Master Services Agreement

This MASTER SERVICES AGREEMENT (“Agreement”) executed as of the date on the accompanying Statement of Work (SOW) is by and between the client as identified in the Statement of Work, hereinafter referred to as “CLIENT,” and PIXOUL LLC, a Texas limited liability company, located at 100 Crescent Ct. Ste. 700 Dallas, TX 75201, hereinafter referred to as “PIXOUL”. This Agreement shall become effective when the Statement of Work is signed by both parties.

WITNESSETH:

That, in consideration of the mutual covenants herein contained and of the payments herein provided to be made by CLIENT to PIXOUL, the parties hereto agree as follows:

1.0 Services Rendered and Definitions.

It is understood and agreed PIXOUL general responsibility is to fulfill and coordinate CLIENT’s Direct-Hire, Staffing, and Managed Services (together, “Services”) as agreed to by the parties.

“Direct-Hire Services” is defined as when CLIENT pays a fee to PIXOUL upon hiring any candidate referred by PIXOUL and the candidate goes directly onto CLIENT’s payroll. The direct-hire fee is due if CLIENT or CLIENT's associates or affiliates hire a candidate referred by PIXOUL directly or indirectly in any capacity or refer a PIXOUL candidate or employee to another employer or recruiting firm and our candidate or employee is hired as an employee, consultant, or independent contractor on a salaried or contract basis within one year from the last day a PIXOUL candidate works for CLIENT. The words “refer”, and “referral” mean any manner or means of communication of a candidate’s identity.

“Staffing Services” is defined as when CLIENT pays a staffing fee to PIXOUL for the work of employees or contractors who are assigned for contracted, temporary staffing services (“PIXOUL Contractors”). As appropriate, Pixoul Contractors may work with internal PIXOUL team members for project success (“Managed Services”).

1.1 Staffing Management.

PIXOUL will provide its own software system to manage these staffing services. All data captured in regard to this Agreement will remain the property of PIXOUL; however, PIXOUL will provide CLIENT with a duplicate of such data in a mutually agreed upon format upon CLIENT written request. PIXOUL agrees PIXOUL Contractors will be subject to and must comply with all CLIENT rules, regulations and procedures communicated to PIXOUL in advance, concerning building access, security, computer access, conflict of interest, abuse of drugs and/or alcohol and harassment.

1.2 Background Check.

PIXOUL will refer to CLIENT only personnel qualified to meet the specific requests of CLIENT. Further, PIXOUL certifies PIXOUL Contractors assigned to CLIENT under this Agreement have the learning ability and necessary work aptitudes, skills, training and satisfactory work record required to perform the job for which they are assigned. Background checks done by PIXOUL are a PIXOUL work product. PIXOUL will conduct specific background checks as requested by CLIENT.  

PIXOUL MAKES NO EXPRESS OR IMPLIED WARRANTIES FOR BACKGROUND CHECKS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND TOTALLY DISCLAIMS ANY PERSONAL OR ACTUAL KNOWLEDGE AS TO ANY FACTS OR INFORMATION OBTAINED ON ANY APPLICANT OR EMPLOYEE TO BE TRUE OR CORRECT, INCLUDING BUT NOT LIMITED TO, ANY CAPABILITIES THAT COULD BE SUBJECT TO THE TEXAS DECEPTIVE TRADE PRACTICE ACT.

1.3 Safety, Security, Alcohol, Drugs and Weapons.

CLIENT shall deliver to PIXOUL specific work site safety, security and other related rules and procedures, if any, applicable to the particular job or work site in writing. PIXOUL will instruct its PIXOUL Contractors to comply with the rules and procedures. Drug tests will be offered at CLIENT'S expense.

1.4 Direct-Hire Services.

CLIENT will give PIXOUL the opportunity to fill permanent staff openings when CLIENT makes such request and CLIENT agrees to pay PIXOUL a placement fee for each opening filled (the "Direct-Hire Fee"). PIXOUL will conduct a preliminary screening of the candidate to determine the candidate’s general qualifications, background, and suitability for the open position prior to referring the candidate to CLIENT. The hiring decisions, determination of suitability, background checking, employment eligibility verification and conditions of employment are the responsibilities of CLIENT. CLIENT shall have the sole discretion to hire the candidate. PIXOUL will consult and advise CLIENT with respect to questions arising in connection with these services, and will submit periodic progress reports if requested by CLIENT.

1.5 Direct-Hire Fee.

When CLIENT hires a candidate referred by PIXOUL, CLIENT will pay a Direct-Hire Fee based on the Candidate’s first year salary, excluding performance bonuses, multiplied by the Placement Fee Percentage in Statement of Work, or, when appropriate, to special agreed-to rates supported in writing by both parties. The fee is due when CLIENT employs any referred candidate in any capacity within one year from date of the referral. Should CLIENT refer PIXOUL’s applicants to affiliated companies, subsidiaries, division, associates or business friends (“Referral Party”), CLIENT will inform Referral Party that PIXOUL is to be paid a fee in the event the referred applicant(s) is hired. In the event that a legal dispute should arise, CLIENT agrees that its damages are limited to a maximum of the fee in dispute.

1.6 Direct-Hire Guarantee.

If the employed candidate leaves CLIENT employment, whether voluntarily or involuntarily (other than for lack of work, layoffs, cancellations of projects or changes by CLIENT in office location), within sixty (60) days following the candidate’s first day of employment, PIXOUL will, at CLIENT request promptly replace the candidate with another candidate suitable to CLIENT at no additional charge.

1.7 Candidate Ownership.

If PIXOUL refers a candidate to CLIENT with whom CLIENT has already been in contact with prior to any communication with PIXOUL, and CLIENT so advises PIXOUL within 30 calendar days following the referral, CLIENT will not owe PIXOUL a fee in the event CLIENT hires the candidate. CLIENT shall provide PIXOUL with documentation at PIXOUL’S request sufficient to establish candidate ownership.

Any candidate who has had any communication with PIXOUL prior to any communication with CLIENT, and who was referred to CLIENT by PIXOUL, is considered a candidate with whom PIXOUL has ownership.

2.0 Billing and Payment.

In consideration of the services to be performed by PIXOUL, the CLIENT agrees to pay PIXOUL in the manner and at the rates set forth in the Statement of Work(s).

For Direct-Hire Services, PIXOUL will bill CLIENT in full upon the official hire of a referred candidate.

For Staffing Services and Managed Services, PIXOUL will bill CLIENT bi-weekly either at an agreed upon hourly billing rate or as provided for in Statement of Work. CLIENT shall pay invoices upon receipt of invoice. Automatic payments will be charged in full for invoice balances via ACH or authorized credit card. All prices and fees are in U.S. Dollars unless otherwise specified. When automatic payments are not applicable, CLIENT agrees to pay manual payments, which will incur a one percent (1%) per month interest late penalty for each month an invoice is not paid in full after invoice due date. CLIENT agrees to pay the lesser of the late payment charge or the highest lawful rate on balances past due and all reasonable collection costs and attorney fees incurred to collect past due invoices.

As designated in the Statement of Work and at PIXOUL's sole discretion, PIXOUL may bill CLIENT a nonrefundable engagement fee. The engagement fee will be credited against any further fee that my become due under this Agreement, except the cancellation fee, if applicable, as outlined in Section 11.1.

3.0 Conversion.

CLIENT may hire a PIXOUL Contractor at any time subject to the liquidation fee in Statement of Work(s). The final hiring decision, background checking, and employment or education verification is the responsibility of CLIENT. PIXOUL MAKES NO EXPRESS OR IMPLIED WARRANTIES FOR THE ACCURACY OF THE INFORMATION WE OBTAIN THROUGH OUR BACKGROUND CHECKING PROCEDURES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT AGREES TO INDEMNIFY AND HOLD PIXOUL HARMLESS FROM ALL ACTUAL LIABILITIES, DAMAGES AND LOSSES INCURRED BY PIXOUL (INCLUDING ALL COSTS AND EXPENSES, INCLUDING ATTORNEYS’ FEES) TO THE EXTENT ARISING OUT OF ANY LEGAL ACTION THAT RESULTS FROM CLIENT HIRING A PIXOUL CONTRACTOR.

4.0 Referrals.

CLIENT may refer individuals selected and interviewed by CLIENT to PIXOUL for assignment to CLIENT as a PIXOUL Contractor, hereinafter referred to as “Payrolling Service”. PIXOUL has the exclusive right to hire such individuals. The Parties will need to execute a new Statement of Work which reflects the rate for this service.  

5.0 Independent Contractor.

The Services to be performed under this Agreement are that of an Independent Contractor, and not as an employee of CLIENT and nothing in this Agreement shall be deemed to make PIXOUL an agent, employee, partner or joint venturer of CLIENT. PIXOUL shall have no authority to bind, commit, or otherwise obligate CLIENT in any manner whatsoever. Any and all persons assigned to CLIENT by PIXOUL under this Agreement shall be and shall remain independent contractors or employees of PIXOUL and shall not be considered common law employees of CLIENT. Neither PIXOUL nor any individuals providing Services to CLIENT under this Agreement are entitled to the benefits CLIENT provides to its employees such as group insurance and participation in pension and benefit plans, etc.  

6.0 Manner of Performance.  

PIXOUL represents and warrants the Services performed hereunder will be accurate and efficiently rendered. PIXOUL will cooperate fully with CLIENT in satisfying the needs of CLIENT. CLIENT reserves the right to reject any or all personnel referred by PIXOUL.

7.0 Compliance Requirements.

PIXOUL is responsible for all applicable Federal, State, local, or similar tax, that accrue as a result of work performed by PIXOUL Contractors, except in instances where PIXOUL Contractors are defined as 1099 contractors, in which case a PIXOUL Contractor is solely and directly responsible for the aforementioned taxes. CLIENT is responsible for all sales, use or similar tax applied to the services performed for CLIENT. PIXOUL is responsible for pay provided to PIXOUL Contractors. PIXOUL is solely responsible for PIXOUL Contractor benefits, including, but not limited to, compensation pay, vacation pay, bonuses, overtime pay, pension rights, sick and disability pay, severance pay, provision for pension or retirement benefits, provision for health care benefits, and any and all other work-related employee benefits, if any, except in instances where PIXOUL Contractors are defined as 1099 contractors, in which case a PIXOUL Contractor is solely and directly responsible for the aforementioned benefits.

PIXOUL and CLIENT agree to immediately notify each other of any allegations of discrimination or harassment in employment made to, or made known to, PIXOUL or CLIENT, or filed with a federal, state, county or municipal court or any federal state, or local administrative agency by a current or former PIXOUL Contractor allegedly occurring in connection with a PIXOUL Contractor’s assignment under this Agreement. PIXOUL will aid CLIENT in the investigation or any such allegation and will provide updates on the status of any such allegations and related information as requested by CLIENT.

PIXOUL represents and warrants that its policies prohibit discrimination against applicants for employment because of race, color, religion, sex, national origin, age, disability, or veteran’s status. PIXOUL warrants that it will comply with all applicable laws, regulations, statutes, and ordinances (as amended), including, but not limited to: (a) Title VII of the Civil Rights Act of 1964; (b) The Civil Rights Act of 1991; (c) The Age Discrimination in Employment Act; (d) The Americans with Disabilities Act; (e) The Fair Credit Reporting Act; (f) Texas Labor Code; (g) Texas Workers’ Compensation Act; (h) The Economic Espionage Act; (I) The Uniformed Services Employment and Re-employment Rights Act of 1994; (j) The Immigration Reform and Control Act of 1986; (k) Executive Order 11,246; (l) The Equal Pay Act; (m) The Occupational Safety & Health Act; and (n) The Family and Medical Leave Act; (o) The Fair Labor Standard Act; (p) The National Labor Relations Act; and (q) Federal, State and Local minimum wage and overtime laws.

7.1 OSHA Compliance.

Because CLIENT controls the facilities in which assigned PIXOUL Contractors may work, it is agreed that CLIENT is primarily responsible for compliance with the Occupational Safety and Health Act and comparable state laws and regulations there under, to the extent those laws apply to PIXOUL Contractors assigned to CLIENT facility. PIXOUL shall abide by all CLIENT and government safety rules and regulations pertaining to the services performed. PIXOUL shall maintain accurate accident and injury reports and shall furnish CLIENT with written reports of all accidents and injuries within 72 hours of their occurrence. PIXOUL shall also furnish CLIENT with copies of all accident or injury reports provided to PIXOUL insurance carriers and governmental entities. All fatal or serious injuries must be reported immediately to CLIENT.

7.2 FMLA Compliance.

CLIENT and PIXOUL agree that for purposes of all statutory and regulatory requirements for employee leaves of absence, including the Family and Medical Leave Act and any similar state or local law, CLIENT and PIXOUL shall cooperate in compliance with any such requirements.

8.0 Limitation of Liability.

To the extent permitted by law, PIXOUL will defend, indemnify, and hold CLIENT and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by PIXOUL’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in this Agreement; or the negligence, gross negligence, or willful misconduct of PIXOUL or PIXOUL’s officers, employees, or authorized agents in the discharge of those duties and responsibilities.

To the extent permitted by law, CLIENT will defend, indemnify, and hold PIXOUL and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by CLIENT’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in this Agreement; or the negligence, gross negligence, or willful misconduct of CLIENT or CLIENT’s officers, employees, or authorized agents in the discharge of those duties and responsibilities.  

Neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any special, indirect, punitive or consequential loss including lost profit arising under or in connection with this Agreement. Nothing in this Agreement shall limit or exclude the PIXOUL’S or CLIENT'S liability for (a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors; (b) fraud or fraudulent misrepresentation (c) any other liability which cannot be limited or excluded by applicable law.  

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PIXOUL OR ITS LICENSORS, AGENTS, OFFICERS, OR AFFILIATES BE LIABLE FOR LOSS OF DATA, LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE SERVICES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF PIXOUL OR ITS LICENSORS, AGENTS, OFFICERS, OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PIXOUL'S TOTAL LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CLIENT, UP TO THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS.

9.0 Proprietary Information.

PIXOUL will not divulge to third parties, without the written consent of CLIENT, information obtained from or through CLIENT, either in connection with the performance of this Agreement that relates to the technical or business activities of CLIENT, or information developed by PIXOUL unless: (1) the information is known by PIXOUL prior to obtaining it from CLIENT and is not otherwise subject to any obligation of confidentiality; (2) the information is, at the time of disclosure by PIXOUL, then in the public domain; or (3) the information is obtained by PIXOUL from a third party who did not receive it directly or indirectly from CLIENT and who has no obligation of secrecy with respect to that information.

10.0 Insurance.

PIXOUL will, at its sole expense, purchase and maintain, during the term of this Agreement, insurance policies with substantial and sound insurers, having coverage of the types and in the amounts specified in the Certificate of Insurance submitted by PIXOUL prior to the execution of this Agreement, a copy of which is available at CLIENT request. At CLIENT request, CLIENT may be a named insured on relevant PIXOUL insurance policies.

11.0 Termination.

“Converted” is defined to mean PIXOUL Contractor leaving the employment of PIXOUL, being employed by another staffing company, and subsequently being assigned to work at CLIENT facilities by such staffing company, or being contracted by CLIENT directly in a manner that would not require a recruitment placement fee.

11.1 Termination by CLIENT.

CLIENT will give PIXOUL sixty (60) days’ notice when terminating this Agreement. PIXOUL Contractors will not be converted by or to another staffing company or to CLIENT directly unless PIXOUL is paid $40,000 for each PIXOUL Contractor so converted. In lieu of the $40,000 fee, PIXOUL is agreeable to having its PIXOUL Contractors continue to work at CLIENT until their assignment is completed provided the duration of such assignment is no shorter than six (6) months. If, for any reason, CLIENT terminates this Agreement before a staffing placement is sourced, CLIENT agrees to pay a $3,500 Agreement cancelation fee.

11.2 Termination by PIXOUL.

PIXOUL will give CLIENT sixty (60) days’ notice when terminating this Agreement. PIXOUL will cooperate fully with CLIENT during the transition period. PIXOUL is agreeable to having its PIXOUL Contractors converted to another staffing company provided CLIENT pays PIXOUL a mutually acceptable fee per PIXOUL Contractor.

12.0 Applicable Law/Venue.

This Agreement is governed by Texas law and is deemed to have been made in the State of Texas. With respect to any suit, action, or proceeding relating to this Agreement, each party submits to the exclusive jurisdiction of the courts of the State of Texas and the United States District Court located in Dallas, Texas, and waives any objection to jurisdiction in those courts.

13.0 Assignment.

PIXOUL may assign this Agreement to any Affiliate of PIXOUL, provided that (i) the assignee agrees in writing to be bound by the terms and conditions of this Agreement, (ii) neither PIXOUL nor the assignee are in default hereunder, (iii) the assignee is not a direct competitor of CLIENT, and (iv) PIXOUL agrees to remain liable for any breach of this Agreement by the assignee. “Affiliate” of a party shall mean such party’s direct or indirect parent corporation, an entity under the control of such party’s direct or indirect parent corporation at any tier, or an entity controlled by such party at any tier. “Control” shall mean the power to direct or cause the direction of the management and policies of the entity through the ownership of more than 50% of the outstanding voting interests in such entity.

14.0 Merger.

Nothing shall prevent the assignment by PIXOUL of this Agreement without the consent of CLIENT: (i) to PIXOUL’s parent or to any of the Affiliates or (ii) in connection with the sale of all or substantially all of PIXOUL’s assets. In the event that PIXOUL merges into or consolidates with another entity, and provided such merger or acquisition does not materially and adversely affect the ability of assigning party to perform its duties and obligations under this Agreement, this Agreement shall be deemed assigned or transferred to such successor in interest without further action by PIXOUL.

15.0 No Waiver.

No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is written and signed by the party who is claimed to have waived or consented. Any such consent or waiver shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.

Any failure by CLIENT at any time, or from time to time, to enforce or require strict keeping and performance by PIXOUL of any of the terms or conditions of this Agreement covering the services to be performed hereunder, shall not constitute a waiver of such terms and conditions, and shall not in any manner affect or impair such terms and conditions or the rights of CLIENT at any time to avail itself of such remedies as it may have for any breach or breaches of such terms and conditions by PIXOUL.

16.0 Attachments.

The following attachment(s) are incorporated into this Agreement: Statement of Work.

17.0 Amendments.

Except as otherwise provided in this Agreement, no changes, modifications, amendments or supplements of any of the provisions of this Agreement will be valid unless agreed to in writing and attached hereto in a Statement of Work, and signed by both parties.

18.0 Entire Agreement.

The making, execution and delivery of this Agreement by the parties hereto have not been induced by any representation, statements, warranties or agreements other than those expressed in this Agreement.  This Agreement embodies the entire understanding of the parties hereto and there are no further or other agreements or understandings, written or oral, except as mentioned herein.  Any and all previous agreements between the parties are expressly rescinded and canceled and are superseded by this Agreement.  This Agreement may only be amended by the written agreement of the parties.

This MASTER SERVICES AGREEMENT (“Agreement”) executed as of the date on the accompanying Statement of Work (SOW) is by and between the client as identified in the Statement of Work, hereinafter referred to as “CLIENT,” and PIXOUL LLC, a Texas limited liability company, located at 100 Crescent Ct. Ste. 700 Dallas, TX 75201, hereinafter referred to as “PIXOUL”. This Agreement shall become effective when the Statement of Work is signed by both parties.

WITNESSETH:

That, in consideration of the mutual covenants herein contained and of the payments herein provided to be made by CLIENT to PIXOUL, the parties hereto agree as follows:

1.0 Services Rendered and Definitions.

It is understood and agreed PIXOUL general responsibility is to fulfill and coordinate CLIENT’s Direct-Hire, Staffing, and Managed Services (together, “Services”) as agreed to by the parties.

“Direct-Hire Services” is defined as when CLIENT pays a fee to PIXOUL upon hiring any candidate referred by PIXOUL and the candidate goes directly onto CLIENT’s payroll. The direct-hire fee is due if CLIENT or CLIENT's associates or affiliates hire a candidate referred by PIXOUL directly or indirectly in any capacity or refer a PIXOUL candidate or employee to another employer or recruiting firm and our candidate or employee is hired as an employee, consultant, or independent contractor on a salaried or contract basis within one year from the last day a PIXOUL candidate works for CLIENT. The words “refer”, and “referral” mean any manner or means of communication of a candidate’s identity.

“Staffing Services” is defined as when CLIENT pays a staffing fee to PIXOUL for the work of employees or contractors who are assigned for contracted, temporary staffing services (“PIXOUL Contractors”). As appropriate, Pixoul Contractors may work with internal PIXOUL team members for project success (“Managed Services”).

If PIXOUL refers a candidate to CLIENT with whom CLIENT has already been in contact with prior to any communication with PIXOUL, and CLIENT so advises PIXOUL within 30 calendar days following the referral, CLIENT will not owe PIXOUL a fee in the event CLIENT hires the candidate. CLIENT shall provide PIXOUL with documentation at PIXOUL’S request sufficient to establish candidate ownership.

Any candidate who has had any communication with PIXOUL prior to any communication with CLIENT, and who was referred to CLIENT by PIXOUL, is considered a candidate with whom PIXOUL has ownership.

1.1 Staffing Management.

PIXOUL will provide its own software system to manage these staffing services. All data captured in regard to this Agreement will remain the property of PIXOUL; however, PIXOUL will provide CLIENT with a duplicate of such data in a mutually agreed upon format upon CLIENT written request. PIXOUL agrees PIXOUL Contractors will be subject to and must comply with all CLIENT rules, regulations and procedures communicated to PIXOUL in advance, concerning building access, security, computer access, conflict of interest, abuse of drugs and/or alcohol and harassment.

1.2 Background Check.

PIXOUL will refer to CLIENT only personnel qualified to meet the specific requests of CLIENT. Further, PIXOUL certifies PIXOUL Contractors assigned to CLIENT under this Agreement have the learning ability and necessary work aptitudes, skills, training and satisfactory work record required to perform the job for which they are assigned. Background checks done by PIXOUL are a PIXOUL work product. PIXOUL will conduct specific background checks as requested by CLIENT.  

PIXOUL MAKES NO EXPRESS OR IMPLIED WARRANTIES FOR BACKGROUND CHECKS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND TOTALLY DISCLAIMS ANY PERSONAL OR ACTUAL KNOWLEDGE AS TO ANY FACTS OR INFORMATION OBTAINED ON ANY APPLICANT OR EMPLOYEE TO BE TRUE OR CORRECT, INCLUDING BUT NOT LIMITED TO, ANY CAPABILITIES THAT COULD BE SUBJECT TO THE TEXAS DECEPTIVE TRADE PRACTICE ACT.

1.3 Safety, Security, Alcohol, Drugs and Weapons.

CLIENT shall deliver to PIXOUL specific work site safety, security and other related rules and procedures, if any, applicable to the particular job or work site in writing. PIXOUL will instruct its PIXOUL Contractors to comply with the rules and procedures. Drug tests will be offered at CLIENT'S expense.

1.4 Direct-Hire Services.

CLIENT will give PIXOUL the opportunity to fill permanent staff openings when CLIENT makes such request and CLIENT agrees to pay PIXOUL a placement fee for each opening filled (the "Direct-Hire Fee"). PIXOUL will conduct a preliminary screening of the candidate to determine the candidate’s general qualifications, background, and suitability for the open position prior to referring the candidate to CLIENT. The hiring decisions, determination of suitability, background checking, employment eligibility verification and conditions of employment are the responsibilities of CLIENT. CLIENT shall have the sole discretion to hire the candidate. PIXOUL will consult and advise CLIENT with respect to questions arising in connection with these services, and will submit periodic progress reports if requested by CLIENT.

1.5 Direct-Hire Fee.

When CLIENT hires a candidate referred by PIXOUL, CLIENT will pay a Direct-Hire Fee based on the Candidate’s first year salary, excluding performance bonuses, multiplied by the Placement Fee Percentage in Statement of Work, or, when appropriate, to special agreed-to rates supported in writing by both parties. The fee is due when CLIENT employs any referred candidate in any capacity within one year from date of the referral. Should CLIENT refer PIXOUL’s applicants to affiliated companies, subsidiaries, division, associates or business friends (“Referral Party”), CLIENT will inform Referral Party that PIXOUL is to be paid a fee in the event the referred applicant(s) is hired. In the event that a legal dispute should arise, CLIENT agrees that its damages are limited to a maximum of the fee in dispute.

1.6 Direct-Hire Guarantee.

If the employed candidate leaves CLIENT employment, whether voluntarily or involuntarily (other than for lack of work, layoffs, cancellations of projects or changes by CLIENT in office location), within sixty (60) days following the candidate’s first day of employment, PIXOUL will, at CLIENT request promptly replace the candidate with another candidate suitable to CLIENT at no additional charge.

2.0 Billing and Payment.

In consideration of the services to be performed by PIXOUL, the CLIENT agrees to pay PIXOUL in the manner and at the rates set forth in the Statement of Work(s).

For Direct-Hire Services, PIXOUL will bill CLIENT in full upon the official hire of a referred candidate.

For Staffing Services and Managed Services, PIXOUL will bill CLIENT bi-weekly either at an agreed upon hourly billing rate or as provided for in Statement of Work. CLIENT shall pay invoices upon receipt of invoice. Automatic payments will be charged in full for invoice balances via ACH or authorized credit card. All prices and fees are in U.S. Dollars unless otherwise specified. When automatic payments are not applicable, CLIENT agrees to pay manual payments, which will incur a one percent (1%) per month interest late penalty for each month an invoice is not paid in full after invoice due date. CLIENT agrees to pay the lesser of the late payment charge or the highest lawful rate on balances past due and all reasonable collection costs and attorney fees incurred to collect past due invoices.

As designated in the Statement of Work and at PIXOUL's sole discretion, PIXOUL may bill CLIENT a nonrefundable engagement fee. The engagement fee will be credited against any further fee that my become due under this Agreement, except the cancellation fee, if applicable, as outlined in Section 11.1.

3.0 Conversion.

CLIENT may hire a PIXOUL Contractor at any time subject to the liquidation fee in Statement of Work(s). The final hiring decision, background checking, and employment or education verification is the responsibility of CLIENT. PIXOUL MAKES NO EXPRESS OR IMPLIED WARRANTIES FOR THE ACCURACY OF THE INFORMATION WE OBTAIN THROUGH OUR BACKGROUND CHECKING PROCEDURES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT AGREES TO INDEMNIFY AND HOLD PIXOUL HARMLESS FROM ALL ACTUAL LIABILITIES, DAMAGES AND LOSSES INCURRED BY PIXOUL (INCLUDING ALL COSTS AND EXPENSES, INCLUDING ATTORNEYS’ FEES) TO THE EXTENT ARISING OUT OF ANY LEGAL ACTION THAT RESULTS FROM CLIENT HIRING A PIXOUL CONTRACTOR.

4.0 Referrals.

CLIENT may refer individuals selected and interviewed by CLIENT to PIXOUL for assignment to CLIENT as a PIXOUL Contractor, hereinafter referred to as “Payrolling Service”. PIXOUL has the exclusive right to hire such individuals. The Parties will need to execute a new Statement of Work which reflects the rate for this service.  

5.0 Independent Contractor.

The Services to be performed under this Agreement are that of an Independent Contractor, and not as an employee of CLIENT and nothing in this Agreement shall be deemed to make PIXOUL an agent, employee, partner or joint venturer of CLIENT. PIXOUL shall have no authority to bind, commit, or otherwise obligate CLIENT in any manner whatsoever. Any and all persons assigned to CLIENT by PIXOUL under this Agreement shall be and shall remain independent contractors or employees of PIXOUL and shall not be considered common law employees of CLIENT. Neither PIXOUL nor any individuals providing Services to CLIENT under this Agreement are entitled to the benefits CLIENT provides to its employees such as group insurance and participation in pension and benefit plans, etc.  

6.0 Manner of Performance.  

PIXOUL represents and warrants the Services performed hereunder will be accurate and efficiently rendered. PIXOUL will cooperate fully with CLIENT in satisfying the needs of CLIENT. CLIENT reserves the right to reject any or all personnel referred by PIXOUL.

7.0 Compliance Requirements.

PIXOUL is responsible for all applicable Federal, State, local, or similar tax, that accrue as a result of work performed by PIXOUL Contractors, except in instances where PIXOUL Contractors are defined as 1099 contractors, in which case a PIXOUL Contractor is solely and directly responsible for the aforementioned taxes. CLIENT is responsible for all sales, use or similar tax applied to the services performed for CLIENT. PIXOUL is responsible for pay provided to PIXOUL Contractors. PIXOUL is solely responsible for PIXOUL Contractor benefits, including, but not limited to, compensation pay, vacation pay, bonuses, overtime pay, pension rights, sick and disability pay, severance pay, provision for pension or retirement benefits, provision for health care benefits, and any and all other work-related employee benefits, if any, except in instances where PIXOUL Contractors are defined as 1099 contractors, in which case a PIXOUL Contractor is solely and directly responsible for the aforementioned benefits.

PIXOUL and CLIENT agree to immediately notify each other of any allegations of discrimination or harassment in employment made to, or made known to, PIXOUL or CLIENT, or filed with a federal, state, county or municipal court or any federal state, or local administrative agency by a current or former PIXOUL Contractor allegedly occurring in connection with a PIXOUL Contractor’s assignment under this Agreement. PIXOUL will aid CLIENT in the investigation or any such allegation and will provide updates on the status of any such allegations and related information as requested by CLIENT.

PIXOUL represents and warrants that its policies prohibit discrimination against applicants for employment because of race, color, religion, sex, national origin, age, disability, or veteran’s status. PIXOUL warrants that it will comply with all applicable laws, regulations, statutes, and ordinances (as amended), including, but not limited to: (a) Title VII of the Civil Rights Act of 1964; (b) The Civil Rights Act of 1991; (c) The Age Discrimination in Employment Act; (d) The Americans with Disabilities Act; (e) The Fair Credit Reporting Act; (f) Texas Labor Code; (g) Texas Workers’ Compensation Act; (h) The Economic Espionage Act; (I) The Uniformed Services Employment and Re-employment Rights Act of 1994; (j) The Immigration Reform and Control Act of 1986; (k) Executive Order 11,246; (l) The Equal Pay Act; (m) The Occupational Safety & Health Act; and (n) The Family and Medical Leave Act; (o) The Fair Labor Standard Act; (p) The National Labor Relations Act; and (q) Federal, State and Local minimum wage and overtime laws.

7.1 OSHA Compliance.

Because CLIENT controls the facilities in which assigned PIXOUL Contractors may work, it is agreed that CLIENT is primarily responsible for compliance with the Occupational Safety and Health Act and comparable state laws and regulations there under, to the extent those laws apply to PIXOUL Contractors assigned to CLIENT facility. PIXOUL shall abide by all CLIENT and government safety rules and regulations pertaining to the services performed. PIXOUL shall maintain accurate accident and injury reports and shall furnish CLIENT with written reports of all accidents and injuries within 72 hours of their occurrence. PIXOUL shall also furnish CLIENT with copies of all accident or injury reports provided to PIXOUL insurance carriers and governmental entities. All fatal or serious injuries must be reported immediately to CLIENT.

7.2 FMLA Compliance.

CLIENT and PIXOUL agree that for purposes of all statutory and regulatory requirements for employee leaves of absence, including the Family and Medical Leave Act and any similar state or local law, CLIENT and PIXOUL shall cooperate in compliance with any such requirements.

8.0 Limitation of Liability.

To the extent permitted by law, PIXOUL will defend, indemnify, and hold CLIENT and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by PIXOUL’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in this Agreement; or the negligence, gross negligence, or willful misconduct of PIXOUL or PIXOUL’s officers, employees, or authorized agents in the discharge of those duties and responsibilities.

To the extent permitted by law, CLIENT will defend, indemnify, and hold PIXOUL and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by CLIENT’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in this Agreement; or the negligence, gross negligence, or willful misconduct of CLIENT or CLIENT’s officers, employees, or authorized agents in the discharge of those duties and responsibilities.  

Neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any special, indirect, punitive or consequential loss including lost profit arising under or in connection with this Agreement. Nothing in this Agreement shall limit or exclude the PIXOUL’S or CLIENT'S liability for (a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors; (b) fraud or fraudulent misrepresentation (c) any other liability which cannot be limited or excluded by applicable law.  

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PIXOUL OR ITS LICENSORS, AGENTS, OFFICERS, OR AFFILIATES BE LIABLE FOR LOSS OF DATA, LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE SERVICES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF PIXOUL OR ITS LICENSORS, AGENTS, OFFICERS, OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PIXOUL'S TOTAL LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CLIENT, UP TO THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS.

9.0 Proprietary Information.

PIXOUL will not divulge to third parties, without the written consent of CLIENT, information obtained from or through CLIENT, either in connection with the performance of this Agreement that relates to the technical or business activities of CLIENT, or information developed by PIXOUL unless: (1) the information is known by PIXOUL prior to obtaining it from CLIENT and is not otherwise subject to any obligation of confidentiality; (2) the information is, at the time of disclosure by PIXOUL, then in the public domain; or (3) the information is obtained by PIXOUL from a third party who did not receive it directly or indirectly from CLIENT and who has no obligation of secrecy with respect to that information.

10.0 Insurance.

PIXOUL will, at its sole expense, purchase and maintain, during the term of this Agreement, insurance policies with substantial and sound insurers, having coverage of the types and in the amounts specified in the Certificate of Insurance submitted by PIXOUL prior to the execution of this Agreement, a copy of which is available at CLIENT request. At CLIENT request, CLIENT may be a named insured on relevant PIXOUL insurance policies.

11.0 Termination.

“Converted” is defined to mean PIXOUL Contractor leaving the employment of PIXOUL, being employed by another staffing company, and subsequently being assigned to work at CLIENT facilities by such staffing company, or being contracted by CLIENT directly in a manner that would not require a recruitment placement fee.

11.1 Termination by CLIENT.

CLIENT will give PIXOUL sixty (60) days’ notice when terminating this Agreement. PIXOUL Contractors will not be converted by or to another staffing company or to CLIENT directly unless PIXOUL is paid $40,000 for each PIXOUL Contractor so converted. In lieu of the $40,000 fee, PIXOUL is agreeable to having its PIXOUL Contractors continue to work at CLIENT until their assignment is completed provided the duration of such assignment is no shorter than six (6) months. If, for any reason, CLIENT terminates this Agreement before a staffing placement is sourced, CLIENT agrees to pay a $3,500 Agreement cancelation fee.

11.2 Termination by PIXOUL.

PIXOUL will give CLIENT sixty (60) days’ notice when terminating this Agreement. PIXOUL will cooperate fully with CLIENT during the transition period. PIXOUL is agreeable to having its PIXOUL Contractors converted to another staffing company provided CLIENT pays PIXOUL a mutually acceptable fee per PIXOUL Contractor.

12.0 Applicable Law/Venue.

This Agreement is governed by Texas law and is deemed to have been made in the State of Texas. With respect to any suit, action, or proceeding relating to this Agreement, each party submits to the exclusive jurisdiction of the courts of the State of Texas and the United States District Court located in Dallas, Texas, and waives any objection to jurisdiction in those courts.

13.0 Assignment.

PIXOUL may assign this Agreement to any Affiliate of PIXOUL, provided that (i) the assignee agrees in writing to be bound by the terms and conditions of this Agreement, (ii) neither PIXOUL nor the assignee are in default hereunder, (iii) the assignee is not a direct competitor of CLIENT, and (iv) PIXOUL agrees to remain liable for any breach of this Agreement by the assignee. “Affiliate” of a party shall mean such party’s direct or indirect parent corporation, an entity under the control of such party’s direct or indirect parent corporation at any tier, or an entity controlled by such party at any tier. “Control” shall mean the power to direct or cause the direction of the management and policies of the entity through the ownership of more than 50% of the outstanding voting interests in such entity.

14.0 Merger.

Nothing shall prevent the assignment by PIXOUL of this Agreement without the consent of CLIENT: (i) to PIXOUL’s parent or to any of the Affiliates or (ii) in connection with the sale of all or substantially all of PIXOUL’s assets. In the event that PIXOUL merges into or consolidates with another entity, and provided such merger or acquisition does not materially and adversely affect the ability of assigning party to perform its duties and obligations under this Agreement, this Agreement shall be deemed assigned or transferred to such successor in interest without further action by PIXOUL.

15.0 No Waiver.

No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is written and signed by the party who is claimed to have waived or consented. Any such consent or waiver shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.

Any failure by CLIENT at any time, or from time to time, to enforce or require strict keeping and performance by PIXOUL of any of the terms or conditions of this Agreement covering the services to be performed hereunder, shall not constitute a waiver of such terms and conditions, and shall not in any manner affect or impair such terms and conditions or the rights of CLIENT at any time to avail itself of such remedies as it may have for any breach or breaches of such terms and conditions by PIXOUL.

16.0 Attachments.

The following attachment(s) are incorporated into this Agreement: Statement of Work.

17.0 Amendments.

Except as otherwise provided in this Agreement, no changes, modifications, amendments or supplements of any of the provisions of this Agreement will be valid unless agreed to in writing and attached hereto in a Statement of Work, and signed by both parties.

18.0 Entire Agreement.

The making, execution and delivery of this Agreement by the parties hereto have not been induced by any representation, statements, warranties or agreements other than those expressed in this Agreement.  This Agreement embodies the entire understanding of the parties hereto and there are no further or other agreements or understandings, written or oral, except as mentioned herein.  Any and all previous agreements between the parties are expressly rescinded and canceled and are superseded by this Agreement.  This Agreement may only be amended by the written agreement of the parties.