Direct Hire Terms and Conditions
Vantage Consulting USA Inc.
Terms and Conditions of Business
Section 1 - Definitions
1.1 Agreement: These Terms & Conditions of Business (the “Agreement”) comprises the agreement between Vantage Consulting USA Inc., its employees, parent and group company’s assumed names, trade names, affiliates and subsidiaries, together a recruitment agency, upon which the Company introduces Candidates to the Client, (“Company”), and __________________, located at __________ including its parent company’s, assumed names, trade names, associates, representatives, customers, agents, and subsidiaries (“Client”) and, (each a “Party” and collectively, the “Parties”).
1.2 “Candidate”: the person, applicant, entity, third party or prospective employee introduced or Presented (defined below) by Company to Client. For the avoidance of doubt, a “Candidate” includes a Company employee.
1.3 “Engage” or “Engagement”: Client’s direct or indirect, fulltime employment, part-time employment, temporary hire, hourly engagement, consultancy engagement, contract to hire, or other arrangement of Candidate.
1.4 “Present”, “Presented” or “Presentation”: Company provision or disclosure of any information to Client about a Candidate, whether written or oral, including without limitation, Candidate’s contact information, skillset, references, availability, background, CV, profile, experience, or any information that may be derived from same.
1.5 “Remuneration”: Candidate’s anticipated and expected total first year’s gross earnings, including without limitation, salary, anticipated commission, guaranteed and/or anticipated bonuses, relocation, allowances, guarantees, incentives, draw earnings and car allowance. Where Client provides a company car, a notional amount of $15,000 will be added to the gross earnings in order to calculate Company's fee;
Section 2 - Terms
2.1 The Agreement shall be deemed accepted and agreed by Client upon the first of the following to occur: (a) Client’s execution of the Agreement; (b) Client’s request for services; (c) Client’s in-person, online or phone interview of a Candidate; or (d) an Engagement.
2.2 Either Party can terminate the Agreement with 30 days' written notice to the other. Certain provisions, including for the avoidance of doubt all provisions relating to payment of Fees by the Client, survive termination.
2.3 Client shall pay Company the Fee if Client Engages a Candidate within twelve (12) months from the latest to occur of the following: (a) Client’s in-person interview, on-line interview or phone interview of the Candidate; (b) any Presentation or any re-Presentation; (c) the most recent discussion between the Parties regarding the Candidate; (d) Client’s withdrawal of an offer; or (e) Client’s rejection of the Candidate. This provision shall survive expiration or termination of the Agreement.
2.4 Client shall provide Company with all information necessary for Candidate to perform to Client’s standards, including the role’s responsibilities and tasks, job site location, start date, expected hours, benefits and pay, required experience, qualifications, training and certifications.
2.5 Company will use commercially reasonable efforts to Present Candidates who meet Client’s expectations; however, Company makes no warranty as to the suitability or capability of a Candidate. Client acknowledges and agrees that Company solely provides a referral service and that only Client can adequately determine whether a Candidate is qualified or fit for an Engagement. Company takes no responsibility for any liability resulting from an Engagement or for Candidate’s acts or omissions.
Section 3 - Fee
3.1 The fee per Engagement for Company’s service shall consist of a percentage of the Candidate's Remuneration (the “Fee”). This Fee is 30%. The minimum Fee shall be $15,000. If Client Engages the Candidate on an hourly basis or the Remuneration is unknown, the Fee shall be 2080 times the Candidate’s hourly rate as determined by Company in accordance with the highest prevailing market rate.
3.2 Fees will be invoiced upon Candidate’s written acceptance and are payable in full via bank transfer only, within 7 days of the date of the invoice. In the event of late payment, Client shall incur the higher of (a) 1.5% per month or (b) the highest rate permitted by applicable law, with interest accruing starting with the date of the invoice. In any action to obtain payment, Company shall be entitled to all fees, costs and expenses of such actions, including reasonable attorney’s fees.
3.3 Should Client fail to notify Company of an Engagement within five (5) business days from the Candidate’s start date, Company at its discretion, may charge a non-refundable Fee of 30% of Company’s reasonable estimate of the Remuneration, regardless of the actual Remuneration, and invoice appropriately with no Candidate Guarantee.
3.4 If Client makes a formal written or verbal offer to a Candidate which is subsequently withdrawn by Client for any reason, Client shall pay Company the Fee in full (100%), Candidate Guarantee may be given for a failed background check, including drug testing.
3.5 All Fees are subject to any sales, value added, excise, or other sales-based taxes, where applicable, which will be charged in addition to the stated Fee.
Section 4 - Guarantee
4.1 Company may provide a rebate/replacement guarantee if the successful candidate either does not appear or start work or leaves Company within eight (8) weeks of commencing employment (“Candidate Guarantee”). The Company will attempt to find and Introduce another suitable Candidate within 56 days of the notice of abandonment at no cost, If a replacement Candidate is not introduced to Client within such period, then the Client will be repaid with the following rebate structure.
0 – 14 Days = 80% Rebate
15 – 28 Days = 60% Rebate
29 – 42 Days = 40% Rebate
43 – 56 Days = 20% Rebate
57 Days or More = No (0%) Rebate.
4.2 However, under no circumstances will Company replace a Candidate, issue a refund or extend a Candidate Guarantee if any of the following occur: (a) the cause of Candidate’s resignation or employment termination is beyond Company’s control or unrelated to the Candidate’s qualifications; (b) Candidate is laid off, redundancy or threatened redundancy; (c) Candidate is discharged without cause or for an unlawful reason; (d) Client fails to notify Company, in writing, of the reason for the employment termination or resignation, within five (5) business days of the Candidate’s last full working day; (e) Client fails to pay the full Fee within the timeframe in clause 3.2 (f) Client fails to comply with this Agreement; or (g) Client fails to inform Company of an Engagement within five (5) business days from the Candidate’s start date.
Section 5 - Confidentiality and Non-interference
5.1 All information whether written or verbal, provided by Company to Client concerning a Candidate introduced to Client is confidential. Client, and any agent acting on Client’s behalf shall ensure mutual confidentiality of all information exchanged including without limitation business data, Candidate information, compensation or resumes.
Client shall not pass to any third party any Candidate details, such as but not limited to, compensation information, resume data, background, experience, without prior written consent of Vantage Consulting. Each Party commits to comply with all applicable privacy and data protection laws.
5.2 If, with or without such consent, Client refers any Candidate to a third party, or refers a third party to any Candidate, within twelve (12) months of the initial Presentation, a Fee equal to 30% shall become due and payable by Client upon such disclosure or referral.
5.3 Client agrees not to directly or indirectly solicit or Engage a Company employee for a period of twelve (12) months from the termination of this Agreement. Client shall pay Company a Fee equal to 30% in line with clause 3 if it Engages a Company employee.
Section 6 - Liability and Miscellaneous
6.1 CLIENT SHALL NOT HOLD COMPANY LIABLE FOR ANY LOSS, INJURY, DAMAGE, EXPENSE OR DELAY INCURRED OR SUFFERED BY CLIENT ARISING IN CONNECTION WITH ANY PRESENTATION OR ENGAGEMENT AND, IN PARTICULAR (BUT WITHOUT LIMITATION TO THE FOREGOING), ANY SUCH LOSS, INJURY, DAMAGE, EXPENSE OR DELAY ARISING IN CONNECTION WITH: (A) FAILURE OF ANY CANDIDATE TO MEET THE REQUIREMENTS OF CLIENT FOR ALL OR ANY OF THE PURPOSES FOR WHICH THE CANDIDATE IS REQUIRED BY CLIENT; (B) ANY ACT OR OMISSION OF ANY CANDIDATE, WHETHER WILLFUL, NEGLIGENT, FRAUDULENT, DISHONEST, RECKLESS, OR OTHERWISE; (C) ANY LOSS, INJURY, DAMAGE, EXPENSE OR DELAY INCURRED OR SUFFERED BY A CANDIDATE, PROVIDED THAT NOTHING IN THIS CLAUSE SHALL BE CONSTRUED AS PURPORTING TO EXCLUDE OR RESTRICT COMPANY’S LIABILITY TO CLIENT FOR PERSONAL INJURY OR DEATH RESULTING FROM COMPANY’S OWN NEGLIGENCE NOR ANY OTHER EXCLUSION OR LIMITATION WHICH IS PROHIBITED BY LAW. IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT AND IN RELATION TO THE SPECIFIC ASSIGNMENT AND INTRODUCTION GIVING RISE TO THE ALLEGED LOSS.
6.2 Client acknowledges that in entering into this Agreement, it has not relied on any representations, warranties, or other assurances by Company or any of its staff other than those expressly set out in this Agreement.
6.3 Any ambiguity in this Agreement is not to be construed against any Party to this Agreement on the grounds that such Party drafted the agreement, but shall be construed as if all Parties jointly prepared this Agreement and any uncertainty or ambiguity shall not on that ground be interpreted against any one Party. The Parties enter into this Agreement freely and voluntarily and with a full understanding of its terms and significance.
6.4 In the event any action or dispute arises to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to payment of its actual reasonable attorney’s fees and costs by the non-prevailing party.
6.5 This Agreement is binding on the Parties and their successors, purchasers and assignees. Each Party’s rights and obligations hereunder that by their nature survive the termination or expiration of this Agreement shall survive termination or expiration of this Agreement. This Agreement may be signed in counterparts. This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all previous agreements, pre- existing negotiations, representations, promises and discussions, either written or oral, related to the subject matter herein. No amendment, variation or alteration of this Agreement is valid unless executed by an authorized representative of both Parties in writing.
6.6 The Client accepts it’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by a setoff, counterclaim, recoupment, withholdings, defence or other claim, right or action which the Client may have against Company.
6.7 This Agreement is executed and intended to be performed in the State of Massachusetts and the laws of the State of Massachusetts without regard to conflict of laws principles, shall govern its construction, interpretation and effect, including any non-contractual disputes that may arise or be related to the Agreement. Any suit, claim, or other action to enforce the terms of this Agreement or a related claim shall be brought exclusively in the United States District Court for the state courts of Massachusetts.
