Terms & Conditions relating to the Introduction of Temporary Workers
Pursuant to these Terms and Conditions (this “Agreement”), Creative People US Inc., a Delaware corporation having an address at 134 N. 4th Street, Brooklyn, NY 11249 (the “Staffing Agency”), shall act as a staffing agency in relation to the Introduction and supply of Temporary Workers (as those terms are defined below) and has agreed to make those services available to the undersigned Client on the terms and conditions set out in this Agreement.
1.1. The definitions and rules of interpretation in this clause apply to this Agreement:
‘Assignment’ means the Services to be performed by the Temporary Worker for the Client for a period of time;
‘Assignment Details Form’ means the form in which the Client provides written confirmation of the Assignment details as agreed with the Staffing Agency prior to commencement of the Assignment;
‘Business Day’ a day other than a Saturday, Sunday or public holiday when banks are open for business;
’Calendar Week’ means any period of seven days starting with the same day as the first day of the first Assignment;
‘Client’ means the person, firm, partnership, statutory or corporate body together with any subsidiary or associated company to whom the Temporary Worker is Introduced by the Staffing Agency;
‘Compensation’ means annual base salary plus bonus and commission earnings, allowances, inducement payments and all other payments and taxable (and, where applicable, non-taxable) fees payable to or receivable by the Temporary Worker for services rendered to or on behalf of the Client;
‘Engagement’ means any employment, engagement or use of the Temporary Worker’s services directly or indirectly by the Client (whether for a definite or indefinite period) through any staffing agency other than through the Staffing Agency as a direct result of any Introduction or Assignment to the Client and “Engaged” and “Engages” shall be interpreted accordingly;
‘Extended Assignment’ shall have the meaning set out in Clause 5.1.2
‘Fees’ means total amount of the Temporary Worker’s Compensation as well as the Staffing Agency’s commission, employer’s insurance contributions, and any travel, hotel or other expenses as may have been agreed with the Client or, if there is no such agreement, such expenses of the Temporary Worker as are reasonable;
(a) the Client’s interview of the Temporary Worker in person or by telephone;
(b) following the Client’s instruction to the Staffing Agency to search for a Temporary Worker, the passing by the Staffing Agency to the Client of a resume, curriculum vitae or any other information which identifies the Temporary Worker, even if no Engagement takes place, and “Introduce” and “Introduced” shall be interpreted accordingly;
‘Introductory Fee’ means the fee payable in the circumstances referred to in Clauses 5.1, 5.2 and/or 5.3 and calculated in accordance with Clauses 5.5 or 5.6 depending on the nature of the Engagement;
‘Services’ means the services that the Client has instructed the Staffing Agency to supply through the Temporary Worker as specified in the relevant Assignment Details Form;
‘Staffing Agency’ has the meaning set out in the Recital.
‘Temporary Worker’ means an individual worker, who is Introduced and supplied by the Staffing Agency to the Client to provide services to the Client indirectly through an umbrella company acting as a consultancy rather than as a direct employee of the Client;
‘Terms’ means these terms of business (including the attached schedules).
1.2. The headings contained in these Terms are for convenience only and do not affect their interpretation.
1.3. References in this Agreement to statutory provisions or the provisions of other legislation, if any, shall be construed as references to those provisions as respectively replaced or amended or re-enacted from time to time.
1.4. These Terms are deemed to be accepted by the Client and will come into force by virtue of the Client’s oral or written request for, interview with or Introduction to a Temporary Worker and shall continue until terminated in accordance with Clause 6.
2. Staffing Agency’s Obligations
2.1. The Staffing Agency agrees to search for Temporary Workers for the Client who meet the Client’s minimum qualifications in accordance with these Terms.
2.2. The Staffing Agency agrees to recruit, screen, interview, Introduce and assign Temporary Workers to perform the work described in Clause 3.1 at the location specified by the Client.
2.3. The Staffing Agency will only Introduce Temporary Workers who are legally authorized to work in the United States and will obtain a completed I-9 form and all supporting identity documentation from each Temporary Worker as required by law.
2.4. The Staffing Agency agrees that it will pay, withhold and transmit payroll taxes, provide unemployment insurance and workers’ compensation in an amount not less than required by law, and handle workers’ compensation and unemployment claims involving Temporary Workers.
2.5. The Staffing Agency agrees that it will require Temporary Workers to sign an agreement acknowledging that they are not entitled to holidays, vacations, disability, insurance, pensions or retirement plans, or any other benefits offered or provided by the Client to its employees.
2.6.The Staffing Agency agrees that it will require Temporary Workers to sign a confidentiality agreement (as per the Client’s request) before they begin their assignments to the Client.
2.7. The Staffing Agency agrees that it will require Temporary Workers to sign an assignment of intellectual property rights agreement (as per the Client’s request) before they begin any Assignment.
3. Client’s Obligations
3.1. When making a request for the provision of a Temporary Worker to perform the Assignment, the Client will give the Staffing Agency details of:
3.1.1. the date on which the Client requires the Temporary Worker to commence work and the duration, or likely duration, of the work;
3.1.2. the position which the Client seeks to fill, including the type of work the Temporary Worker in that position would be required to do, the location at which, and the hours during which, the Temporary Worker would be required to work;
3.1.3. the experience, training, qualifications and any authorization which the Client considers are necessary, or which are required by law, or by any professional body, for the Temporary Worker to possess in order to work in the position; and
3.1.4. any expenses payable by or to the Temporary Worker.
3.2. The Temporary Worker shall be deemed to be under the supervision, direction and control of the Client from the start of, and throughout the duration of, the Assignment, and therefore, Client agrees to be responsible for all acts, errors or omissions of the Temporary Worker, whether willful, negligent or otherwise, and shall, therefore, not seek indemnification for any damage caused by the Temporary Worker to either the Client or a third party.
3.3. The Client undertakes that it will:
3.3.1. comply in all respects with all federal, state and local laws;
3.3.2. provide the Temporary Worker with a suitable, safe and harassment-free environment within which to work;
3.3.3. provide the Temporary Worker with all necessary information, training and safety equipment where appropriate, in order to comply with its health and safety obligations to the Temporary Worker;
3.3.4. not discriminate against the Temporary Worker on the grounds of sex, race, disability, sexual orientation, religion or belief or age, or any other category protected by law; and
3.3.5. inform the Staffing Agency immediately if the Temporary Worker proves to be unsatisfactory for the purpose of the provision of the services, and agree on an appropriate course of action with the Staffing Agency.
3.4. If the Client decides that a Temporary Worker is unsuitable to perform the Assignment, then the Client shall notify the Staffing Agency in writing or via email of that fact giving the grounds for its dissatisfaction with such a Temporary Worker.
3.5. The Client reserves the right to change its requirements at any time before the commencement of the Assignment without any liability of the Client to the Staffing Agency whatsoever, save for the payment of Temporary Worker Fees due and payable for services already performed.
3.6. The Staffing Agency shall remit payment to any non-exempt Temporary Worker who earns overtime compensation, pursuant to applicable law. Such overtime compensation shall be reflected in the fees charged to the Client.
4.1. The Client agrees to pay the Fees of the Staffing Agency as notified to the Client at the commencement of the Assignment and as may be varied by the Staffing Agency from time to time during the Assignment. The Fees are calculated according to the period of time worked by the Temporary Worker.
4.2. At the end of each Calendar Week of the Assignment the Client shall verify the execution of the hours or days worked by the Temporary Worker by signature or other agreed method of approval of a timesheet or other form provided to the Client for this purpose. Such approval may be made electronically in a form agreed between the Parties. Failure to sign the timesheet does not absolve the Client of its obligation to pay the Fees to the Staffing Agency for the Services provided by the Temporary Worker.
4.3. If the Client is unable to sign a timesheet (or other agreed method of verification of hours/days) produced for authentication by the Temporary Worker because the Client disputes the amount of time claimed or if the Client is unable to produce the Temporary Worker’s timesheet to the Staffing Agency, then the Client shall notify the Staffing Agency within two working days from presentation to the Client of the claimed hours/days for verification and shall cooperate fully and in a timely fashion with the Staffing Agency to enable the Staffing Agency to establish what periods of time, if any, the Temporary Worker has worked. In no event shall the Client’s failure to produce a timesheet (signed or unsigned) to the Staffing Agency impact the Staffing Agency’s ability to invoice the Client for Fees owed.
4.4. The Fees are invoiced to the Client on a bi-montly basis and are payable within 30 days in full without deduction or set-off. Without prejudice to its other rights and remedies, the Staffing Agency reserves the right to charge such costs and interest on Fees (or any part thereof) that are unpaid for more than 30 days.
4.5. All Fees shall be invoiced and payable in U.S. Dollars. There are no refunds or rebates payable to the Client in respect of the Fees or the Introductory Fees.
4.6. The Staffing Agency assumes responsibility for payment to the Temporary Worker, which shall not, for the avoidance of doubt, be conditional on receiving a signed timesheet (or other agreed method of verification of hours/days) from the Client for that Temporary Worker.
5. Introduction Fees
5.1. Irrespective of the planned duration of the Engagement, the Client shall be liable to pay the Staffing Agency an Introduction Fee where the Employment Business Introduces the Temporary Worker to the Client and:
5.1.1. the Client Engages the Temporary Worker other than through the Staffing Agency within a period of six months from the termination of the Assignment in respect of which the Temporary Worker was supplied, or if there was no supply, within six months of the Introduction of the Temporary Worker by the Staffing Agency to the Client; or
5.1.2. where the Client introduces the Temporary Worker to a third party and such introduction results in an Engagement of the Temporary Worker by the third party other than through the Staffing Agency within six months from the date of the introduction by the Client to the third party.
5.2. All Introductions are confidential. If during the Assignment or within six months of the Assignment the Client passes details of a Temporary Worker to any third party, including any successor, subsidiary, associate company, parent company, partnership or individual connected either directly or indirectly with the Client, resulting in the Engagement of that Temporary Worker, then the Client shall be liable to pay the Introduction Fee in accordance with clause 5.1 above.
5.3. The Client acknowledges and agrees that where it fails to notify the Staffing Agency of the actual Remuneration/fees it intends to pay the Temporary Worker, the Staffing Agency shall be entitled to base the calculation of the Introduction Fee on comparable market rates for similar roles.
5.4. The Introduction Fee will be calculated as follows:
5.4.1. Where the Temporary Worker is engaged on an indefinite basis, the Introductory Fee shall be a sum equal to a percentage of the annual Remuneration paid to the Temporary Worker on a sliding scale as follows:
Remuneration up to $29,999 – 20%
Remuneration $30,000 to £49,999 – 22.5%
Remuneration $50,000 to £100,000 – 25%
Remuneration over $100,000 – 30%
5.4.2. Where the Temporary Worker is engaged on a fixed term basis, the Annual Equivalent Introductory Fee shall be calculated as a sum equal to a percentage of the annualised Remuneration paid to the Temporary Worker on a sliding scale as follows:
Annualised Remuneration up to $29,999 – 25%
Annualised Remuneration $30,000 to £50,000 – 27.5%
Annualised Remuneration over $50,000 – 30%
5.4.3. The Introductory Fee payable shall be a sum equal to the Annual Equivalent Introductory Fee pro rated to the length of the fixed term contract. Further Introductory Fee(s) shall be payable for any extension(s) to the fixed term contract or any new fixed term contract(s) agreed between the Client and the Temporary Worker within 12 months of the initial fixed term contract, save that the total Introduction Fees payable by the Client shall not exceed the Annual Equivalent Introductory Fee.
5.5. No refund of the Introduction Fee will be paid in the event that the Engagement subsequently terminates.
5.6. If the Client wishes to engage the Temporary Worker other than via the Staffing Agency, without liability to pay an Introduction Fee the Client may, on giving one week’s written notice to the Staffing Agency, engage the Temporary Worker for a six month period of extended hire. During such Period of extended hire the Staffing Agency shall supply the Temporary Worker on the same terms on which it has or would have been supplied during the Assignment and in any case on terms no less favorable than those terms which applied immediately before the Staffing Agency received the notice and the Client shall continue to pay the Charges. If the Staffing Agency is unable to supply the Temporary Worker for any reason outside its control for the whole or any part of the period of extended hire, or the Client does not wish to hire the Temporary Worker on the same terms as the Assignment, but the Temporary Worker is Engaged by the Client, the Client shall pay the Introduction Fee. If the Client fails to give notice of its intention to Engage the Temporary Worker other than via the Staffing Agency before the Engagement takes place, the parties agree that the Introduction Fee shall be due in full.
6.1. This Agreement may be terminated at will by either party upon 2 days’ written notice to the other party.
6.2. Notwithstanding Section 6.1, the Staffing Agency will be entitled to terminate the Assignment at any time by notice with immediate effect if:
6.2.1. the Temporary Worker ceases to be authorized to work in the U.S.
6.2.2. the Client wishes to employ the Temporary Worker directly as an employee, worker or consultant of the Client and the Temporary Worker enters into a contract of employment or engagement (whether verbal or written) with the Client;
6.2.3. the Staffing Agency receives notice of termination of the Temporary Worker’s employment or engagement with the Staffing Agency. In the event that the Staffing Agency does receive notice of termination from the Temporary Worker, the Staffing Agency will inform the Client immediately;
6.2.4. the Client is in material breach of the Agreement and (if such breach is remediable) fails to remedy that breach within 10 Business Days of receipt of notice in writing to do so;
6.2.5. the Client has failed to pay an invoice within 30 days of receipt;
6.2.6. the Client suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; and/or
6.2.7. the Client becomes or is declared insolvent or bankrupt or convenes a meeting of or proposes to make any arrangement or composition with creditors or ceases or threatens to cease to carry on business.
6.3. Notwithstanding Section 6.1, the Client will be entitled to terminate the Agreement immediately if the Staffing Agency is in material breach of the Agreement.
6.4. This Agreement will automatically terminate on the termination of the Assignment.
6.5. If the Agreement is terminated pursuant to Clauses 6.1 or 6.3, the Staffing Agency shall be entitled to be paid such part of the Fees in respect of the services rendered up to the date of such termination.
6.6. While every effort is made by the Staffing Agency to give satisfaction to the Client by ensuring reasonable standards of skills, integrity and reliability from Temporary Workers and further to provide them in accordance with the Client’s booking details, the Staffing Agency is not liable for any loss, expense, damage or delay arising from any failure to provide any Temporary Worker for all or part of the Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Temporary Worker. For the avoidance of doubt, the Staffing Agency does not exclude liability for death or personal injury arising from its own negligence.
6.7. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
7.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party.
7.2. Each party may disclose the other party’s confidential information:
7.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 7; and
7.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
8.1. The Client will fully indemnify the Staffing Agency against any liability including any award, loss, fine, compensation, damages, order, settlement pay, costs (including legal fees) and or expenses incurred by the Staffing Agency in connection with any claim (whether contractual, statutory or otherwise and including, but not limited, to personal injury and damage to property)
8.1.1. by the Temporary Worker;
8.1.2. by any third party;
8.1.3. arising out of the provision of the Services to the Client;
8.1.4. as a result of a material breach by the Client of this Agreement; and/or
9. Remedies and Waivers
9.1. A failure to exercise or delay in exercising any right, remedy or power provided under this Agreement or by law does not constitute a waiver of the right, remedy or power or a waiver of any other right, remedy or power. No single or partial exercise of any right, remedy or power prevents any further exercise of it or the exercise of any other right, remedy or power.
9.2. The rights, remedies and powers provided by this Agreement are cumulative and not exclusive of any rights, remedies or powers provided by law.
9.3. Any waiver of a breach of any of the terms of this Agreement or of any default under this Agreement shall not be deemed a waiver of any other breach or default and shall not affect the other terms of this Agreement.
10.1. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction:
10.1.1. the legality, validity and enforceability in that jurisdiction of the remaining provisions shall be unaffected; and
10.1.2. the legality, validity and enforceability in any other jurisdiction of that or any other provision shall be unaffected.
10.2. If any provision is found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
11. No Partnership or Agency
11.1. Nothing in this Agreement, and no action taken by the parties pursuant to this Agreement, is intended or shall constitute, or be deemed to constitute, a partnership or joint venture of any kind between the parties or make any party the agent of the other party for any purpose. No party has any authority or power to bind, contract in the name of, or to create a liability against, any other party in any way or for any purpose (including but not limited to the making of any representation or warranty), except as may be expressly authorized in writing by such other party from time to time.
12. Force Majeure
12.1. The Staffing Agency shall not be liable for any failure to perform or any delay in performing (or for the consequences of any such failure or delay) any of its obligations under this Agreement if such failure or delay is due to any cause whatsoever beyond its reasonable control, and the Staffing Agency shall be entitled to a reasonable extension of the time for performing such obligations.
13.1. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein is intended to or shall confer on any other person any legal or equitable right, benefit or remedy unless expressly stated herein.
13.2. Neither party shall assign, or purport to assign, all or any part of the benefit of, or all or any of its rights under, this Agreement, nor sub-contract the performance of any or all of its obligations under this Agreement, in each case without the prior written consent of the other party.
13.3. The Staffing Agency and the Client acknowledge and agree that:
13.3.1. in entering into this Agreement, they do not rely on, have not relied on, and shall have no remedy in respect of, any statement, representation, warranty or other provision (in any case whether oral or written, express or implied and whether negligently or innocently made) of any person (whether a party to this Agreement or not) which is not expressly set out in this Agreement; and
13.3.2. nothing in this clause shall operate to limit or exclude any liability arising from any fraudulent or dishonest statement, act or omission.
14.1. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
15. Entire Agreement
15.1. Unless otherwise agreed in writing by a director of the Staffing Agency these Terms shall prevail over any other terms of business or purchase conditions put forward by the Client and constitute the entire agreement between the parties relating to their subject matter, and no variation or alteration of these Terms shall be valid unless approved in writing by a director of the Staffing Agency.
16. Further Assurances
16.1. Each party hereto shall promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this agreement.
17.1. The Client and the Staffing Agency agree to cooperate fully and to provide assistance to one another in the investigation and resolution of any complaints, claims, actions or proceedings that may be brought by or involve any of the Temporary Workers.
18. Governing Law
18.1. These Terms govern the supply of the Temporary Worker’s services by the Staffing Agency to the Client. This Agreement shall be construed in accordance with the laws of the State of New York without regard to conflicts-of-law principles.
19.1. Any dispute, controversy or claim arising out of or relating to this Agreement or any breach of this Agreement shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by the American Arbitration Association – Commercial Division and shall be conducted consistent with the rules, regulations and requirements thereof. Any arbitral award determination shall be final and binding upon both parties and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The place of arbitration shall be New York, New York.
20.1. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.