The Middle
Terms of Service
ClientUpdated January 9, 2023
Section 2. Fees
This Client Services Agreement (the “Agreement”) is entered into by and between the hiring individual or business (“Client”), and Gracefull LLC, a California limited liability company doing business as The Middle (the “Company”, and, together with Client, the “Parties”).
The Parties agree, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the following terms and conditions will apply to services provided by the Company to Client:
1. Services. Subject to, and in accordance with the terms of this Agreement, and conditioned upon Client’s payment of all fees associated with the Placement Fee and Replacement Candidate Fee (as defined in Section 2), the Company shall provide the following services to Client (collectively, the “Services”):
a. identify and provide Client with profiles of individual candidates (each, a “Candidate”) to potentially serve as an assistant for Client;
b. for each Candidate approved by Client, facilitate one (1) interview between Client and such Candidate;
c. at Client’s request following an interview with a Candidate, facilitate an additional interview with the same Candidate (an “Additional Interview”);
d. at Client’s request following Client’s initial interviews of Candidates (or, in the case of a Replacement Candidate, following Client’s interview of one (1) Replacement Candidate), refer additional Candidates to Client (an “Additional Candidates”);
e. if a Candidate hired by Client ceases to provide services to Client within four (4) weeks following the date the Company facilitates the hiring of a Candidate by Client by providing the contact information of both Candidate and Client (a “Hiring Date”), at Client’s request, refer Client one (1) additional Candidate (a “Replacement Candidate”).
The Company may subcontract any aspect of this Agreement in its sole discretion to assist in the completion of the Services. Neither the Company, nor any of its agents, (sub)contractors or employees shall be deemed an employee of Client or vice versa.
2. Fees. The Interview Deposit Fee, Placement Fee and Replacement Candidate Fee are set forth and defined below.
a. Interview Deposit Fee. Client shall pay the Company a non-refundable “Interview Deposit Fee” equal to $100.00 if Client would like to set interviews with any Candidates provided by the Company. Interview Deposit Fee covers interview coordination for up to 5 candidates. If Client would like to coordinate interviews with more than 5 candidates, an additional $100 Interview Deposit Fee will be due per additional 5 candidates.
(i) Client is not obligated to set up interviews after receiving Candidates; it is Client’s choice if they would like to set interviews, and which Candidates they’d like to set interviews with.
(ii) Company will only set up interviews with Client’s Candidate selections upon receipt of Interview Deposit Fee.
(iii) Interview Deposit Fee is not refundable under any circumstance. If Client cancels interviews and does not reschedule, no refund of the Interview Deposit Fee will be due. If, after conducting interviews set by the Company, Client decides not to hire a Candidate referred by the Company, no refund of the Interview Deposit Fee will be due.
(iv) Interview Deposit Fee is separate from the Placement Fee and is not credited towards any Placement Fee.
b. Placement Fee. Within seven (7) days following a Hiring Date, Client shall pay the Company a “Placement Fee” equal to $445.00. In the event Client does not hire a Candidate following the initial referral by the Company but subsequently approaches a Candidate within 12 months following Company’s referral of candidate directly offering payment for Candidate’s services, then Client shall pay the full Placement Fee.
(i) If Client decides not to hire a Candidate referred by the Company, Client may terminate Services provided by the Company and no Placement Fee shall be due.
(ii) Client is not obligated to hire a candidate referred by the Company, even after receiving Candidate matches and conducting interviews with Candidate(s).
(iii) If Candidate accepts Client’s offer and Company directly connects Client to Candidate, Client must start Candidate’s services within 4 weeks of Hiring Date or Client forfeits Candidates’s acceptance and the full Placement Fee ($445) is due to Company.
c. Replacement Candidate Fee.
(i) If a Candidate hired by Client ceases to provide services to Client within the four (4) week period following the Hiring Date (the “Trial Period”), at Client’s request, the Company shall refer Client one (1) Replacement Candidate at no additional charge, or, at Company’s sole discretion, offer Client a refund of $225. Client must request Replacement Candidate within the Trial Period or opportunity for Replacement Candidate will be forfeited.
(ii) If a Candidate hired by Client ceases to provide services to Client within the Trial Period, Client may terminate the Services provided by the Company, and at Client’s request, the Company shall offer Client a refund of $225.
(iii) If a Candidate hired by Client ceases to provide services to Client within the Trial Period due to Client not respecting boundaries for scope of work, hours, availability, or other terms originally discussed with Company and agreed to by Candidate at time of hire, Company is not obligated to provide a Replacement Candidate nor offer Client a refund of $225.
(iv) If Company refers Client at least one (1) Replacement Candidate, but Client does not engage in moving forward with Company Services within one (1) month of the date the Replacement Candidate(s) are provided, Client forfeits right to a Replacement Candidate and/or refund of $225.
(v) If a Candidate hired by Client ceases to provide services to Client following the Trial Period, but within 6 months following the Hiring Date, at Client’s request, the Company may, at its sole discretion, refer Client one (1) Replacement Candidate and Client shall pay the Company a replacement fee equal to $295 (a “Replacement Fee”) within seven (7) days following the Hiring Date of such Replacement Candidate.
(vi) There is no Trial Period for a Replacement Candidate, and if Replacement Candidate hired by Client ceases to provide services to Client at any time after hiring, Client shall not be refunded any amount.
3. Late Payments. In the event Client does not timely pay any fee, the Company shall not be obligated to provide additional Services and shall reserve all rights and remedies under applicable laws. The Company reserves the right to charge a late fee of one percent (1.0%) per day on any accrued and unpaid fees.
4. COVID-19 Risk Assumption. Client acknowledges that Company makes no representations or warranties with regards to the safety precautions Candidate has or will undertake and enforce in connection with the novel coronavirus (“COVID-19”) or related public health crisis. It is Client’s sole responsibility to ensure that the workplace follows proper health and safety protocols to limit the spread of COVID-19 and ensure the safety of its agents, employees, and service providers. The Company shall incur no liability if Client or Candidate fail to follow proper state, county or federal guidelines or those recommendations provided by the United States Center for Disease Control and Prevention. Client acknowledges that the Company is not liable for any losses or damages should Client or Candidate become exposed to or contract COVID-19 at Client’s workplace or while Candidate performs services for Client.
5. Disclosure of Client Identity. In absence of Client’s written prohibition against the same, the Company and agents acting on its behalf may provide Client’s identity, including without limitation Client’s name, to Candidates or the Company’s agents.
6. Client Responsibilities. Client acknowledges it is Client’s responsibility to perform a full and thorough evaluation of any Candidate and make an independent determination regarding a Candidates’ suitability to be engaged by Client. Client shall be fully responsible for the engagement or employment of any Candidate in accordance with all applicable laws, including for avoidance of doubt the determination of proper employment classification of any Candidate. Client accepts, and the Company disclaims, all liability with respect to applicable employment law with respect to Client’s engagement of any Candidate. Client is responsible for paying all wages and expenses of the Candidate(s).
7. Absence of Guarantees; Liabilities.
a. No Guarantees. Client acknowledges that the Company’s delivery of the Services involves certain risks and uncertainties, and neither this Agreement, nor any (i) referral by the Company of any Candidate; (ii) recommendation by the Company of any third party product or service; (iii) recommendation by the Company on any other matter, or (iv) statement made by the Company or its representatives, is to be construed as either a promise or guarantee regarding the success, effectiveness or results the Services may achieve. Client further acknowledges that the performance of the Services involves subjectivity and may not coincide with Client’s preferences, and there are no guarantees that the Candidates identified by the Company will achieve any particular result or outcome.
b. Candidate Vetting. Client acknowledges the Company will refer Candidates based upon the Company’s subjective assessment of such Candidate. Regardless of whether Client engages a Candidate, the Company shall have no responsibility whatsoever for any Candidate or for any acts or omissions of such Candidate. Client acknowledges the Company is under no obligation to perform a background check of any Candidate prior to the Company’s referral of such Candidate to Client.
c. No Penalty for Delays. The Company shall incur no liability if it delays in providing any of the Services due to circumstances beyond the Company’s control or due to delays caused by Client or any third party. Without limiting the generality of the foregoing provisions, the Company will not pay any penalty, loss or interest resulting from its error, delay, difficulty or failure in performing the Services, and, in no event shall the total liability the Company or its employees, owner, affiliates, or agents, for all damages, losses and causes of action whether in contract, tort (including negligence), product liability, or otherwise, either jointly or severally, exceed the amount paid by Client for the Services. The foregoing shall constitute the Company’s entire liability and Client’s exclusive remedy hereunder. The provisions of this Section 7 are for the benefit of the Company, its affiliates, agents, members, managers, and owners, and each shall have the right to assert and enforce the provisions directly on their own behalf.
8. Disclaimer of Warranties. In addition to the foregoing, in no event shall the Company be liable for any direct, indirect, special, incidental, consequential or exemplary damages, including but not limited to, loss of Client’s information, goods or profits, (even if advised of the possibility therefore), any claim, demand or action by a third party, damage, injury or theft of Client’s property, injury to Client’s owners, managers, employees, associates, personnel, students, customers, or guests, whether or not resulting from in connection with or arising in any way out of this Agreement or any of the Services or that result from mistakes, omissions, interruptions, errors, defects, or from any failure of performance, whether limited to acts of god, pandemics, epidemics, communications failure, theft, destruction of the Company’s records, programs or services. The Company disclaims all liability for Candidates, including during the interview process, and before, during, and after they are hired by Client, and hereby informs Client that the Candidates are not the Company’s responsibility nor employees of the Company. All Services are provided “as is.” There are no warranties, express or implied, by operation of law or otherwise, on any Services furnished hereunder. Any implied warranties of merchantability or fitness for a particular purpose or use are hereby disclaimed.
9. Indemnification. Client agrees to defend, indemnify and hold harmless the Company, its owners, partners, employees and agents, to the fullest extent lawful, from any losses, claims, damages, liabilities, and expenses, including reasonable attorney’s fees, (collectively, “Claims”) to which the Company may become subject, related to or arising out of this Agreement or arising out of, or in connection with, the Services, including any claims by a Candidate against the Company in connection with this Agreement. Client further agrees to defend, indemnify and hold harmless the Company from any Claims resulting from any of the Services that damage Client, or any other party or parties, except in case of intentional misconduct by the Company. The provisions of this Section 9 shall survive any termination of this Agreement. The Company shall be responsible only for performing the Services expressly provided for in this Agreement, and shall be liable only if it engages in intentional misconduct in performing the Services. The Company shall not be responsible for Client’s or any other person or entity’s acts or omissions, including without limitation any third party or Candidate, whether or not hired as a subcontractor by the Company or by Client, and neither such person nor any such entity shall be deemed to be an agent or representative of the Company.
10. Termination and Amendments. Subject to Client’s obligations to pay for the Services, this Agreement may be terminated upon seven (7) days prior written notice by either Party for any reason. The Company may also terminate this Agreement at any time, without notice, for any conduct that the Company in its sole discretion believes violates this Agreement or is harmful to another client, third party, or the Company’s interests, including but not limited to in the event the Company believes performance of the Agreement will place the Company, Client, or third party (including Candidates) health and safety at risk. The Company’s obligation to perform the Services will terminate automatically, without notice from the Company, if Client fails to comply with any provision of this Agreement. The Company also has the right to suspend service to Client at any time, and for any reason, with or without notice. Other than as provided in this Agreement, this Agreement may not be released, discharged, changed or modified except by an instrument in writing duly signed by both Parties. Neither the course of conduct between the Parties nor trade practice shall act to modify any provision of this Agreement. Before the Company is obligated to perform any Services additional to and outside the scope of this Agreement, Client and the Company shall agree in writing as to the scope of the additional Services, the billing schedule, and rate that will be applied to the additional Services.
11. Venue. Regardless of the place of signing this Agreement, Client agrees that for purposes of venue, this Agreement was entered into in Los Angeles, California and shall be governed by the laws of the State of California. Any controversy or claim relating to this Agreement shall be settled by arbitration. If the Parties cannot agree upon an arbitrator and upon rules to govern such arbitration, then any arbitration arising out of this Agreement shall be administered by JAMS, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. For all matters arising out of or relating to this Agreement, Client agrees to submit to the jurisdiction of the State of California. The arbitration proceeding shall take place and the arbitration award given in writing in Los Angeles, California. In the event of litigation or arbitration to interpret or enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover all expenses, including reasonable attorney’s fees incurred.
12. Enforceability. If any provision contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be deemed severable from this Agreement and shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Notwithstanding the foregoing, if, any provision contained in this Agreement shall be held to be excessively broad as to time, duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.
13. Transferability. Client acknowledges that this Agreement, and its rights to the Services and to any product of the Services are non-transferable and that none of these rights may be transferred, assigned or distributed by Client to any third party. The Company has the right to freely assign this Agreement and its rights and obligations under this Agreement.
14. Headings. The headings or titles of the various paragraphs of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication or intention, limit, define, extend or affect the meaning or interpretation of this Agreement or the specific terms or text of the section so designated.
15. Sole Agreement. This Agreement, including any attachments to this Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous proposals, both oral and written, negotiations, representations, commitments, writings, and all other communication between the Parties, with respect to the Services. Client acknowledges that it is entering into this Agreement solely on the basis of the representations herein.
16. Electronic Signatures. This Agreement may be executed by providing an electronic signature under the terms of the Electronic Signatures Act, 15 U.S.C. SS 7001 et. seq. and/or the Uniform Electronic Transactions Act, California Civil Code §§1633.1 et. seq., and may not be denied legal effect solely because it is in electronic form or permits the completion of the business transaction referenced herein electronically instead of in person. The Parties agree that any electronic signature of a Party to this Agreement shall be as valid as an original signature of such Party and shall be effective to bind such Party to this Agreement. The Company shall be entitled to rely on the electronic signature of Client to authenticate this writing and to have the same force and effect as a manual signature.
17. Miscellaneous. A waiver of or failure to enforce any provision contained in this Agreement on any occasion shall not be deemed to be a continuing waiver or a waiver on any other occasion. Client acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. Any additional work not specified in this Agreement must be authorized in a writing and agreed to by both Parties.