SorsX Logo

AGENCY TERMS AND CONDITIONS

THESE TALENT MARKETPLACE TERMS (the “Terms & Conditions”) are agreed to between SorsX LLC, a Delaware limited liability company (“SorsX”), and the Agency or other workforce solutions provider (the “Agency”) who will provide candidates for contingent & permanent placement positions to hiring companies as part of the Marketplace (defined below), and the hiring company receiving such services from the Agency (the “Company”) (collectively the “Parties”).
WHEREAS, SorsX is in the business of providing a hosted software platform (the “SorsX”) to engage with and manage Agencies providing candidates for hiring companies’ contingent & permanent placement hires; and
WHEREAS, Agency desires access to and use of the SorsX and to provide Search Services (defined below) to prospective employers (each, a “Company”), as described in more detail herein; and WHEREAS, Company desires to receive the Search Services from Agency under the terms and conditions herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
  1. Definition
    1. “Acceptance” shall mean acceptance of a Candidate in the SorsX for consideration to fill an open permanent or contract hire position for Company.
    2. “Applicant Tracking System (ATS)” shall mean an applicant tracking system utilized by the Company.
    3. “Candidate” shall mean an individual submitted by Agency through the SorsX to be considered for permanent / contract hire by Company.
    4. “Company Agreement” shall mean the agreement entered into between SorsX and Company for SorsX’s provision of administrative, management and support services related to the SorsX Program.
    5. “Marketplace” shall mean the aggregate collection of Agencies that have agreed to these Terms and to submit candidates to SorsX hiring companies through the SorsX Program. Upon acceptance of these Terms and agreement to any other requirements provided by SorsX, Agency will become enrolled in the Marketplace.
    6. “Placement Fee” shall mean the fee agreed to between SorsX and Agency in the SorsX for the direct hiring or contract by Company of a Candidate submitted by Agency, and usually expressed as a designated flat fee as appropriate for each placement.
    7. “Requisition” shall mean an open contingent permanent/contract placement job posting by Company, including any job requirements or other specified terms.
    8. “SorsX Program” shall mean the program managed and administered by SorsX through the SorsX and implemented for Company under a Company Agreement, which among other things involves the engagement and management of Agencies through the SorsX.
    9. “Search Services” shall mean those services provided by Agency in providing Candidates for open Requisitions that are managed through the SorsX Program
    10. “Terms of Use” shall mean those terms and conditions agreed to with SorsX by Agency regarding access to and use of the SorsX.
  2. SorsX Program
    1. Service Provider understands that when Company has chosen SorsX to administer and manage the SorsX Program, and Company and SorsX have entered into a Company Agreement to govern the terms of SorsX’s services thereunder, Company will submit electronic Requisitions to be distributed to the Marketplace through the SorsX, which is hosted and maintained by SorsX and may be integrated with Company’s ATS.
    2. Agency shall become a member of the Marketplace and commence participation in the SorsX Program by accepting these Terms and corresponding Terms of Use electronically through the SorsX, and providing all required documentation referenced in these Terms or required by SorsX in writing.
    3. Service Provider understands that Company will require Agencies to participate in the SorsX Program in order to fill Requisitions from Company for jobs that are posted in the SorsX, and Agency shall be required to provide any contingent permanent/contract placement services to Company through the SorsX if the particular job is posted in the SorsX.
    4. In the event Agency has an existing services agreement with Company for the provision of the same type of services to be provided under these Terms, these Terms will supersede and replace such services agreement with respect to the provision of Search Services to Company under the SorsX Program.
    5. Except as expressly permitted elsewhere in these Terms, Agency shall direct all communications related to Candidates, Placement Fees, contract terms, or any other inquiry to SorsX and shall not have any communication directly with Company related to the SorsX Program unless authorized by SorsX. The foregoing limitation does not prohibit communication initiated by Company or job- related communications specific to an Accepted Candidate.
    6. Agency may not re-post any Company- specific Requisition information to an external job board. A Candidate application to an external job board posting will not, by itself, qualify as a valid consent to representation as required in Section 3.3 below.
  3. Placement and Candidate Ownership
    1. Agencies will view Requisitions and submit qualified Candidates to Company through the SorsX platform. A “Placement” occurs and a Placement Fee is due when an Agency’s Candidate (i) is submitted by Agency for an open Requisition; (ii) is “Accepted” in form of “Approval” by Candidate in the SorsX platform; (iii) is offered and accepts a position with Company; and (iv) begins his/her first day of employment with Company within 180 days of Acceptance.
    2. Candidate Ownership Between Agencies. If two or more Agencies submit the same Candidate, the Agency whose Candidate was Accepted “in form of Approval” first shall be deemed to have made the Placement; provided that in the case of an ownership dispute, such Agency (i) can provide documentation of the Candidate’s consent to representation and (ii) engaged in substantive documented hiring activity with Company with respect to that Candidate after Acceptance. In the event of an ownership dispute where two or more Agencies submit the same Candidate to different Requisitions, the hiring activity required in subsection (ii) above must be substantially related to the Candidate's ultimate hire. In the event of a dispute among Agencies regarding which firm is entitled to any fee, SorsX shall, in its sole discretion, determine the fee, if any, applicable to each such firm.
    3. Candidate Ownership Between Company and Agency. A Candidate shall be deemed to be sourced by Company and not the Agency, and no Placement Fee will be due, if all of the following criteria are satisfied: (i) the Candidate existed in Company’s database or Company otherwise had actual knowledge of the Candidate prior to that Candidate’s Acceptance in the SorsX platform; (ii) Agency did not engage in any substantive documented hiring activity with Company with respect to that Candidate after the Candidate’s Acceptance; (iii) Company has engaged in recruiting activity with that Candidate in the previous 12 months; and (iv) Company notifies SorsX and provides supporting documentation of the known Candidate prior to the Candidate’s first day of employment with Company.
    4. Candidate Ownership Between Company and Agency. A Candidate shall be deemed to be sourced by Company and not the Agency, and no Placement Fee will be due, if all of the following criteria are satisfied: (i) the Candidate existed in Company’s database or Company otherwise had actual knowledge of the Candidate prior to that Candidate’s Acceptance in the SorsX platform; (ii) Agency did not engage in any substantive documented hiring activity with Company with respect to that Candidate after the Candidate’s Acceptance; (iii) Company has engaged in recruiting activity with that Candidate in the previous 12 months; and (iv) Company notifies SorsX and provides supporting documentation of the known Candidate prior to the Candidate’s first day of employment with Company.
  4. Guarantee Period. A ninety (90) day guarantee period is provided on all Placements made through the SorsX platform, unless a different guarantee period is selected by Company in the SorsX platform for the applicable Requisition (“Guarantee Period”). If Company hires a Candidate and that Candidate does not remain employed by Company for the duration of the Guarantee Period for any reason other than a job elimination, downsizing, or layoff initiated by Company, no Placement Fee will be due. Company is responsible for notifying SorsX that a Candidate is no longer employed with Company, the reason for the termination, and that they wish to exercise this guarantee. Such notification should be provided as soon as possible but, in any event, must be received by SorsX no later than five (5) days after the end of the Guarantee Period. If SorsX does not receive such notification, the Guarantee Period has been satisfied and no refund of the Placement Fee will be due regardless of the Candidate’s employment status. If such notification is received within the required notice period, any Placement Fee already paid by Company will be refunded to Company within thirty (30) days of such notification.
  5. Invoicing and Payment Terms
    1. SorsX shall be responsible for invoicing Company for all Fees. As soon as reasonably possible following Candidate’s acceptance of an offer, Company shall notify SorsX of the hire and Agency shall provide SorsX timely and accurate Candidate Placement data sufficient for SorsX to submit an invoice to Company. SorsX will invoice Company for Placement Fees owed and any sales, use, excise or similar tax due under these Terms.
    2. In no event may payments due for Placements be made directly to Agency (“Misdirected Payment”). Agency is expressly prohibited from directing a Company to pay Agency or collect any Placement Fees directly. In the event Agency receives a Misdirected Payment, Agency agrees not to deposit, cash or otherwise utilize the funds and to remit the full Misdirected Payment to SorsX as soon as practicable. If SorsX does not receive a Misdirected Payment within 5 calendar days of receipt by Agency, Agency will pay to SorsX a fee of fifty percent (50%) of the Misdirected Payment as a late penalty.
    3. SorsX shall pay Agency eighty-five percent (85%) of the Placement Fee posted by the Employer, retaining fifteen percent (15%) as its service fee, less any applicable taxes and as detailed below, within the later of ninety (90) days from the Candidate’s first day of employment with Company or ten (10) days from the expiration of the Guarantee Period. The standard Guarantee Period is 90 days.
    4. Agency acknowledges and agrees that SorsX has no obligation to pay Agency for any Placement Fee or other invoiced amount unless and until Company pays that part of the invoice issued on behalf of Agency.
    5. SorsX shall have the right to offset against amounts that may be due to Agency against amounts due SorsX that have not been paid in accordance with these Terms. Invoicing and payment disputes between the Parties shall be resolved by SorsX. Such disputes may be settled for less than the full Placement Fee set or agreed upon in the SorsX.
    6. SorsX will invoice for and Company is expected to pay to SorsX any sales, use, excise, or similar tax due on payments made under these Terms. SorsX will remit any such taxes received from Company to the appropriate taxing authority.
  6. Confidential Information and Non-Circumvention
    1. By reason of the relationship hereunder, the Parties will have access to certain information and materials concerning the other that are confidential and of substantial value, which value would be impaired if such information were disclosed to third parties (“Confidential Information” as further defined below).
    2. Confidential Information shall include, without limitation, the features and functions of the SorsX that are not available to the general public (including screen shots of the same and future enhancements), performance and security test results related to the SorsX Service, financial information provided by Agency, content supplied by Company including Requisitions, the commercial terms of this Agreement (but not the mere existence of this Agreement), information regarding a Candidate and any other material specifically designated as confidential.
    3. The Parties agree that they will not, and their employees, agents and contractors will not, make use of, disseminate, post outside of the SorsX or in any way disclose any Confidential Information of the other Party to any person, firm or business, except to (i) SorsX users who need to know such information in order to make use of the SorsX and who are bound by materially as restrictive obligations as those contained herein or (ii) for any purpose the disclosing party may hereafter authorize in writing. Each Party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each Party represents that it exercises reasonable care to protect its own Confidential Information.
    4. Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving Party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving Party, (iii) information which has been independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of this Agreement.
    5. Expiration or termination of these Terms shall not relieve any Party of its obligations regarding Confidential Information.
  7. Non-Solicitation; non-compete
    1. The Agency agrees that, unless otherwise agreed to by SorsX in writing and for a period of one (1) year thereafter, the Agency shall not directly or indirectly solicit, hire, or otherwise retain as an employee or independent Agency a staff member of SorsX.
    2. During the term of this Agreement and for a period of twelve (12) months thereafter, unless otherwise agreed to in writing by SorsX, Agency shall not, on behalf of Agency or any third party, either as an employee, associate, partner, agent, independent Agency or otherwise, directly or indirectly solicit business from or render services to any Company of SorsX to which Agency provided services or was proposed to provide services using SorsX. Agency acknowledges that this restriction will not unreasonably impair his ability to engage in business activity during the term of this Agreement or following its expiration.
    3. “Company(s)” shall mean entities and individuals that have engaged SorsX under a separate agreement to provide services of the type rendered by SorsX for Company.
    4. In the event Agency performs work for any Company in violation of this section 7, in addition to other remedies, Agency agrees to pay SorsX Fifty Thousand United States Dollars ($50,000) as liquidated damages, in addition to other damages decided by court of law.
    5. The provisions of this Section 7 do not apply to Companies and prospective Companies that (a) at the time of execution of this Agreement are or were under separate contract with Agency. Agency shall notify SorsX in a written notice of this separate contract prior to accepting this agreement and terms.
    6. The terms and conditions of this Section 7 shall survive termination of this Agreement.
  8. Indemnification
    1. Agency will indemnify, defend and hold harmless SorsX and Company, along with their parents, subsidiaries, affiliates, directors, officers, agents, employees and investors, from and against any and all claims, demands, losses, liabilities, damages and expenses (including reasonable attorneys’ fees) (collectively “Claims”) arising from: (i) the acts or omissions of Agency; and (ii) the breach of these Terms or the Terms of Use by Agency. The above indemnification obligations will not apply to any act or omission taken at Company’s or SorsX’s explicit direction.
    2. SorsX will indemnify, defend and hold harmless Agency, along with its parent, subsidiaries, affiliates, directors, officers, agents and employees, from and against any and all Claims arising from: (i) the negligent, fraudulent or wrongful acts and omissions of SorsX or its officers, employees or authorized agents; or (ii) SorsX’s material breach of these Terms or the Terms of Use.
  9. Limitation of Liability
    1. NO PARTY SHALL BE LIABLE FOR OR REQUIRED TO INDEMNIFY ANOTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, REGARDLESS OF HOW CHARACTERIZED AND EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE FROM THE PERFORMANCE UNDER THESE TERMS OR IN CONNECTION WITH THESE TERMS, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
    2. EXCEPT WITH RESPECT TO AGENCY’S CONFIDENTIALITY OBLIGATIONS OR A BREACH BY AGENCY OF THE TERMS OF USE, LIABILITY UNDER THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED (i) WITH RESPECT TO LIABILITY BETWEEN SORSX AND AGENCY, THE FEES RETAINED BY THE LIABLE PARTY IN THE 12 MONTHS PRIOR TO THE ACT GIVING RISE TO THE LIABILITY.
  10. Audit. Agency shall maintain complete and accurate records of information and data related to its Search Services and other obligations hereunder, and to support the fees charged to Company in accordance with these Terms for a period of three (3) years after the fees or expenses were charged. Upon reasonable notice to Agency and no more frequently than once per calendar year for SorsX and Company separately, SorsX and Company representatives shall be entitled to audit Agency’s records with respect to the Search Services, obligations under these Terms and the Terms of Use, and the determination of charges due pursuant to these Terms. Any such audit shall be conducted during regular business hours at Agency’s offices. SorsX’s and Company’s audit rights shall terminate one (1) year following termination of these Terms. SorsX and Company shall be responsible for their own costs incurred in conducting the audit unless such audit results document that Agency was engaged in grossly negligent or fraudulent practices.
  11. Non-Solicitation. Agency will not solicit for hire, hire, or assist others with the opportunity to do the same any employees of Company during the term of these Terms and for twelve (12) months thereafter. Notwithstanding the foregoing, this provision does not apply if a Company employee initiates contact with Agency, or to solicitation or hiring which is a result of general advertisements, career fair, job board postings or other notices for employment not directly targeted to such Company employee.
  12. Warranties
    1. Agency is responsible for complying with all stated requirements of a Requisition, verifying Candidate information, ensuring the Candidate’s authorization to work in the applicable jurisdiction(s), ensuring that the Candidate has consented to submitting Candidate information to Company and SorsX, and ensuring Agency has all necessary rights to provide the Candidate information for incorporation and use as needed for the SorsX Program.
    2. Company is solely responsible for its own representations made in its Requisitions, and will be solely responsible to represent and warrant that it is an Equal Opportunity Employer and will comply with all applicable laws with respect to Candidate interviewing and hiring decisions.
    3. Agency agrees to submit all Candidates without regard to race, color, national origin, religion, sex, age, sexual orientation, gender identity, disability, covered veteran status, or any other characteristic protected by law, including but not limited to consideration of criminal or credit history as required by applicable law.
    4. Agency agrees to comply with all applicable laws of any applicable foreign or domestic jurisdiction, and in the event the United States is an applicable jurisdiction all applicable state, federal, and local laws, including but not limited to Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, and the implementing regulations for each found at 41 CFR Part 60, as well as the Department of Labor, Office of Federal Contract Compliance programs regulations at 41 CFR Part 60-1, which relate to the definition of Internet Applicants and all related record keeping requirements, as well as other relevant local regulations. In addition, Company and Staffing Firm will incorporate these Terms, as applicable, the Equal Opportunity clauses found at 41 CFR § 60-1.4(a), 60-250.5(a), 60-741.5(a), and 60- 300.5(a), and will likewise ensure that such laws and regulations are followed by subcontractors as required by 41 CFR § 60-1.4(d).
    5. Agency and Company will use the SorsX in compliance with all export control laws.
    6. The Parties acknowledge and agree that any acceptance of terms (including electronic acceptance through the SorsX) and conditions related to the SorsX Program, including but not limited to these Marketplace Terms and the Terms of Use, shall be accepted only by a duly authorized representative of the Party who is authorized to bind that Party on all matters related to the document(s) being accepted.
  13. Term and Termination
    1. These Terms shall begin as of the date a duly authorized representative of Agency first accepts these Terms in the SorsX and shall continue until terminated in accordance with the terms herein. SorsX and Company may terminate these Terms at any time for convenience upon at least thirty (30) days prior written notice to the other Parties. SorsX further reserves the right to suspend or terminate immediately any user account or activity that is disrupting or causing harm to SorsX’s computers, systems, infrastructure, Marketplace, or in violation of federal, state, or other applicable law.
    2. Agency may terminate these Terms at any time for convenience upon at least thirty (30) days prior written notice to SorsX and Company.
    3. Notwithstanding any other provision of these Terms, any Party may terminate these Terms immediately in the event another Party declares or becomes bankrupt or insolvent, or dissolves or discontinues operations.
    4. Upon termination of these Terms for any reason, all rights granted hereunder shall immediately terminate and Agency will cease to be able to use or have access to the SorsX. SorsX may, in its sole discretion, anonymize from the SorsX any files or other information or data relating to Agency’s SorsX account.
    5. Survival. Each provision of these Terms reasonably intended by its terms to survive termination or expiration of these Terms shall so survive. Notwithstanding the foregoing, in the event of termination of these Terms by any Party, the provisions of these Terms will continue to apply to any Candidate that has been submitted by Agency through the SorsX as of the termination date.
  14. General
    1. Publicity. Agency shall not identify SorsX or Company in any marketing materials without prior written permission of SorsX or Company, as the case may be.
    2. Term Modifications. SorsX may make changes to these Marketplace Terms and/or the Terms of Use in its sole discretion for the benefit of all users of the SorsX without notice. Such changes shall be deemed effective upon posting the modified Marketplace Terms or Terms of Use, as applicable, to the SorsX. Company and Agency acknowledge and agree that their continued use of the SorsX after such posting shall constitute acceptance of the modified terms.
    3. Subcontracting. Agency may not subcontract the Search Services or any of its obligations hereunder without the prior written consent of SorsX.
    4. Assignment. Agency may not assign these Terms or its rights and obligations hereunder without the prior written consent of SorsX.
    5. Force Majeure. The Parties shall not be considered in breach of these Terms for their failure to perform or their delay in the performance of any obligation hereunder if the performance of such obligation is prevented or delayed by fire, flood, explosion, war, insurrection, embargo, governmental actions or requirements, military authority, act of God, shortages in the marketplace or any other event beyond the reasonable control of that Party. The Parties agree to take prompt reasonable actions to minimize the effects of any such event or circumstances.
    6. Choice of Law. This Agreement shall be construed and governed in accordance with the laws of the State of Virginia, without regard to its choice of laws principles. The State of Virginia shall have personal jurisdiction over all parties hereto in any suit arising under this Agreement.
    7. Breach. The parties acknowledge that a breach of this Agreement by Agency would cause SorsX irreparable harm. Therefore, in the event of a breach or threatened breach by Agency of any of his obligations or covenants hereunder, Agency will pay the damage as will be decided by court of law.
    8. Entire Agreement. These Terms, as supplemented by the Terms of Use, supersede and cancel all previous agreements or past practices among the Parties and constitutes the entire agreement among the Parties with respect thereto. Any amendment or agreement supplemental hereto shall not be binding unless executed, in writing, by the Parties thereto.