Customer Agreement for Temporary Services
Updated August 20, 2024.
This Customer Agreement for Temporary Services (this “Agreement”) governs transactions by which the Client (“Client”) as identified in a Job Arrangement Letter or similar transaction document (“JAL”) issued under this Agreement retains the Services of Brilliant Staffing, LLC (“Company”) to assist that Client in meeting its staffing needs as set forth in each applicable JAL.
Part 1 - General
1.1: Services
The term “Services” means the provision of services by the Company to Client as identified in the applicable JAL and subject to this Agreement.
1.2: Agreement Structure
Additional terms and conditions for the Services are included in Exhibit A, which is attached and incorporated into this Agreement (the “General Conditions”). Additional terms for Services are also set forth in each JAL that shall be issued under this Agreement, the terms of which JALs are also incorporated into this Agreement. All Services under this Agreement will be subject to a JAL which will be sent to Client each time Company engages to provide Services to Client under this Agreement and as specified in each such JAL. If there is a conflict among the terms of this Agreement and any JAL, the terms of this Agreement shall control and govern over those of the JAL, unless the JAL expressly indicates that it controls. Client shall be deemed to have accepted the terms of this Agreement and any JAL by (a) executing any JAL which is incorporated into this Agreement, (b) using the Services identified in that JAL, or allowing others to do so, or (c) making any payment for the Service set forth therein. Additional or different terms in any written communication from Client (such as a purchase order) are hereby rejected and are void unless accepted in writing by the Company.
1.3: Charges and Payment
In consideration for Company providing the Services, Client shall pay Company the fees and other amounts specified in each applicable JAL. Fees for Services are due and payable in accordance with the General Conditions attached hereto as Exhibit A, including the Conversion Fees payable for directly hiring Company Personnel and the fees payable if any Company Personnel work overtime.
Client hereby agrees to the payment terms set forth in the General Conditions and to pay Company accordingly, including but not limited to any late payment fee.
Company shall invoice Client weekly.
If any rates or prices are not set forth in the applicable JAL for any applicable Services that are performed, the prices for such services will be based on Company’s then current rates. In addition, as Company Personnel (as defined below) receive annual performance and compensation reviews, it may be that an increase in the applicable billing rate under this Agreement is necessitated. As a result, Company may modify rates from time to time, but not more than once every 12 months. In the event any rate increase is to take effect during the course of an engagement under a JAL under this Agreement, Company will send a notification to Client of such increase at least 30 days in advance, and Company will update all applicable JALs accordingly.
1.4: Changes to the Agreement Terms
Except as otherwise set forth in this Agreement, the General Conditions, or a JAL, with respect to any change, for a change to the terms of this Agreement, the General Conditions or any JAL to be valid, both parties must acknowledge and accept such change in writing.
1.5: Limitation of Liability
Regardless of the basis on which Client may be entitled to claim damages from Company (including without limitation breach of contract, negligence, misrepresentation, or other contract or tort claim), Company’s liability, if any, will (in the aggregate for all claims, causes of action, losses, liabilities and/or damages) be limited to any actual direct damages incurred by Client up to an amount equal to the fees actually paid to Company by Client for the Services that are the subject of the claim. Under no circumstances is Company liable for special, incidental or indirect damages or for any consequential damages (including without limitation, lost profits, business, revenue or goodwill), even if informed of the possibility of such damages in advance.
1.6: General Practices of Our Relationship
Each party will maintain workers’ compensation insurance, commercial liability insurance and employer’s liability insurance. Company will be responsible, to the extent applicable, for any workers’ compensation insurance, federal, state and local withholding and unemployment taxes, social security, state disability insurance or other payroll charges for its employees. Any sales, service, value-added, use, consumption or other such tax imposed upon the Services shall be separately disclosed and added to the amount of each invoice to Client unless Client provides Company with appropriate evidence of a tax exemption claimed for the relevant jurisdiction(s).
1.7: Agreement Term
The initial term of this Agreement will commence on the “Effective Date” which is the Effective Date of the first JAL issued in connection with this Agreement and will terminate one (1) year from such date (“Initial Term”), unless earlier terminated as provided for herein; PROVIDED, HOWEVER, AFTER THE EXPIRATION OF THE INITIAL TERM, THE TERM WILL BE AUTOMATICALLY RENEWED FOR SUCCESSIVE ONE (1) YEAR PERIODS (EACH A “RENEWAL TERM”) UNLESS EITHER PARTY GIVES WRITTEN NOTICE OF ITS INTENT NOT TO RENEW THIS AGREEMENT TO THE OTHER PARTY AT LEAST THIRTY (30) DAYS BEFORE THE END OF THE INITIAL TERM OR ANY RENEWAL TERM.
Each JAL may contain a separate term for the Services under that JAL, AND IF THAT IS THE CASE, NO TERMINATION OR EXPIRATION OF THIS AGREEMENT NOR ANY FAILURE TO RENEW THIS AGREEMENT SHALL BE EFFECTIVE TO TERMINATE THIS AGREEMENT SO LONG AS ONE OR MORE JALS CONTINUE TO BE IN EFFECT. The Initial Term plus any Renewal Term is referred to herein as the “Term.”
Either party may terminate this Agreement (a) upon thirty (30) days’ advance written notice if there are no open JALs under this Agreement, or (b) upon five (5) days advance notice if the other party breaches any of the terms of this Agreement, provided that after the breaching party is given such written notice, if the breach is subject to cure, the breaching party is given a reasonable time to cure any such breach, other than a payment breach, for which there shall be no cure period. Either party may terminate a JAL if the other party breaches any of the terms of the JAL, provided the breaching party is given written notice and, if the breach is subject to cure, a reasonable time to cure any such breach, other than a payment breach, for which there shall be no cure period.
Upon any termination Client shall be obliged to pay, within fifteen (15) days of the effective date of termination, all amounts owing to Company for Services completed prior to the termination date and all fees and related expenses, if any, due in accordance with the provisions of this Agreement and any applicable JAL.
1.8: Warranties
Company warrants and represents that it will use reasonable commercial efforts to perform the Services in accordance with accepted industry standards and governmental requirements, laws, ordinances, rules and regulations.
EXCEPT AS SET FORTH IN THE PRIOR SENTENCE, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
Part 2 - Services
2.1: Company will provide the employees or contractors (collectively, “Company Personnel”) as required to the provide the Services as set forth in each applicable JAL. Company checks references for certain Company Personnel by asking specific questions to select past employers with regard to skills and work history before Company places any Company Personnel on his or her first assignment. Company also conducts a nationwide criminal background check on all individuals prior to placement on his, her or their first assignment. Company has not engaged in any verification process other than this initial reference and background check.
2.2: Company’s relationship with Client will be that of an independent contractor, and no employee of Company shall be considered an employee of Client. Client will not permit or require a Company Personnel (a) to perform Services outside of the scope of his or her assignment; (b) to sign contracts, financial or other statements or to sign or file tax returns or documents (including SEC documents); (c) to make any final decisions regarding system design, software development or the acquisition of hardware or software; (d) to make any management decisions; (e) to sign, endorse, wire, transport or otherwise convey cash, securities, checks, or any negotiable instruments or valuables, or (f) to operate machinery (other than office machines) or automotive equipment.
2.3: Client agrees that Client will provide safe working conditions for Company Personnel performing Services for Client at any premises of Client. Client will provide sufficient access, space, electrical power, telephone service, internet connection, air ventilation, cooling systems and other utilities and basic necessities for the performance of the Services.
2.4: If any Services under this Agreement are for work to be performed under a government contract or subcontract, Client will notify Company prior to the commencement of such Services, and the parties will coordinate to reach mutual agreement with respect any contract provisions or other obligations required to be included for compliance with respect to companies providing services used under a government contract or subcontract, which provisions, if agreed by both parties, will be incorporated into the applicable JAL, and thereby incorporated into this Agreement by reference, including without limitation (a) any obligations in the government contract or subcontract relating to wages, and (b) if Company is legally required to initiate E-Verify verification procedures for any Company employee assigned to Client. If the parties cannot reach agreement on any such additional provisions with respect to compliance with government contracts or subcontracts, then Company shall not be required to provide those Services.
2.5: Client agrees that Client is responsible for reporting to Company any claim related to any Services in writing during or within ninety (90) days after the termination of the applicable assignment or, if later, promptly following when Client first had knowledge, or reasonably should have had knowledge, of the claim. Company will not be responsible for any claim related to any Services unless Client has reported such claim in writing to Company within the foregoing limitations period.
2.6: Client agrees that Client is responsible for implementing and maintaining usual, customary and appropriate internal procedures and controls (including accounting, information technology, proprietary information, creative designs and trade secret safeguards) for Client’s company. Client agrees that Client is fully responsible for, and that Company will not be responsible for any injuries, claims, damages or losses that may result from Client’s failure to comply with this Section 2.6.
2.7: The parties acknowledge that in the performance under this Agreement, each party may become aware of private, secret, confidential, or proprietary information of the other party, and their affiliates and clients. Each party agrees that it will use reasonable efforts consistent with practices in the industry to keep such information in confidence and prevent the use, disclosure or publication of any such information without the prior written approval of the other Party. This duty does not apply to information: (a) lawfully within possession of a party prior to this Agreement; (b) that is voluntarily disclosed to the public by a third-party which does not have any obligation to protect such information; (c) is voluntarily disclosed to the public by the party who owns such confidential or proprietary information; or (d) is generally known to the public. Each party will inform its employees, agents and independent contractors who may have access to such confidential information of the confidentiality obligations set forth above and will use its reasonable efforts to cause them to abide by such obligations. In addition, Client agrees to hold in confidence the identity of any Company Personnel as well as the Company Personnel’s resume, social security number and other legally protected personal information, and Client agrees to implement and maintain reasonable security procedures and practices to protect such information from unauthorized access, use, modification or disclosure.
2.8: Each party will indemnify, defend and hold harmless the other party and its managers, directors, officers, employees, successors, assigns and agents from and against any loss, damage and expense, including reasonable attorneys’ fees, incurred by such party and arising from a third party claim, suit or action caused by the negligence or willful misconduct of the indemnifying party or its managers, directors, officers, employees, successors, assigns and agents, except to the extent caused by the negligence or willful misconduct of the indemnified party. The indemnified party shall (a) promptly notify the indemnifying party in writing of any claim for which indemnification is sought hereunder (“Claim”), provided that the indemnified party’s failure to promptly notify will not relieve the indemnifying party from any liability hereunder, except to the extent the indemnifying party is materially prejudiced as a result thereof, (b) give the indemnifying party the opportunity to arrange and direct the defense of the Claim at its sole expense, and (c) give the indemnifying party all information, assistance and authority reasonably necessary for it to perform its obligations hereunder. The indemnifying party may not consent to the entry of any judgment or enter into any settlement without the indemnified party’s prior written consent, which may not be unreasonably withheld.
Part 3- General
3.1: Neither party may assign this Agreement without the prior written consent of the other, which shall not be unreasonably withheld or delayed. Any attempt to assign in violation of this subsection is void in each instance. Notwithstanding the foregoing, Company shall be permitted to use subcontractors in the performance of the Services without consent of Client and without violation of this provision; provided, however that Company shall remain liable for performance of all Services under this Agreement.
3.2: Company shall be permitted to use Client’s name and trademark(s) in Company’s marketing and promotion materials to refer to Client as a client of Company. Client shall be permitted to ask Company to remove any such use at any time as determined by Client.
3.3: Any controversy, claim or dispute arising out of or relating to this Agreement or any Services hereunder, between the parties hereto shall be litigated solely in state or federal court in Chicago, Illinois. Each party (a) submits to the jurisdiction of such court, (b) waives the defense of an inconvenient forum, (c) agrees that valid consent to service may be made by mailing or delivery of such service to the party at the party’s last known address, if personal service delivery cannot be easily effected, and (d) authorizes and directs the agent to accept such service in the event that personal service delivery cannot easily be effected.
3.4: This Agreement is governed by the laws of the State of Illinois, excluding its conflicts of law rules.
3.5: This Agreement, the General Conditions , and any and all JALs are the complete agreement of the parties regarding the subject matter set forth herein, and replace any prior oral or written communications between the Company and Client regarding the same.
3.6: Company shall not be liable for any delay, breach or failure in performance due to circumstances beyond its reasonable control, including without limitation work stoppages, employee shortages, acts of war or terrorism, plague, epidemic, pandemic, or any other public health crisis, act of authority by, and/or compliance with, any law or governmental order, rule, regulation or direction or restriction, any natural disaster, fire, flood or other acts of God, or delays or failures in equipment, access, utilities, communications systems and related matters.
3.7: Client agrees that if it breaches the provisions herein, the Company will have available, in addition to any other right or remedy available, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of any such provision, without the need to post any bond or other security.
3.8: A waiver by either party of a breach of any provision of this Agreement will not operate or be construed as a waiver or estoppel of any subsequent breach. No waiver will be valid unless in writing and signed by an authorized officer of either party. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
3.9: In the event that any provision of this Agreement, including any provision of the General Conditions, or any provision of any JAL, is held to be invalid or unenforceable, the remaining provisions of this Agreement, General Conditions, and any JAL shall remain in full force and effect.
3.10: Any terms of this Agreement that by their nature extend beyond the termination of this Agreement, including without limitation the payment obligations, confidentiality obligations, indemnification obligations, the limitation of liability s shall survive any termination or expiration of this Agreement.
Exhibit A
General Conditions
Any capitalized terms not otherwise defined in these General Conditions (“General Conditions”) shall have the meanings ascribed thereto in the Customer Agreement for Temporary Services (the “Agreement”) between Brilliant Staffing, LLC (the “Company”) and the Client as defined under the Agreement (the “Client”), effective as of the Effective Date as defined in the Agreement. These General Conditions are incorporated into and form a part of the Agreement. The Company’s Services are provided to Client under the following additional terms:
1. Guarantee: Company provides a 2 weeks’ performance guarantee to its Clients under the Agreement. Accordingly, if during this first two (2) weeks of Services provided under a JAL, Client is, for any reasonable basis, dissatisfied with the performance of the Services provided by the Company Personnel assigned to Client under an applicable JAL, (a) Company will promptly replace such Company Personnel upon receipt of notice of such reasonable basis for replacement from Client, and (b) Company will credit Client for the number of hours of unsatisfactory Services provided by the Company Personnel who is replaced hereunder (“Company Guarantee”). The Company Guarantee is effective only if (x) the Company Personnel is assigned by the Company without Client having interviewed, screened or reviewed the resume of such Company Personnel prior to his or her assignment to Client, and (y) Client provides Company with feedback (oral or written via electronic transmission) regarding the Company Personnel not less than once per week during that initial term. Further, all Services provided by any Company Personnel assigned to Client under the Agreement shall be deemed accepted and satisfactory and no credit for hours billed shall be applied if, within seven (7) days after the performance of such Services by such Company Personnel, Client has not provided to Company written notice identifying specifically any basis for not approving the Services and/or any such Company Personnel.
2. Time Sheet: Company Personnel will present a time sheet to Client or Client’s representative for verification and signature at the end of each week. Company will bill Client weekly for the total hours worked by the Company Personnel. Payment of all amounts due under Company’s invoices, including applicable sales and service taxes, all of which are payable by Client, are due upon receipt of an invoice. In the event that Client fails to pay the invoices when due, Company may suspend all Services until payment in full is made, and Client agrees to pay all of Company’s costs of collection, including reasonable attorneys’ fees, whether or not legal action is initiated. Additionally, Company may, at is option, charge interest on any overdue amounts at a rate of the lesser of 1½% per month or the highest rate allowed by applicable law from the date the amount first became due.
3. Overtime; Holiday, and Travel Hours: If applicable, overtime will be billed at 1.50 times the normal billing rate. What constitutes overtime will be as defined by the applicable federal and state law for each Company Personnel performing any Services. If Client requires Company Personnel to work on any holidays, as defined by the applicable federal and state law for each Company Personnel performing any Services, the hours worked will be billed at 2.0 times the normal billing rate. In the event Client requires Company Personnel to travel out of town, travel hours will be billed at 0.5 times the normal billing rate.
4. Hiring Company Personnel:
(A) Client hereby acknowledges that Company has expended significant financial and human capital in hiring and retaining the Company Personnel referred, presented or assigned to provide Services to Client or any Client Affiliate (as defined below) under the Agreement. Accordingly, Client hereby agrees that during the term of the Agreement and for twelve (12) months after the termination or expiration of the Agreement, should Client or a Client Affiliate (as defined below) solicit, employ or contract with, or permit or solicit any third party to solicit, employ or contract with, any Company Personnel who was presented or referred to Client or any of Client’s parent, subsidiary or affiliate companies (each, a “Client Affiliate”), Client shall (i) obtain the Company’s written consent prior to any such solicitation or hiring, and (ii) if Client or a Client Affiliate hires or contracts with, or any third party, as directed by Client, hires or contracts with, any such Company Personnel, Client shall pay the Company a Permanent Placement Fee equal to 30% of the applicable Company Personnel’s annual compensation (including base salary and any guaranteed bonuses) with Client or, if applicable, Client Affiliate or third which hires or contracts with such Company Personnel, and which fee shall be paid immediately upon such hiring or contracting with such Company Personnel.
(B) Conversion Fee Schedule – While the Client has expressed no plans to convert Company Personnel to employment, during the term of the Agreement and for twelve (12) months after the termination or expiration of the Agreement, if Client or a Client Affiliate hires or contracts with, or any third party, as directed by Client or a Client Affiliate, hires or contracts with, any Company Personnel who provided Services to Client or any Client Affiliate, Client shall pay the Company a Conversion Fee according to the following standard conversion schedule, which is a percentage of such Company Personnel’s annual compensation (including base salary and any guaranteed bonuses) with Client or, if applicable Client Affiliate or third party which hires or contracts with such Company Personnel, and which percentage is based on the number of hours for which such Company Personnel provided Services under the Agreement, as set forth below, and which fee shall be paid immediately upon such hiring or contracting with such Company Personnel.
Conversion Fee Schedule:
- 0-170 hours, 30% fee
- 171-340 hours, 25% fee
- 341-510 hours, 20% fee
- 511-680 hours, 15% fee
- 681 hours or more, 10% fee