TOPs. Toptal will provide its Service (consisting of the matching and sourcing of the Talent as described above) to you in accordance with a Talent Outline Plan (“TOP”). All executed TOPs will be incorporated into this Agreement. Each TOP will provide a brief description of the work to be provided to you by Talent (“Work”), as well as the TOP start date, the fees for the Work, the applicable Trial Period (as described below), and other relevant material information.

1.3. Trial Period; Replacement Talent. You will have the benefit of a trial period (“Trial Period”) for the initial engagement of an individual Talent provided under this Agreement. The length of the Trial Period will be five (5) business days unless otherwise agreed in a TOP. You will be the sole judge of the performance, suitability, and capability of any Talent sourced to you under this Agreement and may request the replacement of any Talent for any lawful reason if such Talent does not, in your discretion, meet your requirements. If you are not satisfied with a Talent’s Work, and communicate the same in writing to Toptal during the Trial Period, then Toptal will not invoice you for such Talent’s Work during the Trial Period and will, as your sole remedy, provide you with another Talent for an additional Trial Period. You will describe in writing to Toptal the reasons for your dissatisfaction with such Talent to enable Toptal to promptly source an acceptable replacement Talent. If you do not provide Toptal with such timely written notice, the Talent will be deemed acceptable and Toptal will invoice you for such Talent’s Work, including the Trial Period. If at any time you request that a Talent be replaced, or if a Talent becomes unavailable, then Toptal will, as its sole obligation and your exclusive remedy, use commercially reasonable efforts to replace such Talent from among available Talent in Toptal’s talent network who are acceptable to you. Such replacement Talent will be subject to a Trial Period if it is Talent’s initial engagement with you under this Agreement.

1.4. Client Cooperation. You understand that the performance of all Work by Talent depends in significant part on your actions. Talent will report directly to your designee (“Client Contact”). Such Client Contact will provide such Talent with necessary information, assistance, specifications, and requirements for such Talent’s Work and will establish your expectations pursuant to reasonable and lawful instructions. The Client Contact will be responsible for setting, reviewing, and monitoring the project schedule, work schedules, code and/or other tangible results created by Talent and provided to you under this Agreement (“Work Output”), and all other aspects of Talent’s Work under a TOP and coordinating the same directly with the Talent. Talent will otherwise be responsible for the method, manner, and means of performing the Work. You acknowledge and agree that Toptal will not oversee Talent or the performance of Talent’s Work and will not control or direct Talent. Accordingly, you agree that Toptal will not be in a position to – and expressly does not – warrant or guarantee the quantity, quality, or timeliness of the Work or that any Talent will meet any deadline established or desired by you.

1.5. No Paid Time Off. You will not be liable to pay for any vacation time or other personal days off that you agree Talent can take, provided that you notify Toptal in writing to enable proper invoicing for actual Talent time worked/not worked.


2. Fees; Billing.

2.1. Invoices; Payment Terms. Toptal will invoice you bi-weekly for Service provided during the immediately preceding two-week period. You also agree to pay Toptal all pre-approved (by you), actual and reasonable travel, lodging, and other out-of-pocket expenses incurred in connection with the Service or the Work. Invoiced sums will be due to Toptal Net 10 from the date of Toptal’s invoice.

2.2. Methods of Payment; Late Payments. All payments will be made in U.S. Dollars and paid electronically via credit card, bank wire, ACH transfer, or PayPal. If you select ACH or credit card as your payment method, Toptal will be entitled to draw or charge amounts due on the payment due date. Amounts past due more than thirty (30) days will incur interest at a rate of 1.5% per month from the date they became due and payable. In the event of any action by Toptal to collect any unpaid, undisputed (in good faith) past due amounts, you will reimburse Toptal’s costs of collection, including attorneys’ fees and arbitration or court costs.


3. Limited Cooling Off Period for Introduced Talent.

You agree that Toptal would be considerably harmed if Toptal were to invest its time, energy, and resources to recruit, screen and curate its talent network and introduce its Talent to you only for you and Talent to circumvent Toptal and enter into a direct or indirect arrangement outside of Toptal. Therefore, you agree that you will not, directly yourself or indirectly through others, encourage or solicit to hire, or otherwise hire or engage for the performance of services (except via Toptal under this Agreement) those individual Talent who are introduced to you by or through Toptal in connection with this Agreement (i) during the period of time of such Talent’s Work for you under this Agreement and twelve (12) months thereafter; or (ii) if you elect not to engage such introduced Talent under or in connection with this Agreement, then within twelve (12) months of the date such Talent is first introduced by Toptal to you (the relevant time period under (i) or (ii) with respect to such individual Talent, the “Cooling Off Period”). For the avoidance of doubt, this restriction is not a general non-solicitation provision and will not apply to Toptal’s entire talent network but is narrowly tailored in scope and duration to apply to those individual Talent that are introduced to you by or through Toptal. You further agree that during the applicable Cooling Off Period, you will not refer Talent to subsidiaries, parent companies, partnerships, holding companies, affiliated entities, or investors related to you in any form without processing such request through Toptal’s regular client intake processes. For the further avoidance of doubt, any Cooling Off Period(s) applicable to any individual Talent(s) will survive termination of this Agreement until the expiry of such respective Cooling Off Period(s), if any.


4. Client Option to Buyout Toptal and Hire Talent Outside of Toptal.

4.1. During the term of a TOP or Cooling Off Period applicable to a particular Talent, you may elect to directly or indirectly engage or employ Talent outside of Toptal subject to: (a) your prior written notice to Toptal; (b) the right for Toptal to arrange for a reasonable wind-down period for the affected Talent; and (c) your full payment of the Buyout Fee (defined below). A wind-down period may be thirty (30) days, but may be reasonably adjusted by Toptal based on such Talent’s commitments to Toptal, or, if any, commitments to other Toptal clients.

4.2. With respect to each Client-Hired Talent, Toptal will invoice and you will pay Toptal a buyout fee of Fifty Thousand United States Dollars (USD $50,000) within thirty (30) days of hiring or engaging such Talent outside of Toptal (“Buyout Fee”).

4.3. As used herein, “Client-Hired Talent” means a Talent who: (1) is introduced to you by Toptal and/or the Talent provides Work to you, and (2) is hired or engaged directly by you, or is engaged indirectly by you via others, to provide services to you outside of Toptal, during the Cooling Off Period applicable to such Talent.

4.4. For the avoidance of doubt, no Buyout Fee will be payable or owed in respect of an individual Talent following the expiration of the applicable Cooling Off Period for such Talent.


5. Termination.

5.1. Material Breach. If there is a material breach of this Agreement or a particular TOP by a party, the other party may terminate this Agreement in its entirety or the affected TOP(s) by giving the breaching party written notice and a ten (10) business day cure period.

5.2. For Convenience. Each party also may terminate this Agreement or a TOP at any time, with or without cause, upon ten (10) business days’ prior written notice to the other party.

5.3. Survival. Sections 2, 3, 4, 5, 6.2, 6.3, 7, 8 and 9 will survive termination of this Agreement.

5.4. Payment of Amounts Due or Accrued. Upon termination of this Agreement or a TOP, you will pay Toptal all amounts due or accrued under the Agreement or such TOP, as the case may be, as of the effective date of such termination.


6. Warranties & Disclaimer.

6.1. General. Toptal represents and warrants that each Talent has been qualified under Toptal’s proprietary talent screening system. Toptal and Client hereby represent and warrant that they each have full power, right, and authority to enter into this Agreement and to carry out its obligations.

6.2. Not a Technology Development Contract. You acknowledge that this is not a technology development contract. You are solely responsible for the development of your technology and products, including Talent’s Work and Work Output that may be incorporated therein. You agree that you will provide Talent with all applicable processes, policies, and resources necessary for Talent’s Work. You are solely responsible for acquiring all rights and licenses to any software, code, tools, information, documentation, or other materials and intellectual property that you acquire from third parties (excluding Talent) necessary for the Talent to complete the Work. Except as stated in Sections 6 and 7, you assume all risks with respect to your technology and products, including all Work, Work Output and materials incorporated therein.

6.3. Except as provided in Section 6.1, Toptal makes no representation or warranty of any kind, express or implied, with respect to its Service, or Talent’s Work and Work Output, arising from or relating to this Agreement. Toptal disclaims any other representations and warranties, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any representations or warranties arising from course of dealing, course of performance, or usage of trade.

6.4. Sanctions Status and OFAC Compliance. The parties each represent and warrant that they are not, and to the knowledge of such party, none of such party’s respective directors, officers, managers, members, or employees, or those of any of such party’s subsidiaries, as the case may be, is a person who (a) is directly or indirectly owned or controlled by any person currently included on the List of Specially Designated Nationals (SDN) and Blocked Persons or the Foreign Sanctions Evaders List maintained by the United States Treasury Department’s Office of Foreign Asset Control (OFAC), or (b) is directly or indirectly owned or controlled by any person who is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide or territorial sanctions imposed by any United States government sanctions authority.

6.5. Anti-Bribery. The parties each represent and warrant that neither party, nor any of their respective directors, officers, managers, members, or employees, or to such party’s knowledge, agents or any persons acting on such party’s behalf, has directly or indirectly made any bribes or other payments in the form of cash, gifts, or otherwise, or taken any other action in violation of the U.S. Foreign Corrupt Practices Act or other applicable anti-bribery or anti-corruption laws.


7. IP Ownership & Licenses.

7.1. Assignment of Inventions; Client Ownership Rights. Except for the licensed rights described in Section 7.2, Toptal assigns to you all right, title, and interest owned by and vested in Toptal or the Talent, in and to all Work Output provided to you together with all intellectual property rights Toptal or the Talent has (including, to the extent applicable, patents, copyrights, trade secrets, and moral rights). Toptal will reasonably assist you, at your request and expense, to further evidence, record, perfect, and maintain, any rights assigned hereunder.

7.2. Grant of License Rights to Client. In addition to the provisions of Section 7.1, if intellectual property of Toptal or Talent is reasonably necessary to use Work Output, Toptal grants to you a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide right and license to fully exercise and exploit Toptal’s or Talent’s intellectual property and to make derivative works of the same solely for the use of the Work Output obtained from the Talent.


8. Confidentiality.

8.1. Protection of Proprietary Information. All business, technical or financial information disclosed by a party to the other party under this Agreement will be the “Proprietary Information” of the disclosing party. All Work Output provided by Talent to you under this Agreement is your Proprietary Information. The Proprietary Information of Toptal includes the names, contact information, Toptal’s screening and selection criteria for, rates and particular skills of each Talent in Toptal’s network. Each party will hold in confidence and not disclose or, except in performing its obligations under this Agreement, use any Proprietary Information of the disclosing party. Nothing, however, prohibits Toptal from reusing the know-how accumulated while providing the Service, or that Talent may retain providing the Work in their unaided memories, for Toptal’s business including to provide services to Toptal’s other clients. Memory is considered unaided with respect if a person (1) has not memorized any Proprietary Information to intentionally evade the confidentiality obligations contemplated by this Section; and (2) does not incorporate any Proprietary Information of Client for the purpose of such reuse.

8.2. Customary Exclusions. Proprietary Information does not include any information the receiving party can document: (a) is or becomes generally available to the public without restriction through no fault of the receiving party; (b) was in the receiving party’s possession or known by it without restriction prior to receipt from the disclosing party; (c) was rightfully disclosed to the receiving party by a third party without restriction; or (d) was independently developed by the receiving party without use or reference to any Proprietary Information. The receiving party may make disclosures required by law or court order if the receiving party provides (to the extent permitted by applicable law) the disclosing party with prompt, advance written notice of disclosure and an opportunity to limit or prevent disclosure.

8.3. Return of Proprietary Information. As requested by the disclosing party, the receiving party will (and Toptal will use commercially reasonable efforts to cause Talent to) promptly return to the disclosing party (or, at disclosing party’s election, destroy) all Proprietary Information of the other party (including furnishing Work Output to Client, provided Client has paid Toptal all undisputed, in good faith, fees due). Despite the foregoing, the receiving party is not required to destroy any Proprietary Information stored in a party’s backup/disaster recovery systems or required to be retained to comply with applicable law or regulatory requirements. All such retained information will be subject to the terms of this Section 8 for as long as such information is held by the receiving party.


9. General.

9.1. Publicity. After the first successful Trial Period, Toptal may refer to Client on Toptal’s website or other marketing material which displays customers of Toptal, or may use Client as a reference; provided, however, that Client may decline or revoke this permission, by emailing optout@toptal.com. Toptal will cease such publicity on its website within ten (10) business days of its receipt of such opt-out notice. The parties may issue a public statement relating to this Agreement at any time following the first successful Trial Period upon each party’s reasonable prior review and written consent.

9.2. Relationship of Parties; Taxes. Toptal is an independent contractor of Client and the parties are not authorized to and will not attempt to bind the other party. You acknowledge that the Talent to be sourced to you under this Agreement are independent contractors and not employees of Toptal. Toptal is only responsible to remit the fees and compensation payable to the Talent and payment of Toptal’s income taxes in connection with this Agreement. You are responsible for all other taxes and assessments, if any, in respect of this Agreement or any Work or Work Output, including, if any, sales, value-added, use or similar taxes. You will not withhold from and will pay the full amount invoiced as payable to Toptal.

9.3. Choice of Law; Dispute Resolution; Venue. This Agreement is made under, and will be governed, construed, and enforced in accordance with, the laws of the State of New York, USA, without giving effect to principles of choice or conflicts of law that would result in the application of the laws of any other jurisdiction. To the maximum extent permitted by law, any dispute, claim, or controversy arising out of or relating to this Agreement, including the negotiation, breach, termination, enforcement, interpretation, or validity thereof, or the scope or applicability of this agreement to arbitrate, will be submitted to Judicial Arbitration and Mediation Services, Inc. (“JAMS”) for binding arbitration in New York, New York, USA by a single arbitrator. The arbitrator will be selected by JAMS in an impartial manner determined by it. The language of the arbitration will be English. Any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (FAA) (9 U.S.C. §1 et seq.) and will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (or in accordance with the JAMS International Arbitration Rules if Client, as reflected in the information about Client included above in this Agreement, is an entity organized under the laws of a jurisdiction outside the USA and has a principal place of business outside the USA, or is an individual with a permanent residence outside of the USA). The arbitrator will have complete authority to render any and all relief, legal and equitable, appropriate under the FAA or New York law. This arbitration provision will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Without limiting the foregoing and in furtherance thereof, judgment on an arbitration award may be entered in any court of competent jurisdiction. If any matter arising under or related to this Agreement, including its negotiation, breach, termination, enforcement, interpretation, or validity, or the scope or applicability of this agreement to arbitrate, is not arbitrable as a matter of applicable law (or if a party attempts to assert a claim in court against the other party over any matter arising under or relating to this Agreement), then the federal or state courts sitting in New York, New York USA will have exclusive jurisdiction. The parties hereby submit to the exclusive jurisdiction of such federal or state court and irrevocably waive any claim of inconvenient forum. The parties hereby irrevocably waive any right to trial by jury.

9.4. No Consequential Damages; Limitations of Liability.

9.4.1. No Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, SUCH PARTY’S PERFORMANCE HEREUNDER, THE USE OR INABILITY TO USE ANY SERVICE, WORK, OR WORK OUTPUT, OR ANY INTERRUPTION OR DISRUPTION OF OR BY ANY OF THE FOREGOING, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE).

9.4.2. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION IN OR MADE A PART OF THIS AGREEMENT, AND EXCEPT ONLY WITH RESPECT TO LIABILITIES THAT MAY NOT BE LIMITED OR EXCLUDED AS A MATTER OF APPLICABLE STATUTORY OR CASE LAW, THE AGGREGATE LIABILITY OF EACH PARTY WITH REGARD TO OR ARISING UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE FEES PAID BY YOU TO TOPTAL UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM FIRST ARISES; PROVIDED THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9.4.2. WILL NOT BE CONSTRUED OR INTERPRETED TO LIMIT YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

9.5. Limitations on Assignment. Neither party will have the right to assign this Agreement to another party without the other party’s written consent, except that either party may, upon written notice to the other party (and without the other party’s consent), assign this Agreement in its entirety to a parent company, any subsidiary of a parent company, or an affiliate in a common control group in connection with a corporate reorganization, entity conversion, acquisition, merger, or sale of or substantially all of its assets; provided that such assignee agrees in writing to be bound by the terms and conditions of this Agreement.

9.6. Complete Agreement; Amendments; Additional Agreement. This Agreement, inclusive of all TOPs, constitutes the entire understanding between the parties regarding the subject matter of this Agreement and supersedes and completely replaces any prior written or oral agreement or any discussions or written communications with you, any of your agents or representatives and Toptal and any of its agents and representatives. This Agreement will take precedence over any TOP unless and solely to the extent that the parties state in such TOP that they intend to override a specific term of this Agreement. No waiver, change to, or amendment of this Agreement or a TOP will be effective unless it is in writing and signed by the parties.

9.7. Notices. Any notices to Toptal in connection with this Agreement will be made by email transmitted to legal@toptal.com, with a copy via nationally recognized carrier to: “Attn: Contract Administration” at Toptal’s address above. Notices to you will be made by email or nationally recognized carrier to the email or address which you provide to Toptal and/or is otherwise associated with your account, and will be deemed to have been given when sent by Toptal to the email provided to Toptal or delivered by such nationally recognized carrier at the mailing address provided by you and/or associated with your account.

9.8. Drafting. Neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement.

9.9. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted under applicable law or decisional case law, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.

9.10. Authority to Bind.

Toptal provides the Service to you subject to this Agreement. By accepting this Agreement, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions herein. You further acknowledge that this Agreement is a contract between you and Toptal, even if it is electronic and is not physically signed by you and Toptal, and that the terms and conditions of this Agreement govern your receipt of the Service and Toptal’s provision thereof. You represent that you have the authority to contractually bind the company, business, or other legal entity (“Client Entity”) on whose behalf you are accepting this Agreement, in which case, for clarification, the terms “you” or “your” or “Client” refer to such Client Entity. IF YOU DO NOT HAVE SUCH AUTHORITY TO CONTRACTUALLY BIND SUCH CLIENT ENTITY TO THIS AGREEMENT, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT RECEIVE THE SERVICE.

Toptal Connects the Top 3% of Freelance Talent All Over The World.

Join the Toptal community.