AGREEMENT FOR THE INTRODUCTION OF PERMANENT OR FIXED TERM CONTRACT STAFF (TO BE DIRECTLY ENGAGED BY THE CLIENT) (US)
AGREEMENT FOR THE INTRODUCTION OF PERMANENT OR FIXED TERM CONTRACT STAFF “Agreement”
THE AGREEMENT - This Agreement is deemed accepted by the Client upon the first of the following to occur: (a) the Client’s execution of the Agreement; (b) the Client’s request for services from the Agency to Introduce individuals for an Engagement with the Client (“Candidate”); (c) the passing to the Client, or by the Client to a third party, of a résumé, and/or information in any format which expressly or impliedly identifies a Candidate including, but not limited to, information found on LinkedIn (“Introduction”); or (d) the Client passes a Candidate’s details to a third party or refers any Candidate to a third party that results in an Engagement of the Candidate by the third party (“Third Party Introduction”). The Agency shall be appointed on a non-exclusive basis.
INTRODUCTIONS - Each Introduction made by the Agency shall take priority over any duplicate applications made by or on behalf of the same Candidate if the Agency’s Introduction was made first in time for a specific role or position with the Client. Following an Introduction or Third Party Introduction should the Client or third party directly or indirectly engage a Candidate for permanent employment, temporary hire or other use of the Candidate (“Engagement”) within twelve (12) months of the Agency’s Introduction of the Candidate to the Client, the Client shall pay the Agency an Introduction Fee as set out below
SUITABILITY - The Client shall satisfy itself as to the suitability of the Candidate and agrees to be responsible for taking up any references provided by the Candidate and conducting background checks before Engaging the Candidate unless agreed otherwise between the parties. The Agency does not guarantee the performance of any Candidate or the accuracy of information provided regarding a Candidate. Any background checks conducted by the Agency shall be made at the Client’s request (in accordance with applicable law) and expense and are not intended to be an exhaustive check of Candidate’s education, employment or background and the Agency provides no warranties for the information provided.
NOTIFICATION AND FEES - The Client agrees to immediately inform the Agency of: (a) the terms of any offer of an Engagement which it makes to a Candidate; (b) the acceptance of any offer ; and (c) the annual equivalent of Candidate’s remuneration including gross base salary, wages or fees and any signing-on bonus to or receivable by the Candidate for services rendered to or on behalf of the Client or any third party (“Compensation”) together with any evidence as requested by the Agency; and pay the Agency a fee to be calculated based on 25% of Compensation consisting of gross base salary, wages or fees and any signing-on bonus (“Introduction Fee”), by the due date(s) for payment.
Where the Compensation is not known, the Agency will charge an Introduction Fee based on its determination of the Compensation taking into account the market rate level of compensation applicable for the position in which the Candidate has been Engaged. If the Client Engages the Candidate on an hourly basis, the Compensation shall be based on the Candidate’s hourly rate multiplied by 2080. If the Client Engages the Candidate within the period of twelve (12) months from the date of (a) the Introduction; (b) the Client’s withdrawal of an offer of Engagement; or (c) the Candidate’s rejection of an offer of an Engagement (whichever is later), the Client shall pay the Agency the Introduction Fee. If, after an offer of Engagement has been made and accepted, the Engagement does not commence because the Candidate withdraws their Acceptance, the Client shall notify the Agency immediately. Where an offer of an Engagement (whether written or verbal) to a Candidate is withdrawn by the Client prior to the Candidate commencing an Engagement, the Agency reserves the right to charge a withdrawal/cancellation fee of 50% of the Introduction Fee that would have been payable if the position had been filled and such Introduction Fee shall be payable within fourteen (14) days of the date of the Agency’s invoice.
FIXED TERM ENGAGEMENTS - Where prior to the commencement of the Engagement the Agency and the Client agree that the Engagement will be on the basis of a fixed term of less than twelve (12) months (“Initial Fixed Term”), the Introduction Fee will be calculated on a pro-rata basis. If the Client (a) extends the Engagement beyond the Initial Fixed Term; or (b) Re-Engages the Candidate within twelve (12) months from the date of termination of the Initial Fixed Term, the Client agrees to pay a further fee based on the additional Compensation applicable for: (a) the extended period of Engagement; or (b) the period of the second and any subsequent Engagement, subject to the Client not being liable to pay a greater sum in Introduction Fees than the Client would have been liable for had the Candidate first been Engaged for twelve (12) months or more.
INVOICING AND PAYMENT - Upon confirmation of a Candidate’s commencement of an Engagement the Agency shall invoice the Client for the Introduction Fee plus any applicable sales tax. The Client shall pay the Agency within thirty (30) days of receipt of a valid invoice. Agency reserves the right to charge interest on invoiced amounts that remain unpaid at the due date at a rate equal to the lesser of 10% per annum or the maximum amount allowable under applicable law. The Client’s obligation to make payment shall be performed without any right of the Client to invoke set-off, deductions, withholdings or other similar rights. All transactions under this Agreement shall be conducted in US dollars (USD) and paid by means of wire transfer.
REFUNDS – If the Engagement is terminated by either the Candidate or the Client before the expiry of twelve (12) weeks from the date of commencement of the Engagement; then subject to the criteria set out below, the Agency will refund the Introduction Fee paid as follows:
Week in which the Engagement terminates Percentage of Introduction Fee eligible for refund
1 or 2 90%
3 or 4 70%
5 or 6 50%
7 or 8 30%
9 to 12 10%
Week 13 onward 0
If the Engagement is terminated by either the Candidate or the Client before the expiry of twelve (12) weeks from the date of commencement of the Engagement, the Agency may in the first instance choose to Introduce a replacement Candidate to the Client at no additional cost provided that the Client has paid the Introduction Fee in full. Where a replacement Candidate has not been Engaged within twelve (12) weeks of the Notification of Termination the Agency shall refund the Introduction Fee subject to the following:
no refund will be due or payable if the Client has not paid the Introduction Fee in full by the due date for payment;
the Engagement was for a fixed term of less than twelve (12) months;
the Client does not require a replacement Candidate; a replacement Candidate has previously been provided; or a replacement Candidate has accepted an Engagement offer;
the cause of the Candidate’s employment termination or resignation is as a result of the Client’s failure to ascertain the suitability of the Candidate or to establish that the Candidate has the legal right to work in the United States;
the Candidate is laid off due to downsizing, economic reasons or lack of work;
the Candidate is discharged without cause;
the Candidate resigns as a result of pregnancy, injury to health, discrimination or any other unlawful acts against the Candidate;
the cause of the Candidate’s employment termination or resignation is beyond the Agency’s control; or
the Client fails to notify the Agency, in writing, within the earlier of: five (5) business days of the Engagement ending or five (5) business days of notice being given to end the Engagement, together with a reason for the termination of the Engagement (“Notification of Termination”).
Should the Client subsequently Engage a replacement Candidate within twelve (12) months of introduction or re-Engage a Candidate within a period of twelve (12) months from the date of Notification of Termination, the Client shall repay the refund in full to the Agency within fourteen (14) days from the date of commencement.
EQUAL OPPORTUNITIES - The Agency is an equal opportunities employer. It shall be the policy of both the Agency and the Client to provide equal opportunity without regard to race, color, religion, sex, national origin, age, handicap or veteran status.
CONFIDENTIALITY - Each party undertakes that it shall not at any time during the term of the Agreement and for a period of two (2) years after termination of the Agreement disclose to any person any commercial, financial or technical information, information relating to the services, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Agreement. It does not include information which is (i) already in the public domain or becomes publicly available through no breach of this Agreement by the recipient; (ii) required to be disclosed by law or by a court of competent jurisdiction or by any regulatory body; (iii) already known to a party prior to receiving it; (iv) independently developed by the receiving party; or (v) received by the receiving party from a third party without restriction and without a breach of an obligation of confidentiality concerning the affairs, customers, suppliers or contractors of the other party.
LIABILITY AND INDEMNIFICATION - THE AGENCY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOSSES WHICH MAY BE SUFFERED OR INCURRED BY THE CLIENT ARISING FROM OR IN ANY WAY CONNECTED WITH THE AGENCY SEEKING A CANDIDATE FOR THE CLIENT OR FROM THE INTRODUCTION TO OR ENGAGEMENT OF ANY CANDIDATE BY THE CLIENT OR FROM THE FAILURE OF THE AGENCY TO INTRODUCE ANY CANDIDATE. THE AGENCY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOSSES ARISING FROM ANY CANDIDATE’S ACTS OR OMISSIONS, WHETHER WILFUL, NEGLIGENT, FRAUDULENT, DISHONEST, RECKLESS OR OTHERWISE, OR ANY LOSSES ARISING IN CONNECTION WITH ANY FAILURE OF ANY CANDIDATE TO MEET THE CLIENT’S REQUIREMENTS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR PUNITIVE DAMAGES, LOSS OF PROFIT, LOSS OF GOODWILL OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY EITHER PARTY UNDER THIS AGREEMENT. THE MAXIMUM LIABILITY OF THE AGENCY TO THE CLIENT IN ANY ONE YEAR SHALL BE LIMITED IN THE AGGREGATE TO THE LESSER OF ONE MILLION US DOLLARS ($1,000,000) OR ONE HUNDRED AND TWENTY PERCENT (120%) OF THE INTRODUCTION FEES PAID OR PAYABLE BY THE CLIENT TO THE AGENCY IN THE LAST FULL YEAR (OR PART THEREOF AS THE CASE MAY BE) OF THIS AGREEMENT PRIOR TO THE CAUSE OF ACTION GIVING RISE TO THE RELEVANT CLAIM OR SERIES OF CLAIMS. THE CLIENT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE AGENCY AGAINST ANY LOSSES INCURRED BY THE AGENCY, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF ANY NEGLIGENT, WILFUL, RECKLESS OR WRONGFUL ACT OR OMISSION OF CLIENT, AND/OR BREACH OF THIS AGREEMENT BY THE CLIENT.
COMPLIANCE WITH APPLICABLE LAWS - In performing their obligations under this Agreement, both parties shall comply with all applicable state and federal laws, local laws, regulations, regulatory, codes, requirements and mandatory codes of practice, as amended and in force from time to time including, without limitation, the Foreign Corrupt Practices Act.
SMS MESSAGING TERMS
These SMS Messaging Terms apply to individuals who opt in to receive SMS messages from Cognisant Exec. By opting in to receive SMS messages from Cognisant Exec, you agree to receive recruitment-related and informational text messages concerning employment opportunities, interviews, call scheduling, availability, follow-ups and other recruitment-related communications connected with your interactions with us.
Message frequency varies. Message and data rates may apply. SMS messages are intended for recruitment-related and informational communications and are not used for unsolicited bulk advertising or promotional SMS campaigns. You may opt out of SMS messages at any time by replying STOP. Following an opt-out request, Cognisant Exec will cease sending further SMS messages to that number unless you subsequently choose to resubscribe. For assistance, reply HELP or contact Cognisant Exec using the contact details provided on our website. Your consent to receive SMS messages is voluntary and is not a condition of purchasing or receiving any service from Cognisant Exec. SMS consent is separate from consent to receive communications by email or telephone.
Cognisant Exec does not sell, rent or share your mobile telephone number, SMS opt-in information or SMS consent with third parties or affiliates for their own marketing or promotional purposes. SMS opt-in data and consent will not be shared with third parties for marketing purposes. Where third-party service providers process information on our behalf in connection with SMS messaging, including telecommunications, messaging or technology providers, they may process such information only as necessary to provide those services to Cognisant Exec and in accordance with appropriate contractual and data-protection safeguards. Carriers are not liable for delayed or undelivered messages. For information about how Cognisant Exec collects, uses and protects personal information, including mobile telephone numbers and SMS consent information, please see our Privacy Policy: www.cognisantexec.com/privacy-policy
TERMINATION - Either party may terminate this Agreement subject to the provision of one (1) month’s notice to the other party.
NOTICE - Any notice required to be given under this Agreement shall be delivered by hand, e-mail or certified/registered mail to the recipient at its address specified in this Agreement.
SEVERABILITY - If any of the provisions of this Agreement shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining terms, which shall continue to be valid to the fullest extent permitted by applicable law.
ENTIRE AGREEMENT - This Agreement constitutes the entire agreement between the parties. Any variation must be in writing and agreed by both parties.
GOVERNING LAW, ATTORNEY’S FEES & WAIVER OF JURY TRIAL - This Agreement and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the State of New York, United States of America without giving effect to any conflict of laws provisions thereof. Each party irrevocably agrees that any legal suit, action, or other proceeding to enforce the terms of this Agreement shall be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the City of New York and each party irrevocably submit to the exclusive jurisdiction of such courts and waive any objections either may have to that court asserting jurisdiction over the parties or their assets and property. In the event of any legal suit, action, or other proceeding to enforce any provision of this Agreement the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys' fees and expenses and court costs. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.