The following terms and conditions shall be observed. Any Client’s terms and conditions included with any other document provided by Client shall be of no effect.
- Scope of Services
Agency shall provide the recruiting and talent acquisition services (“Services”), which is incorporated herein by reference. Agency will perform the Services in a professional and workmanlike manner consistent with industry standards.
- Fees and Payment
- Fees. The fees for Services are set forth in the Work Order.
- Payment. Client shall pay all undisputed invoices upon receipt via ACH. Any amounts not paid after 15 days when due shall accrue interest at the rate of two percent (2%) per month (or the maximum rate permitted by applicable law, if less) until paid in full. Client shall be responsible for all reasonable costs of collection, including attorneys’ fees.
- Overtime. Any hours worked over the requested hours will be subject to a fee of time and a half (1.5 hours) per hour worked, and will be reflected in the following invoice.
- Proration of Initial Month. If the Services commence on a date other than the first day of a calendar month, the Fees for such initial month shall be prorated on a daily basis.
- Candidate Guarantee and Replacement
If a candidate placed by the Agency voluntarily leaves Client’s employment within thirty (30) days of start date, or is terminated for cause, Agency will replace the candidate at no additional charge if requested by Client. This will be capped at one replacement maximum per original hire.
- Candidate Ownership, Non-Circumvention, and Buyout
- Ownership Period. Any candidate presented by Agency to Client shall be deemed an Agency candidate for a period of twelve (12) months from the date of introduction (“Ownership Period”). If Client hires, contracts with, or otherwise engages such candidate during the Ownership Period—whether directly or through a third party— Client shall pay Agency the applicable placement fees set forth in the Work Order, unless Client has exercised the Buyout Option under Section 4.3.
- No Circumvention. Client shall not refer or introduce any Agency candidate to any parent, subsidiary, affiliate, partner company, or other third party during the Ownership Period without Agency’s prior written consent. Any engagement of an Agency candidate by such third party shall be deemed an engagement by Client for fee purposes.
- Buyout Option. At any time during the Ownership Period, Client may elect to hire the candidate without further fee obligations by paying Agency a one-time “buyout” fee of $2,000 per candidate. If Client elects to exercise this option, the applicable fee shall be reflected on the next monthly invoice issued by Agency.
- Candidate Transfer from Agency. If, during the Ownership Period, a candidate who is employed or contracted by Agency ceases such engagement with Agency and accepts employment or engagement directly with Client, Client shall be deemed to have hired the candidate through Agency and shall be subject to the Buyout Option under Section 4.3.
- Use Restriction. Candidate information provided by Agency may be used solely for evaluating such candidate for positions within Client’s organization during the Ownership Period and may not be stored, copied, or retained in any database for future use beyond that period without Agency’s written consent.
- Confidentiality
Each party agrees to keep confidential, and not disclose to any third party, any proprietary, confidential, or trade secret information obtained from the other party in connection with this Agreement, including without limitation candidate resumes, employment history, business plans, pricing, and strategies (“Confidential Information”).
This obligation shall not apply to information that:
5.1 is publicly available through no breach of this Agreement;
5.2 is received from a third party without restriction;
5.3 is already known by the receiving party without breach; or
5.4 is independently developed without use of Confidential Information.
Confidentiality obligations shall survive termination of this Agreement for a period of two (2) years.
- Term and Termination
- General Termination This Agreement shall commence upon the date of the last signature below and remain in effect until completion of the Services, unless terminated earlier as provided herein. Either party may terminate this Agreement upon thirty (30) days’ prior written notice. Upon termination, Client shall pay for all Services performed up to the effective date of termination, and the obligations in Sections 2, 4, 5, 8, 9, 10, and 15 shall survive.
- Termination for Cause This Agreement shall terminate immediately upon written notice by either party if: (a) the other party becomes insolvent, makes a general assignment for the benefit of creditors, files for bankruptcy, or is the subject of any proceeding relating to insolvency, receivership, or liquidation; or (b) the other party, or any of its principals, officers, or employees acting in connection with this Agreement, engages in unlawful activities or practices, as determined by a court of competent jurisdiction within the United States.
- Independent Contractor
Agency is an independent contractor and nothing herein shall be construed to create a partnership, joint venture, or employer-employee relationship between the parties. Agency has no authority to bind Client to any contract or obligation.
- Indemnification
Each party shall indemnify, defend, and hold harmless the other party, its officers, directors, employees, and agents from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from the indemnifying party’s negligence, willful misconduct, or breach of this Agreement. The prevailing party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.
- Limitation of Liability
Except for a breach of Section 5 (Confidentiality) or the obligation to pay Fees, neither party shall be liable to the other for any indirect, incidental, special, consequential, or punitive damages, whether arising in contract, tort, or otherwise, even if advised of the possibility of such damages.
The Agency’s total aggregate liability for any claim arising out of or relating to this Agreement shall not exceed the total amount of Fees paid by Client under this Agreement during the twelve (12) months immediately preceding the claim, or the total term of the professional relationship between the parties, whichever is less.
Workers provided under this Agreement are independent contractors. Accordingly, any claims, losses, or damages arising from the acts or omissions of such workers shall be directed first to the individual responsible. The Agency shall not be liable for any such damages except to the extent arising from the Agency’s own negligence or willful misconduct.
Performance Disclaimer. Agency shall not be liable for any loss of profits, business interruption, or costs incurred by Client due to the actions, omissions, or performance of any worker assigned under this Agreement. If Client is dissatisfied with a worker’s performance, Agency’s sole obligation shall be, at Client’s request, to provide a replacement worker in accordance with Section 3 (Candidate Guarantee and Replacement).
- Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming, without regard to its conflict of laws principles. The parties agree that any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Wyoming, and each party consents to the jurisdiction of such courts.
- Force Majeure
Neither party shall be liable for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control, including acts of God, war, terrorism, labor disputes, or governmental action, provided that the affected party gives prompt notice and resumes performance as soon as practicable.
- Warranties
Client acknowledges that the Agency is relying on these representations and warranties as essential elements to this Agreement, representing as they do, material inducements, without which the Agency would not have entered into this Agreement.
- Nondiscrimination. Client represents and warrants that it will comply with all applicable federal, state, and local employment and anti-discrimination laws, including but not limited to Title VII of the Civil Rights Act, and the Age Discrimination in Employment Act.
- Good Standing. Client warrants that Client is a legally organized entity in good standing under the federal, state, and local laws of its organization.
- Conflict of Interest. Client warrants that to the best of Client’s knowledge, there exists no actual or potential conflict between Client and the Agency, and its services under this Agreement, and in the event of change in either Client’s private interests or services under this Agreement, Client will inform the Agency regarding possible conflict of interest which may arise as a result of the change. Client also affirms that, to the best of Client’s knowledge, there exists no actual or potential conflict between a Agency employee and Client.
- Waiver
The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- Data Usage and Privacy
Client agrees to use candidate information solely for evaluation during the Ownership Period and in compliance with all applicable data protection and privacy laws.
- Miscellaneous
- Background Check and Compliance. Agency shall have no obligation to conduct background checks, drug tests, or other screening. Client remains solely responsible for compliance with all employment, labor, and immigration laws.
- Entire Agreement, Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements or understandings, whether written or oral. No amendment or modification shall be valid unless in writing and signed by both parties.
- Purchase Orders. The terms and conditions of this Agreement shall govern and supersede any conflicting, inconsistent, or additional terms contained in any purchase order, invoice, acknowledgment, or other document issued by Client, all of which shall be of no force or effect.
- Severability. The terms of this Agreement are severable. If any term or provision is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the provisions shall continue to be valid and enforceable.
- Headings. The paragraph headings in this agreement are inserted for convenience only and shall not be construed to limit or modify the scope of any provision of this Agreement.
- Survivability. Provisions surviving termination or expiration of this Agreement are those which on their face affect rights and obligations after termination or expiration and also include provisions concerning indemnification, confidentiality, warranty and choice of law and venue.
- Execution. This Agreement may be executed in duplicate, each of which when executed and delivered shall be an original. The parties acknowledge and agree that this Agreement has been mutually discussed, negotiated, and drafted by the parties.
- Dispute Resolution. Agency and Client will attempt to settle any claim or controversy arising from this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher- level managers of the parties, if necessary.
- Prevailing Terms. These Terms and Conditions govern and take precedence over any other terms or conditions, including those on any purchase order or other document without prior acceptance in writing by both parties.