Before initiating your first "Pre-Employment Test Drive" with TrialByHire.com, you will be asked to click "I Agree" to acknowledge that you have read and agree to the terms and conditions of this, our User Agreement. When you click "I Agree", you will be entering a legally binding User Agreement ("Agreement") with TrialByHire.com, a service of Top Echelon Contracting, Inc., an Ohio corporation, with its mailing address at P.O. Box 20990, Canton, OH 44701-0990, for the contract to hire services of the Job Applicants ("Applicants") of your choice in accordance with the terms and conditions of this Agreement.
1. TrialByHire.com Employees. You may refer potential Applicants for employment to TrialByHire.com and request that TrialByHire.com employ these Applicants to provide services to you at your facility on a contract to hire basis (a.k.a. "Pre-Employment Test Drive" or the "trial period"). We may, in our sole discretion, refuse to hire any Applicant referred to us by you based upon our independent hiring practices. However, if we hire an Applicant referred to us by you, then we will assign that person to perform services to you at your facility in accordance with the Job Title/Description set forth in the online sign up form(s). You acknowledge that we have relied upon the Job Title/Description that you have provided to us in placing the Applicant at your facility and you will give us at least 15 days written notice before making any substantial changes to the Applicant's Job Title/Description.
2. No Warranty. You represent and warrant that you have determined that the Applicant(s) you refer to us possess the requisite skills, experience, background, and education you require of the Applicant(s). We make no representation or warranty as to the skills, experience, ability, background or education of the Applicant. Consequently, you will hold us harmless from any liability arising out of the Applicant's inability to perform or complete the work required by the Job Title/Description. Furthermore, you acknowledge that time is not of the essence in our contract with you; and we disclaim all express or implied warranties related to the Applicant's performance and his or her work product, including, but not limited to, the implied warranties of fitness for a particular purpose and merchantability.
3. Billing. You will review and sign the Applicant's time sheet(s) and submit the same to us on a weekly basis. Your signature on the Applicant's time sheet will serve as acceptance of our charges related to that Applicant's services. We will invoice you for the total number of hours on the approved time sheet(s) multiplied times the Company's Hourly Bill Rate which was displayed in our online Cost Calculator. We will also invoice you a $199 Startup Fee for each Applicant we hire on your behalf, regardless of the duration of the Trial Period. (Overtime will be calculated at 1.5 times the employee's hourly pay rate. Sales Tax will be added where applicable.)
4. Payment Terms. Invoiced amounts are due net 15. Any amounts not paid when due will bear interest at the rate of 18% per annum from the date thereof until paid in full. If your credit score meets our standards, you may pay our invoices by company check. If your credit score is below our comfort level, we will notify you that we require ACH debit payments.
5. Our Responsibilities. We will hire the Applicant and serve as his or her employer during the trial period that you have selected. We will, at our sole expense and responsibility, pay all compensation due and provide all eligible benefits to the Applicant during the trial period. We will pay and/or withhold all benefits, payroll taxes, Worker's Compensation premiums or taxes and unemployment taxes required to be paid and/or withheld in connection with the Applicant's placement at your facility during the trial period subject to all applicable laws, this Agreement, and/or our Employment Agreement with the Applicant. We will comply with all laws and regulations imposed on us as the Applicant's employer during the trial period.
6. Insurance. We will carry statutory Worker's Compensation Insurance, Commercial General Liability Insurance, Hired and Non-Owned Automobile Liability Insurance, Professional Liability Insurance, Employment Practices Liability Insurance and Dishonest Acts Insurance in amounts we deem sufficient. Certificates of Insurance are available upon request.
7. Mutual Responsibilities. Both parties represent and warrant that they are compliant with, and will continue to comply with all applicable laws and regulations related to the selection, utilization, and termination of Applicants; the services performed by the Applicants; and the termination of this Agreement. Such laws and regulations include, without limitation, all provisions of Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1966; the Age Discrimination in Employment Act; the Equal Pay Act; the Americans with Disabilities Act of 1990; the Occupational Safety and Health Act; the Rehabilitation Act of 1973; the Veterans Re-Employment Rights Act and all other state, local and federal laws and regulations. Both parties further represent and warrant that they are equal opportunity employers and will not discriminate against any Applicant on the basis of his or her gender, race, religion, color, age, marital status, national origin, handicap, disability, military status or any other protected status. Furthermore, the parties will indemnify and hold each other harmless from all fees, costs, expenses and liabilities incurred by the other as a result of the their failure to comply with any of such applicable laws or regulations. The parties will cooperate with and assist each other in meeting their obligations under all applicable federal, state and local employment laws, including, but not limited to, wage and hour laws, health and safety laws, family and medical leave laws, military leave laws, workers' compensation laws, immigration and naturalization laws and the Americans With Disabilities Act. Further, the parties will cooperate and assist each other, as necessary, but without obligation to incur the other's attorney fees or costs, in any administrative or court action brought by or on behalf of any Applicant against TrialByHire.com or Client for acts or omissions arising during the trial period.
8. Workplace Rules. If you have specific workplace rules, we will require a copy for review. We have an Employee Handbook for the Applicant. Both parties will assist the other for the Applicant's compliance with workplace rules, policies, guidelines.
9. Extension and Termination for Cause. Either party may terminate this Agreement in their sole discretion, with or without cause, upon written notice to the other.
10. Relationship of Parties. You agree that during the trial period, the Applicant is solely our employee. Neither this Agreement nor the services provided to you by the Applicant pursuant to this Agreement shall be construed to create a relationship of employment, agency, partnership or joint venture between us and you or you and the Applicant. Our status to you shall be that of independent contractor. We shall not have any authority to assume or create any obligation on your behalf except to the extent that you give express or implied authority to the Applicant, our employee, to take action on your behalf. You shall not have any authority to assume or create any obligation on our behalf.
11. Confidentiality. You acknowledge that if you provide any confidential information to the Applicant, you should first obtain any desired confidentiality agreement from the Applicant. You will not hold us responsible for breaches of confidentiality caused by the Applicant. However, both parties agree that if you disclose information to our corporate offices, we will treat that information as Confidential Information. Likewise, you agree that all of the information you receive from us, including, without limitation, this Agreement, know-how, confidential trade secrets, business plans, data processes, techniques, customer information, inventions, discoveries, formulae, patterns, and devices, shall be deemed to be our valuable, confidential and proprietary trade secret information ("Confidential Information"). The parties will not disclose any of the other's Confidential Information to any unauthorized third party unless the information is public knowledge. Further, neither party shall directly or indirectly make use of any of the other party's confidential information except as required in the performance of this Agreement. In the event that either party is required to disclose Confidential Information by court order, subpoena or discovery request, the party subject to the order will notify the other of the disclosure potential; and, the other party may, at its sole expense seek a protective order before disclosure.
12. Work Product. All work product developed, in whole or in part, by an Applicant during the trial period shall belong to you; and is being created by the Applicant as a Work for Hire. We irrevocably assign to you, without any warranties, express or implied, any rights we may have or acquire in the Applicant's work product. Furthermore, we will, at your request, execute an assignment or any other reasonable documents that conform with this Section and which are reasonably necessary to transfer such rights to you. However, you acknowledge that we are not obligated under any circumstances to obtain any such rights from the Applicant or defend against any claims of the Applicant to such rights.
13. Indemnification. Subject to certain exclusions contained in this Agreement, we will indemnify and hold you harmless from and against claims for liability, including personal injury and property damage, which may arise as a result out of, or in connection with our performance under this Agreement. However, we are not obligated to indemnify you to the extent that such claim is the entire or partial result of your negligence, recklessness, or willful conduct. Likewise, you will defend, indemnify, and hold us harmless from and against any claims for liability arising out of, in connection with or related to your or your employees' negligence, recklessness, or willful conduct.
14. Notices. All notices given hereunder shall be in writing and shall be deposited in the U.S. Mail or delivered by email or a recognized national express courier, addressed to the applicable party.
15. Amendment. This Agreement may not be amended, except in writing executed by both parties.
16. Surviving Sections. Notwithstanding termination, completion, and/or payment for the services contemplated hereunder, both parties shall remain obligated under all those provisions of this Agreement which, by their nature and effect, obligate the parties for a time period beyond termination and/or completion of this Agreement.
17. Entire Agreement. This Agreement sets forth the entire contract of the parties hereto and supersedes all other oral or written contracts or arrangements between the parties.
18. Governing Law and Forum. This Agreement will be governed by and construed in accordance with the laws of the state of Ohio without regard to any conflict of laws provision. Any legal claims must be filed and litigated in any State or Municipal Court of proper subject matter jurisdiction in Stark County, Ohio.