Standard Terms and Conditions USA - Contract
Frank Recruitment Group Inc. Contract Recruitment Standard Terms and Conditions (“STCs”)
Last Modified: October, 2024
These Contract Recruitment Standard Terms and Conditions shall govern the 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 incorporated thereto by link or reference. For the avoidance of doubt, references hereunder to the “Order Form” shall include these 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.
Unless otherwise defined hereunder, all capitalized terms used herein shall have the meanings ascribed to them in the Order Form.
1. SCOPE
a) 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.
b) 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“).
c) 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.
d) 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.
2. 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 Supplier 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.
c) FRG may Refer Contractors who are, or if selected by Client for an Assignment, may become W-2 employees of FRG’s wholly owned subsidiary, Frank Recruitment Group Services Inc. (“FRGS”) strictly for employment and payrolling purposes (the “FRGS Employee”). If Client selects an FRGS Employee for an Assignment, the Parties shall complete and execute an FRGS Employee Assignment Schedule. By signing an FRGS Employee Assignment Schedule, Client hereby accepts, in addition to these Standard Terms and Conditions and the FRGS Employee Expense Policy, incorporated herein by this reference. All references to “Assignment Schedule” hereunder shall mean a Supplier Assignment Schedule and an FRGS Employee Assignment Schedule as applicable.
d) If Client engages a Supplier located in Canada, then the following terms and conditions shall apply in addition to these STCs: FRG US/Canadian Supplier Terms and Conditions.
3. 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.“
ii) Data Privacy Laws” means data privacy laws where applicable worldwide, including without limitation 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, 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 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. 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. No Contractor has the power to bind or obligate FRG or FRGS by signing any document described in this paragraph.
4. 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 has (i) twenty-one (21) days from the submission of a Contractor timesheet or (ii) five (5) business days from the submission of an FRGS Employee 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 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 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.
5. 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 below 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.
b) 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) If Client Converts a Contractor to part time employment or as a contractor or other similar arrangement, the Conversion Fee shall be (a) the 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) 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 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 up to the date that Contractor commenced employment (or other arrangement) with Client. 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.
6. 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.
7. 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. Client’s obligation to indemnify hereunder shall apply equally to FRGS, if applicable, except to the extent that the Claim arises from any act or omission of FRGS.
b) Notwithstanding anything to the contrary herein, and to the fullest extent permitted by law, FRG and FRGS hereby disclaim 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 or FRGS’s gross negligence, wilful misconduct or fraud, neither FRG nor FRGS accepts or has 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 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) Client’s, on the one hand, and FRG’s and FRGS’s total liability, in the aggregate, on the other hand, 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 Client’s, on the one hand, and FRG or FRGS on the other hand, be liable to Client or Client’s Customer for any indirect, punitive, special, exemplary, or consequential damages, even if Client’s, on the one hand, and FRG or FRGS on the other hand, knew or should have known or has been advised of the possibility of such damages or if such damages were foreseeable.
e) To the extent that Client does not receive any Time and Materials Services from a FRGS Employee, Client agrees that FRGS has no liability or obligations to Client in any respect whatsoever.
8. GOVERNING LAW
This Agreement is subject to and governed by the laws of state of Florida 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 state courts located in (a) Hillsborough County, Florida or (b) the county of the Client’s principal place of business or legally registered address. Each Party hereby waives any and all right it has to a trial by jury.
9. 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. Third Party Beneficiary. FRGS is expressly named as a third-party beneficiary where FRGS is referenced hereunder. 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 other representatives are on the Specially Designated Nationals and Blocked Persons list regularly updated by the Office of Foreign Assets Control (“OFAC”) of the Department of Treasury, or otherwise restricted from doing business hereunder by any other governmental sanction or action. Client shall notify FRG in writing if the representation above becomes untrue for any reason. The Parties shall comply with equal opportunity and government procurement laws and regulations, including 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), if applicable. 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. 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.
[END OF STCs]
