Consulting Agreement for
Exclusive Talent Acquisition (ETA)
Last Updated: 27 June, 2023
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 ETA 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 prevail; provided that Section 15 (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 agree 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 the 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).
The following definitions are applicable to this Agreement:
- “Candidate” means a person referred to the Client by Foothold, directly or indirectly.
- “Refer” means the disclosure by Foothold of the identity of a Candidate by any means, orally or in writing.
- “Service Relationship” means the Client’s engagement of the services of the Candidate in any capacity, including as a PPS Direct Hire Employee (DHE), or EMS Assigned Personnel (AP), independent contractor, consultant, or other representative.
- “First year’s compensation” means a reasonable estimate of all compensation expected to be earned by the Candidate in the first year of the Service Relationship, including salary, bonuses eg. signing, performance, guaranteed, etc., employee benefit allowances eg. car allowance, etc., and commission. The estimate is to be determined at the time when the Service Relationship begins and shall not be decreased thereafter.
- “EMS Assigned Personnel (AP)” means a Candidate that begins a Service Relationship for the Client or affiliate through Foothold Employer of Record service, EMS.
- “PPS Direct Hire Employee (DHE)” means a Candidate that begins a Service Relationship directly with our Client or an affiliate using Foothold direct hire service, PPS.
The services (“Services“) provided by Foothold under this Agreement include those described in the Proposal whereby Foothold proposes to Client (each “Candidate(s)“) in connection with a service description agreed to by the Parties in writing (each a “Service Description“). The term Service Description is 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).
Foothold service fees are on an exclusive, retained bases and are billed as follows. When a Candidate enters a Service Relationship with Foothold as an AP on behalf of the EMS Client or directly with the PPS Client as a DHE within one year after our most recent communication relating to the Candidate based on the following schedule:
3. Service Fee & Expenses
- The Foothold Service Fee is equal to twelve percent (12%) of the Candidate’s first year , or a minimum of $9,000, whichever is higher. Compensation includes base salary, bonuses eg. signing, performance, guaranteed, etc., employee benefit allowances eg. car allowance, etc., and commission.
- Signed Agreement: One twelfth of the Service Fee billed
- Commencement of Services: One twelfth of the Service Fee billed monthly for 11 months.
- Termination of employment: Balance due billed at the time of termination after the Replacement Guarantee period in Section 4 has ended.
- Advertising fees agreed between the Client and Foothold in advance of job postings shall be billed directly to the Client and are payable whether or not a Candidate is engaged.
- Pre-approved Coach Class/Economy airfare, business class hotel accommodation, and reasonable associated costs for travel for in-person Candidate interviews requested by the Client shall be billed directly to the Client and are payable whether or not a Candidate is engaged.
4. Replacement Guarantee
If the Service Relationship between the Client and the Candidate is terminated, we will replace the Candidate, based on the rebate below, provided that you notify your Foothold point of contact with all facts relating to the desired termination of the relationship within five (5) business days of the desired termination date. This guarantee is to allow you to satisfy yourself that the Candidate has the requisite experience and qualifications, and that information provided by the Candidate and other sources, directly or through Foothold, is accurate.
|Duration of Employment||Percentage of Fee to be rebated|
|Less than 2 weeks||100%|
|2 weeks to less than 4 weeks||80%|
|4 weeks to less than 8 weeks||50%|
|8 weeks to less than 12 weeks||25%|
|12 weeks or more||0%|
- This guarantee is not applicable if the Service Relationship is terminated because the position is eliminated due to redundancy or corporate reorganization;
- The Candidate’s position is not terminated by reason of poor performance prior to the completion of any induction or training period;
- If the Candidate’s employment is terminated by reason of misconduct, rebate is only due if such misconduct was reasonably foreseeable by Foothold;
- The Candidate did not leave employment because they reasonably believed that the nature of the actual work was substantially different from the information the Client provided prior to the Candidate’s acceptance of employment; or
- The Candidate did not leave employment as a result of discrimination or other acts against the Candidate.
- THIS GUARANTEE SHALL BE YOUR SOLE REMEDY.
If monthly payment(s) have not been received in our account within seven (7) calendar days of the invoice date, this replacement guarantee will be void.
Your acceptance of Candidate referrals from Foothold shall be conclusive evidence of the Client acceptance of our schedule of charges, terms, and conditions, unless we have signed a written modification. If collection activities are necessary, you agree to pay all expenses thereof, including reasonable attorney’s fees. You consent to the jurisdiction of the courts of the state of New York and agree that its law shall govern the relationship.
5. Prior Receipt of Candidate
Your prior receipt of a Candidate’s resume or other material from the Candidate or any other source, shall not affect your obligation to pay the Foothold service fee and expenses, unless the Candidate was under active consideration by you for this position at the time of our referral as evidenced by scheduled interviews within the last ninety (90) calendar days and identified, in writing, within ten (10) calendar days of the Candidate’s details being submitted to Client.
6. Client’s Obligations
- The Clients will pay all fees and other amounts due under this agreement upon receipt of Foothold’s invoice. The amount invoiced by Foothold may fluctuate due to factors including any intermediary bank fees charged by your bank for which you are responsible. If the services or this agreement are terminated by the Client (for any reason), the Client shall immediately reimburse Foothold for all previously authorized fees and other amounts that apply on or after such termination.
- If an invoice error occurs, it will not be in 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 the Client has not disputed in writing any amount on Foothold’s invoice within thirty (30) days, the Client shall be deemed to have waived any such claim. The Client agrees it will not withhold any disputed amount, and that if the Client does so, such withholding would be a material breach of this agreement which would give Foothold the right to immediately suspend any of its services and/or terminate this Agreement.
- Client shall ensure that the AP or DHE works in a safe environment in accordance with a safe system of work where the Client or its affiliate has responsibility for the working environment.
- Client agrees to confirm in writing to Foothold:
- the date upon which the AP or DHE is required to commence the provision of the Service Relationship
- the nature of and/or specifics of the services required to be provided by the AP or DHE;
- the location(s) the AP or DHE is to deliver services;
- any experience, training, qualifications, professional body authorizations that the Client, the law, or professional body requires the AP or DHE to possess to provide the services;
- any expenses payable to the AP or DHE;
- details of any specific health and safety risks in relation to the services, together with details of any steps taken to prevent or control such risks.
- Client agrees to notify Foothold immediately of its intention to-
- engage a Candidate; or
- otherwise engage directly or indirectly a Candidate introduced and/or supplied via Foothold.
- Client warrants and undertakes that all information it provides to Foothold under this agreement is true and accurate.
7. Foothold’s Obligations
Foothold shall use reasonable endeavors to introduce at least two suitable Candidates to the Client who meet the Client’s stated requirements within the timeframe agreed during the briefing stage. Foothold cannot guarantee to find a suitable person for each vacancy.
- Foothold to provide support on job description creation and job advertising writing;
- Foothold shall provide initial resume screening and LinkedIn review of pre-qualified applicants;
- Foothold shall provide candidate screening report(s) following phone or video meeting for qualified Candidates;
- Foothold shall use reasonable endeavors to ascertain that the information provided by Foothold to the Client in respect to the Candidate is accurate;
- Foothold will coordinate Client/Candidate interviews;
- Foothold will revise its approach and criteria based on Client feedback from interview(s);
- Foothold will negotiate offers on behalf of the Client;
- Foothold shall use reasonable actions to ensure that the Candidates use their best endeavors to deliver services in the Service Relationship to the Client’s reasonable and lawful specification;
- Foothold shall provide US compliant reference checks for the candidate being offered the position;
- Foothold agrees to use reasonable endeavors to onboard the AP or DHE within the period set out in the agreement between Foothold and Client for EMS or PPS .
- Foothold agrees to consider Candidates solely for the Client’s role(s) when the advertising is paid for by the Client, and Foothold agrees not to distribute Candidate information to any other clients until such time as the Candidate has been eliminated from contention for the position.
8. Performance Guarantee
The search start date will be within four (4) business days after the date the executed consulting agreement, and the initial monthly fee is received by Foothold.
If Foothold fails to present at least two (2) qualified Candidates within the timeframe agreed at the briefing stage and the Client wants to discontinue the search, Foothold shall cease invoicing monthly fees.
If Foothold presents at least two (2) qualified Candidates within the agreed timeframe, but the Client fills a position through its own efforts or through another source, there will be no refund.
If Foothold presents at least two (2) qualified Candidates within the agreed timeframe but the Client either: 1) fails to interview said Candidate within ten (10) business days from the date of the initial Candidate presentation, or 2) fails to complete the interview process to the point of making an offer to enter into a Service Relationship within twenty (20) calendar days from the date of initial Candidate presentation, client shall not be entitled to a refund.
a. Foothold maintains the following insurance policies which include coverage of Foothold employees including AP (not including Candidates who are not EMS AP) 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 EMS 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.
10. Term and Termination of Agreement and Service Descriptions.
Termination for Convenience
- This Agreement may be terminated by either party for convenience by giving the other sixty (60) days’ notice in writing;
- Without prejudice to any rights accrued prior to termination, the obligations within this Agreement remain in force beyond the cessation or other termination, howsoever arising, in this Agreement;
- Termination of this Agreement does not impact the Agreement(s) of any other Foothold service(s) under which the Client has agreed.
Termination for Cause.
- If a Party is: (i) is in material breach of a Service Description or this Agreement, as applicable; (ii) 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, advertising costs within the agreed budget, 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 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).
- 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.
- 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.
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, or (2) either invoice Client for any excess amounts due (including amounts incurred for advertising) or reimburse Client for any excess after all current Fees, Advertising fees and other amounts have been deducted.
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; providedsuch 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.
Candidates are referred to the Client in confidence. Should the Client refer or identify the Candidate to another company that enters a Service Relationship with the Candidate, both companies shall be responsible for the payment of the Service Fee.
b. Proposed Business. This Section 11(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.
12. 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 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 against each Foothold Indemnitee due to acts or omissions of Client; (e) any claims in connection with the acts or omissions of AP or DHE 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.
14. Limitation of Liability.
To the fullest extent permitted by law, and except for Client’s obligations under Section 13(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 Service Fees 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) Ten thousand dollars ($10,000). 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.
15. Relationship Between The Parties.
This Section 15 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.
b. Foothold’s Operation. Foothold is solely responsible for its own operation.
c. 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 EMS AP who Foothold has assigned to Client for so long as such individual is providing Services to Client (e.g., Client can hire an AP who is providing Services to Client). Further, general solicitations (e.g., internet job postings, etc.) 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 15.c.
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 Foothold 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 16.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 10above); 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.
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 Candidates, AP, and DHE and to determine the Fees 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, 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 6 (Client Responsibility); except Section 10 (Effects of Termination), Section 11 (Confidentiality), Section 12 (Personal Data), Section 13 (Indemnification), Section 14 (Limitation of Liability), Section 15 (Relationship of the Parties), and Section 16 (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.
p. Equal Opportunity. Foothold does not discriminate in the acceptance or referral of Candidates based on race, color, religion, sex, age, national origin, marital status, disability, or other protected characteristics. Foothold adheres to all requirements of the US Equal Employment Opportunity Commission (EEOC).