Terms & Conditions
MiSource, Inc. is a contingency based recruiting firm. As such, fees are based on the placement of candidates on behalf of the organizations (“Client”) who have retained our services.
Description of Services:
Direct/Permanent Placement (“DPP”): The identification, recruitment, and placement of candidate(s) for direct hire into Client’s organization in exchange for a fee for candidate(s) hired by Client within 12 months of being presented to Client by MiSource. Fee for DPP shall be established by a Rate Agreement executed by both parties. In the absence of a Rate Agreement, a fee of twenty-five percent of first-year base salary shall apply. Client is responsible for hired DPP including, but not limited to, his/her wages, applicable withholdings, tax contributions, unemployment taxes, workers’ compensation insurance and all other statutory requirements of an employer under federal, state and local employment laws.
Contract to Permanent Placement (“CPP”): The identification, recruitment, and placement of candidate(s) for contract work assignment(s) (“Assignments”) on behalf of Client organization as requested by Client, pursuant to Invoice Terms established in a Rate Agreement. MiSource shall be responsible for providing wages to the CPP and for his/her applicable withholdings, tax contributions, unemployment taxes, and workers’ compensation insurance until such time as the Assignments terminate or Client exercises its Option to Hire the CPP. If Client exercises its Option to Hire and employs the CPP, Client shall then assume all responsibility for the CPP, including, but not limited to his/her wages, applicable withholdings, tax contributions, unemployment taxes, workers’ compensation insurance and all other statutory requirements of an employer under federal, state and local employment laws.
Consulting/Contract Placement (“CCP”): The identification, recruitment and placement of candidate(s) for contract work assignments (“Assignments”) on behalf of Client organization as requested by Client, and pursuant to Invoice Terms established in a Rate Agreement. Client will have the option of extending the term of the Assignments or exercising its Option to Hire the CCP. MiSource shall be responsible for providing wages to the CCP and for his/her applicable withholdings, tax contributions, unemployment taxes and workers’ compensation insurance until such time as the Assignments terminate or Client exercises its Option to Hire. If Client exercises its Option to Hire and employ the CCP, Client shall then assume all responsibility for the CCP Candidate, including, but not limited to his or her wages, applicable withholdings, tax contributions, unemployment taxes, workers’ compensation insurance and all other statutory requirements of an employer under federal, state and local employment laws.
Term: This Agreement commences on the date of execution by the Client and remains in effect until either party exercises it rights of termination.
Service Rates: The rate for Services will be pursuant to the terms of the Rate Agreement executed by both parties or the rate established by these Terms & Conditions, in the absence of a Rate Agreement. Client agrees to pay MiSource an amount equal to increased or new labor costs associated with a CCP or CCP which is legally required to be paid, until the parties agree on new rates. Should MiSource, at the request of the Client, as an additional service, process expense reimbursements to any CPP or CCP, Client agrees to reimburse MiSource an amount equal to the expense reimbursement provided, plus a five percent administrative fee, consistent with payment term of the Rate Agreement.
Payment Procedures: Client agrees to compensate MiSource for the Services provided pursuant the Rate Agreement and these Terms & Conditions. An authorized representative of the Client shall, within 2 business days, review and approve time and expense reports (“Report”) of CPP or CCP, which will be the basis of invoicing. In order to fulfill the obligation to pay CCP and CPP Candidate(s), per applicable labor laws, the Report will be considered “approved” if designated Client representative has not approved or rejected submitted Report within 2 business days of the Report being provided for approval. Any claims by Client of unsatisfactory performance or inaccurate time/expense records shall be made prior to Client approving the Report. Once a Report is approved, Client waives any claims for non-payment of invoices for performance related disputes. Invoices will be sent to Client on a weekly basis, including reasonable supporting documentation specified by the Client and payment shall be due in full upon receipt. The Client agrees to pay interest on any outstanding past due balance at the lesser of the rate of one and one-half percent per month or the highest rate permitted under applicable state law until such balance is paid. MiSource reserves the right, without liability, to suspend performance of the services to any Client with a past due account.
Indemnification: MiSource is providing supplemental staffing Services. Client is directing and managing the DPPs, CPPs and CCPs. In no event shall MiSource, its affiliates, officers, directors, shareholders, employees, agents, successors or assigns be liable (i) for any claims, costs, losses, fines, penalties, assessments, expenses, damages or obligations arising from or in connection with this agreement, the services provided or the acts or omission of any DPPS, CPPs and CCPs; or (ii) for any indirect, special or incidental or consequential damages of any kind (including, but not limited to, loss of profits, interest, earnings or use) whether arising in contract, tort or otherwise. Client agrees to indemnify MiSource and hold it harmless from and against any and all losses, claims, damages, liabilities, judgments, charges and expenses incurred (including all legal or other expenses reasonably incurred by the MiSource) in connection with investigating or defending against or providing evidence in any litigation, whether commenced or threatened, in connection with any claim, action or proceeding to which MiSource becomes subject, whether or not resulting in any liability, caused by, or arising out of any Services provided under this Agreement. MiSource agrees to indemnify and hold Client harmless for any workers’ compensation, wage, work status or tax liability claims arising from or in connection with the Services provided by a CPP or CCP Candidate any time Client shall Client exercising its Option to Hire. This clause survives the termination of this Agreement.
Restrictive Covenant: Should Client, within a period of one (1) year following the termination of the Services, employ, directly or indirectly, any candidate(s) presented by MiSource to Client, Client agrees to pay the fee for DPP services, established in an executed Rate Agreement or by these Term & Conditions. Client agrees not to directly or indirectly cause or permit CPPs or CCPs to transfer to another entity’s payroll while continuing to perform services for Client without exercising its Option to Hire. This clause survives the termination of this Agreement.
Option to Hire: At any time during the Term of this Agreement, Client shall have the right and option to hire the CPPs and/or CCPs into Client’s organization in exchange for the respective fee agreed to in the Rate Agreement (the “Option to Hire”). Client shall provide MiSource with ten (10) days prior written notice of its intent to exercise its Option to Hire.
Termination: This Agreement may terminate as follows: (i) by either party for any or no reason after providing the other party with advance written notice of such termination. The effective date of such termination may not be in advance of all parties receiving written notice of termination. (ii) by MiSource, immediately, if at any time Client should fail to make timely payments in accordance with the terms of this Agreement; if Client becomes or is declared to be bankrupt or insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy for liquidation under the bankruptcy laws, or a receiver is appointed for Client, and such appointment or bankruptcy or insolvency proceedings, petition, declaration or assignment is not set aside within sixty (60) days. Termination of this Agreement shall not relieve Client’s obligations under the Rate Agreement, these Terms & Conditions or the invoices with respect to the payment of all fees and all other costs and expenses accrued up to the effective date of the termination.
Other Engagements: Nothing in this Agreement shall preclude MiSource from entering into agreements, similar to this Agreement, with other parties. In addition, Client acknowledges and agrees that MiSource may, concurrent with engagements undertaken for Client and in the future, undertake supplemental staffing services engagements with other persons or entities whose business or products may be similar to or competitive with the business or products of Client.
Safety and Loss Control: MiSource is committed to the safety of its employees, a philosophy we believe to be mutually beneficial to our Clients. CCPs and CPPs are identified based on the work assignment parameters provided to MiSource by the Client. If any CCP or CPP is going to be engaged in a work activity exceeding the training, experience or certification established in the description of the work assignment, Client will notify MiSource in advance. If Client provides CCP or CPP with voluntary or statutory safety training, Client agrees to provide MiSource with a copy of signed training acknowledgements from CCP or CPP in attendance. In the event of a work-related injury or illness involving a CCP or CPP, Client will immediately notify the Human Resources Department at MiSource. Unless it is an emergency, MiSource will coordinate transportation and/or treatment with a local medical facility. All CCPs and CPPs are required to follow established safety policies and utilize all required personal protective equipment. Client represents that CCPs and CPPs will not be exposed to any hazardous chemicals (as defined by the Occupational Safety and Health Administration Hazard Communication Standards or any applicable state or local right-to-know law) under normal operating conditions or any foreseeable emergencies. If this is not presently the case, or if this changes in the future, Client agrees to give MiSource immediate written notification so appropriate precautions required by the OSHA Hazard Communication Standards or any applicable state or local right-to-know law may be executed.
Severability: If any provision of this Agreement shall be declared invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement; rather, the entire Agreement shall be structured as if not containing the particular obligations to each party and the remaining provisions shall be valid and enforceable to the fullest extent permitted by applicable law. If a declaration of invalidity or unenforceability materially alters the intent of the parties to this Agreement, the parties are obligated to replace the invalidated provision with a provision that best approximates the legal and economic intent of the invalidated provision.
No Waiver: The failure of either party to this Agreement to enforce at any time any of the provisions hereof shall not be a waiver of that party’s right thereafter to enforce any such provisions or to enforce any other provisions of the Agreement.
Attorney’s Fees and Costs: Should any dispute or legal action arise out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, paralegal fees, expenses and costs incurred in connection with such a dispute or action, through all appeals and collection efforts.
Modification: This Agreement may only be modified, altered or amended, in whole or in part, by a written agreement setting forth such changes, signed by an authorized representative of the Client and an officer of MiSource.
Governing Law: This Agreement shall be construed in accordance with and governed by the law of the State of Florida. The venue for any disputes arising out of this Agreement or the party’s respective obligations shall be exclusively in Hillsborough County, State of Florida.
Entire Agreement: This Agreement, the Rate Agreement and any addendums and exhibits herein, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior representations, negotiations, discussions, understandings, and agreements between the parties regarding the subject matter of this Agreement.
Force Majeure: Neither party to this Agreement shall be liable for any delay or failure in performance arising out of acts or events beyond its reasonable control, including fires, labor disputes, embargoes, requirements imposed by Government regulation, civil or military authorities, judicial decisions, acts of God or by the public enemy, except for any money which may be due pursuant to the terms of this Agreement.
Notices: All notices, demands, or other communications to be given hereunder shall be in writing, shall be given either by personal delivery, acknowledged electronic communication, confirmed facsimile, or by mail, and shall be deemed to have been made when personally delivered or when sent by certified mail, addressed to MiSource at 11940 Sheldon Road, Tampa, FL 33626 and the Client at the address contained in Corporate filings, within the Dunn & Bradstreet Report or within the completed MiSource credit application.
Representation of Authority: The representatives of each party, through their signature on the Rate Agreement, represent and warrant that s/he has full authority to execute this Agreement of behalf of their respective party.