MSA Direct Placement Agreement

MSA Direct Placement Agreement

This Master Services Agreement for Direct Placements (the Agreement) is entered into as of Effective Date: by and between Client Name: with principal place of business at and Provider Name: with principal place of business at . Client and Provider are each a Party and collectively the Parties.

RECITALS

WHEREAS, Provider operates a business engaged in sourcing, evaluating and presenting candidates for employment by its clients, including direct placement of employees; and

WHEREAS, Client desires to engage Provider to identify and introduce prospective candidates for direct placement into Client's workforce on the terms and conditions set forth herein; and

WHEREAS, the Parties intend this Agreement to govern the placement fee, candidate ownership, guarantee obligations and related terms for all direct placement engagements between the Parties.

NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, receipt of which is acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Candidate" means an individual introduced by Provider to Client for potential direct employment. A Candidate is considered introduced when Provider transmits a Candidate's résumé or other candidate information to Client in writing or via electronic communication.

1.2 "Placement" means the commencement of employment of a Candidate with Client, including direct hire, by Client or any subsidiary or affiliate of Client, whether on a full-time, part-time or other basis, within the Candidate Ownership Period.

1.3 "Candidate Ownership Period" means following Provider's initial introduction of the Candidate to Client.

2. ENGAGEMENT

2.1 Client hereby engages Provider, and Provider accepts such engagement, to identify and present Candidates for direct placement with Client in accordance with the terms of this Agreement. Provider shall exercise commercially reasonable efforts to identify Candidates meeting Client's written job specifications.

2.2 Provider will not make any representations or warranties on behalf of Client regarding compensation, benefits or employment terms without Client's prior written approval.

3. FEES, INVOICING AND PAYMENT

3.1 Placement Fee. In consideration for a Placement, Client shall pay Provider a placement fee equal to of the Candidate's first year Gross Annual Compensation or a flat fee of , as elected in writing by Provider at time of engagement.

3.2 Invoicing. Provider shall invoice Client upon the Candidate's start date. Client shall remit payment within days of invoice receipt. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.

3.3 Taxes. All fees are exclusive of taxes. Client shall be responsible for any applicable sales, use, excise or other taxes, excluding taxes based on Provider's net income.

4. CANDIDATE OWNERSHIP; INTRODUCTIONS

4.1 Candidate Ownership. Candidate ownership shall be determined by Provider's earliest documented introduction of the Candidate to Client. If Client employs, engages or otherwise contracts with a Candidate introduced by Provider within the Candidate Ownership Period, Client shall pay the Placement Fee to Provider.

4.2 Subsequent Contact. If Client or any affiliate of Client contacts a Candidate introduced by Provider after an interval of from Provider's introduction, such contact will be deemed a new introduction only if Provider did not previously introduce the Candidate and has no prior documentation of such Candidate.

5. GUARANTEE; REPLACEMENT

5.1 Guarantee Period. If a Placement terminates for any reason other than a mass layoff or elimination of the position within days of the Candidate's start date, Provider will use commercially reasonable efforts to present a replacement Candidate at no additional Placement Fee, provided Client has paid the original fee in full and provided that the replacement obligation shall be Client's sole and exclusive remedy for such termination.

5.2 Limitations. The replacement obligation does not apply if Client reduces compensation materially, substantially changes the job description, or terminates for cause supported by written documentation.

6. EXPENSES

Provider shall bear the costs of identifying and presenting Candidates unless the Parties expressly agree in writing that Client will reimburse specific out-of-pocket expenses. Any pre-approved reimbursable expense shall be invoiced and payable pursuant to Section 3.

7. REPRESENTATIONS AND WARRANTIES

7.1 Mutual Representations. Each Party represents and warrants that it has full corporate power and authority to enter this Agreement, that execution by its authorized representative will bind the Party, and that performance will not violate any applicable law or contractual obligation.

7.2 Provider Warranties. Provider represents that to the best of its knowledge the information provided to Client about Candidates is accurate and not knowingly false. Provider makes no warranty regarding Candidatess' qualifications, fitness for employment or continued employment, except as expressly set forth in Section 5.

8. CONFIDENTIALITY

8.1 Confidential Information. Each Party shall hold in confidence and not disclose the other Party's Confidential Information, including Candidate information, business plans, client lists, and compensation data. Confidential Information shall not include information that is publicly known through no breach by the receiving Party.

8.2 Use Limitation. Confidential Information may be used solely to effectuate the performance of this Agreement. Each Party shall take reasonable measures to protect Confidential Information, including limiting access to personnel with a need to know.

9. LIMITATION OF LIABILITY

9.1 Exclusion. Except for breaches of confidentiality or indemnification obligations, in no event shall either Party be liable for consequential, incidental, special or punitive damages arising out of this Agreement, whether in contract, tort or otherwise.

9.2 Cap. Except for liability arising from a Party's willful misconduct or gross negligence, each Party's aggregate liability under this Agreement shall not exceed the lesser of (a) the Placement Fee paid for the specific Placement giving rise to the claim or (b) .

10. INDEMNIFICATION

10.1 Provider Indemnity. Provider shall indemnify, defend and hold harmless Client from and against any claims, liabilities, damages and expenses arising out of Provider's breach of this Agreement, Provider's negligent acts or omissions, or any material misrepresentation by Provider to Client.

10.2 Client Indemnity. Client shall indemnify, defend and hold harmless Provider from and against any claims, liabilities, damages and expenses resulting from Client's employment decisions, use of Candidate information or Client's breach of this Agreement.

11. TERM AND TERMINATION

11.1 Term. This Agreement shall commence on the Effective Date and continue for a period of , and shall automatically renew for successive one-year periods unless either Party provides written notice of non-renewal at least days prior to the end of the then-current term.

11.2 Termination for Cause. Either Party may terminate this Agreement for material breach by the other Party if the breach remains uncured thirty (30) days after written notice of such breach.

12. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as a Party may designate by written notice in accordance with this Section.

13. MISCELLANEOUS

13.1 Amendments. This Agreement may be amended only by a written instrument executed by authorized representatives of both Parties.

13.2 Waiver. The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of future enforcement of that or any other provision.

13.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. Electronic signatures shall be binding.

13.4 Entire Agreement. This Agreement, together with any written placement addenda executed by the Parties, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior understandings, agreements and representations.

13.5 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

13.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflict of law principles.

SIGNATURES

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date(s) set forth below.

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