Terms & Conditions
Accordingly, in consideration of the promises and covenants set forth below, the parties agree as follows, intending to be legally bound:
1.Scope of Agreement.
A.PROVIDER agrees to provide the Services to CLIENT as specified in one or more Scopes of Services (“SOS”) that may be executed from time to time by PROVIDER and CLIENT, as further described in Section 9 below. In the event of a conflict between the terms provided in any such SOS and the terms of this Agreement, the terms of this Agreement shall prevail, except for the fee structure where the SOS shall control. CLIENT reserves the right to modify the Services required under an executed SOS from time to time, as its business needs change, and any increase or decrease in Services required from CLIENT shall be reflected in adjustments to the fees provided in the applicable SOS. All such changes shall be provided in a revised SOS executed by PROVIDER and CLIENT, and by this reference shall be attached as an amended Addendum hereto and made a part hereof.
B.The Services shall be performed accurately in accordance with generally accepted standards in the Human Resources industry in the United States and in compliance with instructions from CLIENT. Services performed will be subjected to proper quality assurance procedures, which shall be set forth in the applicable SOS.
C.PROVIDER shall provide personnel well-qualified and trained to provide the Services. PROVIDER agrees that all personnel assigned to work on CLIENT projects shall undergo ongoing development and training to ensure current knowledge regarding the Services.
D.PROVIDER shall abide by Client’s policies and procedures for the purpose of ensuring that information obtained by PROVIDER in the course of performing Services under this Agreement shall be kept confidential and shall not be disclosed except as required by law and as necessary for the performance of Provider’s obligations hereunder.
The initial term of this Agreement shall commence on the Effective Date and shall continue for three hundred sixty-five (365) days unless earlier terminated as provided in Section 6 below.
A.CLIENT warrants that the use by PROVIDER of any and all materials furnished by CLIENT to PROVIDER under this Agreement will not violate or conflict with any intellectual property rights of any third parties including, but not limited to, copyrights, patents and trademarks. To the extent applicable hereunder, CLIENT warrants that it is authorized to permit PROVIDER to use all relevant materials for the purposes of performing services hereunder.
B.All original works of authorship, trade secrets and know-how that are conceived, originated or developed by PROVIDER or its employees, agents, consultants or subcontractors (whether alone or in combination with others), directly as a result of the Services rendered to CLIENT hereunder (collectively, “Inventions”), shall be the sole and exclusive property of CLIENT and shall be considered “Works Made for Hire”, and PROVIDER hereby assigns to CLIENT any rights it may have or acquire in such Inventions. PROVIDER agrees to (and shall cause its employees, agents, consultants or subcontractors to) execute any and all documents which CLIENT deems necessary to transfer or assign such rights to CLIENT.
A.For purposes of this Agreement, “Confidential Information” shall mean any information that relates in any way to the business of the disclosing party, its Clients or customers of its Clients, including, without limitation, (i) financial information pertaining to the disclosing party or its Clients; (ii) the identity of the disclosing party’s actual or potential Clients or any of the individuals associated with or employed by them; (iii) proposals, quotes, requests for quotes, marketing plans, and financial analysis; (iv) the facts, terms and copies of any of the disclosing party’s agreements with its Clients, with the receiving party or with others; (v) all written information regarding the disclosing party or its Clients furnished to the receiving party; (vi) all proposed campaigns, products, plans, techniques or ideas developed by the disclosing party and revealed to the receiving party in connection with the business of the disclosing party; (vii) referral sources and fee structure; and (viii) intellectual property, specifically pertaining to certain processes that are documented and identifiable as unique to their business and not generally common practice in the disclosing party’s industry. For the purpose of this Agreement, “disclosing party” shall mean the party furnishing Confidential Information to the other party to this Agreement and “receiving party” shall mean the party furnished with Confidential Information by the other party to this Agreement.
B.“Confidential Information” shall not include: (i) information which is now publicly available or which later becomes publicly available through no fault of the receiving party (but only after it has become publicly available); (ii) information which was already known to the receiving party before disclosure by the disclosing party or its Clients; (iii) information which is lawfully obtained by the receiving party from a third party, not an agent, employee or affiliate of the other party; or (iv) information which is developed independently by the receiving party’s employees who have not had access to the information disclosed by the disclosing party.
C.The receiving party agrees that it shall: (i) not use any of the Confidential Information other than for the purpose of performing the Services; (ii) not disclose any Confidential Information to any party without the prior written consent of the disclosing party; (iii) retain Confidential Information in the strictest of confidence and limit internal dissemination of the Confidential Information to individuals whose duties justify the need to know such Confidential Information in connection with the performance of the Services and who have been informed of their obligation to maintain the secrecy of such Confidential Information and have agreed in writing to abide by such obligation; and (iv) limit external dissemination of the Confidential Information outside of the receiving party to such legal, banking, technical or other advisors whose functions in assisting the receiving party justify the need to know such Confidential Information and who have been informed of their obligation to maintain the secrecy of such Confidential Information and have agreed in writing to abide by such obligation. Upon the disclosing party’s request at any time, the receiving party will promptly return to the disclosing party any and all Confidential Information that the receiving party then has in its possession, without retaining any copies, samples or other tangible records.
D.No right to the Confidential Information is granted, and nothing contained in this Agreement shall be construed as creating an express or implied license to use the Confidential Information for any purposes other than performing the Services.
E.The parties shall cooperate to comply with all laws regarding confidentiality and security of health care information.
F.PROVIDER may disclose CLIENT’s confidential information if directed to do so by a court order or government agency, provided, however, that PROVIDER will only disclose such information to the extent directed by such court order or government agency and will provide written notice to CLIENT prior to making such disclosure and PROVIDER shall cooperate with CLIENT to the extent reasonably requested (and at Client’s expense) in securing any protective orders or similar protections in an effort to preserve the confidential nature of such information.
5.Non-Compete and Non-Sollicitation.
A.During the term of this Agreement and for eighteen (18) months following its termination, CLIENT shall not hire or offer any employment or other form of services, directly or indirectly, either alone or through its affiliates to any of the consultants of PROVIDER assigned or introduced to CLIENT under this Agreement, without first obtaining the express written consent of PROVIDER.
B.PROVIDER agrees that, during the Term of this Agreement (and any extension thereof) and for a period of eighteen (18) months after the termination thereof, for whatever reason, it will not solicit, directly or indirectly, or attempt to solicit, directly or indirectly, any employee or customer of CLIENT, to provide services being provided by CLIENT, without first obtaining the express written consent of CLIENT.
A.Either party may terminate any SOS hereunder for any reason by giving the other party 30-days written notice addressed to the other party’s last known address. If an SOS is terminated by CLIENT under this Section prior to such SOS’ completion date, CLIENT agrees that it will be reimburse PROVIDER for any reasonable costs or expenses incurred by PROVIDER in connection with such SOS, including travel and other reasonable business expenses incurred by PROVIDER or its consultants in relation to the performance of such SOS; provided, however, that CLIENT shall have no obligation to reimburse PROVIDER for any costs and expenses if such SOS is terminated by CLIENT due to a lack of performance by PROVIDER. If any SOS is terminated by CLIENT for a material breach by PROVIDER, PROVIDER shall immediately refund all amounts it received under the applicable SOS through the date of the written termination notice.
B.In the event that there is no currently open SOS, then this Agreement will also terminate.
SOS provided under this Agreement shall be billed to CLIENT by PROVIDER at the rate agreed to in proposal provided.
Reimbursable expenses are billed at cost and whenever feasible are pre-approved by the Client and are primarily for travel. Most business establishment and licensing fees would be paid directly to the appropriate entity. In situations where direct payment of a fee or deposit will expedite process, we may pay them on behalf of the Client with the Client’s prior approval.
These costs will be communicated prior to being incurred.
Travel expenses to be personal vehicle at IRS approved mileage rates.
A.PROVIDER invoices are sent monthly and are due net 30 days. Your cooperation in ensuring these terms are met will enable us to continue to provide the best value in the marketplace.
B.For onsite resources, additional travel and expenses on actual, if required by CLIENT to travel to other locations from primary work location.
C.PROVIDER will invoice CLIENT monthly for services provided and expenses incurred under this Agreement through the date of such invoice. All invoices shall be payable 15 days after the date of invoice. Invoices unpaid by CLIENT shall be subject to a 1.5% interest per month, after 30 days past due, which shall be added to the fee due and owing to PROVIDER.
9.Scope of Services (“SOS”).
A.All services performed by PROVIDER shall be rendered in accordance with individual written SOS which will include a detailed schedule of the services. The SOS can optionally also include overriding service fee structures, which if included will override the rates specified in this Agreement. The individual SOS can be setup as Time & Material or Fixed-Price or a combination with components in Time & Material and Fixed-Price.
B.PROVIDER agrees to provide the Services under this Agreement and any SOS on a professional best-efforts basis and in accordance with the highest professional standards in Provider’s field, to the reasonable satisfaction of CLIENT. The Services will be performed by individuals well qualified to perform such Services, and PROVIDER shall provide, upon request of CLIENT, information concerning the individuals’ experience which affirms these qualifications. CLIENT reserves the right to reject any individual consultant and to require a replacement.
C.The initial SOS under this Agreement is included in Attachments I. Other services may be added from time-to-time upon agreement of the parties.
A.CLIENT acknowledges that PROVIDER is providing consulting services at the Client’s request and that the CLIENT is the final decision maker on how much, if any, of the recommendations made by PROVIDER are used by the CLIENT. CLIENT, therefore, agrees, to the fullest extent permitted by law, to indemnify and hold PROVIDER harmless from damages and losses arising from the negligent acts, errors or omissions of PROVIDER in the performance of professional services under Provider’s agreement with CLIENT. PROVIDER is not obligated or required to indemnify the CLIENT.
B.Each party shall indemnify and hold harmless the other party and its officers, directors, employees and agents, from and against all losses, liabilities, claims, demands and actions of any kind (including all costs, expenses and reasonable attorneys’ fees) arising from a negligence, willful misconduct or breach by such party of its obligations under this Agreement, and shall assume without expense to the other party, the defense of any such claims or actions, except as may be caused by the negligence or willful misconduct of such other party.
C.Neither party shall be liable for any indirect, special, consequential, punitive or incidental damages suffered by the other, its successors, assigns or their respective affiliates, as a result of or arising from this agreement regardless of whether such liability arises from the services provided hereunder in tort, contract, breach of warranty, indemnification or otherwise.
D.Notwithstanding anything to the contrary in this Section 10 or in this Agreement, PROVIDER will be solely responsible for, and will indemnify, defend, and hold harmless CLIENT for any violation or breach of, compliance with any U.S. or international laws, directives, or regulations relating to data privacy, the protection of personal data, and similar protected information in Provider’s possession, under Provider’s control, or under the possession or control of any Provider’s agents or contractors.
11.Waiver of Consequential Damages/Limitation of Liability.
Neither party shall be liable to the other for any indirect, incidental, exemplary, special or consequential damages, including cost of procurement of substitute services, even if the other party has been advised of the possibility of such damages arising out of or in connection with the services herein provided. Except as otherwise provided in Section 10, Provider’s total liability to CLIENT or any third party hereunder shall not exceed the total fees paid hereunder by CLIENT. CLIENT, with execution of this Agreement, authorizes PROVIDER to use its corporate name, only, in advertising materials listing past and present Clients in electronic and hard copy versions.
12.Relationship of Parties.
Neither party shall be considered the agent, employee or partner of the other for any purpose whatsoever. Each party shall conduct its business in its own name and shall be solely responsible for the acts of itself and of its employees and agents. Unless expressly agreed to in advance, all expenses incurred by either party in connection with this Agreement shall be for that party’s own account and shall not be subject to reimbursement by the other party. Neither party is granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the other party or to bind the other party in any manner.
PROVIDER does not undertake any responsibility if it is prevented from performing its obligation due to sickness, accident, death of its consultants or any other cause beyond the control of PROVIDER.
Neither CLIENT nor PROVIDER may assign any part or whole of this Agreement or any rights hereunder, without the written permission of the other party. Any such attempted assignment shall be void.
15.Severability; Governing Law; Choice of Venue.
If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect. This Agreement shall be binding upon the parties, their successors, legal representatives and permitted assigns. It is mutually agreed that this Agreement shall be construed and interpreted according to the laws of the State of Georgia. It is further agreed that any legal action filed concerning the enforcement or interpretation of this Agreement shall be brought only in the state or federal courts, as applicable, located in Cobb County, Georgia.
The waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
The provisions of this Agreement are severable, and in the event that any one or more provisions are deemed illegal or unenforceable the remaining provisions shall remain in full force and effect unless the deletion of such provision shall cause this Agreement to become materially adverse to either party, in which event the parties shall use reasonable commercial efforts (as defined in the Purchase Agreement) to arrive at an accommodation that best preserves for the parties the benefits and obligations of the offending provision.
18.Survival of Obligations.
The obligations of the parties under Sections 3,4and 5 shall survive the expiration of this Agreement. The parties acknowledge and agree that all claims for any breaches or alleged breaches of any covenants contained in this Agreement shall not be subject to the time periods, dollar and other limitations set forth in the Purchase Agreement.
If either party to this Agreement shall bring any action, suit, counterclaim, appeal, arbitration, or mediation for any relief against the other, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder, the losing party shall pay to the prevailing party’s reasonable attorneys’ fees and costs incurred in bringing and prosecuting such action and/or enforcing any judgment, order, ruling or award.
This Agreement and any Attachments, which are hereby incorporated into and made a part of this Agreement, represent the entire Agreement and supersede any and all previous agreements and understandings between the parties relating to the subject matter hereof, and may be amended only in writing, signed by both parties.