Master Service Agreement

Foothold America Inc. – Master Service Agreement (MSA)

General Terms

THIS MASTER SERVICE AGREEMENT (this “Agreement“) is effective (the “Effective Date“) as of the earlier of: (a) the “Client’s” signature of Foothold America, Inc.’s (“Foothold America“) 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 America.

This Agreement consists of General Terms and Service-Specific Terms. Bold, centered headers denote the commencement of the terms for specific services.

This Agreement is between Client and Foothold America, on behalf of itself and for the benefit of its affiliates. Foothold America 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 America. In the event of any direct conflict between the 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 12 (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 them 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 America 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 America’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. Definitions

“Agreement” refers to this Master Service Agreement, including all Proposals, Service Descriptions, and Amendments.

“Assigned Personnel” Foothold America employees who Foothold America allocates to Client for Employer of Record (EOR) services.

“ Candidate” means a person referred to the Client by Foothold, directly or indirectly for recruitment.

“Client” means the entity receiving Services from Foothold America.

“EOR Assigned Personnel (AP)” means a Candidate that begins a Service Relationship for the Client or affiliate through Foothold America Employer of Record service.

“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 in calculations of recruitment fees.

“PEO+ Co-employee (CO)” means a Candidate that begins a Service Relationship directly with our Client or an affiliate using Foothold PEO+ service.

“PPS Direct Hire Employee (DHE)” means a Candidate that begins a Service Relationship directly with our Client or an affiliate using Foothold America direct hire service, PPS.

“Refer” means the disclosure by Foothold America 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), EOR Assigned Personnel (AP), PEO+ co-employee (CO), independent contractor, consultant, or other representative.

“Services” encompass all offerings provided by Foothold America, including but not limited to:

1. Employer of Record (EOR)

2. PEO+ and Cross-Border Support (PEO+)

3. People Partnership Service (PPS)

4. HR Support

5. Exclusive Talent Acquisition (ETA)

6. US Entity Setup

7. US Entity Management

8. Virtual Office Service

9. Bookkeeping

10. Training and Executive Coaching

“Proposal” refers to the written document outlining specific Services, fees, and terms agreed upon by both parties.

“Service Description” details the scope, deliverables, and timelines for specific Services.

2. Scope of Services

Foothold America shall provide Services as specified in each Proposal and corresponding Service Description. Any additional services requested by the Client will be documented in a written amendment to the Proposal or Service Description, signed by both parties.

3. The Client’s Obligations

a.        Compliance: Client agrees to comply with all applicable laws, regulations, and Foothold America’s policies related to the Services.

2. Payment: The Client will pay all Fees, Plan Charges, and other amounts due under this Agreement upon receipt of Foothold America’s invoice. The amount invoiced by Foothold America may fluctuate over time due to changes in Plan Charges and other factors, including any intermediary bank fees charged by your bank for which you are responsible. Foothold America will not charge you for Plan Charges 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).

Foothold America does not accept checks as payment for services of any kind. Foothold America may, if Foothold America determines in its sole discretion that Client is a credit risk, require Client to tender payment for the charges set forth in the Quotation. Client understands and agrees that any overpayment can be used by Foothold America to offset the estimated amount due on the subsequent billing period. If the Client does not make the payment upon receipt as required, Foothold America may, at its option, declare the Client to be in default and terminate this Agreement per Section 5.

3. Late Payment: For each amount that is not paid within five (5) US business days of the invoice date, Client shall pay Foothold America a late fee (the “Late Fee”) equal to the unpaid amount multiplied by the lesser of: (a) 1.5% per month; and (b) the maximum amount permitted by applicable law per month; plus, any costs of collecting the unpaid balance Foothold America incurs (including attorneys’ fees). The Late Fee shall be applied from the day after the original date due of such late amount until the late amount has been paid in full. Client shall pay all fees as specified in the applicable Proposal. Payments are due upon receipt of invoice. Late payments may incur interest at 1.5% per month or the maximum rate permitted by law, along with any collection costs, including attorneys’ fees.

If the Services or this Agreement is terminated by the Client (for any reason), Client shall immediately reimburse Foothold America 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.        Invoice Error: If an invoice error occurs, it will not be a breach of the Agreement. The Client agrees to notify Foothold America 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 America’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 America the right to immediately suspend its Services and/or terminate this Agreement.

5. Cooperation: Client shall provide timely access to necessary information, resources, and personnel to facilitate the delivery of Services.

6. Engagement: Client agrees to notify Foothold America immediately of its intention to- engage a Candidate; or otherwise engage directly or indirectly a Candidate introduced and/or supplied via Foothold America for recruitment services.

7. Additional Terms: Sections of this Agreement may apply or expand requirements based on the service provided. These service-specific terms are designated by bold, underlined, centered headers.

4. Foothold America’s Obligations

1. Service Delivery: Foothold America shall perform the Services in a professional manner, in accordance with industry standards and as specified in the applicable Proposal.

2. Compliance: Foothold America will comply with all applicable laws and regulations in the provision of Services.

3. Confidentiality: Foothold America shall maintain the confidentiality of Client’s proprietary information, as outlined in Section 6 below.

d.     Advertising. Foothold America agrees to consider Candidates solely for the Client’s role(s) when the advertising is paid for by the Client, and Foothold America agrees not to distribute Candidate information to any other clients until such time as the Candidate has been eliminated from contention for the position.

5. Term and Termination

a.        Term: This Agreement commences on the Effective Date and continues until terminated by either party as outlined herein. 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) for EOR services, 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 America employee  (who was assigned to Client) elects to continue insurance coverage under COBRA (Consolidated Omnibus Budget Reconciliation Act).

2. 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.

3. Termination for Convenience:

                           i.          Services with Specified Terms: For services such as PEO+ and Virtual Office Services, which have defined initial terms and renewal provisions, termination shall be in accordance with the specific terms outlined in the respective service descriptions.

2. Other Services: For all other services not governed by specific term provisions, either party may terminate the Agreement or any individual service with 30 days’ written notice.

3. Standard Notice Periods:

 

Service	Initial (minimum) Term	Renewal	Termination Notice	Notes
Employer of Record (EOR)	90 days	n/a	30 days
PEO+ Cross-Border Support	12 months	Auto-renewal	60 days	An early termination fee applies.
HR Support	12 months	Auto-renewal	60 days	An early termination fee applies.
People Partnership Service (PPS)	12 months	Auto-renewal	60 days	An early termination fee applies.
Exclusive Talent Acquisition	90 days	Auto-renewal	30 days	An early termination fee applies.
US Entity Setup	30 days	n/a	n/a	Refund for cancellation is not permitted.
US Entity Management	12 months	Auto-renewal	60 days	An early termination fee applies.
Virtual Office Service	12 months	Auto-renewal	60 days	An early termination fee applies.
Bookkeeping Service	12 months	Auto-renewal	60 days	An early termination fee may apply.
Training Services	One or more sessions	n/a	48 hours before the session. 60 days during a training series.	A rescheduling fee may apply.
Leadership Coaching	90 days	n/a	48 hours before the session	A rescheduling fee may apply.
Ad hoc services	Depends on service	Depends on service	Depends on service	Details provided by amendment.

 

4. Early Termination Fee Calculation: A Client wishing to terminate services before the end of the term may do so, but the Client will incur an Early Termination Fee. In addition to meeting the Standard Notice Period, an Early Termination Fee of 75% of the highest monthly invoice in the past 12-month period multiplied by the number of months remaining in the Term will be charged. Any discounts provided will be revoked, and the charges will be applied to the final invoice.

5. Termination for Cause: Either party may terminate this Agreement immediately upon written notice if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days after receipt of notice.

1. If a party is subject to a voluntary or involuntary insolvency proceeding under any applicable bankruptcy or other insolvency law;

2. is planning to (or enters into) an assignment for the benefit of all or substantially all of its creditors;

3. 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 America 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 15 (Notices) below, each a “Default Notice“).  Each Default Notice must specify, in detail, the alleged breach(es).

4. 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 America may, after delivery of the Default Notice, suspend all Services until the Client has paid all overdue amounts.

5. 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.

f.          Effects of Termination: Upon termination, Client shall pay Foothold America for all Services rendered and expenses incurred up to the termination date.

The Parties will cooperate to promptly wind down Services, Foothold America  shall:

                 i.          make an estimate of all remaining amounts owed by Client, adjust any deposits to take in account an ongoing Plan Charges, etc., and

               ii.          invoice Client for any excess amounts due (including amounts necessary to increase any underfunded deposits), or

             iii.          reimburse Client for any excess deposits after all current Fees, Plan Charges, and other amounts have been deducted. Typically, for EOR services, Foothold America retains $3,000 per Assigned Personnel from the refundable deposit 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 America 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 America is obligated to pay its employee per the approved Employment 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 America 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 America’s then current rates, unless otherwise agreed in writing by the Parties.

6. Confidentiality

Both parties agree to maintain the confidentiality of the other party’s proprietary information and not to disclose such information to any third party without prior written consent, except as required by law.

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 America and its Personnel (including Assigned Personnel) shall not be deemed to be Client’s Personnel, (b) Client acknowledges that Foothold America’s Confidential Information includes (regardless of the circumstance in which it was disclosed) this Agreement, each Foothold America Proposal (regardless of whether it was signed), the details of how Foothold America (but not its Assigned Personnel)) performs its Services and all Foothold America business plans, marketing plans, marketing materials, strategies, forecasts, analyses, financial information, client and supplier lists, employee information (including Assigned Personnel) and information regarding Foothold America’s and its vendors’ software and other information technology systems; and (c) Foothold America 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.

a.      Definitions.

“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.

“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.

 

“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 America’s Personal Data includes all such data of Foothold America’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.

 

“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.

 

“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.

 

“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 America;

 

             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 America’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 America is acting solely as a Service Provider with respect to Personal Data received from the 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.

8. Intellectual Property and Ownership of Work Product

a.      All pre-existing intellectual property of each party shall remain the sole property of that party. Any intellectual property developed during the course of the Services shall be owned as specified in the applicable Proposal.

 

b.     All deliverables, ideas, concepts, works, information, data, computer programs and other materials developed by EOR 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 America hereby assigns to Client Foothold America’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”.

 

9. Indemnification

a.      To the fullest extent permitted by law, the Client agrees to defend, indemnify, and hold Foothold America, its affiliates and each of their directors, officers, and Personnel (e.g., employees, and agents, each a “Foothold America 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 America 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 America Personnel (including EOR Assigned Personnel) against each Foothold America 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.

 

b.     If Client has any claim against Foothold America, Client shall promptly notify Foothold America in writing. Client is not obligated to indemnify or hold a Foothold America 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 America’s breach of this Agreement or (y) such Foothold America Indemnitee’s gross negligence or willful misconduct.

 

c.      Client’s obligations above to: (x) defend, and (y) indemnify and hold harmless, Foothold America Indemnitees are independent of each other and of any other obligation of the Parties in this Agreement.  Each Foothold America Indemnitee has the right to participate in its own defense.

10. Limitation of Liability. To the fullest extent permitted by law, and except for Client’s obligations under Section 9 (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 America, 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 America 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 America, its affiliates, and its 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 America employees (including such taxes owed by Foothold America for Assigned Personnel) and taxes on Foothold America’s income; Foothold America accepts no responsibility or liability for other potential taxation liabilities imposed upon the Client or Foothold America by any taxation authorities which arise in connection with the Services (collectively, the “Client Tax Obligations“).

11. Relationship Between The Parties.  This Section 11 shall control over any inconsistent language in this Agreement or in any marketing materials provided by Foothold America from time to time:

a.      Independent Contractor.  Foothold America 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 America’s employees are not employees of Client. Further, neither Foothold America nor Foothold America’s employees (including Assigned Personnel) are agents of Client, except as expressly provided for in a Service Description. Foothold America’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 America 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 America. If requested by Client, Foothold America 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 America’s Operation.  Foothold America is solely responsible for its own operation. Foothold America 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 Employment 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. above), does not affect the employment status of such Assigned Personnel, and Foothold America 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 America 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 in EOR Services.  All provisions of this Agreement that relate to payment by Client of Plan Charges related to Foothold America’s EOR Assigned Personnel’s costs (or the provision of amenities or other benefits by Foothold America 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 America 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 America is a joint employer of any Client Personnel, Client shall indemnify Foothold America for any resulting liability and shall reimburse Foothold America for all reasonable employment costs and fees incurred as a joint employer of Client’s Personnel.

 

d.     Co-Employment in PEO+ Services.  All provisions of this Agreement that relate to payment by Client of Service Charges related to Client’s personnel costs (or the provision of amenities or other benefits by Foothold America to Client’s personnel are for the convenience of the Parties and shall not create a co-employer relationship between the Client’s personnel and Foothold America. 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 America 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 America is a joint employer of any Client Personnel, Client shall indemnify Foothold America for any resulting liability and shall reimburse Foothold America for all reasonable employment costs and fees incurred as a joint employer of Client’s Personnel.

 

e.      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 America or its affiliates; provided, however, that the foregoing restrictions shall not apply to EOR Assigned Personnel who Foothold America 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 America, as liquidated damages (and not as a penalty) $50,000 for each individual Client solicits or hires violating this Section 11.d.

12. Insurance

Both parties shall maintain appropriate insurance coverage, including general liability and professional liability insurance, in amounts sufficient to cover their obligations under this Agreement.

a.      Foothold America maintains the following insurance policies which include coverage of Foothold America employees (including Assigned Personnel, but not including Client Personnel), which are available for review upon Client’s request:

                                                    i.     General liability

                                                  ii.     Unemployment (statutory); and

                                                iii.     Workers’ compensation (statutory

 

b.     Foothold America maintains an Employment Practices Liability Insurance (EPLI) policy that extends coverage to the EOR Client in the event of a suit brought about by a Foothold America employee naming Foothold America and Client; which policy is available for review upon Client’s request.

 

c.      Foothold America maintains the following additional insurance policies which are available for review upon Client’s request:

                                                    i.     Cybersecurity

                                                  ii.     Errors & Omissions; and

                                                iii.     Directors & Officers

13. Dispute Resolution and Choice of Law.

a.      The Client and Foothold America 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 disputes that shall be submitted to binding arbitration in New York, NY, in accordance with the rules of the American Arbitration Association.

 

b.     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.

 

c.      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 America shall be entitled to its attorneys’ fees, expenses and other costs of collection.

 

d.     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.

 

e.      Jurisdiction.  Subject to the foregoing Section 14 (Dispute Resolution and Choice of Law), each Party hereby submits to the exclusive personal and subject matter jurisdiction of courts in the State of New York regarding this Agreement and any Dispute.

 

f.      Any disputes arising under this Agreement shall be resolved through good-faith negotiations between the parties. If unresolved, disputes shall be submitted to binding arbitration in Boston, Massachusetts, in accordance with the rules of the American Arbitration Association.

 

14. Miscellaneous.

a.      Marketing.  Client agrees that Foothold America may use the Client’s name and logo on its website and in other marketing materials; but Foothold America will not reveal the specific details of the Services provided by the 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 15.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 America Indemnitees are the only intended third-party beneficiaries to this Agreement; there are no other third-party beneficiaries to this Agreement.

 

e.      Subcontracting.  Foothold America 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 America 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 America may change this Agreement at any time by posting a subsequent version on this webpage (or any successor webpage which Foothold America 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 America notified Client of the changes. Foothold America, as a general practice, endeavors to provide its clients with advance notice of any significant price changes or other changes to material terms of its Agreement with such client.

 

g.     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.

 

h.     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.

 

i.       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 America. For purposes of construction, both the Client and Foothold America will be deemed to have drafted the Agreement and neither the Client nor Foothold America 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 America is not qualified to provide (and Client agrees that it will not claim that Foothold America has provided) legal advice to Client; and Client acknowledges that Foothold America 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.

 

j.       Survival.  Any terms of this Agreement that would, by their nature, survive the termination of this Agreement will so survive including Section 3 (Client Responsibility); except subsection (a), Section 5 (Effects of Termination), Section 6 (Confidentiality), Section 7 (Personal Data), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11 (Relationship of the Parties), and Section 14 (Miscellaneous).

 

k.     Warranties.   Both the Client and Foothold America represent and warrant that the Client and Foothold America, 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.

 

l.       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 America may provide notice via electronic mail addressed to the individual who signed the Proposal.

Foothold America:
Foothold America, Inc.
68 Harrison Avenue
6th Floor
Boston MA
02111
USA

Client:
The address listed on the Proposal’s cover page, or if none, any other Client facility.

m.   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 America with such information, as is reasonably necessary, for Foothold America to manage its Assigned Personnel and to determine the Fees, Plan Charges and other amounts due under this Agreement.

 

n.     Fees & Currency. All Fees are charged in United Sates Dollars (“USD”) and are to be paid by Client in USD into Foothold America’s US bank account unless otherwise directed.  It is the responsibility of the Client to manage currency fluctuations, as it deems appropriate.  The Client is responsible for bank and wire fees charged by their bank or intermediary banks when paying Foothold America invoices (e.g., for currency exchange if funds originated in a currency other than USD).

 

o.     Payment. Client shall make payment upon receipt of the invoice. Foothold America does not accept checks as payment for services of any kind. Foothold America may, if Foothold America determines in its sole discretion that Client is a credit risk, require Client to tender payment for the charges set forth in the Quotation. Client understands and agrees that any overpayment can be used by Foothold America to offset the estimated amount due on the subsequent billing period. If the Client does not make the payment upon receipt as required by this paragraph, Foothold America may, at its option, declare the Client to be in default and immediately terminate this Agreement.

 

End of General Terms

 

 

Terms Specific to Exclusive Talent Acquisition Service (Recruitment)

a.      The search start date will be within ten (10) business days after Foothold America receives the initial monthly fee and the executed Agreement.

 

b.     If Foothold America 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 America shall cease invoicing monthly fees.

 

c.      If Foothold America 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.

 

d.     If Foothold America 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.

 

e.      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 America 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 allows 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 America, is accurate.

Duration of Employment	Percentage of Fee to be Rebated
Less than two (2) weeks	100%
Two (2) weeks to less than four (4) weeks	80%
Four (4) weeks to less than eight (8) weeks	50%
Eight (8) weeks to less than 12 weeks	25%
12 weeks or more	0%

 

                 i.          This guarantee is not applicable if the Service Relationship is terminated because the position is eliminated due to redundancy or corporate reorganization;

               ii.          The Candidate’s position is not terminated by reason of poor performance prior to the completion of any induction or training period;

             iii.          If the Candidate’s employment is terminated by reason of misconduct, rebate is only due if such misconduct was reasonably foreseeable by Foothold America;

             iv.          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

               v.          The Candidate did not leave employment as a result of discrimination or other acts against the Candidate.

             vi.          THIS GUARANTEE SHALL BE YOUR SOLE REMEDY.

            vii.          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 America shall be conclusive evidence of the Client’s 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.

f.      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 America 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.

 

End of Terms Specific to Recruitment Services

 

 

 

Terms Specific to Virtual Office Services

a.      It is the Client’s responsibility to notify all parties of the Client’s change of address and/or communications services. Subsequent mail sent to the Foothold America virtual office location will be returned to the sender if applicable, and all mail handling services and/or call answering services will terminate at that point. The standard fee during any extension period shall be equal to the then-current standard fee for Foothold America’s services.

 

b.     Modification to the Service. Foothold America reserves the right to modify or discontinue all or part of the Service, temporarily or permanently, with or without notice to the Client, and is not obligated to support or update the Service. The amended Terms shall be effective immediately after they are updated on this link. Client  acknowledges/agrees that Foothold America shall not be liable to Client or any third party in the event that Foothold America exercises its right to modify/discontinue all/part of the Service.

 

c.      Modification of Client Rates. Retail rates for services published on Foothold America websites may reflect promotional-only pricing limited for a certain amount of time or available only to first-time customers. Foothold America reserves the right, in its sole discretion, to change Client pricing upon forty-five (45) days’ notice. Notwithstanding the foregoing, to the extent applicable, if a User utilizes greater than the number of telephone or messaging or faxing minutes included in User’s communication services, Foothold America reserves the right to immediately charge the Client for such use at the then prevailing rates for all minutes over the plan minute threshold when calling destinations within the continental USA based on user’s communication plan type. When calling destinations outside of the continental USA, international long-distance rates may apply. Contact Foothold America client service for current international long-distance rates.

 

d.     Charges. By electing to purchase subscription-based services, Client warrants that all information Client submits is true, legally valid and accurate (including without limitation, Client’s billing address and non-US address, a contact email address) and Client agrees to pay all subscription and additional usage fees Client incurs, plus all applicable taxes.

 

e.      Setup Fees. Your setup fees (if applicable) and recurring service fees are payable in advance and are non-refundable. Regardless of the start date of the service, Foothold America bills a full month of service in parallel with the property owner’s terms. Partial or pro-rated fees do not apply to virtual office services. You agree that the Foothold America may submit charges for Client monthly service fee each month, without further authorization from Client, unless Client provides prior notice that Client has terminated this authorization. Such notice will not affect charges submitted before Foothold America reasonably could act on Client’s notice. If Client has any question regarding any charges that have been applied to Client account, Client must contact the Foothold America’s Client Service Department within thirty (30) days of the charge date. Failure to use the account will not be deemed a basis for refusing to pay any charges submitted by Foothold America in accordance with this Agreement.

 

f.      Some Service packages may include a specified number of monthly telephone minutes as part of the recurring service fee. Live and automated minute usage charges are billed in one-second increments. Foothold America reserves the right to bill subscribers for usage above and beyond the subscriber’s plan’s monthly minutes at the then prevailing rates. When calling or faxing to destinations outside of the continental USA or Canada, international rates may apply from the first minute. Faxes are charged by the page (inbound and outbound) and are typically equivalent to one automated minute per page. Usage fees will be billed in arrears and charged to your credit card(s) of record. Client agree that Foothold America may submit these charges to Client. In the event your account is terminated, Foothold America has the authority to charge the Client for any additional usage fees the Client may have accrued while still an active subscriber. Client may port its current toll-free number to Foothold America, with your current provider’s permission, but a one-time port fee may apply. Please contact Client Service if you have any questions. Foothold America’s provider owns all numbers used on the Service and toll free or local numbers may not be moved away from Foothold America unless Client ported a number to Foothold America originally, in which case a one-time port fee may apply to port Client’s number away.  

 

g.     All Service packages that include Mail Scanning Services (available at participating locations) may include a limited number of monthly envelopes and/or package address labels scan transactions as part of the recurring service fee, depending upon the plan subscribed to. To the extent applicable to Client’s monthly plan, Foothold America reserves the right to bill Clients for usage above and beyond the Client’s plan’s monthly allowances at the then prevailing rate per address label scan. Any and all additional charges pertaining to the usage and/or Client- requested actions including mail content scanning, mail forwarding and other special user requests or actions required due to lack of customer communication or notification may be billed at applicable administrative and/or specifically scheduled rates. Foothold America will only perform actions based upon Client’s initial electronic request and plan subscribed to. Any and all changes pertaining to mail forwarding and/or mail recipient instructions will need to be approved and administered by Foothold America staff and/or its affiliates in order to take effect. Automatic ongoing monthly subscription charges will be billed to Client credit card(s) if proper termination notice has not been received and acknowledged in accordance with Notice Period in Section 5.c (Standard Notice Periods) prior to expiration of service billing cycle date. The Mail Handling Services can only be used in combination with an active virtual office address product and carries the same legal and liability requirements as outlined in section h below.

 

h.     Services/Mail. The United States Postal Service (USPS) requires the following compliance from the Client under the provisions of Rule 66, Federal Register 56993, November 14, 2001, which governs Commercial Mail Receiving Agencies (CMRA). Foothold America agrees to furnish a completed CMRA Form 1583, and when appropriate, to have the Form 1583 properly notarized prior to submission. Additional fees may apply at that point.  Before mail may be received or any other location-related Services may be reserved or used, all persons for whom we handle mail, or who collects mail from the location, must provide us with a Government issued photo ID, plus one other form of acceptable identification, as specified in Form 1583. Any client that has reserved a Foothold America office location may be required to provide proper identification and completed forms, no matter the country of origin in order to begin receiving mail at their new Foothold America location. Additional forms may be required to satisfy certain local or individual location needs. Some Domestic and International virtual office locations may require additional forms or details as part of overall compliance.

 

i.       Note: Additional business entity names or “DBA’s” are required to register for a separate virtual office address and related services. Normal retail rates, initial set up fees and set up requirements apply. Foothold America or any of its partners/affiliates DO NOT offer any guarantees as to the benefits or validity of a “Virtual Office Address” related or pertaining to search engine marketing, search engine optimization, map directory listings and/or business licensing/formation or financial application purposes.

 

j.       User agrees to abide by all CMRA rules and regulations. At termination of this Agreement, Client agrees that all mail thereafter will be marked “Return to Sender,” and no further mail or deliveries will be accepted. Client may use the address of Foothold America and/or its agents as specified above in this Agreement as Client’s business address, subject to exception in certain locations, but not as Client’s registered office address unless registered agent services are explicitly included for this address. Mail will be handled according to instructions specified by the Client, and the Client will be responsible for all resulting forwarding and service charges. If Client elects to have mail or packages shipped or forwarded via Federal Express, United Parcel Service, DHL, or any other overnight/express shipping methods, Client is obligated to provide their own shipping account to Foothold America to charge said services to. Any violation of USPS regulations may result in termination of Services by Foothold America, and may subject the violator to fines or imprisonment. If Foothold America has been instructed to forward mail, neither Foothold American nor its agents shall be responsible for any delay or loss of mail during the forwarding process. Each location has its own policies, but Foothold America may not accept any items exceeding ten (10) pounds in weight, 18″ in any dimension, or 1 cubic foot in volume, or if the item contains any dangerous, live or perishable goods, and Foothold America shall be entitled in its absolute discretion to return uncollected items or refuse to accept any quantity of items it considers unreasonable or unlawful. For questions related to a specific location’s mail handling capabilities, please contact Foothold America Client Service. The Client warrants that it will not use any of the Services for any obscene, illegal, immoral, or defamatory purposes and will not in any way bring Foothold America into disrepute. The Client will not in any way use or combine the Foothold America name, in whole or in part, for the purpose of trading activities. Foothold America will not be liable for any loss sustained as a result of any mechanical breakdown, strike, delay or failure of any staff, manager or caretaker to perform their duties. This Agreement is interpreted and enforced in accordance with the laws of the State of New York, USA.

 

k.     Foothold accepts no responsibility or liability for potential taxation liabilities imposed upon the Client by any taxation authorities that arise as a result of the provision of Foothold America’s services to the Client. The Client acknowledges that Foothold America has advised it to seek its own professional or legal advice regarding this contract and whether it potentially creates a taxable presence for the Client or its Affiliates under the jurisdiction of any taxation authority.

 

 

End of Terms Specific to Virtual Office

 

 

Terms specific to PEO+ Services

Client shall perform its obligations under this Agreement in compliance with all Federal and State laws and regulations governing Professional Employer Organizations.

a.      Employee Benefits: Client will cooperate with Foothold America in all matters necessary for Foothold America to properly administer the Client Benefit Plans, including, without limitation, executing all necessary agreements or other documents. Foothold America hereby discloses to Client, and Client understands, that the broker of record for any private market Client plans, excluding any third-party PEO benefit plans, is Foothold Insurance Services, Inc (“FIS”). Client understands that it is not required to: (i) use FIS as its broker regarding any Client Benefit plans; or (ii) participate in a Client Benefit plan, or any other benefit plan as a condition of this Agreement. Client may choose its own benefit plans and/or broker. By executing this Agreement and agreeing to participate in a Client Benefit Plan, Client hereby waives any and all rights to seek relief against Foothold America and FIS, or their respective shareholders, owners, directors, officers, and employees, relating to the payment of fees by FIS to Foothold America.

 

b.     Employment Practices: To the extent requested by Client, Foothold America will provide Human Resources consulting services to designated management employees of Client, including assisting in the preparation of an Employee Handbook and other personnel policies and procedures. Client expressly understands and agrees that in providing Human Resource Consulting services, Foothold America is not providing legal advice or otherwise acting as the common-law employer of Client’s Covered Employees.

 

c.      Payroll Oversight. Foothold America will oversee payroll processing by third-party PEO in accordance with the applicable laws and regulations conditioned upon Client timely and accurately supplying all payroll data for Foothold America to perform its payroll oversight services.

 

d.     Payroll Tax Review. Foothold America will work with third-party PEO that will withhold, report and remit Federal, State, and local payroll taxes, including, without limitation, unemployment insurance contributions, for Covered Employees. Third-party PEO shall prepare and submit tax reporting forms required by law or regulation with respect to such compensation and benefits, including but not limited to Forms W-2 (Wage and Tax Statement); W-4 (Covered Employee’s Withholding Allowable Certificate) and comparable and/or counterpart forms prescribed by any state or local government and Foothold America will review periodically.

 

e.      Unemployment Compensation. Foothold America shall work with third-party PEO to administer unemployment compensation filings and claims, including opposing unemployment claims when appropriate.

 

f.      Client Responsibilities: Client shall be responsible for the following obligations:

 

                 i.          Worksite Safety. Client is the sole Employer with respect to safety-related compliance. Client retains exclusive control over the safety of the workplace(s) where Covered Employees work, and thus retains sole responsibility for compliance with applicable federal, state and local health and safety laws, regulations, ordinances, directives and rules relating to the workplace (“Workplace Safety Laws”). Client is solely responsible to identify and eliminate all known workplace threats to Covered Employees’ health or safety. Client acknowledges and agrees that Client has not retained Foothold America to manage or control Client’s business or operations, and Foothold America has no duty or authority to inspect, install, modify, repair, or maintain any equipment, tools, vehicles, or machinery that Covered Employees may use. Client will at its sole cost and expense take all necessary steps to comply with Workplace Safety Laws.

 

               ii.          Client Benefit Plans. Client will not provide employee benefits to Covered Employees or their dependents in addition to or in lieu of the benefits available under the third-party PEO Benefit Plans (“Client Plans”) without the express written notice to Foothold America. To the extent employee benefits are provided to Covered Employees or their dependents under a Client Plan and such Client Plan is not administered by third-party PEO, Client will: (i) ensure that the Client Plan is administered in compliance with applicable law and the terms and provisions of the applicable plan documents; and (ii) retain sole responsibility and liability for the Client Plan. Client understands, acknowledges and agrees that: (a) Foothold America is not a plan sponsor, plan administrator or fiduciary with respect to any Client Plan; (b) Foothold America shall have no other role, responsibility or liability with respect to any Client Plan, including, without limitation, that of a third-party administrator; and (c) to the extent that Foothold America provides any administrative or other services with respect to a Client Plan, (1) all such services are taken on behalf of Client and at Client’s specific direction, (2) Foothold America shall have no discretion with respect to such services, (3) Foothold America shall not take on any fiduciary or other obligations as a result of such services under the Employee Retirement Income Security Act of 1974, as amended (ERISA), or any other law and (4) Client shall remain solely responsible and liable for such services and any underlying Client obligations.

 

             iii.          Confidential Information. Client retains sole responsibility for the maintenance and protection of Client’s confidential information, trade secrets, and proprietary information. Except to the extent required by law and/or to perform its duties under this Agreement, Foothold America will not disclose payroll- and/or health-related data and/or other confidential information it receives from Client.

 

             iv.          Control of Client Business. Client shall have exclusive responsibility for control of Client’s Business. For purposes of this Agreement, “Client’s Business” shall mean all aspects of Client’s business other than the services provided to Covered Employees by Foothold America during the term of the Agreement. Any action taken in connection with Client’s Business shall be deemed taken by or on behalf of the Client, and not by Foothold America. Neither this Agreement, nor the fact that one or more persons authorized to act on behalf of Client may be employees of Foothold America hereunder, shall be deemed to grant to Foothold America any right or authority, or place upon Foothold America any duty or responsibility, to make any decision regarding Client’s Business.

 

               v.          Cooperation with Foothold America. Client shall respond in a timely and accurate fashion to requests from Foothold America for records and data necessary for Foothold America to perform its services. Upon receipt Client shall immediately send Foothold America copies of demands, notices, claims, summons and other legal papers related to the Covered Employees. Client shall cooperate with Foothold America in the investigation, remediation, settlement, and defense of legal claims related to the Covered Employees.

 

             vi.          Employee Supervision. Client shall be responsible for sufficiently supervising, directing, and controlling the Covered Employees in order for Client to safely and lawfully conduct its business.

 

            vii.          Downsizing Notices. Client shall provide all notices required by the Worker Adjustment and Retraining Notification Act (“WARN”), and similar state and local laws. Client will also provide Foothold America with no less than sixty-two (62) days’ notice of any layoff or plant closing that may immediately or in the future require the provision of notice under such laws.

 

          viii.          Employee Documentation and Communication. Client will comply with Foothold America’s directives regarding the requirements to onboard Covered Employees. Client shall cooperate with Foothold America to assure receipt by Foothold America of all properly completed new-hire onboarding documentation, including, but not limited to form W-4, form I-9, and such additional documentation as Foothold America may require, and Client shall not permit a newly-hired Covered Employee to commence work until Foothold America and third-party PEO have approved the new hire onboarding paperwork and accepted such worker as a Covered Employee. Once accepted as a Covered Employee, Foothold America may freely communicate with the Covered Employee through text message or other mediums of communication in an effort to provide the Covered Employees with ancillary services unless such Covered Employee chooses to opt-out of receiving the communications.

 

             ix.          Fiduciary Liability. Foothold America does not provide Client with insurance for fiduciary liability covering losses that might result from a loss of Covered Employee funds held by third-party PEO or other third-party provider in a fiduciary capacity.

 

               x.          Employment Legal Compliance. Client shall comply with Federal, State and local laws governing labor and employment, including but not limited to the Civil Rights Acts of 1866, 1964 (including Title VII), and 1991, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the Worker Adjustment and Retraining Notification Act (“WARN”), the National Labor Relations Act (“NLRA”), the Equal Pay Act (“EPA”), the Vietnam Era Veteran’s Readjustment Assistance Act (“VEVRAA”), the Fair Credit Reporting Act (“FCRA”), the Employee Polygraph Protection Act (“EPPA”), the Immigration Reform and Control Act (“IRCA”), the Older Workers Benefits Protection Act (“OWBPA”), the Occupational Health and Safety Act (“OSHA”), the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), the Genetic Information Non- Discrimination Act (“GINA”), and all other local, state (including any and all states within the United States), and federal laws governing the employment relationship, including but not limited to, such laws governing discrimination and harassment in the workplace and the regulation of wages and hours in the workplace (collectively, the “State and Federal Employment Laws”).

 

             xi.          Leave Laws Compliance. Client is solely responsible for obligations and costs associated with compliance with the federal Family and Medical Leave Act (“FMLA”) and similar state and local laws (“Leave Laws”), including but not limited to the cost of reinstating or finding replacement employment and the cost of continuing benefits during FMLA or other similar leave. Client acknowledges that Foothold America is not providing legal advice.

 

            xii.          Government Contracts. Client is solely responsible for complying with requirements pertaining to government contracts pursuant to federal, state, county or local laws, regulations, and ordinances, including but not limited to compliance with Executive Order 11246, the Walsh-Healey Public Contracts Act, the Davis-Bacon Act, and the Service Contract Act of 1965.

 

          xiii.          Employee Selection. Client shall have sole responsibility for the pre-hiring evaluation of Covered Employees. No person shall be deemed a Covered Employee until accepted by third-party PEO as a Covered Employee. Client may conduct such testing, interviews, and background investigation and other review of the suitability of any Covered Employee as it may deem appropriate, prior to employment; provided, that any such testing, interviews, and investigations shall be conducted in compliance with all applicable laws, rules, and regulations. Foothold America shall have no obligation or liability to Client with respect to the suitability of any Covered Employee for his or her job responsibilities. Client expressly understands and agrees that in providing any consulting services or assistance to Client, Foothold America is not providing legal advice.

 

          xiv.          Legal Compliance. Client shall have responsibility for complying with all laws governing the Client’s business, including but not limited to required filings, licensing, taxes, fidelity bonding, insurance, facilities/building codes and regulations, and environmental compliance. If any Covered Employee is required to be licensed, registered or certified under any federal, state, or municipal law or regulation, or to act under the supervision of such a licensed, registered or certified person or entity in performing the employee’s services, then any such person shall be deemed to be an employee of Client for such licensure purposes. Client shall be solely responsible for verifying such licensure and/or providing the required supervision.

 

            xv.          Notice of Claims. Client shall promptly advise Foothold America and third-party PEO of all Covered Employee complaints, claims, filings and requests related to the employment of Covered Employees and shall promptly provide to Foothold America and third-party PEO complete and accurate information regarding such matters. Client shall promptly advise Foothold America and third-party PEO of any claims of discrimination, sexual harassment, or other improper conduct of a Covered Employee or if a Covered Employee is alleged to be a victim of discrimination, sexual harassment, or other improper conduct no later than five (5) business days after Client learns of the claim or allegation.

 

          xvi.          Taxes and Fees. Foothold America shall have no responsibility for paying and reporting any taxes and governmental fees for Client.

 

        xvii.          Paid Requisites. Client is solely responsible for administering, funding, and accurately determining eligibility for paid perquisites, including but not limited to vacation, sick leave (including legally-mandated paid sick leave), other paid time off, profit sharing, deferred compensation, bonuses, severance payments, stock options/grants/warrants, commissions or other equity-based compensation, and other incentive compensation payments. All payments should be made through third-party PEO’s payroll in order to ensure proper reporting and remittance of taxes, Foothold America takes no responsibility for the administration or funding of said paid perquisites payments.

 

      xviii.          Payroll Data. Client will timely and accurately provide all data necessary for Foothold America to provide third-party PEO on behalf of Client to process payroll for the Covered Employees, including but not limited to hours worked, rates of pay, payments owed, and exempt/non-exempt status for every payroll period in accordance with the requirements of the Fair Labor Standards Act (“FLSA”), any applicable state or local law and any agreement between Client and the Covered Employee. Client assumes full responsibility for the accuracy of such reports and the amount of remuneration due to each employee. Although upon Client’s request Foothold America may provide Client with information regarding the principles concerning exempt and non– exempt status classifications, Client acknowledges Foothold America is not providing legal advice. Client shall maintain accurate records of hours worked to the extent required by law and will make such records available to Foothold America upon request. Client is solely responsible for creating and maintaining records of hours worked and attendance and will not violate any applicable law pertaining to the payment of wages. Client will not violate any applicable law pertaining to deductions from wages when instructing Foothold America to input or third-party PEO to make deductions. Client shall not make any taxable payment of any kind, except profit sharing or pension plan distributions pursuant to the terms of a qualified plan, directly to any Covered Employee. Client agrees to immediately forward to Foothold America and third-party PEO any order or notice of garnishment, involuntary deduction, IRS lien or other legal process received by Client affecting wages paid to Covered Employees and, if requested by Foothold America or third-party PEO, to sign such documents as are necessary to authorize Foothold America or third-party PEO to act on Client’s behalf in responding to such legal process. Client shall be solely responsible for all non-compliance penalties and liabilities resulting from Client’s failure to timely forward such legal process to Foothold America and third-party PEO or to sign required authorization documents.

 

          xix.          Protection of Covered Employee Rights. Client shall notify Foothold America and third-party PEO immediately of any action, event or circumstance which has resulted in or may result in a claim of employment discrimination or sexual harassment, improper denial of workers’ compensation or employee benefits, or other alleged violation of the rights of any Covered Employee under any law or regulation governing the relationship of employers and employees.

 

            xx.          Reasonable Accommodations. To the extent applicable to Client and to the extent required by applicable law, Client shall at its sole expense accept obligations and costs associated with compliance with the ADA and similar state and local laws including but not limited to the cost of providing reasonable accommodation of disabilities and religious practices, reinstating employees returning from leave or finding replacement employment for them if required by law, and the cost of continuing benefits during leave if required by law.

 

          xxi.          ACA Compliance. Client understands, acknowledges and agrees that Client is solely responsible and liable for all obligations with respect to Healthcare Reform’s Employer “Play or Pay” Mandate under Section 4980H of the Internal Revenue Code of 1986, as amended (IRC), and other applicable laws, including, without limitation, any tax reporting obligations under IRC Sections 6055 and 6056. To the extent that Foothold America agrees to assist Client with satisfying these obligations, Client understands, acknowledges and agrees that: (i) Foothold America is not providing legal or tax advice to Client and Client will seek appropriate legal and tax advice from its own legal and tax advisors; (ii) Foothold America will rely on the accuracy of all information and documents provided by Client with respect to such assistance; and (iii) Client will remain solely responsible and liable for such obligations. In the event Client elects to participate in any group benefit plan offered by the third-party PEO, it represents that its Benefit Plan that is a health plan provides “minimum essential coverage” within the meaning of the Patient Protection and Affordable Care Act (ACA), and (ii) of “minimum value” within the meaning of Code Section 36B(c)(2)(C)(ii), Proposed Treasury Regulation Section 1.36B-6, and other applicable guidance, and that, commencing as of the Effective Date of the CSA, all Covered Employees who are eligible for such health plan will be made an “offer of coverage” which satisfies both Treasury Regulation Section 54.4890-4(b)(1) and (2), so long as the client has provided the Foothold America with accurate and complete information necessary to make an “offer of coverage” on a timely basis. Based on these representations, Client understands, acknowledges and agrees that Client is solely responsible and liable for all obligations with respect to Healthcare Reform’s Employer “Play or Pay” Mandate under Section 4980H of the Internal Revenue Code of 1986, as amended (IRC). Foothold America will not be responsible for Client’s ACA compliance.

 

        xxii.          Immigration. Client is solely responsible for all I-9 processes and procedures. Client will ensure that the I-9 is timely and properly completed for all newly hired Covered Employees; retain I-9 documents for the period required by law; and update I-9’s when required by law. To the extent requested by Client, Foothold America may provide information or assistance to Client regarding the proper procedures for completion of the I-9; however, Client retains sole responsibility for complying with all Form I-9 legal requirements. Any fines or other penalties resulting from Client failing to follow proper I-9 procedures and processes will be solely Client’s responsibility. Client shall not engage in any discriminatory or other unlawful acts with respect to the I-9 process

 

      xxiii.          Rates. Client shall pay Foothold America fees according to the rates set forth in the Fee Schedule and such fees and other amounts accruing and due from Client to Foothold America. Should Client require additional services not included in this Agreement, the fee for any such additional services shall be negotiated and paid separately.

 

       xxiv.          Fee Adjustment. The administrative fee reflected in the Quotation is based on conditions as of the Effective Date. The necessity of a revised administrative fee shall be determined from time to time as necessary. In the event of a change in Client’s business, or in current taxes, laws or relationships related to the employer/Covered Employee relationship that affect Foothold America’s costs, the administrative fee shall be adjusted for any increase in such costs. Annually on the Agreement Effective Date, Foothold America’s administrative fee is subject to an automatic minimum adjustment as necessary to accommodate changes in the market.

 

         xxv.          Retroactive Fees or Charges. To the extent that any tax, premium or other cost of Foothold America is unilaterally increased by a governmental body or other third party beyond the control of Foothold America, whether prospectively or retroactively, Client understands, acknowledges and agrees that Foothold America will invoice Client for such increases and that any fees or charges associated with such increases will be due and payable in the same manner as any other fees or charges invoiced pursuant to this Agreement, even if such fees or charges are invoiced after the termination of this Agreement.

 

       xxvi.          BANKRUPTCY. Client will immediately notify Foothold America of the initiation of any bankruptcy or receivership or insolvency proceedings of whatever form (whether voluntary or involuntary). Client agrees that any wages or taxes or contributions paid or advanced by Foothold America prior to such bankruptcy that remain unpaid by Client shall be treated as services fees for the purposes of determining priority in the associated legal proceedings.

 

     xxvii.          Ancillary Fees. Client agrees that the fees outlined in the Quotation are not inclusive of other fees that may be assessed by Foothold America for failure to comply with the terms of this Agreement.

 

g.     Information. As of the Effective Date, and throughout the term of this Agreement, all information provided by the Client in contemplation of this Agreement or pursuant hereto, including but not limited to financial statements, employee lists, job descriptions and classifications, compensation, benefits, historical and pending legal claims, and time reports is and shall be true and correct. No material adverse change has occurred in the financial condition of the Client or any guarantor of Client’s obligations under this Agreement since the date upon which any financial statements of Client or such guarantor were provided to Foothold America.

 

h.     Worksite Safety. Client is in compliance with all applicable Workplace Safety Laws, and Client has maintained, and will continue to maintain throughout the term of this Agreement, Client’s workplace(s), machinery, equipment, and environmental factors in compliance with applicable Workplace Safety Laws.

 

i.       No Litigation. Except as previously disclosed to Foothold America in writing, there is no action, suit, proceeding or investigation pending, or, to the knowledge of Client, threatened against Client, related to the Covered Employees or the Client’s employer/employee relationship with the Covered Employees or which may result in a material adverse change in the financial condition of Client or of any guarantor of Client’s obligations under this Agreement. Client will advise Foothold America promptly upon the inception of any such action, suit, proceeding, investigation or threat thereof.

 

j.       Compliance with Applicable Law. Compliance with Applicable Law. Client has not violated any applicable statute or regulation in any respect, which would adversely affect the Covered Employees or Client’s employment relationship with the Covered Employees. Client is and shall remain in compliance with all statutes, regulations, and executive orders with respect to Covered Employees and employment practices. Client acknowledges that certain requirements applicable to employers under various federal and state statutes, rules, and regulations, including but not limited to the Family Medical Leave Act, Americans with Disabilities Act, Worker Adjustment and Retraining Notification Act, Title VII of the Civil Rights Act of 1964, and Age Discrimination Employment Act, are based on the size and identity of the employer, and that Client’s status under one or more of such statutes, rules, and regulations may change as a result of entering into this Agreement.

 

k.     Access to Workplace Records. Foothold America shall be entitled to review all Covered Employee records of Client to the extent necessary to assure compliance by Client with its obligations under this Agreement. Client shall provide Foothold America or its designees access at any reasonable time during customary business hours, to the business premises, books, and records of Client to the extent necessary to assure such compliance.

 

End of Terms Specific to PEO+ Service

 

 

 

Terms Specific to US Entity Setup & Management Services

a.      To the extent provided by law, Foothold America and each of its suppliers, subcontractors, partners and associates and employees shall have no liability to the client or any other party for any loss or damage (whether direct, indirect, or consequential). In the event that an action or claim is made or brought against Foothold America then the total amount recoverable from Foothold America shall be limited to the lesser of the total amount of invoiced and paid fees under the agreement or $2,000.

 

b.     Foothold accepts no responsibility or liability for potential taxation liabilities imposed upon the Client by any taxation authorities that arise as a result of the provision of Foothold America’s services to the Client. The Client acknowledges that Foothold America has advised it to seek its own professional or legal advice regarding this contract and whether it potentially creates a taxable presence for the Client or its Affiliates under the jurisdiction of any taxation authority.

 

End of Terms Specific to Entity Setup & Management Services

 

End of Terms of Master Service Agreement