Permanent Terms and Conditions - U.S.A.

1 RECITALS

1.1 Strategic People LTD (“SPL”) welcomes the opportunity to assist Clients in locating and hiring or engaging personnel to perform work for the Client (“Services”). In connection with such Services, SPL and the Client agree to the following Terms and Conditions for Placement of Permanent Personnel (the “Terms”). Client’s acceptance of Referrals from SPL, interviewing of Candidates Referred by SPL, for direct or indirect employment or engagement of any such Candidates shall constitute Client’s acceptance of the terms and conditions of these Terms.

1.2 These Terms are made for an indefinite period and are between SPL, whose registered in the United Kingdom, 8277727, whose place of business is 18-22 Bridge Street, Tower 12, Spinningfields, Manchester M3 3BZ, and Client name, whose registered office is at Client address (the “Client”).

1.3 In the event of any conflict between these Terms and any other terms and conditions relating to the placement of permanent personnel, these Terms shall prevail, unless expressly agreed otherwise in writing by SPL and the Client.

2 DEFINITIONS

“Affiliate”	means a company that is related to another company by one owning shares of the other, by common ownership, or by other means of control, in particular an Affiliate of the Client;
“Candidate”	means any person Introduced by SPL to be considered by the Client for Engagement;
“CV/Resume”	For the purposes of these Terms, a CV or Resume will have the same meaning, which is, the supporting document that provides relevant Candidate information for the purposes of introducing to the Client for Position(s);
“Engagement”	means the signature of an employment contract by the Candidate, the employment, engagement, hire or other use, directly or indirectly, of a Candidate on a permanent, temporary, or other basis, whether under a contract of service or contract for services, or under an agency, licensee, franchise, partnership agreement or otherwise (whichever occurs first);
“Engage(s)”, “Engaging” and “Engaged”	: shall be construed accordingly;
Introduction/Referral:	means directly or indirectly introducing a Candidate by way of CV or Resume, interview, meeting, or referral, by telephone or otherwise, following the Client’s instruction to SPL to search for a Candidate or the Clients acceptance of a CV/Resume;
“Introduce(s)”, “Introduced”, “Referred”, “Refers” and Referrals”	shall be construed accordingly;
“Introduction Fee”	means as set out in Clause 4.2;
“Positions”	The Client will provide SPL with all relevant information regarding the position it wishes to fill including the title, job description, experience and training required, anticipated annual compensation, other qualifications necessary, any Candidate supplied equipment needed, and known health and safety risks (each a “Position”);
“Services”	SPL will present the Client with the resumes or CVs of Candidates for the Client’s consideration to fill the Position. Based upon the Client’s review and advice, SPL will make all necessary arrangements for Client to interview the Candidates it selects. Client will notify SPL once the Client determines which Candidate it will offer employment or other Engagement. Once the Candidate accepts the Position offered, on the scheduled start date, SPL will invoice the Client for the Introduction Fee (as provided below), and any applicable taxes.

3 CLIENT OBLIGATIONS

3.1 Unless the Client notifies SPL in writing within forty-eight (48) hours of receiving a Candidate’s Resume, Interviewing or Engaging a Candidate, or a Candidate commencing providing services to the Client or to any of its Affiliates (whichever first occurs), that:

3.1.1 the Client was in active communication directly with the Candidate for the purpose of hiring him within six (6) months prior to the Introduction and the Client provides satisfactory evidence of the same; or
3.1.2 the Candidate has been lawfully introduced in writing by another agency (possessing the Candidate’s consent for such introduction) or a direct application within six (6) months prior to SPL’s Introduction of the Candidate and provides satisfactory evidence, SPL will be the effective cause of introduction of that Candidate and the Introduction Fee will be charged and payable.

3.2 The Client shall notify SPL immediately in writing if a Candidate introduced by SPL is engaged by the Client or any of its Affiliates and shall supply copies of all letters of offer or reduce to writing any oral proposals offered to and/or accepted by such Candidate no more than fourteen (14) days after such offer has been made.

3.3 The Client agrees to specify clearly whether SPL shall have sole responsibility for the recruitment process for any given search assignment. Receiving a Candidate’s Resume, interviewing or Engaging a Candidate, or a Candidate commencing work for or providing services to the Client or any of its Affiliates as envisaged (whichever first occurs) will constitute instruction to SPL to commence search and screening of Candidates and will bind the Client to the terms and conditions hereunder. In all instances the Client shall produce a position/job description in writing and communicate clearly and regularly to SPL as to any changes in search requirements.

4 FEES

4.1 If the Client:

4.1.1 Engages a Candidate; or
4.1.2 Introduces a Candidate to any of its Affiliates or any third party resulting in an Engagement of the Candidate by that any of its Affiliates or third party, at any time within twelve (12) months from the date of Introduction of an accepted Candidate to the Client by SPL, the Client shall pay SPL an Introduction Fee pursuant to Clause 4.2 below.

4.2 The Introduction Fee will equate to 35% of the Candidate’s commencing total salary or wages calculated on an annual basis, together with all payments and allowances forming the Candidate’s taxable remunerate on, as agreed to be paid by the Client upon the Engagement or thereafter.

4.3 Where the Client Engages a Candidate Introduced by SPL, without informing SPL and or where the Client fails to advise SPL of the Engagement within 14 days of the start date of the Candidate, the Client agrees, a fee becomes payable at 40% of the anticipated first year’s remuneration of the Candidate or $40,000 USD, whichever is the greater.

4.4 The Client agrees to pay the Introduction Fee within fourteen (14) days of invoice date. Unless agreed otherwise , in writing, he invoice will be sent on the Candidate’s Start Date. All amounts payable under these Terms are exclusive of value added tax which shall be payable by the Client at the prevailing rate where applicable.

4.5 SPL reserves the right to charge interest on any amount due and outstanding after fourteen (14) days from the date of invoice up to and including the date of payment at a rate of 8% above the USA base rate, and such interest shall accrue and be compounded daily until all outstanding balances are paid.

5 CANDIDATE REPLACEMENT

5.1 If the Engagement of the Candidate terminates before the expiry of 8 weeks from the commencement of the Engagement (except where the Candidate is made redundant) a replacement Candidate will be sourced by SPL. The Client agrees that only one replacement Candidate per filled vacancy will be provided.

5.2 In order to qualify for a replacement Candidate, the Client must ensure:

5.2.1 SPL fees are paid within 14 days of the date of invoice;
5.2.2 Must notify SPL in writing with proof of the termination of the Engagement within 48 hours of its termination;
5.2.3 the cause of termination has no bearing on the Candidate’s qualifications, capability, or conduct;
5.2.4 the Candidate did not leave the employment because he/she reasonably believed that the nature of the actual work was substantially different from the information Client provided prior to the Candidate’s acceptance of the employment.
5.2.5 Failure to adhere to these clauses will result in no replacement Candidate being provided.

5.3 If, after an offer of Engagement has been made to the Applicant, the Client decided for any reason to withdraw it, the Client shall be liable to pay the fee in full.

5.4 The following additional terms are applicable to the Candidate Replacement:

5.4.1 If the Candidate’s employment ceases for reasons beyond SPL’s control such as redundancy, restructuring, economic circumstances, company closure, change of management or substantial change from the original job description; or
5.4.2 Where the Client of its own efforts or volition, either directly or indirectly sources a replacement Candidate for the vacated Position, SPL is not obliged whatsoever to make any efforts of its own to find a replacement Candidate nor to refund any Service Fees paid by the Client to SPL.
5.4.3 The Candidate Replacement only relates to the specific vacated Position for which SPL originally provided the Services.
5.4.5 The Candidate Replacement is not transferable to other placements or recruitment services, and the Client is not entitled to any credit or refund for Replacement Guarantees that the Client does not wish to pursue or which are undertaken by SPL but not completed due to no fault of SPL.
5.4.6 If the remuneration package of the replacement Candidate increases from that of the original Candidate, the amount invoiced by SPL to the Client for the original placement will be adjusted accordingly.
5.4.7 If SPL is unable to discharge its obligations under this guarantee, a credit equal to the amount of the original fee for the permanent placement of the first Candidate will be provided against the Replacement Candidate.

6 CONFIDENTIALITY

6.1 Details of Candidates are provided to the Client in strict confidence and with the understanding that the Client will not disclose to any third party the existence or contents of such details to any third party without SPL’s prior written consent. If the Client decides not to Engage a Candidate, the Client hereby undertakes to return all copies of the Candidate’s Resume to SPL and to remove, delete or destroy all records it may have which includes details of or from the Resume.

6.2 If the Client, without SPL’s prior written consent, passes on any details of a Candidate Introduced to the Client by SPL to a third party which subsequently employs such Candidate directly or indirectly within six (6) months from the date of such Introduction, the Client will be charged and liable for the relevant Introduction Fee according to clause 4 together with all expenses incurred by SPL. In such circumstances the provisions of Clause 5 hereto will not apply.

6.3 All Candidate Referrals made by SPL are made on a confidential basis. The Client shall hold SPL harmless from any liability resulting from Client’s unauthorized disclosure or misuse of information regarding Candidates or their candidacy.

7 LIABILITY

7.1 SPL endeavours to ask Candidates for details of qualifications, experience, and background and also take up verbal references. Whilst every effort is made to ensure the highest standard of service, the Client acknowledges that:

7.1.1 the Client is responsible for taking up formal references (including confirmation of any professional, academic, or similar qualification) and for arranging all medical examinations and/or other investigations of any Candidate Introduced by SPL; and
7.1.2 the Client shall be solely responsible for obtaining any work permit or other governmental permission required for the Engagement of any Candidate; and
7.1.3 the Client shall satisfy itself as to the suitability of any Candidate prior to the Engagement; and
7.1.4 SPL does not accept liability for any loss or expense incurred by the Client and arising directly or indirectly from the Introduction of a Candidate or from any statement or representation made by or on SPL’s behalf. Notwithstanding this, SPL’s maximum aggregate cap on liability under these Terms will be the total amount paid by the Client to SPL. Nothing in these Terms shall limit or exclude either party’s liability in respect of death or personal injury arising out of any breach of this agreement. Both parties expressly exclude liability for consequential loss or damage of any kind, or for loss of profit, business, revenue, goodwill, or anticipated savings; and
7.1.5 SPL does not guarantee the performance of any Candidate, or the accuracy of information provided regarding a Candidate, and specifically disclaims responsibility for any claim, loss, or liability because of a Candidate’s acts or omissions. SPL urges the Client to conduct such investigations, as it deems necessary to verify Candidate’s information and to obtain such other information, as it may deem relevant.

7.2 SPL does not discriminate in Referrals, or consent to discrimination by the Client, against any Candidate based on age, race, color, religion, disability, sex, national origin, veteran status, or any other characteristic protected by applicable federal, state, or local laws, rules, or regulations.

7.3 Save as required by law, the sole aggregate liability of SPL arising out of or in connection with these Terms is limited to the total aggregate fees paid by the Client to SPL in the 6 months prior to any claim.

8 GENERAL

8.1 The laws of the State of New York shall govern the validity of these Terms without regard to conflicts of law principles. The parties hereby irrevocably agree that any suit, action, or other legal proceeding arising out of these Terms shall be brought exclusively in any state court located in New York County, New York or in the US Federal Court for the Southern District of New York, which is the location and the venue where these Terms and each Introduction request are deemed made by the parties.

8.2 In the event of a dispute under these Terms, the prevailing party shall be entitled to recover its reasonable legal fees and expenses from the unsuccessful party. In the event of a settlement of such a dispute, each party shall pay its own legal fees and expenses, unless the settlement agreement provides otherwise. If SPL must proceed with the collection of the Introduction Fee, it shall be entitled to recover all the costs of collection including, but not limited to, collection company fees, reasonable attorneys’ fees, and costs whether or not litigation is commenced.

8.3 The relationship of the parties to each other is that of independent contractors. Neither party shall be deemed to be the legal representative of the other unless the Client has specifically requested that SPL make an offer to a Candidate on its behalf.

8.4 These Terms may be executed by signature or by other electronic means, such as electronic signature in one or more counterparts by the parties which, taken together, shall constitute one binding agreement. Notwithstanding any failure by the Client for electronic acceptance, these Terms are binding upon the Client by its actions when accepting a Resume from SPL.

8.5 No variation may be made to these terms and conditions without the written agreement of both parties.

8.6 The terms and conditions under these Terms supersede any other previous terms of business or any other terms between the parties hereto.

8.7 Either party may terminate these Terms at any time upon written notice to the other party. Client shall remain liable to SPL for all Introduction Fees and expenses due under these Terms for any Candidate Referred prior to termination. All other provisions of these Terms that by their terms extend beyond the termination of these Terms shall survive such termination and remain in full force and effect. The provisions of these Terms shall continue to apply to any Candidates provided by SPL to the Client and accepted by the Client after termination of these Terms.

8.8 If any provision of these Terms is deemed invalid or unenforceable under applicable laws, it shall be considered severed from the remaining terms and conditions which shall stand as binding and in full force and effect.

8.9 The individuals whose signatures appear below represent that they have the full power and authority to enter into an agreement and bind these Terms to the party they purport to represent.

Strategic People