By signing the Search Authorization, you and we agree as follows:
1. Services. We provide recruiting solutions along with associated consulting services (the “Services”). The Services may include identifying and screening candidates, presenting candidates, evaluating candidates, or coordinating meetings with candidates. Unless designated as replacing a specific Search Authorization, subsequent Search Authorizations will be considered in addition to currently effective Search Authorizations. Any conflict between the terms and conditions set forth in this Agreement and any Search Authorization shall be resolved in the following order: (i) the Search Authorization, and (ii) this Agreement.
2.1 You agree to pay us the fees for the Services as specified in each Search Authorization (the “Fees”). Fees for the Services will be invoiced upon acceptance of the position.
2.2 All Fees and other amounts payable by you as specified in a Search Authorization are exclusive of taxes and assessments of any nature imposed by any governmental or regulatory authority in any jurisdiction, including, but not limited to, value-added, sales or use taxes (collectively, “Taxes”). You are responsible for paying all Taxes on any amounts payable by you for your purchase or use of the Services. If we have a legal obligation to pay or collect Taxes for which you are responsible under this Section, we will invoice you and you agree to pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. Payment Terms. All Fees are invoiced per the schedule defined in the applicable Search Authorization. All retainer invoices are due upon receipt. If payment is not received within thirty (30) days of when the original payment was due, access to the Services may be denied until such time as payment is received. We may assess you a late fee of 1½% per month (not to exceed the maximum allowed under state law) on all balances not paid when due. You agree to pay any and all costs and fees incurred in the collection of charges due and payable. If payment is received late, then the right to replacement candidates is voided.
4. Term and Termination.
4.1 This Agreement will commence on the Effective Date indicated on the Search Authorization and will continue until terminated.
4.2 Upon termination of this Agreement or any applicable Search Authorization, we will no longer provide the applicable Services to you and you shall immediately pay us for all Fees and other amounts payable to us that had accrued prior to the termination date.
4.3 Either party may terminate the engagement created by this Agreement and the Search Authorization with thirty (30) days advance written notification (acknowledged email acceptable). If candidates who are presented during the term of our agreement with you are hired within twelve months of termination, a professional fee equal to the fee stated in the Search Authorization will be due and payable for each of those candidates.
5. Confidentiality. The parties wish to establish terms governing the use and protection of Confidential Information (defined below) that one party (“Owner”) may disclose to the other party (“Recipient”) in connection with the performance of their respective duties and obligations under this Agreement. “Confidential Information” means information that relates to the subject matter of this Agreement, the applicable Search Authorization or that, although not related to the subject matter of this Agreement, is nevertheless disclosed as a result of the parties’ discussions or activities in that regard and, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, should reasonably have been understood by Recipient to be proprietary and confidential to the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form (including on electronic storage media) or by oral, visual, or other means.
6.1 We will indemnify, defend and hold you harmless, from and against any claim, suit or action brought against you (a “Claim”) and will pay any settlement we make or approve or any damages finally awarded in such Claim, insofar as such Claim is based on a claim by any third party alleging that the Services infringe any U.S. trademark, copyright, or patent, or misappropriate any trade secret recognized under the Uniform Trade Secrets Act; provided that we are given prompt written notice of the Claim and sole control over the defense and any settlement thereof and you reasonably cooperate with us to facilitate the settlement or defense of any Claim. We will have no obligation under this Section to the extent any Claim arises from: (i) your breach of this Agreement; (ii) use of the Services except in accordance with this Agreement and our written instructions; (iii) the combination of the Services with any other software, data, or technology not supplied by us; (iv) modifications of the Services not made by us; or (v) your failure to implement changes recommended by us if the infringement or misappropriation would have been avoided by implementing the recommended changes.
6.2 If any portion of the Services becomes, or in our reasonable opinion is likely to become, the subject of a Claim of infringement, we may, at our option and expense: (a) procure for you the right to continue using the Services; (b) replace the Services with non-infringing services which do not materially impair the functionality of the Services; (c) modify the Services so that they become non-infringing; or, (d) if none of the above options are commercially reasonable, terminate this Agreement and upon such termination, you will immediately cease all use of the Services and we will refund to you any prepaid Fees for infringing Services, prorating the refund based upon the remaining time in the current, prepaid period. Sections 9.1 and 9.2 state your sole and exclusive remedy and the entire liability of us for any Claims of infringement or misappropriation.
6.3 You will indemnify, defend and hold us harmless, from and against any Claim and will pay any settlement you make or approve or any damages finally awarded in such Claim, insofar as such Claim arises out of or is based on (a) use of the Services by you that is not in accordance with the terms of this Agreement; and (b) your data; provided that you are given prompt written notice of the Claim and sole control over the defense and any settlement thereof and we reasonably cooperate with you to facilitate the settlement or defense of any Claim.
7. Limitation of Liability.
7.1 IN NO EVENT SHALL EITHER YOU OR WE (OR ANY OF YOUR OR OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, OR AGENTS), BE LIABLE FOR ANY INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION) RESULTING FROM OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 IN NO EVENT SHALL WE (OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, OR AGENTS), BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS IN THE AGGREGATE OF THE AMOUNTS ACTUALLY PAID BY YOU TO US UNDER THE SEARCH AUTHORIZATION FOR THE SERVICES WHICH FORM THE SUBJECT OF THE LIABILITY DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
8. Governing Law and Venue. This Agreement is made in and shall be governed by the laws of the State of Michigan, without regard to the choice of law principles of any jurisdiction. Exclusive jurisdiction and venue shall be in the federal and state courts situated in Oakland County, Michigan, and you and we waive any objection to the adjudication of disputes in that forum.
9. Entire Agreement. This Agreement, including and together with any related Search Authorizations constitutes the entire agreement between the you and us regarding use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No purchase order or other ordering document submitted by you that purports to modify or supplement the terms of this Agreement shall add to or modify the terms of this Agreement in any way.
10. No Third-Party Beneficiaries. Nothing in this Agreement is meant to create or creates any rights, obligations, or benefits directly or indirectly to any party not a signatory of this Agreement.
11. Relationship. The sole relationship between you and us is that of independent contractors.
12. Severability. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of all or part of a provision shall not affect the validity of the remaining parts and provisions of this Agreement, which shall remain in full force and effect.
13. Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
14. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
15. Updates. We may update or change any part of this Agreement at any time. If we do so, we will let you know through a notification within the Services or by posting the updated or changed Agreement at http://www.latas.com/terms with an updated “last updated” date at the bottom of the Agreement. The updated or changed Agreement will be effective and binding upon its posting, so we encourage you to return to our website and review this Agreement periodically.
This Services Agreement (the “Agreement”) is made between the Atlantic Alchemy Company LLC, DBA Michael Latas & Associates, with offices at 5700 Crooks Road, Suite 206, Troy, MI 48307 (“Latas”, “we”, “us”, “our”) and the Client identified on the Order Form (“you”, “your”).
Last Updated 1/1/20