1.1. Agreement means these terms and conditions.
1.2. Affiliate means a (a) relative; (b) private company in which the Client or any person controlled by the Client holds an ownership interest; (c) trustee of a trust under which the Client or any person controlled by the Client is a beneficiary.
1.3. Business Day means any day except a Saturday, Sunday or any day which is a public holiday in the Client’s place of business or other location nominated by the Service Provider on or before the Commencement Date.
1.4. Client means the client, its assigns, successors or any person or entity acting on behalf and/or with the authority of the Client.
1.5. Commencement Date means the date in which the Client is deemed to have accepted the terms and conditions of this Agreement in accordance with clause 4 of this Agreement.
1.6. Intellectual Property means all Intellectual Property Rights used or exercised in connection with or otherwise relevant in the provision of Services to the Client, including without limitation, drawings, designs, symbols, reports or software.
1.7. Intellectual Property Rights means all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to: (a) registered and unregistered copyright; (b) inventions (including patents, innovation patents and utility models); (c) confidential information, trade secrets, technical data and know-how; and (d) registered and unregistered designs.
1.8. Price means the costs of the Services as agreed between the Service Provider and the Client.
1.9. Restraint Period means the period commencing on the Commencement Date and ending on the date that is one (1) year from the date that this Agreement is terminated by the parties.
1.10. Service Provider means American Business Outsourcing LLC (“ABO”) and its wholly owned website www.jobstob.com.
1.11. Services mean the provision of outplacement services by the Service Provider.
1.12. Term means the period of one (1) year from the Commencement Date which will continuously and automatically rollover into a new term for the same period unless otherwise agreed by the parties in writing.
1.13. Jobstober means the employee or independent contractor engaged by the Service Provider to provide the Jobstob Services to the Client.
1.14. Jobstob Services means the services provided by the Jobstober at the instruction of the Client.
- GOVERNING CONDITIONS
2.1. These terms and conditions shall apply to the supply of Services by the Service Provider to the Client.
2.2. All requests for Services, however made, are accepted upon these terms and conditions, which shall override any terms or conditions incorporated or referred to by the Client in writing, orally or otherwise.
2.3. It is expressly agreed that no variation or alteration of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of each party.
2.4. No failure by the Service Provider to object to any terms or conditions incorporated or referred to by the Client in writing, orally or otherwise shall be deemed a waiver of these terms and conditions or an acceptance of the Client’s terms and conditions by the Service Provider.
3.1. If the Client is a company, the Directors and that company each agrees to be jointly and severally bound by these terms and conditions and will be jointly and severally liable for payments of the Price.
4.1. Any instructions received by the Service Provider from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Service Provider shall constitute acceptance of the terms and conditions contained in this Agreement.
4.2. Placing an order for the provision of Services, however made, presumes knowledge and acceptance of the terms and conditions contained in this Agreement. Upon placing an order the Client shall receive a written acknowledgement of the order, which does not constitute a binding contract until the Service Provider accepts the Client’s order by written confirmation.
4.3. Where more than one Client has entered into this Agreement, the Clients shall be jointly and severally liable for all payments of the Price.
- PRICE AND PAYMENT
5.1. The Price shall be as indicated on invoices provided by the Service Provider to the Client.
5.2. All prices are subject to change by the Service Provider: (a) without notice to account for fluctuations in the exchange rate, existing at the date of invoicing, using live exchange rates accessed by the Service Provider on xe.com. The comparison currencies for this purpose will be the currency of the country the Jobstober is based in and the currency used in the location of the Client’s place of business; and (b) to account for any increases in a Jobstober’s hourly rate required by that Jobstober from time to time and as agreed to by the Client.
5.3. Payment of the Price shall be due prior to delivery of the Services and payment shall be made by the Client to the Service Provider within three (3) days following receipt of the Service Provider’s invoice.
5.4. Each payment by the Client must be made without, and free and clear of any deduction for set-off or counterclaim and any withholding for or on account of any tax or any other deduction.
5.5. Payment will be made by credit card (which shall incur a surcharge of up to three per cent (3%) of the Price), ACH, EFT or direct credit, or by any other method as agreed to between the Client and the Service Provider.
5.6. Should the number of hours of work contemplated to be provided in any invoice issued to the Client: (a) exceed the number of hours of work actually provided in that relevant month, the Service Provider may provide the Client with a credit for the following month for a value equal to the value of the Services that were not provided in that relevant month; (b) be less than the number of hours of work actually provided in that relevant month, the Service Provider will include the value of the Services performed in excess of the hours contemplated in the relevant invoice in the following month’s invoice.
5.7. It is the Client’s sole duty to monitor the number of hours in which the Jobstob Services are performed in each month.
5.8. The Client may request for a specified number of hours to be worked by a Jobstober provided that such a request is received by the Service Provider at least seven (7) days prior to the commencement of the applicable invoicing period.
5.9. In each invoicing period, the Client must make all reasonable efforts to provide the Jobstober with the hours of work agreed to between the Service Provider and the Client.
5.10. If a Jobstober is allocated to a Client on a full-time basis, the following will constitute hours worked by the Jobstober: (a) the Jobstober’s meal break of 30 minutes duration on each work day; and (b) any public holiday observed at the location of the Client’s place of business which falls on a weekday.
5.11. Unless otherwise expressly stated, all Prices or other sums payable or consideration to be provided under or in accordance with this Agreement (if any) are exclusive of sales tax.
5.12. For the avoidance of doubt, nothing in this Agreement affects the Client’s ability to provide gifts of any kind to a Jobstober, however, the provision of any gift will not be accepted by the Service Provider as a substitute for payment of any part of the Price.
- INTELLECTUAL PROPERTY
6.1. Neither party shall use Intellectual Property of the other party in any manner without its prior written consent.
6.2. Neither party will accrue any right to use the other’s Intellectual Property as a result of entering into this Agreement.
6.3. Subject to clause 6.4 of this Agreement, all Intellectual Property created by the Service Provider or any Affiliate or Related Body Corporate of the Service Provider during the Term will remain the property of the Service Provider.
6.4. All Intellectual Property created by a Jobstober during the course of providing its services to the Client during the Term will become the Intellectual Property of the Client.
6.5. The Client warrants that all Intellectual Property given to the Service Provider for the execution of the Client’s order for Services and Jobstob Services will not cause the Service Provider to infringe any third party’s Intellectual Property.
6.6. The Client agrees to indemnify the Service Provider for all liability, loss, damages, claims, demands and expenses suffered or incurred by the Services Provider arising under or in connection with a breach by the Client of its obligations under this clause.
- WARRANTY, LIABILITIES AND INDEMNITIES
7.1. Except to the extent required under applicable law, the Service Provider shall not be liable to the Client for any loss, liability, claims or expenses of any kind whatsoever arising out of or in connection with the supply of: (a) Services by the Service Provider; or (b) Jobstob Services by the Jobstober.
7.2. The Service Provider’s liability for a breach of a condition or warranty which is implied under any law and cannot be excluded is limited, to the maximum extent possible, to the remedy of the Service or compensation of the pro rata amount paid by the Client for the Services.
7.3. In the event of any breach of this Agreement by the Service Provider, the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Service Provider exceed the Price paid by the Client for the Services and Jobstob Services.
- DEFAULT AND CONSEQUENCES OF DEFAULT
8.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of four (4%) per cent per calendar month and such interest shall compound monthly at such a rate until judgment is obtained.
8.2. If the Client defaults in payment of any invoice when due, the Client shall indemnify the Service Provider from and against all costs and disbursements incurred by the Service Provider in pursuing the debt including legal costs and the Service Provider’s collection agency costs.
8.3. Without any prejudice to any other remedies the Service Provider may have, if at any time the Client is in breach of any obligation (including those relating to payment); the Service Provider may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Service Provider will not be liable to the Client for any loss or damage the Client suffers because the Service Provider exercised its rights under this clause.
8.4. If any account remains overdue for a period exceeding thirty (30) days, an administrative fee of 15% per cent of the overdue amount shall be payable by the Client in addition to the amount outstanding .
8.5. Without prejudice to the Service Provider’s other remedies at law or under the provisions of this Agreement, the Service Provider shall be entitled to cancel all or any part of any order of the Client, which remains unperformed and all amounts owing to the Service Provider shall, whether or not due for payment, become immediately payable.
- TERM AND TERMINATION
9.1. This Agreement commences on the Commencement Date and continues for the Term unless terminated earlier in accordance with this Agreement.
9.2. Within the first three (3) months of this Agreement, either party may terminate this Agreement without cause upon the provision of one (1) day’s notice in writing to the other party.
9.3. Subject to clause 9.2 of this Agreement, either party may terminate this Agreement upon the provision of fourteen (14) Business Days’ notice in writing to the other party.
9.4. Within five (5) Business Days after termination or expiry of this Agreement for whatever reason, or, where this is not possible, as soon as practicable after that, the parties must: (a) either: (i) to the extent possible, return to the other party all confidential information and any copies of the confidential information; or (ii) to the extent that return is not possible, the other party must destroy all copies of any confidential information; and (b) deliver to the other party all property belonging to that party that is in the possession or control of the other party.
9.5. In the event that the Client terminates this Agreement, the Service Provider shall refund any unexpired portion of the Price to the Client, less any deductions or other rights of set-off that the Service Provider may have against the Client.
9.6. The Service Provider will not permit any Jobstober to release to the Client any information, documentation or other works of any kind prepared for the Client until such time as the Client’s account has been paid in full.
- ADDITIONAL EXPENSES
The Client will be liable for any expense that is incurred by a Jobstober at the Client’s instruction. This includes, but is not limited to, the expenses associated with the implementation of any upgrade or installation of software, hardware or internet speeds that is not ordinarily required for a Jobstober to provide its services to the Client.
11.1. During the Restraint Period, the Client (including any of the Client’s Affiliates or Related Bodies Corporate) must not, without the Service Provider’s prior written consent: (a) induce or attempt to induce a Jobstober to terminate the Jobstober’s engagement with the Service Provider; or (b) accept from a person who was a Jobstober at any time in the 12 month period before the termination of this Agreement, any services whatsoever.
11.2. If the Service Provider consents to the arrangement contemplated by clause 11.1(b) above, the Client acknowledges and agrees that a placement fee of $5,000.00 will be payable by the Client to the Service Provider.
12.1 This agreement shall be governed by and subject to the laws and jurisdiction of New York. Notwithstanding anything to the contrary herein, any and all disputes, controversies or claims arising out of or relating to this Agreement, or breach thereof, shall be finally resolved by arbitration administered by the American Arbitration Association in accordance with its rules, regulations, and procedures, and judgment on the decision and award, if any, rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in the English language, in the City and State of New York. The arbitrator or arbitrators shall decide the dispute in accordance with the substantive law of the State of New York. In the event that any issues of arbitrability must be resolved, such issues shall be resolved by arbitration consistent with this provision. Each party agrees to bear its own costs of arbitration.
12.2 In the case of the employment of an attorney in any matter arising out of this Agreement, the prevailing party shall be entitled to receive from the other party all costs and attorney fees, whether the matter is resolved through court action or otherwise. If, through no fault of Service Provider, any litigation arises out of Client’s usage of the Jobstober under this Agreement, Client agrees to indemnify Service Provider from all costs and attorney fees incurred by Service Provider in pursuing and/or defending such action.