Standard Terms and Conditions
1. Scope: These Terms and Conditions (the “Terms”) govern the provision of recruiting, staffing, and talent placement services (“Services”) by San Diego Pro Staffing, Inc. d.b.a. Boutique Recruiting (“Boutique” or “we” or “our” or “us”) and are hereby incorporated into and made part of each Recruiting Services Agreement, Master Staffing Agreement, other written agreement, service order, proposal, statement of work, or other contractual document (collectively, the “Agreement”) entered into between Boutique and the Client that references or links to these Terms. “Client” refers to any individual or entity that engages Boutique, directly or indirectly, under any written or verbal agreement for the provision of recruiting, staffing and/or placement services (referred to in these Terms as the “Agreement”). Boutique and Client are referred to herein collectively as the “Parties” and individually as a “Party.”
By entering into any Agreement, Client agrees to be bound by these Terms. These Terms apply to all Services provided by Boutique, unless expressly superseded by a mutually executed written agreement between the Parties.
In the event of any conflict between these Terms and any terms or conditions submitted by Client—whether contained in a purchase order, vendor portal, master agreement, or otherwise—these Terms will prevail and govern, unless and only to the extent that such conflicting terms are expressly accepted in writing by an authorized representative of Boutique.
2. Employee: As used herein, “Employee” means any employee of Boutique performing work at a Client worksite and/or otherwise assigned to a Client pursuant to a staffing agreement between Client and Boutique.
3. Candidate: As used herein, “Candidate” means an individual presented to Client pursuant to a recruiting or direct hire agreement between Boutique and Client.
4. Independent Contractor: In performing our services, we are an independent contractor. No employer-employee, partnership, joint-venture, or agency relationship exists between us and you.
5. Equal Opportunity: We comply with all applicable laws in performing our services. We do not discriminate against any Employee, Candidate, or applicant for employment because of race (which includes historically associated traits, such as hair styles and protective hair styles, e.g., braids, locks, and twists), religious creed (which includes religious dress and grooming practices), color, national origin (which includes, but is not limited to, national origin groups and aspects of national origin, such as height, weight, accent, or language proficiency), ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex (which includes pregnancy, childbirth, breastfeeding, and related medical conditions), gender, gender identity, gender expression, age, sexual orientation, reproductive health decision-making, military or veteran status (including state and federal active and reserve members as well as those ordered to duty or training), immigration/citizenship status (which includes undocumented individuals and victims of human trafficking) or related protected activities, protected medical leaves, domestic violence victim status, political affiliation, or any other consideration made unlawful by federal, state, or local laws, ordinances, or regulations. These categories include a perception that the individual has any of these characteristics or is associated with a person who has (or is perceived to have) any of these characteristics. We use our reasonable efforts to supply a diverse pool of Candidates and Employees to you.
6. Confidentiality: Except as otherwise required by law, each Party agrees that during and after the term of this Agreement it will keep confidential and will not use or disclose to any third party any confidential or proprietary information learned by such party or disclosed to such party in connection with this Agreement, except for use or disclosure necessary to perform services under this Agreement. We agree to request that all Candidates and Employees sign a reasonable non-disclosure agreement with you, upon your request.
7. Late Fees: Invoices that are not paid in full by the due date will incur late fees of 1.5% per month on unpaid balances (annual percentage rate of 18%) or the maximum legal interest rate, whichever is lower. Checks returned for insufficient funds will incur fee $35.00 or the maximum permitted under applicable law, whichever is greater.
8. Limitation of Liability: Except with respect to Boutique’s Attorney’s Fees and Client’s indemnification obligations, described herein, to the extent permitted by applicable law, neither Boutique nor Client shall be liable to the other, or to any third party, for any indirect, incidental, special, punitive, exemplary, or consequential damages, costs, or losses, including but not limited to lost profits, lost revenue, or lost business opportunities, arising from or related to any Agreement between the Parties or these Terms, regardless of the theory of liability and even if advised of the possibility of such damages, and, except as stated in this paragraph, in no event shall either Party’s aggregate liability under or in connection with the Agreement or these Terms exceed the total fees paid by Client to Boutique, as applicable (1) for the placement of the Candidate to which the claim relates; or (2) the fees paid by Client for an Employee pursuant to a Candidate Acceptance Form (“CAF”)
9. Warranties and Representations: We represent and warrant that our services will be performed in good faith. Boutique makes no other warranties except as expressly stated in this paragraph. Both Parties represent and warrant that the individuals signing this Agreement on their behalf are authorized to execute this Agreement. No further proof of authorization shall be required. Client represents and warrants that it is a corporation duly incorporated, duly organized, validly existing, and in good standing and authorized to do business in each jurisdiction in which it owns property or conducts its business. Each Party represents and warrants that it has the full legal right, power, and authority to enter into and perform this agreement.
10. Indemnification: Client agrees to defend, indemnify, and hold Boutique harmless from any claims arising out of Client’s direction, and its supervision, both direct and indirect, of Boutique Employees. To the fullest extent permitted by law, and in addition to the specific indemnification required elsewhere in an Agreement and in these Terms, Client agrees to defend, indemnify, and hold Boutique harmless for any and all claims, demands, causes of action, damages, costs, expenses, attorneys’ fees, property damage, bodily injury, contract disputes, penalties, losses or liability, in law or equity, of every kind and nature whatsoever, arising out of or in any manner directly or indirectly connected with the obligations or work to be performed under the Agreement by Employees provided to Client by Boutique, regardless of any negligence by Boutique, its employees, agents, officers, consultants, or Employees, be said negligence passive or active in nature, except where Boutique’s negligence or willful misconduct is the sole and exclusive cause of the claim, demand, cause of action, damage, cost, expense, property damage, bodily injury, contract dispute, penalty, loss, or liability. Client’s duty to defend Boutique is entirely separate and independent from Client’s duty to indemnify and hold Boutique harmless. Such defense obligation shall arise immediately upon written notice of a claim to Client, and shall apply without regard to Client’s liability or whether said liability has been determined. The obligations to defend, indemnify, and hold Boutique harmless agreed to above in this paragraph includes without limitation any claims arising out of Client’s use of Employees, including without limitation any and all claims, demands, causes of action, damages, costs, expenses, attorneys’ fees, penalties, losses, or liability of every kind and nature whatsoever, arising out of (i) any breach of an Agreement by Client; (ii) application of the Jones Act or any claims of Boutique employees brought under or by virtue of their employment as seamen or as members of the crew of any vessel while under the supervision of the Client; (iii) any violations of the Occupational Safety and Health Act of 1970 (or its California counterpart) by the Client; (iv) any violations of wage and hour laws due to the Client’s failure to provide rest, meal and/or recovery periods while under the Client’ supervision; and (v) violations of any law by the Client, including employee health, safety and well-being laws (whether with respect to workplaces owned, leased, or supervised by Client or its affiliates to which Employees are assigned), wage and hour laws (including those requiring rest, meal, and recovery periods and those prohibiting “off the clock” work), employment torts (such as discrimination, harassment, retaliation, and wrongful termination), the California Healthy Workplaces, Healthy Families Act, and the Affordable Care Act; and (vi) claims for bodily injury, which include death or loss of and loss of use of or damage to property and any arising out of the use or operation of Client’s owned, non-owned, or leased vehicles (including contents and cargo), machinery or equipment by Employees. In the event of any claim for which indemnification is required under an Agreement and/or these Terms, Boutique reserves the right to select counsel of its own choosing, for which Client shall have the responsibility to pay all fees and costs of such counsel. Client shall reimburse Boutique for all amounts incurred (including settlement amounts) as a result of such indemnification within fifteen (15) days of each of Boutique’s written requests for such payment. Boutique reserves the right conduct or participate in the defense or settlement of any claim against it and to approve settlement of any claim.
Nothing in an Agreement or these Terms (including the indemnification provisions in this paragraph) shall be construed to require the Client to reimburse Boutique or its workers’ compensation carriers for compensation or medical and related costs incurred by reason of work-related injuries suffered by Boutique Employees and covered by Boutique’s applicable workers’ compensation policies.
11. Disputes: Except for claims by Boutique for unpaid fees, any claim arising out of or related to an Agreement or these Terms must be brought within one (1) year from the date of the event giving rise to the claim.
12. Attorney’s Fees: If Boutique incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, and any court, arbitration, mediation, or other litigation expenses in connection with the with any failure by Client to pay amounts due pursuant to these Terms or an Agreement between Client and Boutique, Client agrees to reimburse Boutique for all such costs, expenses and fees. With respect to all other claims arising out of or related to the Agreement or these Terms, each Party shall bear its own fees and costs.
13. Governing Law and Venue: These Terms, together with the Agreement into which they are incorporated, shall be governed by the law of the State of California. The parties agree that any legal action, suit, or proceeding arising out of or relating to the Agreement or these Terms shall be brought exclusively in the state or federal courts located in San Diego County, California. Each party hereby irrevocably submits to the exclusive jurisdiction and venue of such courts.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY CLAIM, COUNTERCLAIM, OR ACTION ARISING OUT OF THE AGREEMENT OR THESE TERMS.
14. Notices: Notices must be provided in writing. Notices may be delivered in person, via a reputable express carrier, or by registered or certified mail to Boutique to the attention of Innesa Burrola, President, 701 B. Street, Suite 1350, San Diego, California 92101. Boutique may provide notice to Client at the address provided by Client in the applicable Agreement.
15. Survival: Each provision of these Terms or an Agreement that should by its sense and context survive any termination or expiration of the Agreement, shall so survive regardless of the cause and even if resulting from a material breach by either Party.
16. Waiver: No waiver of any provision of these Terms or an Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision shall not be deemed a waiver or modification of such provision.
17. Severability: If any part or portion of these Terms or an Agreement is deemed to be invalid or unenforceable under applicable law, the remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision shall be replaced with a valid and enforceable provision that most closely reflects the original intent.
18. Entire Agreement; Modification: These Terms, together with the Agreement into which they are incorporated, constitute the entire agreement between Boutique and Client, and supersedes all prior agreements, whether oral or written, between the Parties about the subject matter hereof. Any amendments or other changes to an Agreement must be in writing and, except for these Terms, signed by authorized representatives of both parties. Boutique reserves the right to update or modify these Terms from time to time. Any changes will become effective upon posting to this page, and Boutique will provide reasonable notice to Client of any material changes.
19. No Reliance: Each party acknowledges that it has not relied on any statement, promise, or representation not expressly set forth in an Agreement or these Terms. The Agreement into which these Terms are incorporated and these Terms constitute the complete and exclusive statement of the terms agreed between the Parties.
20. No Third-party Rights or Beneficiaries: No third-party beneficiaries exist under these Terms or any Agreement.
21. Headings: The headings used herein are for reference only and in no way affect the interpretation of these Terms nor of any Agreement between Boutique and Client.
22. Electronic Signatures: The execution of an Agreement between the Parties by electronic mail or by any other electronic means shall be deemed to constitute effective execution of the Agreement. Such electronic signatures may be used by in lieu of the original signature page(s) of such agreement for any and all purposes.
23. Additional Provisions Applicable to Staffing Services: In addition to the foregoing Paragraphs, which apply to and govern all Agreements, the provisions below apply to and govern all Agreements for staffing services and are hereby incorporated into and made part of each such Agreement, service order, proposal, statement of work, Candidate Acceptance Form, or other contractual document for staffing services entered into between Boutique and the Client.
a) Term and Termination: In addition to the expiration of each Agreement between the Parties Boutique may terminate the Agreement upon the breach or default of Client, provided that Boutique shall have first given Company written notice of the default or breach and ten days’ opportunity for Client to cure such breach (provided, however, that if immediate termination is necessary, in Boutique’s sole discretion, then notice of such termination shall so state and termination shall be immediate without any right or opportunity to cure). If the breach or default is not timely cured (or if the Agreement is immediately terminated), Boutique shall be entitled to pursue all of its rights and remedies without further notice.
b) Rates: Boutique shall have the right, in its sole and absolute discretion, to establish the hourly wage rates and benefits, if any, of Employee staffed with Client. Boutique shall charge, and Client shall timely pay, the rates and other charges specified in the Agreement for the Employee staffed with Client. All hourly rates billed to Client include applicable insurance (including workers’ compensation insurance covering Employees), state and federal taxes, benefits, and all other employer burdens; recruiting, administration, payroll funding and flexible staffing services. In the event any Employee makes a claim for wage and hour violation, Client shall immediately notify Boutique. If, in the sole and absolute discretion of Boutique, it is determined that paying a premium to those Employees who have missed any rest, meal, and/or recovery period(s) is advisable, then Boutique retains the right to bill Client for said premium wage and Client agrees to pay such premium wages, which will be added to Client’s invoice and Client shall be responsible for same.
c) Compliance with Applicable Wage and Hour Law: Boutique will comply with all applicable wage and hour laws, including those concerning compensable work time, and expense reimbursements. Client will be billed, and agrees to pay all such wages, penalties, premiums, expenses and other amounts required to be paid to Employee under applicable law, including without limitation, uniform expenses, phone, internet and other remote work expenses reasonably and necessarily incurred by Employee in the performance of their job duties for Client.
d) End of Employee Assignment: Client may terminate a work assignment of an Employee at any time for any lawful reason. When Client ends the assignment of an Employee, Client will instruct Employee to report back to Boutique. Client agrees to provide Notice to Boutique as soon as possible of the end of any Employee’s assignment. If Client fails to notify Boutique by 8:30 a.m. Pacific Time on the last day of the Employee’s assignment, client agrees to pay all additional costs, penalties, and wages incurred by reason of such failure, which will be added to Client’s invoice. Client agrees that it will not terminate the employment of any Employee. If Client terminates the employment of an Employee, or purports to do so, Client agrees to reimburse Boutique for any increased costs and liability thereby incurred.
e) No Guarantee: While Boutique offers no guarantee as to the results of any job, Boutique represents that each Employee provided under an Agreement shall be of the quality and have the knowledge required by the applicable job classification. Therefore, as its exclusive remedy, if the notification of re-assignment by the Client occurs within the first two (2) hours of the first day of the assignment, Client will not be charged for the services of the Employee. However, if Client retains an Employee for more than two (2) hours worked, Client agrees to pay for all hours worked.
f) Employee Supervision and Safety: Employees are not supervised by Boutique; they are subject at all times to Client’s direct and indirect supervision. All Employees must be supervised by Client, unless Client has prior written permission from the President of Boutique. Because Boutique is neither a contractor nor a subcontractor and Boutique is not on Client’s jobsite and does not supervise, Boutique offers no guarantee for the results of any job. Client agrees to provide Employees with a safe and healthy work environment and in particular to provide any and all safety training, equipment (including personal protective equipment), clothing, or devices necessary or required by all applicable Laws for any work to be performed each Employee or any such items that are used by Client’s own employees or other contractors in the performance of similar work. Client agrees that it shall have in place at all times policies and protocols in compliance with all laws related to employee health, safety and well-being. Client agrees it is responsible for reporting any work-related injuries and illnesses involving any Employee as required by applicable law.
g) Prohibited Work: Client agrees that it shall not, without the express prior written authorization of Boutique, require or allow any Employee to operate machinery, equipment, or vehicles, to perform any work or function not covered Client’s liability and property damage insurance, insurance, to operate dangerous or unprotected machinery, to excavate where proper shoring and protecting are not provided, to work on any ladders or scaffolding, or to work as a member of the crew of any vessel or in maritime work upon navigable waters of the United States that might be subject to the U.S. Longshore and Harbor Workers’ Compensation Act or the Jones Act. Client acknowledges that Boutique’s insurance does not cover claims by Boutique pursuant to the Jones Act (including, but not limited to, damage to, loss of, or loss of use of Client’s owned, non-owned, or leased vehicles, including contents and cargo, machinery, equipment, or material while being used by or in the care, custody, or control of Boutique employees pursuant to the Jones Act).
h) Prevailing Wages/Government Contracting: Client shall provide at least 14 days advance notice in writing to Boutique before requiring or permitting any Employee to perform work at or on any site or project, or in any manner whatsoever, that is covered by prevailing wage requirements, airport regulations, and/or that is subject to any government contract.
i) Sick Leave: Boutique will comply with applicable law providing for mandatory sick leave. Should any employee become eligible for sick pay wages mandated by applicable law and submits sick leave hours, Client agrees to pay such wages, which will be added to Client’s invoice.
j) Affordable Care Act (“ACA”). Pursuant to 26 C.F.R. § 31.3401, the parties intend and agree that Boutique (and not Client) is the “common law” employer of Boutique’s employees who are performing services for Client, only for purposes of ACA coverage. However, the parties also intend to satisfy the requirements of 26 C.F.R. § 54-4980H-4 and 26 U.S.C. § 4980H. These provisions provide requirements under which an offer of health coverage made by Boutique can be treated as an offer of health coverage on behalf of Client with respect to Boutique’s employees who are performing services for Client. As such, Client agrees to pay Boutique a higher rate for all employees who are enrolled in health coverage under Boutique’s plans that meet the requirements of the ACA. The “higher rate” is a combination of a flat fee of 2% of aggregate total of all hours billed per invoice, as set forth in the Agreement, as well as a flat fee of $5.00 per Boutique employee enrolled in an ACA-compliant plan per month, regardless of how many hours the employee worked for the Client.
k) Acts of Dishonesty or Theft: Client is responsible for implementing and maintaining internal controls, security procedures, access restrictions, cash-handling protocols, inventory controls, and other safeguards appropriate to Client’s business operations.
l) Insurance and Bonding. Boutique makes no representation that it maintains fidelity bond or employee dishonesty insurance covering assigned employees. Client is solely responsible for obtaining and maintaining its own insurance coverage for losses arising from Employee Acts of Dishonesty, including crime insurance, fidelity bonds, employee dishonesty coverage, and other appropriate policies.
m) Other Insurance: Client shall obtain and keep in force during the term of any Agreement, (i) Worker’s Compensation insurance in compliance with the statutory requirements for worker’s compensation of the state or states in which Client has any Employee performing any work related to an Agreement; (ii) Employer’s liability insurance on a per occurrence basis with a minimum limit of one million dollars ($1,000,000) per occurrence; and (iii) Commercial General Liability (CGL) insurance, including contractual liability and product liability, with a combined single limit for bodily injury and property damage of not less than three million dollars ($3,000,000). Client shall provide Boutique with a certificate of insurance evidencing the above coverages on forms furnished by or reasonably acceptable Boutique or, upon request, provide true copies of the insurance policies. The CGL policy shall name the Boutique as an additional insured, but only with respect to liability arising out of this Agreement, and shall cover all claims arising out of incidents or events occurring during the term of the policies. Client shall maintain its CGL insurance for a period of two (2) years after the termination or expiration of this Agreement.
n) Employee Timecard Approval: Boutique pays Employees on a weekly basis. Each Employee will report hours worked by logging such hours into Boutique’s timesheet software, timekeeping system, or other method as currently in use by Boutique no later than 12:00 p.m. on the Monday following the end of the workweek. Timecard approval is due from Client no later than 12:00 p.m. (in Client’s time zone) Tuesday following the prior workweek. If approval is not received prior to that time and an Employee has otherwise submitted their timecard on time, the time submitted by the Employee will be deemed correct and processed. Our work week is defined consecutive seven-day period from Monday at 12:00 midnight and runs through Sunday at 11:59 p.m.
o) Invoices and Errors: Invoices are issued weekly. If an error is discovered by Client for a timecard processed under this provision, Client must provide written notice to Boutique immediately, but no later than seven days after the date of the invoice. If an error is discovered after this time, such error may only be corrected if the Employee agrees that the time record was in error and after Boutique has recovered the erroneously paid funds. Client acknowledges that this is the sole and exclusive remedy for collecting erroneously paid funds after the foregoing deadline. If Client fails to provide timely written notice of a dispute, Client shall be deemed to have accepted the invoice in full, and waives any right to dispute, contest, or withhold payment of any amount reflected on such invoice.
p) Payment: Client agrees to pay each invoice in full within ten calendar days from the date of the invoice. Client’s dispute of an invoice, or portion thereof, does not excuse Client’s obligation to timely pay each invoice in full.