Frank Recruitment Group Inc. / Groupe de Recrutement Frank Inc. Permanent and Contract Recruitment Standard Terms and Conditions (“STCs”)

Frank Recruitment Group Inc. / Groupe de Recrutement Frank Inc. Permanent and Contract Recruitment Standard Terms and Conditions (“STCs”)

Last Modified: October, 2024

These Permanent and Contract Recruitment Standard Terms and Conditions shall govern the Permanent and Contract Recruitment Order Form (“Order Form”) entered into by and between FRG and the Client identified on the fully executed Order Form, and including any attachments or exhibits incorporated thereto by link or reference.  For the avoidance of doubt, references hereunder to the “Order Form” shall include these Permanent and Contract Recruitment Standard Terms and Conditions and any Assignment Schedule entered into by the Parties (collectively the “Agreement”). Except as modified and mutually agreed in writing by the Parties, the order of governance is as follows: (a) the fully executed Assignment Schedule, (b) these STCs, and (c) the Order Form.

FRG is engaged in the business of recruitment and referral services as set forth specifically hereunder (“Recruitment Services”) and Client desires to engage FRG to provide Recruitment Services[1].

Unless otherwise defined hereunder, all capitalized terms used herein shall have the meanings ascribed to them in the Order Form.

PART I. PERMANENT RECRUITMENT

1. A referral is deemed to have taken place upon FRG’s provision of any identifying information about a Candidate to Client (a “Referral”). Client shall provide FRG with all vacancy information reasonably necessary to ensure FRG makes suitable Referrals. If Client or a Client affiliate hires or retains a Candidate within the representation period set forth in the Order Form, the Agreement is deemed accepted by Client and Client shall pay a Permanent Fee to FRG for such Placement. 

2. A Permanent Fee may not be considered earned if, within five (5) days of the Referral, Client provides documentation demonstrating, to FRG’s satisfaction, that (i) another source introduced Candidate to Client; or (ii) Candidate applied directly to Client, and in either case Client was in reciprocal communication with such Candidate within the fourteen (14) day period immediately preceding the Referral.

3. The Guarantee Period is inapplicable if: (i) the cause of termination is a layoff or otherwise unrelated to the Candidate’s qualifications, capability, or conduct; (ii) Client fails to notify FRG in writing within 7 days of termination; or (iii) Client fails to pay the Permanent Fee in accordance with the Agreement.

4. Client shall pay FRG any sales or similar taxes, if applicable. If FRG retains a third party for the purpose of collecting amounts owed hereunder or otherwise enforcing its rights hereunder, Client shall reimburse FRG for all such costs and expenses including without limitation attorneys’ fees and costs.

5. Client is ultimately responsible for ensuring the suitability and capability of a Candidate for Placement. It is at Client’s sole discretion to hire or retain a Candidate and Client is fully liable for its hiring decisions. Client acknowledges that FRG is not under any circumstances liable for the acts or omissions of a Candidate.

PART II. CONTRACT RECRUITMENT

6. SCOPE

a. FRG shall Refer Contractors who reasonably meet or exceed Client’s search requisition and pre-screening requirements. A referral is deemed to have taken place upon FRG’s provision of any identifying information about a Contractor to Client (a “Referral” or “Refer“).

b. Client is responsible for: determining the requirements of the Assignment; interviewing, testing, and selecting Contractor for an Assignment; closely monitoring and overseeing the Contractor; limiting Contractor’s access to Client’s or Client’s Customers’ (defined below) data, network and systems (“Systems”) such that Contractor only has access to Systems that are required for the Assignment; restricting Contractor from using unauthorized devices, methods or tools to access Systems; implementing reasonable administrative, technical and procedural safeguards to protect the security of Systems; ensuring the condition and safety of the Client’s or Client’s Customer’s worksite (if any); and complying, and causing Client’s Customer (if any) to comply with all laws and regulations applicable to the Contractor and/or Assignment, including without limitation, wage, workplace harassment and workplace discrimination laws. “Client’s Customer” refers to a person or entity (other than Client), if any, who is in contact with Contractor during the Assignment for purposes of receiving or otherwise benefitting from the Time and Materials Services performed by such Contractor.

c. Nothing herein shall be construed to create an employer-employee relationship between either Party and any Contractor. The Parties agree that Contractor shall control the methods and means of performing Time and Materials Services and shall have the right to perform similar services for other parties.

7. CONTRACTOR ON-BOARDING

a. FRG may Refer Contractors to Client to consider for selection as a Contractor for a particular Assignment. If Client selects a Supplier, for an Assignment, the Parties shall complete and execute a Contractor Assignment Schedule.

b. Client shall directly reimburse Supplier for Expenses (defined below). FRG shall not have any liabilities or obligations for any Client expense policy that FRG has not reviewed. “Expenses” are out of pocket costs, if any, incurred by FRG in performing the Recruitment Services and Contractor in performing the Time and Materials Services, including, without limitation, travel, lodging, and meals. All references to “Assignment Schedule” hereunder shall mean a Contractor Assignment Schedule.

8. DATA PRIVACY, CONFIDENTIALITY, IP

a. Definitions:

i. The terms “Personal Data”, “Personal Information, “Data Controller”, “Service Provider,” “Special Categories of Personal Data”, “Sensitive Personal Information” and “process/Processor/processing” (and their derivatives) used in this Section shall have the meaning given in applicable Data Privacy Laws.“ Such data includes: genetic data, biometric information used to identify a human, health information, sex life, sexual orientation, racial or ethnic origin, religious or philosophical beliefs, or trade union membership but excludes a company’s business information (as opposed to information about a human), credit accounts, financial results, sales performance or strategic plans, for example.

ii. “Data Privacy Laws” means data privacy laws where applicable worldwide, including without limitation Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”), Canada’s Anti-Spam Legislation, SC 2010 c 23 (“CASL”), the data privacy laws of Canada’s provincial counterparts including but not limited to the British Columbia Personal Information Protection Act, SBC 2003 c 63 (“BC PIPA”), Alberta Personal Information Protection Act, SA 2003 c P-6.5 (“AB PIPA”), and Quebec Act respecting the Protection of Personal Information in the Private Sector, CQLR c P-39.1 (“Quebec Private Sector Act”); Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data protection Regulation) and the California Consumer Privacy Act of 2018, each as amended.

b. The Parties acknowledge that for purposes of the Data Privacy Laws, each Party shall be considered Data Controller with respect to Personal Data processed in connection with this Agreement. The Parties acknowledge and agree the Supplier/Contractor shall be a “Processor” or “Service Provider.” Each Party shall comply with their obligations under Data Privacy Laws. Client confirms that the information supplied to FRG may be used for recruiting purposes under the Data Privacy Laws, and that FRG can advertise vacancies on Client’s behalf. Client shall not, and shall not permit any of its customers to, (i) transfer any Special Categories of Personal Data or Sensitive Personal Information to FRG, Supplier, or Contractor unless (a) it provides prior written notice to FRG at legalnoticesusa@frankgroup.com and (b) the Parties’ obligations related to such transfer are described in data protection clauses executed by the Parties, or (ii) “sell,” transfer or disclose the “Personal Information” or “Sensitive Personal Information” it receives from FRG, Supplier or Contractor. Under no circumstances shall FRG be liable or responsible for a Supplier’s or Contractor’s compliance, or lack of compliance, with Data Privacy Laws.

c. Client shall be given access to and/or acquire certain confidential information about FRG, Contractor, and Supplier, including Contractor personally identifiable information, references, and resumes (“Confidential Information”). Confidential Information shall only be used by Client for the sole purpose of conducting business with FRG and may not be furnished to third-parties without FRG’s advanced written consent. Client will implement all reasonable safeguards to protect Confidential Information from unauthorized disclosure, access, alteration, or deletion. If any of the aforementioned events occur, Client shall immediately notify FRG in writing. This obligation will survive any termination of this Agreement, or of any Assignment Schedule. If Client requires Contractor to execute a confidentiality, data protection or intellectual property agreement specific to Client’s needs (or Client’s Customer’s, if any), Client shall provide such agreement(s) directly to FRG for review prior to the commencement of the Assignment. FRG shall not have any liabilities or obligations (legal or contractual) under any agreement entered into directly between Client and Contractor.

9. TIMESHEETS AND INVOICING

a. FRG will provide Client and Contractor access to its online timesheet portal where Contractor will submit weekly timesheets.

b. Client shall approve or Dispute a timesheet based solely on the accuracy of the total number of hours listed on the timesheet and not the quality, timeliness, completeness or any other aspect of the Time and Materials Services or Contractor’s actions. Client represents and warrants that any employee, agent, or representative of Client or Client’s Customer who approves all or part of the hours on a timesheet is authorized and qualified to do so and that such approval is binding on Client for all purposes. Client may only reject a timesheet if Client provides objective proof to FRG that the number of hours listed on the timesheet is a clerical error or were not, in fact, worked by the Contractor (in either case, a “Dispute”). Client is expected to approve the timesheet within seven (7) days from its submission however Client has twenty-one (21) days from the submission of a Contractor timesheet to inform FRG of a Dispute. If Client fails to inform FRG of a Dispute within the foregoing timeframes, then (A) Client shall be deemed to have released and waived its right to file a Dispute with respect to such timesheet and (B) FRG shall auto-approve such timesheet and such auto-approval is binding on Client for all purposes.

c. Client shall notify FRG in writing or email prior to adding, removing, or changing the scope, hours, services, and/or responsibilities set forth on an Assignment Schedule and shall not make such changes including extending an Assignment without FRG’s prior written notice and consent.. Except where Client Converted (as defined below) the Contractor to full-time employment and provided FRG with a fully executed offer letter confirming the terms of such employment, all Time and Materials Services or other services rendered by Contractor outside the scope of the Assignment Schedule for the benefit of Client, Client’s Customers, or their respective affiliates will be payable by Client pursuant to this Agreement.

d. Client shall satisfy the following minimum requirements for each Assignment Schedule:

(i) Client shall pay for a minimum number of hours per week for each Assignment (“Minimum Weekly Hours”) as set forth under the applicable Assignment Schedule. FRG shall invoice Client the Minimum Weekly Hours, if any, at the Bill Rate set forth under the applicable Assignment Schedule, and Client shall pay FRG at least the Minimum Weekly Hours in all cases except where (1) Contractor is unavailable (sick, public holiday, or vacation) to perform the Minimum Weekly Hours and fails to achieve such Minimum Weekly Hours during such week and (2) Client provides FRG prior written notice of Contractor’s unavailability; and

(ii) Client shall pay a monthly minimum fee (“Minimum Monthly Spend”) as set forth under the applicable Assignment Schedule for each full month that the Contractor provides Time and Materials Services (“Work Month”). If the Contract Fees (defined below) for the Work Month (as measured by four (4) consecutive weekly timesheets) (“Monthly Contract Fees”) falls below the Minimum Monthly Spend then FRG shall (a) calculate the difference between the Minimum Monthly Spend and the Monthly Contract Fees and (b) invoice Client for such difference.

Client shall pay any invoices FRG issues pursuant to this Section in full and within seven (7) days of the date of such invoice.

e. FRG shall invoice Client on a weekly basis for all applicable Contract Fees (defined below) reflected on a timesheet approved by Client or auto-approved by FRG. FRG retains the right to annually adjust its Contract Fees for inflation. Unless otherwise specified on the Assignment Schedule, all rates exclude sales, GST, HST and any other applicable taxes. Where applicable, FRG’s invoices may include taxes, interest, and Expenses. Client shall pay each invoice in full without set off or counterclaim within seven (7) days of the date of FRG’s invoice. Client shall pay all Contract Fees and other amounts owed in CAD via electronic funds. “Contract Fees” are comprised of the “Bill Rate,” “Overtime Rate,” (if any) and “Travel Rate” (if any) (all being inclusive of FRG’s margin) as set forth on the Assignment Schedule and Conversion Fees (if any).

f. If FRG retains a third party for the purpose of collecting amounts owed hereunder or otherwise enforcing its rights hereunder, Client shall pay or reimburse FRG for all such costs and expenses including without limitation attorneys’ fees and costs.

10. CONVERSION

a. Definitions:

i. “Conversion,” “Converted” or “Converts” means, during the Restriction Period (defined below), the full-time or part-time employment, contracting, consulting or other similar arrangement with a Contractor (without FRG written consent).

ii. “Conversion Fee” is a one-time, non-refundable fee calculated as set forth in the Order Form or as otherwise mutually agreed in writing by the Parties for a particular Contractor under the “Special Terms” of the Contractor’s Assignment Schedule.

iii. “Restriction Period” means either a period of 12 months from any termination or completion of the Assignment Schedule under which Contractor was last supplied or within 12 months of the most recent Referral of Contractor by FRG to Client, whichever is longer.

iv. “Total Compensation” is the remuneration offered to a Contractor upon Conversion, including without limitation, hourly rates (multiplied by 40 hours per week for 52 weeks) or salary, commission, bonus, allowances, guarantees, incentives, fringe benefits or draw earnings, if any.

b. Where and when permitted by applicable law and regulations, if Client Converts a Contractor to full time employment (scheduled to work 40 hours or more per week), Client shall pay to FRG a Conversion Fee calculated as a percentage of the Total Compensation, as set forth in the Order Form or Assignment Schedule, as applicable.

c. Where and when permitted by applicable law and regulations, if Client Converts a Contractor to part time employment or as a contractor or other similar arrangement, the Conversion Fee shall be (a) the then current or most recent Bill Rate set forth in the Assignment Schedule applicable to the Contractor multiplied by 500 (i.e. approx. 3 months of work) or (b) if Client and FRG have not executed an Assignment Schedule applicable to the Contractor, the actual hourly amount or rate Client will pay or has paid Contractor for services, multiplied by 500.

d. Where and when permitted by applicable law and regulations, Client shall owe FRG the Conversion Fee if Client’s affiliate or subsidiary Converts the Contractor as if Client itself had Converted the Contractor.

e. “Contractor” and “Conversion” expressly include any business entity in which Contractor, directly or indirectly, owns a financial interest, that has engaged Contractor under a contracting, consulting or other similar arrangement, or that employs Contractor.

f. Client’s payment of a Conversion Fee, where permitted by applicable law, to FRG on account of a particular Contractor shall not limit, eliminate or affect Client’s obligation to pay all Contract Fees and amounts due to FRG hereunder, including hours worked by Contractor before and up to the date FRG receives the full amount of the such Conversion Fee. If Client fails to timely pay FRG’s invoice for the Conversion, Client agrees that (1) all time worked by the Contractor for the benefit of the Client since the last day covered by an FRG invoice was in fact Time and Materials Services, (2) Client has approved all hours worked that relate to such Time and Materials Services, (3) such Time and Materials Services were performed at the billable rate set forth in the most recent Assignment Schedule related to such Contractor, and (4) Client shall pay FRG all Contract Fees incurred during such time period and for as long as Client receives Time and Materials Services from the Contractor as provided herein.

11. TERMINATION

a. Client shall promptly notify FRG if it receives or otherwise obtains information which gives it reasonable grounds to believe that a Contractor is unsuitable for an Assignment. Client may terminate an Assignment Schedule by written notice to FRG and Contractor. FRG may terminate an Assignment Schedule and/or this Agreement by written notice at any time if Client is in breach of its obligations under this Agreement. Client shall pay FRG for all hours worked by Contractor through the effective date of termination of the Assignment Schedule regardless of the reason for such termination, unless subject to a Dispute.

b. Notwithstanding anything to the contrary herein and without prejudice to any other right or remedy hereunder or at law or in equity, FRG may suspend or halt the performance of the Recruitment Services or the Time and Materials Services until all outstanding invoices are paid in full or until any breach of this Agreement by Client is cured to FRG’s reasonable satisfaction.

12. INDEMNITY, DISCLAIMER OF WARRANTIES, MUTUAL LIMITATIONS OF LIABILITY, MUTUAL LIMITATION OF DAMAGES

a. Each Party shall indemnify, defend and hold harmless the other Party from liability to third parties directly related to any claims, demands, investigations, judgments, damages, fines, costs and expenses (collectively, a “Claim”) arising from the gross negligence, wilful misconduct, fraud or violation of applicable law of the indemnifying Party, except to the extent that the Claim arises from any act or omission of the other Party or its customers, or their respective employees, agents, contractors or subcontractors.

b. Notwithstanding anything to the contrary herein, and to the fullest extent permitted by law, FRG hereby disclaims all warranties and representations with respect to the Recruitment Services and the Time and Materials Services including, without limitation, any warranty of merchantability, fitness for a particular purpose, timeliness, completeness or the achievement of any particular deliverable, result, functionality or capability.

c. Except to the extent directly attributable to FRG’s gross negligence, wilful misconduct or fraud, FRG does not accept or have any liability for any loss, expense, damage, judgment, cost or delay arising from a background report or the acts, omissions, negligence, dishonesty, misconduct or incapability of a Candidate, Contractor or if a Contractor fails, for any reason, to provide Time and Materials Services for the entire duration of the Assignment Schedule.

d. Notwithstanding anything to the contrary herein, and to the fullest extent permitted by law, (a) each Party’s total respective liability shall be limited to the amounts actually paid or payable by Client to FRG hereunder during the six (6) month period immediately prior to the occurrence of the set of facts and circumstances first giving rise to the claim(s) on which such liability is based and (b) under no circumstances shall either Party be liable to the other Party or its customer (including Client’s Customer) for any indirect, punitive, special, exemplary, or consequential damages, even if such Party knew or should have known or has been advised of the possibility of such damages or if such damages were foreseeable.

13. GOVERNING LAW

This Agreement is subject to and governed by the laws of the province of Ontario without regard to its conflicts of law principles, except with respect to Conversion, in which case this Agreement is subject to and governed by the laws of the province where the Time and Materials Services of the Converted Contractor were performed without regard to its conflicts of law principles. The Parties shall file or bring all disputes, proceedings, claims and actions arising out of, or related in any way to, this Agreement in the federal or provincial courts located in Toronto, Ontario. Each Party hereby waives any and all right it has to a trial by jury.

14. MISCELLANEOUS

Acceptance. This Agreement is deemed to be accepted and agreed by Client upon the first to occur of the following events: (a) Client’s execution of this Agreement, (b) Contractor commencing an Assignment; or (c) Conversion of a Contractor. Counterparts. This Agreement may be signed in counterparts, and facsimile and PDF signatures shall be treated as originals of the respective Party’s signature.  Binding Effect. This Agreement is binding on both Parties and their successors and permitted assignees. Survival. Each Party’s rights and obligations hereunder that by their nature survive the termination or expiration of this Agreement, so shall survive. Assignment. No Party may assign this Agreement, or any portion thereof, to any other person or entity without the prior written consent of the other Party and any attempted assignment of this Agreement or any portion thereof that violates this subsection shall be null and void, provided however that a Party may assign this Agreement without the consent of the other Party to any purchaser of all or substantially all of its assets (in one transaction or a series of related transactions) or to any purchaser of at least 51% of its voting equity. Waiver. No waiver by FRG of any breach of this Agreement will be considered a waiver of any other condition or provision or of the same condition or provision at another time. Amendment. FRG reserves the right to amend or alter this Agreement without Client’s written authorization. Any extensions or renewals of any Assignment Schedule or Exhibit hereto shall become binding on the Parties without the need of a signed writing if neither Party informs the other Party of an objection to any such extension or renewal within the timeframe set forth in the documentation related to such extension or renewal.  Compliance. Client represents that neither it nor its employees, officers or representatives are restricted from doing business hereunder under any applicable provincial or federal law, or by any governmental sanction or action. Client shall notify FRG in writing if the representation above becomes untrue for any reason. The Parties shall comply with all applicable equal opportunity and government procurement laws and regulations, including without limitation the applicable human rights legislation, and any pay equity legislation. Neither Party, nor its employees, shall give, offer, or receive any bribe or gift to the other Party above a de minimis value considering the circumstances and both Parties represent and warrant to the other that each is in compliance with the anti-corruption legislation (including the Anti-Corruption Act, L-6.1 (applicable to Quebec only) and the Corruption of Foreign Public Officials Act., S.C. 1998, c. 34). Entire Agreement. This Agreement and any signed Assignment Schedule(s) and linked attachments and documents, together constitute the entire agreement and understanding among the Parties and supersedes all previous, contracts, agreements, pre-existing negotiations, representations, promises, and discussions as well as any oral or written communication among the Parties, relating to the subject matter hereof. Control. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of an Assignment Schedule, the terms and conditions of the Assignment Schedule shall control.

Exhibit A- Alberta Compliance Requirements

As part of the STC’s, the following terms and conditions shall apply for any permanent Recruitment Services provided to Client in Alberta, Canada.  Capitalized terms herein shall have the meanings ascribed to them in the Agreement.

1. Alberta Regulations. Section 12 of the Alberta Employment Agency Business Licensing Regulation prohibits an employment agency business operator from directly or indirectly demanding or collecting a fee, reward or other compensation (a) from an individual who is seeking employment or from another person on that individual’s behalf, (b) from an individual who is seeking information respecting employers seeking employees or from another person on that individual’s behalf, (c) from an individual for securing or attempting to secure employment for the individual or providing the individual with information respecting any employer seeking employees or from another person on that individual’s behalf, or (d) from an individual for evaluating or testing the individual, or for arranging for the individual to be evaluated or tested, for skills or knowledge required for employment, where the individual or the employment is in Alberta, or from another person on that individual’s behalf. An employment agency business operator shall enter into an agreement with the employer before securing employment for the individual, or any other action as described in 4(d) above. The agreement must include a phone number and postal address, and email for the agency and agent that may act on behalf of the agency and contain above statement.
2. EEO. The parties shall comply with all applicable equal opportunity and government procurement laws and regulations, including without limitation the Canadian Human Rights Act and Employment Equity Act.
3. Anti-bribery. Neither party, nor its employees, shall give, offer, or receive any bribe or gift to or from the other party above a de minimis value considering the circumstances.
4. Prohibited Transactions. Client represents that neither it nor its employees, officers or representatives are listed, named, or designated under Canada’s Special Economic Measures Act, Justice for Victims of Corrupt Foreign Officials Act, Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism, or the Consolidated Canadian Autonomous Sanctions List, or otherwise restricted from doing business hereunder by any governmental sanction or action

Exhibit B- Quebec Compliance Requirements

As part of the STC’s, the following terms and conditions shall apply for any permanent Recruitment Services provided to Client in Quebec, Canada. Capitalized terms herein shall have the meanings ascribed to them in the Agreement.

Section 8 of the STC’s shall be deleted in its entirety and replaced with the following:

“This Agreement is subject to and governed by the laws of the province of Quebec without regard to its conflicts of law principles except with respect to Conversion, in which case this Agreement is subject to and governed by the laws of the province where the Time and Materials Services of the Converted Contractor were performed without regard to its conflicts of law principles. The Parties shall file or bring all disputes, proceedings, claims and actions arising out of, or related in any way to, this Agreement in the federal or provincial courts located in Montreal, Quebec.”

The following shall be added to Section 9 of the STC’s:

“Language. Client confirms that FRG has presented Client with this Agreement in French and that the Parties have expressly requested and agreed that this Agreement be drawn up in English only. Furthermore, the Parties have also requested and agreed that all related documents to this Agreement, including notices and communications, be exclusively drawn up in English. Les Parties ont expressément demandé et accepté que cette Entente soit rédigée uniquement en anglais. De plus, les Parties ont également demandé et accepté que tous les documents liés à cette Entente, y compris tous les avis et communications, soient exclusivement rédigés en anglais. 

[1] The terms and conditions for any Recruitment Services provided in Quebec, Canada shall be listed in Exhibit B.

[END OF STCs]