Employer Services Agreement

Last modified: May 19, 2023

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1. Definitions

As used in this Employer Services Agreement, the following terms shall have the meanings specified below.

“Agreement” shall mean this Employer Services Agreement and all Search Order Forms (as defined below) entered into by Customer and Careerlist from time to time, all of which Search Order Forms are incorporated herein by reference.

“Commission Fee” shall mean the amount payable to Careerlist by Customer pursuant to the applicable Search Order Form.

“Compensation” shall mean a Hire’s base salary and target performance bonus for the first year of employment, as further set out in the applicable Search Order Form.

“Confidential Information” shall mean all information disclosed to a party (the “Receiving Party”) by or on behalf of the other party (the “Disclosing Party”) about the Disclosing Party's business that is confidential to the Disclosing Party and which shall include the terms and conditions of this Agreement (which information shall be deemed to be Careerlist's Confidential Information) and all information which, by the nature of the circumstances surrounding the disclosure, ought to be treated as confidential.

“Customer” shall mean the entity so identified in each Search Order Form.

“Dedicated Search” shall mean any search conducted by Careerlist on behalf of the customer in accordance with a signed Search Order Form.

“Employer Services” shall mean the services provided by Careerlist to Customer in connection with the identification and recruitment of Prospective Hires and the employment of Hires.

“Hire” refers to any individual who is identified to the Customer by Careerlist, or through the recommendations of the Client, as a prospective candidate for employment, and who subsequently receives an employment offer from the Customer. To ensure clarity, any individual hired through a dedicated search process conducted by Careerlist will be considered a 'hire' for the purposes of commission calculations, unless explicitly specified otherwise in the Order Form.

“Prospective Hire” shall mean a job candidate who has been identified to Customer by Careerlist for any Dedicated Search.

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2. Employer Services

  1. During the Term, Careerlist will provide the Employer Services to Customer.
  2. For each Dedicated Search requested by Customer, prior to commencement of work by Careerlist, the parties will agree upon the parameters of such search, and will set out such agreement in a search order form (each, a “Search Order Form”). Careerlist agrees to conduct each such search in accordance with the requirements of the applicable Search Order Form.
  3. If at any time during the Term or the one year period thereafter (the “Commission Period”), Customer, any of its subsidiaries, parent companies or entities under common control, or any of their respective successors (each, a “Customer Related Party”) employs or otherwise retains any Prospective Hire with whom a Customer Related Party has engaged in communication during the Term or who was contacted by Careerlist on behalf of a Customer Related Party (each, a “Commission Eligible Prospective Hire”), Customer will pay to Careerlist the Commission Fee, calculated in accordance with the applicable Search Order Form and payable in the manner set out therein. Customer will immediately notify Careerlist in writing of each Commission Eligible Prospective Hire it employs or otherwise retains during the Commission Period, regardless of whether or not such employment or retention occurs during the Term or thereafter.
  4. For any Hire whose employment or engagement terminates within ninety (90) days of his or her start date, Careerlist will provide Customer with a credit for a replacement hire based on the same brief, position, title and compensation range of the original hire.
  5. Except as set out in Section 2.4, Careerlist does not refund, or provide a credit for, any fees or other amounts paid for any reason, including without limitation in situations where less than the anticipated number of Hires were hired or engaged by Customer, or where a Customer terminates the Agreement prior to the expiry of the Term.

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3. Fees and Payments

  1. If Customer fails to pay any amounts due in accordance with this Agreement, Careerlist may, without prejudice to any other right or remedy, suspend any and all services to be provided under this or any other agreement (including Employer Services) until all such unpaid amounts have been paid.
  2. The fees and charges payable hereunder do not include any applicable sales, use, excise, GST, HST, value-added or other taxes or duties. Customer is responsible for paying same.
  3. Careerlist may use a third party payment vendor to process payment of fees. Customer may need to complete a Credit Card Authorization Form allowing Careerlist to withdraw, debit or charge monthly payments from Customer’s designated bank or credit card accounts.

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4. Confidentiality

  1. The Receiving Party shall not at any time during the term of this Agreement or for a period of 5 years after any termination or expiration of this Agreement, publish, disclose, or otherwise divulge any Confidential Information of the Disclosing Party to any third party, except to those of the Receiving Party’s employees who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than those contained in this Agreement, nor shall the Receiving Party use any such Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement. The Receiving Party shall take all measures to maintain the confidential nature, and protect the secrecy, of all Confidential Information of the Disclosing Party, which measures shall include the highest degree of care that the Receiving Party utilizes to protect its own information of a similar nature, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Information of the Disclosing Party which may or should come to the Receiving Party’s attention. The foregoing restrictions shall not apply to information that (i) is known to the Receiving Party without any confidentiality restrictions at the time of disclosure to the Receiving Party, (ii) has become publicly known through no wrongful act of the Receiving Party, (iii) has been rightfully received by the Receiving Party from a third party authorized to make such disclosure without restriction, or (iv) has been approved for release by written authorization of the Disclosing Party. In addition, nothing in this Agreement shall prohibit the Receiving Party from disclosing Confidential Information if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding; provided that the Receiving Party shall (A) give the Disclosing Party prompt notice of such required disclosure prior to disclosure, (B) cooperate with the Disclosing Party to contest such disclosure or seek a protective order with respect thereto, and/or (C) in any event only disclose the exact Confidential Information, or portion thereof, specifically required to be disclosed.
  2. Upon termination or expiration of this Agreement, the Receiving Party shall immediately stop using and shall return to the Disclosing Party all Confidential Information of the Disclosing Party, and all copies, notes, diagrams, computer memory media and other materials that contain any portion of such Confidential Information.
  3. Notwithstanding the foregoing, it is understood that the Receiving Party’s computer systems may automatically back-up the Confidential Information of the Disclosing Party. To the extent that such computer back-up procedures create copies of any such Confidential Information, the Receiving Party may retain such copies in its regular archival or back-up computer storage system(s) for the period that such archives or back-ups are normally kept by the Receiving Party. All archived or backed-up Confidential Information shall be subject to the remaining confidentiality and non-use restrictions under this Agreement.
  4. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of Section 4.1, Section 4.2 or Section 4.3 by the Receiving Party will cause the Disclosing Party irreparable damage for which recovery of money damages would be inadequate, and that the Disclosing Party shall therefore be entitled to obtain timely injunctive relief to protect the Disclosing Party’s rights under this Agreement in addition to any and all remedies available at law.
  5. Notwithstanding anything to the contrary contained in this Agreement, at any time after execution of this Agreement, Careerlist may issue a press release stating the non-confidential facts related to the relationship between the parties. In addition, Careerlist may include Customer’s name and logo on a list of Careerlist’s customers, which may be made public.

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5. Representations, Warranties and Covenants

  1. Careerlist represents, warrants and covenants to Customer that: (i) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation and it has the corporate capacity to enter into this Agreement and to perform each of its obligations hereunder; (ii) it has duly authorized, executed and delivered this Agreement and this Agreement constitutes a legally valid and binding obligation of it enforceable against it in accordance with its terms except as such enforcement may be limited by applicable law; (iii) it has the expertise and knowledge to perform the Employer Services, and it will perform the Employer Services in a professional manner and in accordance with this Agreement; and (iv) it will comply with all applicable laws in performing the Employer Services and fulfilling its obligations under this Agreement.
  2. Except as expressly set out in this Agreement, Careerlist does not and cannot warrant the performance or results Customer may obtain by using the Employer Services, and Careerlist hereby disclaims any other warranties of any kind, whether express, implied or statutory, including any warranties as to performance, non-infringement of third party rights, accuracy, completeness or usefulness of third party materials or information (including without limitation, materials or information provided by Prospective Hires), merchantability, or fitness for a particular purpose.

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6. Limitation of Liability

  1. IN NO EVENT WILL CAREERLIST OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR ANY LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF CAREERLIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS SUCH LOSS IS CAUSED BY CAREERLIST’S OWN WILLFUL ACTS OR GROSS NEGLIGENCE. CAREERLIST’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE EMPLOYER SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER AMOUNT OF COMMISSION FEES PAID TO CAREERLIST UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FINAL EVENT GIVING RISE TO SUCH LIABILITY OR $100,000.00. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE TO CAREERLIST IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT CAREERLIST WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

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7. Term and Termination

  1. Subject to the provisions allowing earlier termination as provided elsewhere in this Section 7, this Agreement shall take effect on the Effective Date set out in the first Search Order Form entered into by the parties, and shall continue until expiration of the term of the final Search Order Form enter into by the parties.
  2. Either party may terminate this Agreement by giving written notice to the other party following the occurrence of at least one of the following: (a) the other party defaults with respect to a material obligation under this Agreement and does not remedy that default within fourteen (14) calendar days after receiving written notice of the default; (b) the other party ceases or threatens to cease to carry on the business currently being carried on by it or a substantial portion thereof; (c) the other party is insolvent; or (d) the commencement of any proceeding or the taking of any step by or against the other party: (i) for the bankruptcy, reorganization, liquidation, dissolution or winding-up of the other party; (ii) for an arrangement or compromise with its creditors; or (iii) for the appointment of a trustee, receiver, custodian, liquidator or any other person with similar powers with respect to the other party.
  3. Upon any termination or expiration of this Agreement for any reason, any amounts owed to Careerlist under this Agreement before such termination or expiration will be immediately due and payable. Upon termination or expiration of this Agreement for any reason, the following provisions shall survive and remain effective: Section 2.3, Section 2.5, Section 3, Section 4, Section 5.2, Section 6, Section 7 and Section 8.

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8. General

  1. This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, shall be governed by and interpreted in accordance with the laws of the State of New York and the federal laws of the United States of America applicable therein, without giving effect to any choice of law principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on the International Sale of Goods shall not be applicable to this Agreement.
  2. Customer shall not make or purport to make any assignment, transfer or conveyance, in whole or in part, of its rights or obligations under this Agreement without the prior written consent of Careerlist. Subject to the foregoing, the rights and benefits of the parties under this Agreement shall accrue to, and run in favor of, each party’s successors and assigns. The obligations of the parties under this Agreement shall be binding upon their respective successors and assigns. Nothing in this Agreement shall be construed to grant any person or entity not a party hereto any rights or powers whatsoever. No person or entity shall be a third party beneficiary of this Agreement.
  3. The provisions of this Agreement are severable. If any provision or part of this Agreement shall be held by any court or other official body of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions or parts hereof shall continue to be given effect and shall bind the parties hereto.
  4. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given if: (i) delivered by hand, (ii) sent by e-mail, or (iii) sent by overnight delivery services prepaid and shall be addressed to each party’s respective address as indicated in the most recent Search Order Form.
  5. In the event that either party hereto shall be rendered wholly or partly unable to carry out its obligations under this Agreement by reason of causes beyond its reasonable control, including, but not limited to, acts of God, accidents, fire, natural disaster, act of government, shortage of equipment, materials, supplies or services beyond the reasonable control of such party, Internet backbone outage, or any other cause beyond the reasonable control of the affected party, then the performance of the obligations of the affected party shall be excused during the continuance of any inability so caused provided that the party whose performance is delayed or prevented promptly notifies the other party of the nature and anticipated duration of the force majeure event.
  6. The headings of the Sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. As used in this Agreement, (i) neutral pronouns and any derivations thereof shall be deemed to include the feminine and masculine; (ii) the words “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all Search Order Forms as the same may be from time to time amended or supplemented and not to any subdivision of this Agreement; (iii) the words “party” and “parties” refer, respectively, to a party or to both of the parties to this Agreement; (iv) the word “including” is not intended to be exclusive and means “including without limitation”; and (v) unless specified otherwise, the word “days” refers to calendar days. The terms “will” and “shall” are used interchangeably and indicate that the specified action or forbearance is mandatory. The English language version of this Agreement will be used in construing and interpreting this Agreement if this Agreement is ever translated into any other language.
  7. This Agreement contains the entire agreement between the parties with respect to the transactions referred to herein and supersedes all prior and contemporaneous arrangements or understandings, whether oral or written, with respect to the subject matter hereof. No supplement, modification or amendment to this Agreement shall be binding unless evidenced by a writing signed by the party against whom it is sought to be enforced. The failure of either party to insist in any one or more instances upon performance of any term, covenant or condition of this Agreement shall not be construed as a waiver of its future performance. The obligations of either party with respect to such term, covenant or condition shall continue unchanged and in full force and effect. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.