BETWEEN
(1) Hartley Co, a company incorporated in [insert state of registration] and whose registered office is at [insert registered office address] ("Client"); and
(2) HARTLEYCO 2.0 LTD a company incorporated in England and Wales and whose registered office is at 11 Ducketts Wharf South Street, Bishop's Stortford, Hertfordshire, England, CM23 3AR ("Agency")
Each a party and together the parties to this Agreement.
1. SERVICES
1.1 The Agency shall Introduce Candidates to the Client on the terms and conditions set forth in this Agreement.
(a) For the purposes of this Agreement, "Introduce", shall mean the provision by Agency to the Client of any information (by way of a resume, other written format or orally), from which a Candidate can be identified and whether such information includes the Candidate's name, and Introduced and Introduction shall be construed accordingly;
(b) "Candidate" shall mean any person Introduced by Agency to the Client and/or any of its subsidiaries or affiliates;
(c) "Engagement" shall mean the employment, engagement or utilization of a Candidate (either directly or indirectly and whether for a definite or indefinite period), following an Introduction (whether or not the Introduction was the effective cause of the Engagement), and Engage(s) and Engaged shall be construed appropriately; and
(d) "Introduction Period" shall mean the twelve (12) months period commencing on the date a Candidate is deemed to have been Introduced or re-introduced by Agency;
(e) "Restriction Period" shall mean the twelve (12) months period following the date that
(i) this Agreement is deemed accepted, or
(ii) the Agency last provided any services to the Client, whichever expires last.
1.2 The Client shall compensate the Agency as set forth in Section 2 if, during the Introduction Period, the Candidate is Engaged or directly or indirectly retained by Client or one of its subsidiaries or affiliates as an employee or independent contractor, regardless of why the Candidate was ultimately retained and regardless of why the candidate was ultimately introduced.
1.3 The Introduction by Agency of any Candidate, and/or the Engagement by Client of any Candidate, shall not be deemed a hiring practice by the Agency nor an exercise of control over any Consultant by the Agency.
2. FEE & REPERFORMANCE OF SERVICES
2.1 The Client shall pay a fee to the Agency, calculated as a percentage of the Candidate's Annual Remuneration in accordance with the requirements as set forth below if, during the Introduction Period, the Candidate is Engaged by the Client (or any of its subsidiaries or affiliates) (the "Placement Fee"). "Annual Remuneration" is defined as the anticipated total gross remuneration payable for the Candidate's services during the first twelve (12) months of an Engagement by the Client.
2.2 The fee payable to the Agency by the Client is calculated in accordance with the following fee structure based on the Annual Remuneration payable to the Candidate during the first twelve (12) months of the Engagement.
- A fee equal to 25% of the candidate's agreed annual remuneration shall be payable upon the candidate's written acceptance of a formal offer of employment.
2.2 Payment of the Fee is due and payable within seven (7) days of the date of Invoice from Agency. Agency reserves the right to issues Invoices electronically to the Client. The Client agrees to pay late charges on any unpaid balances at the rate of 1.5% per month or the maximum legal rate, whichever is lower. The Client agrees to pay Invoice in full, without any deduction, set off, or counterclaim. The Client agrees to pay on a full indemnity basis all legal costs incurred by Agency in respect of recovering any amount due under this Agreement.
2.3 The Agency shall be entitled to charge the Client a full fee of a Candidate's anticipated Annual Remuneration if, during the Introduction Period:
(a) the Candidate is Engaged by the Client (or any of its subsidiaries or affiliates), or the Client passes the Candidate's details to a third party, and that third party subsequently Engages the Candidate.
2.4 Should an employment contract be terminated;
• before the commencement of the engagement due to an effective notice of termination by the candidate, or
• before the expiry of 3 months from the commencement of the engagement due to written notice provided by the Client to the candidate for reasons relating to behavioral issues or technical competency of the candidate, or
• before the expiry of 3 months from the commencement of the engagement due to written notice provided by the candidate to the Client
The Agency will use its best efforts to provide a suitable candidate(s) to replace the original candidate. Best efforts of the Agency shall include a full search and candidate outreach campaign, as would be provided for a new hiring request made by the Client.
2.5 The Client is only entitled to the free replacement search according to para. 1 in any case, if
• the Client has notified the Agency in writing either within 14 days of the termination of employment, or within 14 days of the non-commencement of the employment, together with a reason for the termination of the employment relationship and
• the Client has already paid the fee for the presentation of the candidate.
For clarification purposes: "termination" of employment according to para. 1 and 2 shall be the date on which the notice of termination is received by the respective recipient.
3. CLIENT OBLIGATIONS
3.1 The Client will notify the Agency in writing of any Candidate Introduced to it by the Agency which results in or is expected to result in an Engagement. Such notice shall be provided within five (5) business days of the time the Client makes the decision to offer a position to the Candidate.
3.2 The Client agrees to provide the Agency with all information necessary to accurately calculate the Placement Fee, including providing copies of any offer letter or employment agreement.
3.3 The Client agrees to obtain and maintain any work permit, visa or other permission which may be required to Engage a Candidate and if required, arrange for any drug testing, third party reference checking, and any other compliance verification required for the Engagement at its own cost and in compliance with applicable law.
3.4 The Client agrees not to discriminate against Candidates on the basis of their race, color, creed, religion, sex, gender, sexual orientation, gender expression, age, national origin, ancestry, citizenship, marital status, physical or mental disability, veteran status, or any other protected status.
3.5 Within one (1) business day of the Agency Introducing the Candidate to the Client, the Client shall inform the Agency in writing if such Candidate is already known to the Client or any of its affiliates, and provide documentary proof of such previous knowledge.
3.6 The Client understands and acknowledges that the Agency does not make any representations or warranties, express or implied, as to any Candidates, including but not limited to with respect to the accuracy or completeness of any information provided with respect to a Candidate, and the Agency will not have any liability to the Client or any third party resulting from such party's use of such information. The Client agrees that it is responsible for satisfying itself as to the suitability and reliability of any Candidate, including conducting its own interviewing, screening and selection of Candidates Introduced to it by the Agency. the Agency may perform reference checks on its Candidates for Introduction to Client. These reference checks only provide answers to specific questions, they are not an exhaustive check of employment, education, or other background information. the Agency endeavors to ensure the suitability of any Candidate introduced to the Client by obtaining confirmation of the Candidate's identity; that the Candidate has the experience, training, qualifications and any authorization which the Client considers necessary or which may be required by law or by any professional body; and that the Candidate is willing to work in the position which the Client seeks to fill.
3.7 The Client agrees that, if it requests that the Agency introduce or otherwise supply a Candidate as an independent contractor, then Client will be responsible for the negotiation and execution of a separate Independent Contractor Agreement with that Candidate as well as any and all contractual obligations or liabilities arising under that separate Agreement. As well as signing the Agency Supply of Temporary Consultants terms of business.
4. LIMITATION OF LIABILITY
The Agency shall under no circumstances whatsoever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or business, loss of revenue, lost opportunities and/or delay damages, or any indirect or consequential loss arising under or in connection with this Agreement. In addition, the Agency's total liability to the Client in respect of all other losses arising in any given time period under or in connection with this Agreement, whether in contract, tort (including negligence, gross negligence, and/or intentional misconduct), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the total fees paid to the Agency by the Client in the preceding six (6) month period for the Engagement at issue. the Agency retains its right to assert common-law indemnification and/or contribution claims as may be applicable.
5. RELATIONSHIP OF THE PARTIES
The services that the Agency renders to the Client under this Agreement will be as an independent contractor with respect to the Client. Nothing contained in this Agreement will be construed to create a joint venture or partnership, or the relationship of principal and agent, or employer and employee, between the Agency and the Client.
Confidential Information
Both parties may be given access to or acquire information which is proprietary or confidential to the other party and its affiliated companies, clients and customers. Any and all such information obtained by either party shall be deemed to be confidential and proprietary information. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than the providing of services under this Agreement. Additionally, the parties agree that the disclosure of any and all information shall be governed by the Privacy Act of 1974 and any other applicable law.
Additionally, the Agency and Client acknowledge the confidential nature in the exchange of information with regard to Candidates and agree that such exchange will not violate any relevant Equal Employment Opportunity guidelines and practices. Both parties acknowledge that each is making decisions without regard to, or consideration for, an individual's race, color, creed, religion, sex, gender, sexual orientation, gender expression, age, national origin, ancestry, citizenship, marital status, physical or mental disability, veteran status, or any other protected characteristic.
6. NON-SOLICITATION
The Client shall pay a fee to the Agency, calculated in accordance with condition 2.1 in the event that, during the Restriction Period, the Client (or a subsidiary or affiliate) employs or engages any person who was employed by the Agency at any time in the twelve (12) months period prior to the commencement of any such employment or engagement by the Client, and that person had any personal dealings with the Client relating to any services provided by the Agency.
7. TERM & TERMINATION
This Agreement shall commence as of the Commencement Date and shall continue thereafter until terminated by either party upon thirty (30) days written notice to the other.
8. APPLICABLE LAWS
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of New York. Each party irrevocably agrees that the courts of New York County in the State of New York shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). Each of the parties agrees not to commence or maintain a legal proceeding involving any such dispute in any forum except a court of the State of New York located in New York County or the United States District Court for the Southern District of New York in Manhattan (other than to enforce a judgment obtained in such courts) and agrees not to contest the venue of any action involving any such dispute in the County of New York or the Southern District of New York, Manhattan, as the case may be, nor to assert in any such court the doctrine of forum non convenience or the like.
9. MISCELLANEOUS
9.1 Either party may defer the date for performance or terminate any contract between the parties, if it is prevented from, or delayed in, carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
9.2 The Agency may at any time assign, transfer, subcontract or deal in any other manner with all or any of its rights under this Agreement. The Client shall not, without the Agency's prior written consent, assign or transfer any of its rights or obligations under this Agreement.
9.3 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision shall not affect the validity and enforceability of the rest of this Agreement.
9.4 No failure or delay by the Agency in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right, nor shall it prevent or restrict its further exercise of that or any other right or remedy.
9.5 A person who is not a party to this Agreement shall not have any rights to enforce the terms.
9.6 No variation of this Agreement, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by an authorized representative of both parties.
9.7 This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
9.8 The rights and obligations of the parties set forth in Sections 2, 3, 4, 6, 7, 9 and 10 and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
9.9 This Agreement constitutes an offer by the Agency to provide services to the Client, and shall be deemed to have been accepted upon the earlier that (a) the Client requests or uses any of the Agency's services; or (b) the Client signs this Agreement. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same instrument. An electronic signature will have the same legal force and effect as though it were the original of such signature.
9.10 ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY HARTLEYCO 2.0 OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WHICH ARE NOT ALREADY ADDRESSED IN THIS AGREEMENT, ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED