The following terms and conditions set forth herein (the “Terms”) are part of Contractor’s willingness to supply Client (also referred to herein as “you” or “your”) with Services which may include access to Contractor’s web-based software application (the “Platform”) for Client’s potential use in recruiting, scheduling, interviewing, and paying prospective and active employees pursuant to a Staffing Agreement between Client and Contractor (the “Agreement”).  To the extent the Terms conflict with the Agreement or any other signed written agreement between the Contractor and the Client, the Terms shall control.  Any capitalized terms not defined herein shall have the meaning ascribed to them in the Agreement.

 

1. In General; Accessing Platform.  By accessing the Platform, and as a condition of any Agreement with Contractor, you acknowledge that you have read, understood, and agree to be bound by these Terms.  If you do not agree with any of these terms, you are prohibited from using or accessing the Platform.

2. Scheduling and Employment of PECs Through the Platform.

   1. Supervision and Prohibited Duties.  All Potential Employee Candidates (“PECs”) who provide work to you or on your behalf (each, a “Placed Employee”) through the Contractor’s “Platform Access and Placement Services” shall be the employees of you, the Client.  All PECs and Placed Employees who provide Services to you through the Contractor’s “Temp-to-Hire Services” shall be the employees of Contractor.  Notwithstanding anything to the contrary contained herein, whenever a PEC or Placed Employee is providing Services of any kind to you or on your behalf, you agree to accept responsibility for the supervision and management of all Placed Employees and any PEC going through vetting, onboarding, or training with you in anticipation of becoming a Placed Employee.  You agree to ensure that all PECs and Placed Employees are supervised by a designated trainer/manager/owner at all times.  You shall not permit or direct any PECs or Placed Employees to act beyond the scope of the specific job duties assigned to them in advance of a shift or as posted on the Platform, as the case may be, nor shall you post any shift in which the performance thereof would violate any law.

   2. Client’s Supervisory Representation and Warranty.  Without proscribing how Client employees Placed Employees, Contractor has an interest in ensuring their safety at all times, and therefore, you represent and warrant that you shall (i) conduct a thorough onsite walkthrough with all PECs and Placed Employees; (ii) introduce them to supervisors and orient them to all job functions and responsibilities prior the start of any working shift; (iii) refrain from leaving PECs or Placed Employee unattended for extended periods of time (longer than 15 to 20 minutes); (iv) ensure a safe working environment free from threats from third parties or other Client employees; and (v) have safeguards or protocols in place to prevent any PEC or Placed Employee from having any responsibilities outside of the scheduled work or beyond their station (e.g., if a Placed Employee is a dishwasher, and the head chef goes for a smoke break, the Placed Employee should not be left to run the kitchen; e.g., if a Placed Employee is assisting with bartending services but is unlicensed, he/she should not be left unattended; e.g., if a Placed Employee is scheduled to assist with providing food service support for a catering event, he or she should not be tasked with being solely responsible for the point of sale system and handling all event cash without reasonable advanced training; etc.).

   3. Insurance.  Client is responsible for providing all insurance for any PECs and Placed Employees who provide Services through the Contractor’s “Platform Access and Placement Services” including but not limited to Worker’s Compensation Insurance and Unemployment Insurance, auto insurance for any vehicle use by any such employee, etc.  Contractor is responsible for providing all insurance for any PECs and Placed Employees who provide Services to you through the Contractor’s “Temp-to-Hire Services.”  During the term of the Agreement and for a period of one (1) year thereafter, the Client shall carry the following types of insurance: worker’s compensation, professional errors and omissions, and comprehensive general liability and employee practices liability insurance.  Such policies shall not be cancelled by the insurance company or Client without providing Contractor with at least 30 calendar days’ prior written notice.  A certificate of insurance shall be provided to Contractor within 30 calendar days from receipt of a written request from Contractor.

   4. OSHA/Workplace Safety.  Client shall assume all responsibility for providing a safe working environment for any PECs and Placed Employees and any workplace-specific training necessary for said individuals to perform the Services to or on behalf of Client.

3. Client Data.  When you utilize the Platform, Contractor may collect personal information that you entered.  This information includes but is not limited to: full name, address, email, order and message content.  Contractor does not share any of this information with third parties with the following exceptions.

   1. Third-Party Service Providers.  Personal information may be sent to and held by Contractor’s third-party service providers, such as mailing services (like USPS) and credit card/payment gateway providers (such as Stripe), which providers the Contractor expressly reserves the right to change from time to time in its sole discretion.  Only information necessary to complete transactions and shipping are given to these entities.  When you provide credit card information the Platform automatically sends the encrypted information to a payment gateway to process the transaction.  The Contractor does not see or store your full credit card number or card’s security code other than the last 4 digits of your card number for internal accounting purposes.  In general, the third-party providers used by the Contractor will only collect, use and disclose your information to the extent necessary to allow them to perform the services they provide to Contractor.  However, certain third-party service providers, such as payment gateways and other payment transaction processors, may redirect you away from the Platform to their own payment platform.  Once you leave the Contractor’s Platform or are redirected to a third-party website or application, you are no longer governed by these Terms with respect to your activities on those third-party websites or applications. For these providers, it is recommended that you read their privacy policies so that you can understand the manner in which your personal information will be handled by them.

   2. Legal Authorities and Emergencies.  If there is a lawful request for information made by federal, state, or local authorities, Contractor may share such information but only to the extent minimally necessary to comply with such request (i.e., extraneous information will not be provided unless required by said lawful request).  Contractor also reserves the right to share personal information where Contractor reasonably believes an emergency exists where someone’s personal safety is at risk.

   3. Email Marketing (if applicable):  Contractor may send you emails about new services, Platform features, or various promotional activities of the Contractor.

   4. Cookies and Analytics.  Contractor uses Google Analytics to learn about who visits the Platform, its website, and what pages and features are being viewed and utilized.  Contractor reserves the right to utilize cookies to track various website visitor activity and information.

4. Intellectual Property.  All information and images on the Platform or Contractor’s website are the sole property of Contractor and the materials contained therein are protected by applicable copyright and trade mark law.

5. Changes to the Terms.  Contractor reserves the right to modify the Terms at any time in its sole discretion.  Contractor will provide you with 30 days’ notice prior to any changes taking effect.

6. Representations and Warranties of Contractor.  Contractor represents and warrants to the Client that (a) it shall perform the Services in a workmanlike and professional manner; (b) it is not restricted or prohibited, contractually, legally or otherwise, from entering into and performing each of the terms and covenants set forth herein and performance hereunder will not violate or breach any other agreement to which Contractor is a party; and (c) the Services will not infringe or misappropriate any intellectual property rights of any third party.

7. Representations and Warranties of Client.  Client hereby represents and warrants that (a) it will comply with all applicable laws and regulations in performing any of its obligations or responsibilities under these Terms and the Agreement; (b) it will maintain adequate procedures designed to prevent the violation of any laws or regulations or the Agreement by any PEC or Placed Employee; (c) it has conducted its own investigation of federal, state, and local rules with which it must comply; (d) that it will not request any services from Contractor, PEC, or a Placed Employee that would violate any laws or regulations; and (e) that Client acknowledges that once a PEC has been onboarded and becomes a Placed Employee, Client shall be solely responsible as the employer of said employee in all respects including payroll tax and employee benefit compliance, if applicable, and that no co-employer relationship shall exist between Contractor, Client, and said Placed Employee.

8. Confidentiality.  The parties agree not to use any Confidential Information (defined below) of the other party for any purpose other than for performance of its obligations hereunder.  The parties will treat Confidential Information as if it were its own proprietary information and will not disclose it to any third-party without the written consent of the disclosing party.  All persons receiving Confidential Information through a receiving party under the Agreement shall be subject to the confidentiality and non-use obligations as are set forth in the Agreement.  Each party shall be responsible for ensuring that such persons comply with this paragraph prior to review of any information it is receiving from the other party.  “Confidential Information” means the terms of the Agreement (including any quote, statement of work, or other written communication between the parties), any amounts payable hereunder, and, in relation to either party, all information (whether oral, written or in electronic or any other form) belonging to or relating to that party or any third-party to whom such party owes a duty of confidentiality, their business affairs or activities (including information concerning any trade secrets, client and customer information, marketing materials and know how, business plans and strategies, financial information, technical information and data or business plans of any such party) which is marked or stated to be confidential or which due to its character or nature, a reasonable person in a like position and under like circumstances would treat as and/or reasonably believe to be confidential.  The restrictions on use and disclosure of Confidential Information set forth herein shall apply during the term of the Agreement and remain in effect thereafter (a) with respect to Confidential Information that rises to the level of a trade secret under applicable law, for so long as such Confidential Information retains its status as a trade secret, and (b) with respect to Confidential Information that does not rise to the level of a trade secret under applicable law, for a period of two (2) years following the termination of the Agreement.

 

 

The obligations set out in this section shall not apply to Confidential Information that the receiving party can reasonably demonstrate: (a) is or has become publicly known other than through breach of the Agreement; (b) was in the possession of the receiving party prior to disclosure by the other party; (c) was received by the receiving party from an independent third-party who is not subject to an obligation of confidentiality to the disclosing party; or (d) was independently developed by the receiving party.

 

For the avoidance of doubt, the restrictions set forth in this Section 8 shall not apply to the extent the Confidential Information was required to be disclosed by governmental authority, recognized stock exchange or court of competent authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

 

9. License and Use Restrictions.

1. License Grant.  To the extent Contractor provides Client with access to any of Contractor’s Platform, and subject to and conditioned on Client’s payment of all fees and compliance with the terms and conditions of the Agreement and these Terms, Contractor hereby grants Client a non-exclusive, non-sublicensable, and non-transferable license during the Term to use the Platform solely for the purposes set forth in the Agreement. Client acknowledges that, as between Client and Contractor, Contractor owns all right, title, and interest, including all intellectual property rights, in and to the Platform.

2. Use Restrictions.  Client shall not use the Platform for any purposes beyond the scope of the license granted herein. Without limiting the foregoing and except as otherwise expressly set forth in the Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform to third-parties; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform; or (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

3. Other Responsibilities.  Client is responsible and liable for all uses of the Platform resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of these Terms or the Agreement. Nothing contained herein or in the Agreement shall entitle Client to any support relating to its use of the Platform.

 

10. Other Work.  The Client recognizes and agrees that Contractor may perform services for third parties, provided that such services do not breach any of the Contractor’s duties to Client hereunder.

 

11. Staffing Services Warranties.  With respect to the provisioning of Staffing Services, Consultant warrants that it has conducted a background check on all employees and that such employees are authorized to perform the work requested by the Client.  THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES; ALL OTHER WARRANTIES OTHER THAN THOSE EXPLICITLY SET FORTH HEREING AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED.

 

12. Limitations on Liability.  IN NO EVENT SHALL CONTRACTOR BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THE AGREEMENT OR THESE TERMS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE ENTIRE LIABILITY OF CONTRACTOR TO CLIENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID TO CONTRACTOR FOR THOSE SPECIFIC SERVICES OR ACTIONS OF A PEC OR PLACED EMPLOYEE GIVING RISE TO THE LIABILITY. All causes of action against Consultant arising out of or relating to the Agreement or the performance or breach of the Agreement shall expire unless brought within one year of the date of the first date of performance or breach that in whole or in part gives rise to the claim.  These remedies are exclusive and in lieu of all other remedies available at law or in equity against Consultant and its managers, agents or employees for any act performed in connection with the Agreement, or for any breach of the Agreement, whether brought under a theory of tort liability, contract liability, or any other theory.

 

13. Mutual Indemnification.  Subject to the terms and conditions of the Agreement, each party (as “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party and its managers, members, employees, agents, contracts, and successors (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to, arising out or resulting from any third-party claim or any direct claim against Indemnifying Party alleging: (i) a breach or non-fulfillment of any representation, warranty or covenant set forth in the Agreement by the Indemnifying Party; or (ii) any negligent or more culpable act or omission of Indemnifying Party or its mangers, members, officers, employees, agents, contractors, or representative in connection with the performance of the Agreement;

 

14. General Terms.

 

1. Assignment.  The Agreement between the parties shall not be assigned or transferred by either party with the prior written consent of the other party.  Notwithstanding the previous sentence, it is understood and agreed that the parties shall have the right to assign the Agreement to any successor as part of a “change in ownership,” defined as the transfer or sale of all or substantially all of the transferring party’s assets or equity

2. No Third-Party Beneficiary.  The Agreement between the parties has been entered into solely for the benefit of the parties and is not intended to create any legal, equitable, or beneficial interest in any third party, or to vest in any third party any interest with respect to the enforcement or performance of the Agreement.  The parties agree no third party has any legal interest in the Agreement, or in any dispute arising hereunder, and that no third party is a necessary or indispensable party to any action or proceeding for the resolution of any such dispute.  The parties further agree not to assert in any such action or proceeding that any third party is necessary or indispensable to such action or proceeding or to a determination of the relief to be granted therein.

3. Severability.  Should there be any conflict between any provisions hereof and any present or future statute, law, ordinance, regulation, or other pronouncement having the force of law, the latter shall prevail, but the provision of these Terms or the Agreement affected thereby shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law, and the remaining provisions of these Terms or the Agreement shall remain in full force and effect.

4. Survival.   Notwithstanding any termination, for any reason, the confidentiality, limitation of liability, indemnification, and any other terms which by their nature should survive, shall survive termination of the Agreement.

5. Governing Law; Jurisdiction, Venue, and Enforcement.  These Terms and the Agreement and the rights and obligations of the parties set forth herein and therein shall be governed by, construed and interpreted in accordance with the internal laws of the State of Wisconsin, excluding its conflict of laws principles.  The parties shall submit all their disputes arising out of or in connection with these Terms or the Agreement to the exclusive jurisdiction of the federal or state courts in Dane County, Wisconsin.  Contractor shall recover all of its costs, fees and expenses, including reasonable attorneys’ fees, related to collection of its compensation due under the Agreement, whether by alternate dispute resolution or in any court of competent jurisdiction.  As to all other claims in connection with the Agreement, the parties’ recovery of litigation cost and attorneys’ fees shall be limited to Wisconsin statutory costs and fees.

6. Waivers.  All waivers hereunder must be made in writing by a duly authorized representative of the party against whom the waiver is to operate, and failure at any time to require the other party’s performance of any obligation under the Agreement shall not affect the right subsequently to require performance of that obligation.