Consulting Agreement for
EMS and Related Services
Last Updated: September 2, 2021
THIS CONSULTING AGREEMENT (this “Agreement“) is effective (the “Effective Date“) as of the earlier of: (a) the “Client’s” signature of Foothold America Inc.’s (“Foothold“) written proposal (each a “Proposal“), or (b) the date a client (the “Client“) has been made aware of this Agreement (e.g., by receipt of a Proposal) and begins accepting any “Services” (as defined below) from Foothold. This Agreement is between Client and Foothold, on behalf of itself and for the benefit of its affiliates. Foothold and Client are individually referred to herein as a “Party” and collectively as the “Parties“. This Agreement is incorporated into each Proposal made by Foothold. In the event of any direct conflict between the Consulting Agreement on this webpage and the express written terms of any document signed by both Parties (e.g., a Proposal or Amendment); the signed written terms will control; provided that Section 10 (Relationship of the Parties) may only be amended by a written amendment signed by both Parties directly referencing such Section. Any terms used herein, but not defined herein, shall have the meaning ascribed to it in the Proposal.
The Parties agrees that they are bound by this Agreement; and Client agrees that Client’s use of any of the Services constitutes Client’s approval of this Agreement.
Foothold is providing the Services to Client in exchange for the charges set forth on the applicable Proposal; or in absence of a signed Proposal at Foothold’s standard rates, in effect from time to time; and the Parties agree that the foregoing is good and sufficient consideration for this Agreement (and Client’s continued receipt of any of the Services after any change in this Agreement is good and sufficient consideration for any modifications to this Agreement).
1. Services. The services (“Services“) provided by Foothold under this Agreement include those described in the Proposal and those consulting services provided by Foothold employee(s) who Foothold allocates to Client (each an “Assigned Personnel“) in connection with a service description agreed to by the Parties in writing (each a “Service Description“). The terms Assigned Personnel and Service Description are further described in the Proposal. Any additional services requested by Client, if agreed to by the Parties, will be documented in a written amendment to the Proposal or applicable Service Description (which must be signed by both Parties to be effective).
2. The Client’s Obligations.
a. The Client will comply with all applicable laws, rules and regulations regarding Client’s operations and Client’s treatment of each Assigned Personnel. In addition, Client will comply with all of Foothold’s policies and other requirements which Foothold provides in advance and in writing to Client.
b. The Client will pay all Fees, Plan Charges, and other amounts due under this Agreement upon receipt of Foothold’s invoice. The amount invoiced by Foothold may fluctuate over time due to changes in Plan Charges and other factors including any intermediary bank fees charged by your bank. Foothold will not charge you for Plan Charges that are based upon amounts paid to an Assigned Personnel, if there is no underlying expense (e.g., the Assigned Personnel does not participate in the 401K plan).
c. If the Services or this Agreement is terminated by the Client (for any reason), Client shall immediately reimburse Foothold for all previously authorized Fees, Plan Charges, and other amounts through the date of termination and for all such amounts that apply upon or after such termination (e.g., termination fees, COBRA Plan Charges).
d. If an invoice error occurs, it will not be a breach of the Agreement. The Client agrees to notify Foothold in writing of any invoice error within ten (10) business days of receipt of the invoice. If Client has not disputed in writing any amount on Foothold’s invoice within thirty (30) days Client shall be deemed waived any such claim. If the Client disputes any invoiced amount in writing, the Parties will meet promptly (either in person or virtually) to disclose the issue and will use good faith efforts to resolve any such dispute. Given the nature of the Services, Client agrees that it will not withhold any disputed amount, and that if Client does so, such withholding would be a material breach of this Agreement which would give Foothold the right to immediately suspend its Services and/or terminate this Agreement.
a. Foothold maintains the following insurance policies which include coverage of Foothold employees (including Assigned Personnel) which are available for review upon Client’s request:
i. General liability;
ii. Unemployment (statutory); and
iii. Workers compensation (statutory).
b. Foothold maintains an Employment Practices Liability Insurance (EPLI) policy that extends coverage to the Client in the event of a suit brought about by a Foothold employee naming Foothold and Client; which policy is available for review upon Client’s request.
c. Foothold maintains the following additional insurance policies which are available for review upon Client’s request:
ii. Errors & Omissions; and
iii. Directors & Officers.
4. Ownership of Assigned Personnel’s Work Product.
All deliverables, ideas, concepts, works, information, data, computer programs and other materials developed by Assigned Personnel who has been assigned to Client, either alone or with others, which result from or relate to the Services provided by such Assigned Personnel (collectively, the “Developments“) and all trademark, trade secret, copyright, patent, common law right, title or slogan or any other proprietary right (“Proprietary Rights”) in such Developments shall be the sole property of Client. Foothold hereby assigns to Client Foothold’s entire right and interest in any such Developments and/or Proprietary Rights and will require the Assigned Personnel who are assigned to Client to execute any documents in connection therewith that Client may reasonably request; provided that to the fullest extent permissible by applicable law, any and all copyrightable aspects of the Developments shall be considered “works made for hire”.
5. Term and Termination of Agreement and Service Descriptions.
a. Agreement Term. This Agreement commences on the Effective Date and is effective until the earlier of: (a) termination by either Party as provided for herein, or (b) the date the last Assigned Personnel allocated to Client stops providing services to Client (e.g., they quit, Client terminates the Service Description); provided that Client’s obligation to pay COBRA Plan Charges shall survive any expiration or termination for the length of time that any Foothold employee (who was assigned to Client) elects to continue insurance coverage under COBRA (Consolidated Omnibus Budget Reconciliation Act).
b. Service Description Term. Each Service Description shall be effective from the date it is signed by both Parties until is terminated by either Party as provided herein.
c. Termination for Convenience.
i. Agreement. Either Party may terminate this Agreement, in its entirety, upon thirty (30) days prior written notice to the other Party.
ii. Service Description. Each Service Description can be terminated by either Party, for convenience, upon ten (10) days written notice.
iii. Service Suspensions. Notwithstanding anything to the contrary in this Agreement,
- In the event that Assigned Personnel assigned to Client quits, dies, becomes incapacitated, or is terminated by Foothold; the Services provided by such Assigned Personnel shall be deemed to be immediately suspended; provided that such suspension shall not result in any reduction in other amounts due under this Agreement.
- Client may require Foothold to remove from Client’s account any Assigned Personnel assigned to Client, at any time, for any lawful reason; in which event, Client will be liable for Fees, Plan Charges or other amount due hereunder, (e.g., for COBRA, salary, accrued vacation, and other compensation) which Foothold is obligated to pay its employee per the approved Offer Letter and applicable law (as if Assigned Personnel were terminated the next business day after such suspension).
- In the event of a suspension or removal under this Section 5.c.iii: (A) Foothold may suggest assignment of a different Foothold employee (as an Assigned Personnel) to Client; which assignment Client will consider in good faith, but Client is not obligated to accept any replacement Assigned Personnel; and (B) if Client has not accepted a replacement Assigned Personnel within thirty (30) days of the suspension, then such Service Description shall be deemed terminated for convenience by the Parties as of the end of such 30th day.
d. Termination for Cause.
i. If a Party: (1) is in material breach of a Service Description or this Agreement, as applicable; (2) is subject to a voluntary or involuntary insolvency proceeding under any applicable bankruptcy or other insolvency law; (iii) is planning to (or enters into) an assignment for the benefit of all or substantially all of its creditors; (iv) ceases operation (each an “Event of Default“). In addition, it shall be an Event of Default if Client: (x) fails to timely pay of any Fees, Plan Charges or other amounts due hereunder or (y) refuses upon written request to provide Foothold with adequate assurances of Client’s ability to timely pay all Fees, Plan Charge or other amounts due hereunder. Whenever an Event of Default exists, the non-defaulting Party may provide written notice to the defaulting Party (per the Section 11.g (Notices) below, each a “Default Notice“). Each Default Notice must specify, in detail, the alleged breach(es).
ii. Cure Periods. If the Event of Default is capable of being cured, the defaulting Party shall have thirty (30) days from receipt of a Default Notice to cure any breach(es) set forth in the Default Notice. If such Event of Default cannot be cured, then there shall be no cure period. Notwithstanding the foregoing, the cure period for a failure by Client to pay any amount (whether or not disputed) due hereunder (e.g., Fees, Plan Charges) shall, in all instances be ten (10) business days; and Foothold may, after delivery of the Default Notice, suspend all Services until the Client has paid all overdue amounts.
iii. Termination. If an Event of Default is not timely cured (or is not capable of being cured), the non-defaulting Party may, upon no less than thirty (30) days’ written notice to the defaulting Party: (1) if such uncured breach is of a provision in this Agreement, terminate, at the option of the non-breaching Party: (x) terminate this Agreement and each of the Service Descriptions hereunder, or (y) terminate just the affected Service Description(s); or (2) if such uncured breach is of a provision in a Service Description, terminate just the affected Service Description. For clarity, if this Agreement is terminated, any and all Service Descriptions shall also be terminated.
e. Effects of Termination. Upon expiration or termination of each Service Description and this Agreement: (i) the Parties will cooperate to promptly wind down Services, (ii) Foothold shall: (1) make an estimate of all remaining amounts owed by Client, adjust any deposits to take in account an ongoing Plan Charges, etc. and (3) either invoice Client for any excess amounts due (including amounts necessary to increase any underfunded deposits) or reimburse Client for any excess deposits after all current Fees, Plan Charges and other amounts have been deducted. Typically, Foothold retains $3,000 per Assigned Personnel for items such as post-termination expense reports, provider fees, COBRA fees of $100 per enrollee (employee plus dependents) per month for as long the former Foothold employee continues this election; but may adjust this amount depending upon the specific facts and circumstances. For example, upon expiration or termination of a Service Description, Client is obligated to continue to pay all applicable Plan Charges and other amounts due hereunder (e.g., for COBRA, salary, accrued vacation, and other compensation) which Foothold is obligated to pay its employee per the approved Offer Letter and applicable law (as if Assigned Personnel were terminated the next business day after the expiration or termination of the applicable Service Description); regardless of whether Foothold elects to terminate such employee or not. If Client requests and/or needs additional Services as part of such transition; such Services shall be documented in an amendment and will be provided at Foothold’s then current rates, unless otherwise agreed in writing by the Parties.
a. Definition. Each Party (the “Receiving Party“), agrees that all confidential, non-public information received by the Party, its affiliates and it or its affiliates’ employees, agents and contractors (collectively “Personnel”) relating to the other Party, its customers, or its vendors in connection with this Agreement, regardless of the manner or medium in which it is furnished to or otherwise obtained by the Receiving Party, its affiliates and its Personnel will be deemed confidential information of the disclosing Party; provided such information was disclosed under circumstances in which the receiving individual would have reasonably known such information was confidential (collectively, “Confidential Information“). Notwithstanding the foregoing: (a) Foothold and its Personnel (including Assigned Personnel) shall not be deemed to be Client’s Personnel, (b) Client acknowledges that Foothold’s Confidential Information includes (regardless of the circumstance in which it was disclosed) this Agreement, each Foothold Proposal (regardless of whether it was signed), the details of how Foothold (but not its Assigned Personnel)) performs its Services and all Foothold business plans, marketing plans, marketing materials, strategies, forecasts, analyses, financial information, client and supplier lists, employee information (including Assigned Personnel) and information regarding Foothold’s and its vendors’ software and other information technology systems; and (c) Foothold acknowledges that Client’s Confidential Information includes (regardless of the circumstance in which it was disclosed) all Client business plans, product or service offering plans, Developments, marketing plans, marketing materials, strategies, forecasts, analyses, financial information, client and supplier lists, Client’s employee information and information regarding Client’s and its vendors’ software and other information technology systems.
b. Proposed Business. This Section 6 (Confidentiality) also applies to any information exchanged between the Parties regarding proposed business, regardless of whether the Parties enter into a Proposal or other contract regarding such proposed business.
c. Personal Data. “Personal Data” (which term is defined below) is a subset of Confidential Information. If information is both Personal Data and Confidential Information, the Parties shall comply with requirements herein applicable to both and if they conflict, the more restrictive of the two requirements shall apply. If either Party becomes aware of improper access to and/or disclosure of the Personal Data of the other Party (e.g., its Personnel, clients, etc.), such Party shall promptly notify the other Party of such access and/or disclosure.
d. Exceptions. Except for Personal Data, information shall not be deemed Confidential Information if the information: (a) becomes available to the general public through no fault of the Receiving Party (but excluding from the foregoing exception information disclosed pursuant to a data or security breach of the Receiving Party or its Personnel’s systems); (b) is rightfully disclosed to the Receiving Party by a third party not, to Receiving Party’s knowledge, subject to any confidentiality obligation (directly or indirectly) to the disclosing Party with respect to such information; (c) is rightfully in the possession of the Receiving Party at the time of disclosure or thereafter (without an obligation of confidentiality to the disclosing party); or (d) is previously known to or developed by the Receiving Party independent of the disclosing Party’s Confidential Information.
e. Legal Requirements. In the event that the Receiving Party is required to disclose Confidential Information of the other Party pursuant to a valid court order or other legal requirement, or the Receiving Party desires to do so in any dispute between the Parties, the Receiving Party shall (unless in the such Party’s legal counsel’s opinion it is prohibited from doing so by Applicable Law): (a) promptly notify the disclosing Party of the proposed disclosure, and (b) provide reasonable assistance to, and allow the disclosing Party to, contest the release of the Confidential Information and/or seek confidential treatment and/or other protection therefor at the disclosing Party’s sole cost and expense.
f. Obligations. Each Party shall treat as confidential and shall not disclose (except as otherwise permitted herein) the other Party’s Confidential Information. Each Party: shall (a) use the Confidential Information only for purposes of performing its obligations and/or exercising its rights under this Agreement and as otherwise permitted hereunder; (b) restrict disclosure of the Confidential Information to its Personnel with a need to know the Confidential Information in connection with such Party performing its obligations and/or exercising its rights under this Agreement; (c) advise those representatives of the obligation to not disclose the Confidential Information; (d) copy the Confidential Information only as necessary; and (e) use, and require its Personnel to use, the same degree of care as is used with its own Confidential Information, which degree of care shall in no event be less than reasonable care.
7. Personal Data Protection.
i. “Business Purpose” (i) has the meaning ascribed to the term “business purpose” in the CCPA, or (ii) has the meaning ascribed to that term or any similar term in any Data Protection Legislation, as applicable. In the event of conflicting definitions set forth in Data Protection Legislation, the definition that is the most protective of Personal Data will apply.
ii. “Data Protection Legislation” means any and all applicable laws and regulations, in effect, from time to time, relating to the privacy, confidentiality, security, protection, and Processing of Personal Data in any jurisdiction as may be applicable including: (i) the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq. (“CCPA”), (ii) the Fair and Accurate Credit Transaction Act, (iii) the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d, “HIPPA“), (iv) the Payment Card Industry (“PCI“) Data Security Standard (“DSS“), (v) the CCPA, and (vi) the EU General Data Protection Regulation 2016/679 (“GDPR“), and EU Member State laws supplementing the GDPR; the EU Directive 2002/58/EC (“e-Privacy Directive“), and EU Member State laws implementing the e-Privacy Directive.
iii. “Personal Data” means any information relating to an identified or identifiable individual that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, including such information that may be: (i) viewed, accessed, and/or Processed at any time by a Party in anticipation of, in connection with, or incidental to a Party’s performance of its obligations or exercise of its rights under this Agreement, or (ii) derived by a Party from such information. Personal Data includes all information now or hereafter protected under any applicable Data Privacy Legislation, including “protected health information” as defined under HIPPA, “cardholder information” as defined under the PCI DSS, “personal information” as defined under the CCPA and that term or any similar term in all similar Data Protection Legislation, and “Personal Data” as that term is defined in the GDPR. Foothold’s Personal Data includes all such data of Foothold’s employees (including Assigned Personnel), clients and its/their Personnel. Likewise, Client’s Personal Data includes all such data of Client’s employees, customers and its/their Personnel.
iv. “Process” or “Processing” means any operation or set of operations performed upon the Personal Data, whether or not by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination and deletion of Personal Data.
v. “Sell” (i) has the meaning ascribed to the term “Sell” in the CCPA, or (ii) has the meaning ascribed to that term or any similar term in any Data Protection Legislation, as applicable. In the event of conflicting definitions set forth in Data Protection Legislation, the definition that is the most protective of Personal Data will apply.
vi. “Service Provider” (i) has the meaning ascribed to the term “Service provider” in the CCPA, or (ii) has the meaning ascribed to that term or any similar term in any Data Protection Legislation, as applicable. In the event of conflicting definitions set forth in Data Protection Legislation, the definition that is the most protective of Personal Data will apply.
b. Personal Data Restrictions. Without limiting their obligations specified herein, each Party will:
i. gather, store, log, archive, use, Process and otherwise retain the other Party’s Personal Data strictly in accordance with the terms of the Agreement, and applicable Law, and solely for the purposes of complying with its obligations and exercising its rights under this Agreement;
ii. not Sell or in any other way monetize the other Party’s Personal Data, and such Party will not retain, use, or disclose the other Party’s Personal Data outside of the direct business relationship between Client and Foothold;
iii. not retain, use, or disclose the other Party’s Personal Data for any period longer than necessary for such Party to fulfill its obligations and exercise its rights under the Agreement (including, in Foothold’s case, the specific purpose of performing the Services);
iv. at all times, take all appropriate technical and organizational measures against unauthorized or unlawful Processing of the other Party’s Personal Data, and against accidental loss, destruction of, or damage to other Party’s Personal Data. Such measures must ensure a level of security appropriate to the harm that might result from the unauthorized or unlawful Processing of other Party’s Personal Data or the loss, destruction of, or damage to other Party’s Personal Data, the nature of the other Party’s Personal Data,
v. cause its Personnel to undergo training in the care and handling of Personal Data;
vi. promptly inform the other Party in writing and cooperate with such Party (at such Party’s expense) if, in connection with such Party’s Personal Data, an individual requests: (i) access to that individual’s Personal Data, (ii) information about the categories of sources from which that individual’s Personal Data is collected, or (iii) information about the categories or specific pieces of that individual’s Personal Data, including by providing the requested information in a portable and, to the extent technically feasible, readily useable format that allows the individual to transmit the information to another entity without hindrance;
vii. on the other Party’s request in regard to such Party’s Personal Data promptly return or destroy and purge electronic copies from its systems all originals and copies of a particular individual’s Personal Data from its records. In the event a Party is unable to delete the individual’s Personal Data for reasons permitted under the CCPA or any other similar Data Protection Legislation, as applicable, the other Party will: (A) promptly inform the requesting Party of the reason for its non-compliance with the deletion request; (B) ensure the privacy, confidentiality and security of such Personal Data, and (C) delete such Personal Data promptly after the reason for such Party’s non-compliance no longer applies;
viii. Each Party acknowledges that the other Party’s Personal Data that is disclosed to or otherwise makes available to such Party under or in connection with the Agreement is provided to such Party for a Business Purpose, and neither Party agrees to Sell (or is selling) Personal Data to the other Party in connection with this Agreement; and
ix. By agreeing to this Agreement, each Party is certifying to the other Party in writing that it understands and will comply with the requirements and restrictions set forth in this Section.
c. Service Provider. Foothold is acting solely as a Service Provider with respect to Personal Data received from Client.
d. Incident Notification. Upon learning of an incident involving a Party’s systems or Personnel (the “Impacted Party“), that may or has resulted in unauthorized disclosure, use of, or access to, the other Party’s (the “Affected Party“) Confidential Information (e.g., business or Personal Data), the Impacted Party will promptly, at no cost to the Affected Party (i) provide notice of the incident to Affected Party in accordance with the terms of this Agreement, (ii) provide information requested by the Affected Party related to the incident and provide assistance to enable the Affected Party to notify its employees, customers or other affected persons of the breach, (iii) provide information to, and cooperate fully with, law enforcement agencies and regulators, and (iv) take commercially reasonable steps necessary to mitigate the impact of the incident.
To the fullest extent permitted by law, the Client agrees to defend, indemnify, and hold Foothold, its affiliates and each of their directors, officers, and Personnel (e.g., employees, and agents, each a “Foothold Indemnitee“) harmless against any and all damages, losses, costs, expenses (including attorneys’ fees, costs and expenses) and other liabilities (collectively, “Indemnified Liabilities“) incurred by each Foothold Indemnitee arising out of any claims, demands, suits, or causes of action (collectively, “Claims“) that rise in connection with the Services, to the extent that the Indemnified Liabilities and Claims are, or are claimed to be, the result, in whole or in part, of: (a) Client or its Personnel’s breach of this Agreement; (b) the operation of Client’s business; (c) the Client’s use of the Services; (d) any claims made by Foothold Personnel (including Assigned Personnel) against each Foothold Indemnitee due to acts or omissions of Client; (e) any claims in connection with the acts or omissions of Assigned Personnel while performing their duties within the scope of the Service Description or at Client’s direction, (f) any “Client Tax Obligations” (as defined below) or (g) the Client’s or its Personnel’s negligence or misconduct.
If Client has any claim against Foothold, Client shall promptly notify Foothold in writing. Client is not obligated to indemnify or hold a Foothold Indemnitee harmless from an Indemnified Liability to the extent that a court of competent jurisdiction determines that such Indemnified Liability was caused by: (x) Foothold’s breach of this Agreement or (y) such Foothold Indemnitee’s gross negligence or willful misconduct.
Client’s obligations above to: (x) defend, and (y) indemnify and hold harmless, Foothold Indemnitees are independent of each other and of each other obligation of the Parties in this Agreement. Each Foothold Indemnitee has the right to participate in its own defense.
9. Limitation of Liability. To the fullest extent permitted by law, and except for Client’s obligations under Section 8 (Indemnification):
a. Limitation on Types of Damages. NEITHER PARTY AND SUCH PARTY’S AFFILIATES (NOR SUCH PARTY AND ITS/THEIR DIRECTORS OFFICERS OR PERSONNEL) SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, LOST DATA, LOST PROFITS AND DAMAGES FROM BUSINESS INTERRUPTION) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE, OMISSION OF PERFORMANCE, OR TERMINATION HEREOF, WITHOUT REGARD TO THE NATURE OF THE CLAIM (E.G., BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Cap on Liability and Limit on Bringing Claims. In no event shall the maximum, cumulative, and aggregate liability of Foothold, its affiliates and its/their directors, officers, and Personnel in connection with this Agreement exceed the lesser of: (i) all Fees (but not Plan Charges) paid by Client to Foothold during the twelve (12) month period immediately preceding the act or omission giving rise to any such liability, and (ii) Twenty-five thousand dollars ($25,000). Further, Client shall not bring any claim, demand, suit, or cause of action against Foothold, its affiliates and its/their directors, officers, and Personnel more than one (1) year after the cause of action arises.
c. Taxes. With the sole exception of employment taxes on Foothold employees (including such taxes owed by Foothold for Assigned Personnel) and taxes on Foothold’s income; Foothold accepts no responsibility or liability for other potential taxation liabilities imposed upon the Client or Foothold by any taxation authorities which arise in connection with the Services (collectively, the “Client Tax Obligations“).
10. Relationship Between The Parties. This Section 10 shall control over any inconsistent language in this Agreement or in any marketing materials provided by Foothold from time to time:
a. Independent Contractor. Foothold is an independent contractor under this Agreement, and nothing in the Parties’ relationship or this Agreement will create a joint venture, partnership, joint employment, agency, or other relationship other than as expressly stated herein. Foothold’s employees are not employees of Client. Further, neither Foothold nor Foothold’s employees (including Assigned Personnel) are agents of Client, except as expressly provided for in a Service Description. Foothold’s employees (including Assigned Personnel) are not eligible to participate in any employment benefit plans or other conditions of employment available to Client’s employees. Foothold is not authorized to enter into any agreements or create any obligations on behalf of Client. Client is not authorized to enter into any agreements or create any obligations on behalf of Foothold. If requested by Client, Foothold may require an Assigned Personnel to abide by certain written Client policies that apply to Client’s employees and/or other Client contractors (e.g., social media policies).
b. Foothold’s Operation. Foothold is solely responsible for its own operation. Foothold has: (i) exclusive control over its employees (including Assigned Personnel) and over the labor and employee relations and the policies relating to wages, hours, working conditions or other conditions of its employees (including Assigned Personnel) and while Client has some input (through the Offer Letter process) on certain items (such as holidays), Client has no authority to change any work schedule or conditions of employment of any Assigned Personnel; and (ii) the exclusive right to hire, transfer, suspend, lay off, recall, promote, assign, discipline, discharge and adjust grievances with its employees (including Assigned Personnel). Further, the Parties agree that: (x) termination of a Service Description (or suspension of performance of Services by an Assigned Personnel under Section 5.c.iii above), does not affect the employment status of such Assigned Personnel, and Foothold reserves the right to continue employment of such individual and/or re-assign such Assigned Personnel to any of its other clients; and (y) Foothold solely maintains each of its employees’ employment records (including those of each Assigned Personnel); and Client has no right to access such employment records.
c. Co-Employment. All provisions of this Agreement that relate to payment by Client of Plan Charges related to Foothold’s Assigned Personnel’s costs (or the provision of amenities or other benefits by Foothold to its employees (including Assigned Personnel) are for the convenience of the Parties and shall not create a co-employer relationship between the Parties. If such provisions are ever deemed to be a factor in creating a co-employer relationship to exist: (a) such provisions shall be struck from this Agreement ab initio, and (b) the Parties agree that Client will fairly compensate Foothold using a different methodology that does not cause a co-employer relationship to exist. If any federal or state administrative agency or court determines that Foothold is a joint employer of any Client Personnel, Client shall indemnify Foothold for any resulting liability and shall reimburse Foothold for all reasonable employment costs and fees incurred as a joint employer of Client’s Personnel.
d. Non-Solicitation. Client agrees that during the Term of this Agreement and for a period of three (3) years thereafter, Client will not, directly or indirectly, solicit for employment or hire, in any capacity, any employee of Foothold or its affiliates; provided, however, that the foregoing restrictions shall not apply to Assigned Personnel who Foothold has assigned to Client for so long as such individual is providing Services to Client (e.g., Client can hire an Assigned Personnel who is providing Services to Client). Further, general solicitations (e.g., newspaper and internet job postings) shall not be a violation of this clause. The Parties agree that Client will pay Foothold, as liquidated damages (and not as a penalty) $50,000 for each individual who Client solicits or hires in violation of this Section 10.d.
a. Marketing. Client agrees that Foothold may use the Client’s name and logo on its website and in other marketing materials; but Foothold will not reveal the specific details of the Services provided by Assigned Personnel to Client.
b. Force Majeure. Each Party shall be relieved of its obligations under this Agreement, to the extent: (a) its performance is delayed or made commercially unreasonable by fire, epidemic, pandemic, labor shortages, acts of nature (e.g., floods, earthquakes, etc.), acts of war, terrorism, civil disorders, governmental orders and other events beyond such Party’s reasonable control, whether or not such events are foreseeable (each a “Force Majeure Event“); and (b) the such Party exerts commercially reasonable efforts to minimize the duration and consequences of such non-performance. The affected Party will promptly notify the other Party of any Force Majeure Event. Notwithstanding this Section 11.b, a Force Majeure Event will only delay Client’s obligation to pay any amounts due under this Agreement for a maximum of ten (10) days.
c. Assignment. This Agreement is binding upon, and will inure to the benefit of, the Parties and their permitted successors and assigns. The rights and obligations under this Agreement shall not be assigned or transferred by either Party, in whole or in part, without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed). Any attempted assignment or transfer in violation of this Section will be null and void.
d. Third-Party Beneficiaries. Foothold Indemnitees are the only intended third-party beneficiaries to this Agreement; there are no other third-party beneficiaries to this Agreement.
e. Subcontracting. Foothold retains the right to subcontract its services, duties, and obligations under the Agreement.
f. Entire Agreement and Amendments. This Agreement (including the applicable Proposal and each Service Description hereunder) constitutes the entire Agreement between the Client and Foothold and supersedes all prior agreements, statements, promises or practices, written or oral, as to the subject matter hereof, and all prior understandings, negotiations and discussions of the Parties. Client agrees that it would be unreasonable for Client to rely upon any promise or representation not contained in this Agreement. Handwritten changes to this Agreement including any Proposal are unenforceable. Foothold may change this Agreement at any time by posting a subsequent version on this webpage (or any successor webpage which Foothold makes the Client aware of). Client is responsible for periodically reviewing this Agreement and if Client does not wish to accept such changes, Client must promptly after any such change notify Foothold of Client’s intention to terminate this Agreement for convenience (per Section 5.c.i above); otherwise, Client’s continued acceptance of any or all of the Services shall constitute Client’s acceptance of the modified Agreement whether or not Foothold notified Client of the changes. Foothold, as a general practice, endeavors to provide its clients advance notice of any significant price changes or other changes to material terms of its Agreement with such client.
g. Notices. All notices under the Agreement must be in writing and shall be delivered by mail or by courier to the address specified below (or such other address as either Party shall notify in writing to the other for this purpose). Additionally, Foothold may provide notice via electronic mail addressed to the individual who signed the Proposal.
Foothold America, Inc.
68 Harrison Avenue
The address listed on the Proposal’s cover page, or if none, any other Client facility.
h. Cooperation. Each Party agrees to cooperate, in good faith, with the other Party and to cause its Personnel to support the performance of the Services (per the division of responsibility set forth in this Agreement). Upon request, Client will promptly provide Foothold with such information, as is reasonably necessary, for Foothold to manage its Assigned Personnel and to determine the Fees, Plan Charges and other amounts due under this Agreement.
i. Dispute Resolution and Choice of Law.
i. The Client and Foothold will make good faith efforts to resolve any claim, dispute or controversy (“Dispute“) arising out of or related to this Agreement. If the Parties have not resolved any Dispute within sixty (60) days, then either Party can submit the Dispute for resolution via binding arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. All arbitration hearings shall be held in London, England.
ii. This arbitration provision shall not prevent either Party from seeking interim injunctive relief from a court in order to preserve the status quo or to protect assets until such time as arbitration has been commenced and the arbitrator has an opportunity to consider the matter of interim relief.
iii. Each Party shall pay one-half of the arbitrator’s fees and expenses, and each Party shall bear their own costs and expenses in pursuing such arbitration (e.g., attorneys’ fees); provided that in any claim for non-payment of any Fees, Plan Charges or other amounts due hereunder, Foothold shall be entitled to its attorneys’ fees, expenses and other costs of collection.
iv. In any such arbitration, the arbitrator shall apply relevant law and provide written, reasoned findings of fact and conclusions of law. This arbitration Agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. If any portion of this arbitration provision is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration provision. The substantive law of the State of New York, without reference to any principles concerning conflict of law, shall govern this Agreement and all Disputes; provided, however, that this Arbitration provision and the Parties’ rights under this provision shall be governed by and construed in accordance with the Federal Arbitration Act. The Client waives any right to bring any Dispute on a class action, private attorney general or similar basis.
j. Jurisdiction. Subject to the foregoing Section 11.h (Dispute Resolution and Choice of Law), each Party hereby submits to the exclusive personal and subject matter jurisdiction of courts in England regarding this Agreement and any Dispute.
k. Severability. If any part of the Agreement is found to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect as if the unenforceable part did not exist.
l. Waiver. Any waiver by a Party under this Agreement must be in writing. The failure by a Party to enforce at any time or for any period any one or more of the provisions of the Agreement shall not be a waiver of them or of the right at any time subsequently by a Party to enforce all provisions of the Agreement.
m. Construction of this Agreement. The Agreement will be construed in its entirety, giving meaning to its whole, and not strictly for or against the Client or Foothold. For purposes of construction, both the Client and Foothold will be deemed to have drafted the Agreement and neither the Client nor Foothold will argue to the contrary. The term this “Agreement” includes any Proposals and Service Descriptions entered into in connection with this Agreement. In this Agreement: (a) section headings are for reference only and do not affect the interpretation of this Agreement, (b) defined terms include the plural as well as the singular, and (c) “include” and its derivatives (“including,” “e.g.,” and others) mean “including but not limited to”. The Client acknowledges that Foothold is not qualified to provide (and Client agrees that it will not claim that Foothold has provided) legal advice to Client; and Client acknowledges that Foothold has advised Client to seek its own legal and/or other professional advice regarding this Agreement; including whether this Agreement, the provision of Services by Assigned Personnel, and or any other aspect of the Parties relationship could potentially create a taxable presence, or other liability for the Client or its affiliates under the jurisdiction of any taxation or other governmental authority.
n. Survival. Any terms of this Agreement that would, by their nature, survive the termination of this Agreement will so survive including Section 2 (Client Responsibility); except subsection (a), Section 5.e (Effects of Termination), Section 6 (Confidentiality), Section 7 (Personal Data), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 10 (Relationship of the Parties), and Section 11 (Miscellaneous).
o. Warranties. Both the Client and Foothold represent and warrant that the Client and Foothold, respectively, have full power and authority to enter into the Agreement and to fulfill all its terms and conditions. Each Proposal and Service Description may be executed electronically, by facsimile, and in counterparts.
End of Consulting Agreement