RECRUIT SERVICES AGREEMENT
THIS RECRUIT SERVICES AGREEMENT GOVERNS CLIENT’S USE OF MAGICPACE’S RECRUIT SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (EACH AN “RECRUIT ORDER”), CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
AGREEMENT.
Services:
Scope of Services. Subject to the terms of this Agreement and in consideration of Client’s agreement to pay the fees set out in this Agreement, MagicPace agrees to provide Client with services related to sourcing, recruiting, reviewing and presenting individuals for potential employment and/or contracting with Client (“Services”) for the role(s) set out in the Recruit Order(s) (“Roles”), or as otherwise agreed to in writing between the parties.
Client Representation and Warranty. Client represents, warrants, and covenants to MagicPace that the role(s) requested by Client to be fulfilled by Candidate are lawful in the jurisdiction(s) of Client’s operations and/or are not intended to and will not interfere with the privacy, contractual, or constitutional rights of third parties.
MagicPace Representation and Warranty. MagicPace represents and warrants that it will perform the services in a professional and workmanlike manner in accordance with industry standards, and that it will comply with all applicable laws in providing the Services.
Timing. The initial search and identification of prospective candidates is usually completed within 2-4 weeks of the Effective Date. The screening/interview process, leading to the presentation of a candidate short list, is also usually completed within that time period. As such, most searches are completed within 2-4 weeks. Final selection however, is dependent on both the Client’s and the candidate’s availability for interview and the Client’s internal decision-making process.
Introduced Party. An “Introduced Party” means any individual presented to Client by MagicPace during the term of this Agreement, whether verbally or in writing. Such individual will remain classed as an Introduced Party for twelve (12) months from the date of introduction. If any Introduced Party is hired or otherwise engaged by Client or an affiliate of Client within this time-frame, Client shall immediately pay MagicPace all fees due under this Agreement. Client agrees to immediately notify MagicPace if Client accepts an Introduced Party for employment or other engagement.
Responsibility. Though MagicPace conducts thorough background checks, it is Client’s ultimate responsibility to verify each Introduced Party’s suitability for a position and for ultimately deciding whether or not to hire an Introduced Party. Introduced Party are not employees, partners, representatives, agents, joint venturers, or independent contractors of MagicPace. MagicPace will not supervise, scope, direct, control, or monitor the work performed by an Introduced Party and cannot and shall not accept any responsibility and/or liability of any kind for such work or the quality or absence thereof. Likewise, MagicPace shall not be responsible for any action or inaction on the part of an Introduced Party, whether in the interview stage or after successful hiring. To the extent permitted by law, Client hereby releases and holds harmless MagicPace for and from any and all liability, claims, demands, and/or damages of any and every kind and/or nature, known or unknown, suspected or unsuspected arising out of the action and/or inaction of any and all Introduced Party(s).
Indemnity. Client agrees to defend, indemnify, and hold harmless MagicPace and its affiliates and their officers, directors, employees, agents, successors and assigns from and against all losses, damages, liabilities, deficiencies, actions judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out, resulting from or in connection with Client’s conduct relative to a Candidate, the performance of the Candidate, and/or from any liability arising from any questions and/or complaints relative to the Client’s conduct relative to a Candidate and/or the Candidate’s performance.
CONFIDENTIALITY
“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential;
Confidentiality. Each party shall maintain in confidence all Confidential Information of the other party, shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under this Agreement, and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted hereunder or make any unauthorized use thereof. Each party shall treat the Confidential Information of the other party with the same degree of care against disclosure and/or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Supplier shall be entitled to provide Confidential Information of Customer to Subcontractors that have agreed in writing to confidentiality obligations at least as protective as those contained in this Agreement. The obligations of confidence set forth in this Agreement shall extend to any Affiliates of the parties that have received Confidential Information of the other party and shall also cover Confidential Information disclosed by any Affiliate of a party.
Exemptions. No party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information of the other party, or any part thereof, which: (i) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (ii) was generally publicly available prior to its disclosure, or becomes generally publicly available other than through a breach of this Agreement by the receiving party; (iii) was disclosed to the receiving party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently designed and developed by the receiving party without the use of any Confidential Information of the other party or any infringement or misappropriation of any Intellectual Property or other rights of the other party.
TERM
Term. This Agreement shall be deemed to be effective upon execution by both parties and shall be valid until terminated pursuant to the provisions hereof.
Termination. Either party may at its sole discretion without assigning any reason or without incurring any liability whatsoever to the other party, terminate this Agreement after giving one (1) month’s written notice to the other party; provided, however, that Client’s obligations to (i) pay MagicPace in full for its Services if Client hires an Introduced Party within twelve (12) months from the date of introduction, and (ii) to indemnify MagicPace, in each case as set forth in this Agreement, shall survive any termination of this Agreement.
MISCELLANEOUS
Limitation of liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MAGICPACE (INCLUDING ITS AGENTS, CONSULTANTS, DIRECTORS AND/OR EMPLOYEES) MAKES NO REPRESENTATIONS AND GIVES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, CUSTOM OF DEALING, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH PARTY'S (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS AND/OR EMPLOYEES) MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY OR IN TORT, INCLUDING NEGLIGENCE, WILL BE LIMITED TO THE AMOUNT PAYABLE OR RECEIVED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE APPLICABLE LIABILITY FOR THE DELIVERABLE OR SERVICE THAT IS THE SUBJECT MATTER OF THE CLAIM UP TO A MAXIMUM OF FIVE HUNDRED DOLLARS ($500). LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ANY PARTY (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS AND/OR EMPLOYEES) HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
Entire Agreement. This Agreement, including all Recruit Orders, contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to such terms, provisions or conditions. This Agreement may not be amended, except by a writing signed by both parties.
Headings; Interpretations. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.This Agreement shall be construed fairly according to its terms, without regard to the drafter of any provision hereof.
Independent Contractors. The parties to this Agreement are independent contractors. No relationship of principal to agent, master to servant, employer to employee or franchisor to franchisee is established between the parties.
Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the Province of British Columbia and the Federal Laws of Canada without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the provincial and federal courts located in Vancouver, British Columbia, Canada, and each party hereby consents to the personal jurisdiction thereof.