CLIENT TERMS AND CONDITIONS
These Client Terms and Conditions (the “Terms”) are executed by and between Fintalent and Client (“Client” or “you”). Fintalent and Client shall be collectively referred to as the “Parties” and each, a “Party”.
In these Terms, the following words have the following meanings:
|“Agreement”||These Terms, any Talent Outline Plan (s) and amendments made thereto from time to time.|
|“Client” or “You”||The individual or organisation whose name and address is indicated in these Terms as the party to which Talent will supply the Services.|
|“Effective Date”||The date of execution of this Agreement.|
|“Fees”||In respect of any Services, the total fee payable by the Client in relation to Services as set out in the relevant Talent Outline Plan (s).|
|“Fintalent”||Fintalent Limited, whose registered office address is located at: 85 Great Portland Street, 1st Floor, London, W1W7LT.|
|“Hourly Rate”||Means in respect of any Talent, the standard hourly rate of that Talent as agreed with Client. Details of the hourly rate of any Talent shall be set in the Talent Outline Plan (s).|
|“Intellectual Property Rights”||Means, without limitation, (i) copyrights and copyright applications, including any renewals, in any country; (ii) trademarks, service marks, trade names, and applications or registrations for any of the foregoing in any country; (iii) trade secrets or any data or information which provides value or a competitive advantage to its holder by not being publicly known.|
|“Introduction”||Mean the introduction of Talent to the Client by Fintalent and shall include sharing of Talent’s name, profile or Curriculum Vitae.|
|“Milestone”||Shall mean agreed divisions of any engagement/ project which shall be specified under the Talent Outline Plan.|
|“Proprietary or Confidential Information”||Includes, without limitation, (i) written or oral contracts, trade secrets, knowhow, business methods, business policies, memoranda, reports, records, or financial information.|
|“Restricted Talent”||Any Talent whom the Client becomes aware of pursuant to Fintalent’s introduction or otherwise pursuant to this Agreement|
|“Services”||Any services requested by Client to be supplied by Talent and as described in the Talent Outline Plan.|
|“Talent”||Means independent professionals whose services are made available to a Client under these Terms.|
|“Talent Outline Plan”||Means a written document referencing this Agreement, setting forth the agreed terms relating to Services offered by Talent to Client.|
|“Work output”||The result of Services carried out by Talent pursuant to this Agreement.|
|“Writing or written”||Includes e-mail correspondence.|
- Services. Fintalent will use one or more Talent to provide Client with the agreed services described by Client in the Talent Outline Plan(s) submitted to Fintalent.
- Control over Talent. Talent will report directly to personnel designated by Client (“Client Contact(s)”). The Client Contact(s) will be responsible for setting, reviewing, and monitoring Talent schedules, and the other salient aspects of each engagement/ project under the Talent Outline Plan. Client will coordinate with Talent to timely generate the desired tangible results of the Work (the “Work Output”). Client acknowledges and agrees that while Fintalent is committed to delivering the best suited talent for the project with the highest flexibility, Fintalent’s Services do not include directing the Work or generating Work Output. Since Fintalent does not perform or manage the Work Fintalent cannot guarantee the quantity or quality of the Work, the Work Output, or that the Talent will meet any desired goals or deadlines. Client is solely responsible for determining whether Talent meets Client’s needs and will be solely responsible for evaluating the on-going progress, performance, and capability of engaged Talent. Client also acknowledges that that there are no representations, statements or promises made or given by or on behalf of Talent outside of these Terms and the relevant Talent Outline Plan (s).
- Replacements. Client may, at any time, request the replacement. Upon such request, Fintalent will use commercially reasonable efforts to promptly furnish a replacement satisfactory to Client. In cases where Client requires new and or additional Talent to complete the Services, additional Talent Outline Plans must be signed by the Parties for each such new and/or additional Talent.
- Location. The Services shall be provided from the location based on the Talent residence, if not otherwise is specified in the Talent Outline Plan (the “Location”).
- Service Period. The period during which the Services shall be provided (the “Service Period”) shall commence during the time specified in the Talent Outline Plan, unless the Talent Outline Plan has been terminated in advance according to the terms in Section 10.
- Inactivity; Insufficient instructions. Client agrees and understands that Talent may either terminate or suspend provision of Services under any Talent Outline Plan in the event Client becomes unresponsive or otherwise fails to furnish Talent with sufficient instructions for a period exceeding 30 days.
- Fees and Expenses
- Rate. In consideration of the provision of the Services, Client shall pay to Fintalent an hourly rate or monthly rate (the “Rate”) for each Talent retained whichever is mutually agreed in the Talent Outline Plan. Any change to the agreed hourly rate shall be mutually agreed by the Client and Fintalent. Talent and Client may agree upon Milestones in respect of each project assigned to Talent. Each milestone shall be pre-funded by Client (through Credit card) and delivered separately in accordance with the agreed terms.
- Security Deposit. An initial security deposit, specified in the Talent Outline Plan, is due at the Start Date and will be deducted from the final payment due. The Rate for any given month shall be paid by the Client to Fintalent throughout the project period in accordance with the Talent Outline Plan. Security Deposit payments will be made via credit card or bank wire.
- Order Fee. We may ask for a non-refundable order fee before we approve the Client’s project or permanent job posting. The order fee will be deducted from the last invoice if Client contracts Talent.
- Travel and Other Expenses. The Client shall reimburse Talent for all necessary travelling expenses incurred in connection with Talent’s performance of Services (including traveling costs, meal allowances and accommodation expenses but excluding travelling time) to locations other than the Location (as defined in the Talent Outline Plan) as required by the Client or otherwise in the performance of the Services hereunder. All costs and expenses will be charged to and must be paid by Client in addition to fees for Services. Fintalent shall on a monthly basis account for such expenses by submitting an invoice itemizing such expenses and attaching receipts. The amount, nature and extent of such expenses must always be approved in advance by the Client in writing. Any expense incurred in the absence of pre-approval of the Client shall not be payable by Client.
- Invoicing and Payment
- Basis of payment. Client shall only be required to pay Fintalent for the Services rendered by the Talent.
- Invoice and payment. Fintalent shall invoice Client on a bi-monthly basis. All payments are due to Fintalent ten (10) calendar days from the date of invoice. All payments in respect of invoices will be made via credit card or bank wire.
- Non-payment. If Client fails to settle any invoice after the invoice becomes due, then without prejudice to any other right or remedy of Fintalent and Talent, Fintalent may immediately instruct Talent to forthwith suspend any further delivery of services to Client. It is agreed and understood that Fintalent and Talent shall not be liable for any loss resulting from suspension of services under this clause. It is further agreed that Talent shall have the right to institute any necessary proceedings for recovery against Client, should Client fail to settle any overdue amounts.
- Disputes. Within 10 business days of completion of any Project or assigned Milestone, Client may initiate a dispute outlining any deviations by Talent from agreed scope of work/project description. Fintalent will consider and determine such disputes within a reasonable period.
- Non-Circumvention and Platform Buy Out Fee.
- Non-Circumvention. Except with the written consent of Fintalent and payment of the Platform Buy Out Fee (described in Section 5.2), during the term of this Agreement and for eighteen (18) months thereafter (the “Non-Circumvention Period”), the Client will not, directly or indirectly, encourage, solicit, hire, or otherwise contract or engage for performance of services, any Talent who the Client becomes aware of in connection with the Services or otherwise pursuant to this Agreement (“Restricted Talent”). The Client also agrees that it will not refer Restricted Talent directly or indirectly to any related parties or affiliates including without limitation to any related parties or affiliates including without limitation subsidiaries, parent companies, partnerships, holdings or investors except through the Fintalent.
- Platform Buy Out and Payment Terms. Subject to Client’s prior written notice to Fintalent, Client may, during the Non-Circumvention Period, opt to directly engage or employ Restricted Talent by paying Fintalent a Platform Buy Out Fee equal to 20% of the hired candidate’s starting annual total compensation (fixed + total variable components). The Platform Buy Out Fee is mutually agreed not to be a penalty or constraint upon the commercial activities or prospective employment of Client or Talent, only reasonable compensation for Fintalent’s lost commercial investment in its Service in originally sourcing Restricted Talent. Provided, that if the candidate’s employment with the Client is lawfully terminated (voluntarily or involuntarily) for any reason within the periods specified below, and provided the Client informs Fintalent in writing of the fact within seven (7) days of such termination, the Client will receive a refund against Fees invoiced as follows:
|Date of Candidate Termination||Refund|
|0-30 days following start date||75% of Fees|
|31-60 days following start date||50% of Fees|
|61-90 days following start date||25% of Fees|
- Representations and Warranties
- Mutual Representations and Warranties. Each party represents and warrants that (a) it has full power and authority to enter into this Agreement, (b) this Agreement has been duly authorized, and (c) this Agreement is binding upon it.
- Fintalent’s Representations and Warranties. Fintalent represents and warrants to Client that:
- It will exercise the highest possible degree of skill and care in performing its duties under this Agreement; and
- Talent has successfully completed Fintalent’s screening process.
- Disclaimer; Indemnity
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FINTALENT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE FINTALENT SERVICE (WHICH IS PROVIDED ON AN “AS-IS” and “AS-AVAILABLE BASIS”); TALENT, ANY WORK, WORK OUTPUT OR OTHER RESULTS ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY DIRECT AGREEMENT BETWEEN TALENT AND CLIENT. FINTALENT HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
- Mutual Indemnification. Each party hereby agrees to indemnify, defend, and hold the other party harmless from any and all claims, demands, costs, liabilities, losses, expenses and damages arising out of or in connection with arising out of or in relation to (a) any breach by either party of any provision of this Agreement; (b) any act or omission (including negligent acts or omissions) of Talent in the performance or purported performance of Services; (c) any breach by the party of any applicable laws and regulations; (d) any deficiency, error or delay in the delivery or performance of Services by Talent; and (f) claims by third parties in relation to performance of Services.
- Intellectual Property
- Client Data. Client, or its licensors, retain all ownership, right, title and interest in and to Client Data. Client grants to Fintalent a fully paid-up, royalty-free, non-exclusive license during the Term to use such Client Data solely as necessary under this Agreement. No rights are granted by Client to Fintalent other than as expressly stated in this Agreement.
- Ownership of Work Output. If Client does not enter into its own agreement with Talent to effect transfer of ownership to Work Output then (i) Talent will assign ownership to Fintalent pursuant Talent’s agreement with Fintalent; (ii) and this Section shall affect a transfer from Fintalent to Client, and (iii) Client shall be a third-party beneficiary of Talent’s confidentiality obligations. The assignments and license rights provided to Client by Fintalent in this Section are expressly conditioned on Client paying all fees due. Subject to the foregoing, Fintalent hereby assigns to Client all rights, title and interest owned by and vested in Fintalent, in and to all Work Output provided to Client by Talent in performance of the Work hereunder and all intellectual property rights Fintalent has therein. Such assignment does not include any Underlying Technology. “Underlying Technology” will mean (a) Fintalent technology, methodologies, know-how and intellectual property existing as of the Effective Date or otherwise arising outside of work under this Agreement, (b) any derivatives, improvements, enhancements or extensions of the foregoing that are conceived, reduced to practice, or developed in performance of this Agreement that have general applicability in Fintalent’s business, and (c) any intellectual property relating to any of the foregoing. To the extent any Underlying Technology is incorporated into or otherwise reasonably necessary to use any such Work Output, subject to the terms and conditions of this Agreement, Fintalent grants to Client an exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to fully exercise and exploit the Underlying Technology and to make derivative works of the same in connection with the exploitation of the Work Output. Fintalent will assist Client, at Client’s request and expense, to further evidence, record, perfect, and maintain any rights assigned.
- Use and obligations. All confidential information disclosed by one party (“Discloser”) to the other party (“Recipient”) hereunder will be the Proprietary Information of the Discloser. Accordingly, each party will hold in confidence and not disclose or, except in performing their respective obligations hereunder, use any Proprietary Information of the disclosing party. Confidential information will not include any information the Recipient can document (i) is or becomes readily publicly available without restriction through no fault of the Recipient, or (ii) was in its possession or known by it without restriction prior to receipt from the Discloser, or (iii) was rightfully disclosed to it by a third party without restriction, or (iv) was independently developed without use of any Proprietary Information of the Discloser by employees or consultants of the Recipient. The Recipient may make disclosures required by law or court order provided the Recipient provides the Discloser with advance written notice of such disclosure and cooperates with the Discloser, at the Discloser’s request and cost, in any attempts by the Discloser to limit or prevent such disclosure.
- Return. Upon termination of this Agreement, if requested by the Discloser, the Recipient will promptly return to the Discloser all items and copies containing or embodying Proprietary Information of the other party (including, without limitation, all Work Output and all Work-in-progress, provided Client has paid Fintalent all fees due and owing).
Remedies. Each Party agrees that its obligations provided in these sections under Confidential Information are necessary and reasonable in order to protect the Discloser and its business, and each Party expressly agrees that monetary damages may be inadequate to compensate the Discloser for any breach by the Recipient of its confidentiality covenants and agreements set forth in these Client Terms. Accordingly, each Party agrees and acknowledges that any such breach or threatened breach may cause irreparable injury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser will be entitled to seek temporary injunctive relief pending arbitration against the threatened breach of these Client Terms or the continuation of any such breach by the Recipient, without the necessity of proving actual damages or posting any bond.
- Term. This Agreement will commence on the Effective Date and continue in effect until terminated under this Section 10.
- Termination for cause. If either party materially breaches this Agreement, the other party may immediately terminate this Agreement in its entirety or the affected Talent Outline Plan by giving the breaching party written notice.
- Termination at will. Each party also may terminate this Agreement in its entirety or a particular Talent Outline Plan hereunder at any time, with or without cause, upon seven (7) business days’ written notice to the other party.
- Effect of termination. The termination of this Agreement or Talent Outline Plan for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement. Client agrees to pay Fintalent all amounts then due or accrued as of the effective date of such termination.
- General provisions
- Relationship of Parties: Taxes. For all purposes under this Agreement, Fintalent and Talent are independent contractors of Client and the parties hereto are not authorized to and will not bind or attempt to bind the other to any contract. Fintalent only will be responsible for collecting the fees payable to Talent in connection with this Agreement, and Client will be responsible for all other taxes and assessments including without limitation, sales, value-added, use and similar taxes, if any
- Governing Law and Dispute Resolution. This Agreement and all Talent Outline Plans shall be governed by the laws of Switzerland. Dispute Resolution. The place of jurisdiction shall be exclusively Zurich, Switzerland.
- Assignment. Neither party will have the right to assign this Agreement to another party without the other party’s written consent, except that either party may, upon written notice to the other party (and without the other party’s consent), assign this Agreement in its entirety to a parent company, any subsidiary of a parent company, or an assignee in connection with a corporate reorganization, acquisition, merger, or sale of or substantially all of its assets; provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement.
- Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver thereof or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
- Headings. The section and subsection headings are for convenience of reference only and shall not be considered in the interpretation of this Agreement.
- Notices. Any notices to Fintalent in connection with this agreement will be made by email transmitted to email@example.com. Notices to Client will be made by email or regular mail and will be deemed to have been duly given when sent by Fintalent to the email or mailing address associated with Client’s account (which Client is responsible for keeping current).
- Signatures. This Agreement may be signed by manual, digital or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
- Severability. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, it shall be ineffective to the extent of such invalidity, illegality or unenforceability and the remaining provisions of this Agreement shall remain in effect. If one Party gives notice to the other party of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Entire Agreement. This Agreement together with each TALENT OUTLINE PLAN constitute the entire understanding and agreement between the parties. It supersedes all prior negotiations, understandings or agreements between the Parties concerning the subject matter contained herein. This Agreement may not be modified except in a writing signed by the parties and expressly referencing this Agreement.