Terms Agreement *
This “Service Agreement” (or “Agreement”) is made between Pinnacle Automotive Hospitality Services, Inc. d/b/a Automotive Direct Hire (“Contractor”) and Client (each a “Party” or collectively “Parties”) as of date of electronic acknowledgement (“Effective Date”).
1. PLACEMENT SERVICES AND COMPENSATION
1.1 Services. Contractor will present candidates for direct hire by Client according to the position, description, quantity, location, desired start date, and pay rate per order form which will be submitted by client. Based upon Client’s independent review and analysis, Client will hire candidates it determines to be suitable (each, a “Direct Hire”). Each Direct Hire will be an employee of Client and will work under the sole management and direction of Client. In no event shall the Direct Hire be deemed an employee of Contractor. Client is solely responsible for obtaining any work permits, or licenses, and for payment of the Direct Hire’s wages, expenses, benefits, workers compensation premiums, withholding of all taxes, and all other responsibilities as an employer. Moreover, Client is solely responsible for checking professional references and confirming the accuracy of the resume or job application of Direct Hire. Any background checks performed by Contractor are made at Client’s request and expense and are not intended to be an exhaustive check of employment, education or other background information, and are not warranted in any way by Contractor.
1.2 Fees and Payment Terms. Client agrees to pay Contractor a Direct Hire placement fee (“Client Fee”) of seven hundred and fifty dollars ($750), three thousand five hundred dollars ($3,500) or five thousand dollars ($5,000) for each Direct Hire, depending on the level of position chosen. Neither Client nor any of Client’s affiliates shall hire or contract with, directly or indirectly any candidate presented by Contractor to Client for a period of six (6) months from date of Contractor’s referral unless Client pays Contractor the Client Fee set forth in this Agreement. The Client Fee shall be considered earned upon the candidate's accepted offer date with Client. Payment, plus any sales tax as required by applicable state law, shall be due within five (5) days of Direct Hire’s accepted offer date via the electronic payment instructions which will be provided Contractor. If Contractor does not receive payment within 5 days of the accepted offer date, the guaranteed policy described in section 1.3 below is null and void. Invoices not paid timely will be subject to finance charges of two percent (2%) per month added to the outstanding invoice amount and computed from the initial due date of the invoice. Client agrees to pay reasonable collection and attorneys’ fees, including costs, incurred by Contractor in collecting amounts due from Client.
1.3 Guarantee. If, within the first fifteen (15) calendar days (or as negotiated between Contractor and Client and confirmed in writing by email) of commencing work for Client, either Client terminates Direct Hire’s employment for cause, or Direct Hire terminates employment with Client for any reason, Contractor will provide a one-time replacement candidate for the same role (“Guarantee”). The Guarantee does not apply if the Client does not pay the Direct Hire the fair pay rate as shown on the order form, is terminated due to Client company downsizing, economic reasons, or lack of work. The replacement Guarantee must be applied within thirty (10) days of Direct Hire’s termination and holds no cash value.
The terms of this Guarantee are contingent upon the following:
• Payment must be received according to the terms herein stated; and
• Notification of Direct Hire’s termination must be sent within ten (10) days of Direct Hire’s last day of employment to the following email address: firstname.lastname@example.org.
1.4 Default Payment. Client agrees to pay Contractor a (“Default Payment”) of fifty percent (50%) of designated position Client Fee if, within the next two (2) full business days (or as negotiated between the parties and confirmed in writing by email) of Contractor submitting vetted candidates the following conditions are not met:
• Within the first two full business days of Contractor submitting vetted candidates to Client, the Client fails to contact the vetted candidates for additional interviews; or
• Within the first two full business days of Contractor submitting vetted candidates to Client, the Client fails to contact the Contractor regarding the reasons why the vetted candidates are not sufficient.
Client will be immediately notified that it has failed to meet the above conditions and is therefore in default of the Agreement. Accordingly, Client is required to pay Contractor the Default Payment of 50% of the designated position Client Fee as specified in the Agreement. Payment must be made within five (5) days as described in section 1.2 above.
1.5 Relationship of the Parties. Contractor is an independent contractor, as contemplated by federal and state law. Contractor will be paid as an independent contractor and considered such for purposes of this Agreement and the provision of any services being provided hereunder. Contractor is not a joint employer of the Direct Hire or any other employee of Client.
2. TERM; TERMINATION
This agreement shall remain in effect for a period of one (1) year as of the Effective Date. After the initial one-year term period, this Agreement shall automatically renew for successive one (1) year periods, with an adjusted Client Fee, not to exceed twenty five percent (25%). Either Party may terminate this Agreement within thirty (30) days written notice to the other Party. Contractor may terminate this Agreement at any time for non-payment of any amounts due Contractor. Termination of this Agreement shall not relieve either Party of its obligations hereunder, including but not limited to Client’s obligations to pay all Client Fees.
3. INTEGRATED AGREEMENT; AMENDMENT; GOVERNING LAW; ASSIGNMENT; COOPERATION
This Agreement constitutes the entire agreement between the Parties regarding the subject hereof, supersedes any and all other prior direct hire service agreements, whether oral or in writing, between the Parties, and cannot be amended or modified except by written agreement signed by both Parties. The validity, interpretation and performance of the Agreement will be governed by the laws of Maryland without regard for that body of law known as conflicts of laws. Either Party may assign this Agreement to an affiliate company, or in connection with any merger, acquisition, divestiture, or reorganization, subject to the non-assigning entity’s approval of the assignee, which approval shall not be unreasonably withheld. The Parties hereby agree to cooperate in good faith to address issues in a manner that encourages full cooperation and communication between the Parties.
4. LIMITATIONS OF LIABILITY
EACH PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO OTHER PARTY’S DIRECT DAMAGES AND SHALL NOT EXCEED THE CLIENT FEE(S) PAID OR OWING TO CONTRACTOR BY CLIENT FOR THE SERVICES HEREUNDER DURING ANY TWELVE (12) MONTH PERIOD. NEITHER PARTY SHALL IN ANY EVENT BE LIABLE FOR PUNITIVE DAMAGES, LOSS OF PROFIT, LOSS OF GOODWILL OR OTHER SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY UNDER THIS AGREEMENT WHETHER IN CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
CONTRACTOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE ACTIONS OR SERVICES OF THE DIRECT CANDIDATE ACQUIRED UNDER THE TERMS OF THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT CONTRACTOR’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED IN THIS SECTION WILL APPLY REGARDLESS OF WHETHER ANY LIMITED OR EXCLUSIVE REMEDY SPECIFIED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Each Party (the “Indemnifying Party”) shall defend and indemnify the other Party (“Indemnified Party”) from and against any and all suits and claims, including claims for bodily injury and tangible personal property damage, as well as reasonable attorneys’ fees and other expenses (collectively, the “Claims”), to the extent directly arising out of the Indemnifying Party’s acts, omissions, negligence or willful misconduct in performance of the obligations hereunder. The provisions of this Section shall survive termination of this Agreement.
6.0 CONFIDENTIAL INFORMATION
The Parties acknowledge that to perform the Services one Party may disclose to the other confidential information. “Confidential Information” includes but is not limited to (a) any business or technical nonpublic information of either Party, including products, services, business plans and opportunities, personnel, identifications of candidates, candidate files, policies, procedures, and processes, (any other information the Parties specifically designate as confidential or proprietary, and (c) the terms and conditions of this Agreement. The Party disclosing information is referred to as the "Disclosing Party" and the Party receiving information as the "Receiving Party." Confidential Information shall mean all information disclosed by the Disclosing Party to the Receiving Party which is non-public and either proprietary or confidential in nature and related to the Disclosing Party’s business or activities including, but not limited to, financial, legal, technical, marketing, sales and business information, which is (A) marked as confidential at the time of disclosure; (B) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (C) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to its employees, subcontractors, consultants and representatives who have a need to know such information to perform the Service Agreement. The Receiving Party shall only use Confidential Information in furtherance of its performance of the Service Agreement, and not for any other purpose or for the benefit of any third Party. Receiving Party’s obligations to protect the Confidential Information will survive in perpetuity after the termination of this Service Agreement. These confidentiality obligations shall not apply to any information which: (i) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (iii) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; or (iv) Receiving Party receives from a third Party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation. If the Receiving Party is confronted with legal action to disclose Confidential Information it shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed. All Confidential Information shall remain the property of the Disclosing Party. All copies of Confidential Information shall be returned to the Disclosing Party promptly upon the Disclosing Party’s request or within ten (10) days of the expiration or termination of this Service Agreement.
All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, sexual orientation, protected veteran status, or any other characteristic protected by law.
Following the termination of this Service Agreement, any provision set forth herein which, by its very nature, is intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting confidentiality, indemnification, limitation of liability, non-solicitation, accrued payment obligations, dispute resolution, arbitration, governing law and venue, and representations and warranties.
9. EXECUTION IN COUNTERPARTS
This Service Agreement may be executed in counterparts all of which together shall constitute an original executed agreement.
All notices or other communications which may be or are required to be given to any other Party pursuant to this Agreement will be given to the address set forth in the signature block hereto (or such other address as is directed in writing as the notice address), as follows: by hand delivery (including by courier), recognized overnight delivery service, postage prepaid U.S. Mail (registered or certified mail with confirmation of delivery) or through electronic mail to email@example.com. Notice will be deemed to be given on the date such communication is actually received.