RAILROAD STAFFING AGREEMENT

1.0              This Placement Services Agreement (the “Agreement”) dated as of _________________________ (“Effective Date”) is _____________________________ (“Employer”), and RailroadJobs.Biz a KY Sole-proprietor (“Supplier”).

DEFINITIONS

“Confidential Information” means (a) this Agreement and the discussions, negotiations and proposals related to this Agreement, or (b) any information exchanged in connection with this Agreement concerning the other party’s business, including without limitation tangible, intangible, visual, electronic, written, or oral information, whether received directly or indirectly from the other party.  Confidential Information does not include information that is: (i)  rightfully known to the receiving party before negotiations leading up to this Agreement; (ii) independently developed by the receiving party without relying on the disclosing party’s Confidential Information; (iii) part of the public domain or is lawfully obtained by the receiving party from a third party not under an obligation of confidentiality; or (iv) free of confidentiality restrictions by agreement of the disclosing party.

 “Damages” means all claims, damages, losses, liabilities, costs, expenses and reasonable legal fees.

“Referral” means either a verbal or written introduction of an individual, followed by delivery of a resume or application for employment of such individual, from Supplier to Employer.

2.0              SERVICES

Upon written request to Supplier by Employer, Supplier agrees to provide recruitment services (the “Services”) to Employer for the purposes of locating and referring candidates to Employer for employment opportunities with Employer. The Services include but are not limited to identification and solicitation of prospective candidates, obtaining resumes or applications from such individuals, reviewing and presenting the resume and/or application of such candidate to Employer, and conducting appropriate screenings and interviews to verify qualifications of such candidate with respect to the employment opportunity as described by Employer to Supplier. This Agreement does not grant Supplier any exclusivity rights with respect to placement services provided to Employer, and Employer is not prohibited from obtaining recruitment or placement services from other service providers.

3.0              COMPENSATION and INVOICING

3.1              Compensation. 

If a Referral is hired by Employer or any of Employer’s subsidiaries for the specific job for which Employer engaged Supplier within twelve months after the initial introduction by Supplier to Employer, then Employer will pay Supplier a fee equal to $___________________ 

Notwithstanding the preceding paragraph, Employer is not liable for any fees associated with an Excluded Referral.  For purposes of this Agreement, an Excluded Referral is a Referral who within the previous twelve months was known to Employer prior to the introduction of such Referral by Supplier to Employer. The prior introduction may include but not be limited to introductions of the candidate by other placement agencies or the candidate in response to a general advertisement or solicitation of employment by Employer (e.g., newspaper advertising) or through other efforts of Employer. Notwithstanding any other provision contained in this Agreement

If an employed Referral subsequently ends employment with Employer within 90 days after beginning employment with Employer, then Supplier will refund a pro rata portion of the fee paid by Employer to Supplier for the Referral as follows: a refund of 1/90^th of the placement fee shall be credited for each days worked within the first 90 days.  The preceding sentence will not apply if such termination of employment is due to the elimination of the position economic circumstances, merger or acquisition by Employer. Any refund due will be paid within 30 days of Employer’s notification to Supplier.

3.2              Expenses. 

Supplier will bear its own expenses incurred in locating and referring any Referrals to Employer.

Employer will reimburse any Referral for travel, living, and other out-of-pocket expenses incurred in connection with any interview or other communication between Employer and the Referral if the expenses (i) are authorized in writing by Employer, and (ii) are reasonably incurred and documented.

3.3              Taxes. 

Employer is responsible for any sales or use taxes assessed on its payment for Services.  Supplier will itemize sales or use taxes separately on Supplier’s invoices.  Supplier is responsible for all other taxes, duties and fees. 

3.4              Invoicing, Itemization and Payment Procedures. 

Supplier will invoice Employer no earlier than the first full day of employment of a Referral.  Each invoice will include, at a minimum, the following information:  (i) Supplier’s name and remit address, (ii) invoice number, (iii) invoice date and (iv) the name of the Referral.

Employer will pay undisputed amounts within 45days after receiving Supplier’s invoice.  Employer will pay disputed amounts, if owed, within 30 days after the dispute is resolved.

Supplier may only invoice Employer for charges, amounts or fees set forth in this Agreement.

3.5              No Payment Upon Material Breach. 

Employer is not obligated to make any payment under this Agreement if Supplier materially breaches this Agreement until Supplier has cured or Employer has waived the breach in accordance with this Agreement.

4.0              TERM AND TERMINATION

4.1              Term. 

The initial term of this Agreement begins on the Effective Date and will continue for one year.  The term of this Agreement will automatically renew for additional one-year periods, unless either party gives notice of its intent not to renew at least 10 days before the expiration of the term.  This subsection is subject to the early termination rights stated elsewhere in this Agreement.

4.2              Termination for Convenience. 

Employer may terminate this Agreement at any time without liability except for undisputed payment obligations, by providing a termination notice to Supplier.  Unless otherwise provided in the notice, the termination is effective 10 days after Employer gives the notice. 

4.3              Effect of Termination. 

Termination of this Agreement is without prejudice to any other right or remedy of the parties.  Termination of this Agreement for any reason does not release either party from any liability which, at the time of termination, has already accrued to the other party, or which may accrue in respect of any act or omission before termination or from any obligation which is expressly stated to survive the termination.

Upon termination or expiration of this Agreement, both parties will immediately discontinue making any statements or taking any actions that might cause third parties to infer that a business relationship continues to exist between the parties under the Agreement, and where necessary or advisable, the parties will inform third parties that the parties no longer have a business relationship.

5.0              Warranties

5.1              General Services Warranty. 

Supplier warrants that (i) Services will be provided in a workmanlike manner, (ii) Supplier personnel will have the requisite experience, skills, knowledge, training and education to perform Services in a professional manner and in accordance with this Agreement, and (iii) to the best of Supplier’s knowledge, all information provided by Supplier to Employer regarding a Referral will be truthful and accurate. Supplier warrants that it will use commercially reasonable efforts to verify education, employment history and references, and when applicable, any professional licenses associated with a Referral prior to introducing the Referral to Employer. Employer is an equal opportunity employer and considers individuals for employment according to their skills, abilities and experience. Employer values diversity and employees of many backgrounds.  Employer expects Supplier to assist Employer in achieving this value by soliciting and referring appropriately-qualified diverse applicants.

5.2              Compliance with Laws; Permits. 

Each party warrants that it will comply with all laws, orders, codes and regulations in the performance of this Agreement. Each party hereto shall comply with all applicable equal employment opportunity laws, including, but not limited to, Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1991, the Americans with Disabilities Act, the affirmative action requirements of Executive Order 11246, the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended. The parties hereby incorporate the requirement of 41 C.F.R. §§ 60-1.4(a)(7), 60-250.5, 60-741.5, and 29 C.F.R. Part 470, if applicable.

5.3              Non-Solicitation

Supplier will not recruit, either directly or indirectly, any employees of Employer for employment with any other company during the term of this Agreement and for a period of one year following termination or expiration of this Agreement. For purposes of this Agreement, “recruit” shall mean the direct targeting and seeking out of ­­­­­­­­­­­­­­Employer employees and shall not include general public solicitation notices (Advertisements, job boards, etc) or whereby employees of Employer seek out the services of Supplier.

6.0              CONFIDENTIAL INFORMATION

6.1              Confidentiality. 

Each party acknowledges that while performing its obligations under this Agreement it may have access to the other party’s Confidential Information.  With respect to all Confidential Information, the parties agree as follows:

(a.)             The receiving party may use the Confidential Information only to perform its obligations under this Agreement.  The receiving party must use the same care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information.  In no event will the receiving party fail to use reasonable care to avoid unauthorized use, including disclosure, loss, or alteration of the disclosing party’s Confidential Information. 

(b.)             Neither party will disclose to the other party any confidential information of a third party without such third party’s consent.

(c.)             Upon cessation of work or written request, the receiving party will return or destroy, at its option, all Confidential Information of the disclosing party.  Upon request of the disclosing party, the receiving party will furnish an officer’s certificate certifying that the disclosing party’s Confidential Information has been returned or destroyed.

6.2              No Publicity. 

Supplier will not, without Employer’s written consent, issue any news release, announcement, denial or confirmation of this Agreement, its value, or its terms and conditions, or in any other manner advertise or publish this Agreement, its value, or its terms and conditions.  Nothing in this Agreement is intended to imply that Employer will agree to any publicity whatsoever.  Employer may, in its sole discretion, withhold consent to any publicity.

6.3              Exception for Legal Process. 

The receiving party may disclose Confidential Information to the extent required by law; but the receiving party must give the disclosing party prompt written notice of the required disclosure and make a reasonable effort to obtain a protective order.

6.4              Injunctive Relief. 

Each party agrees that the wrongful disclosure of Confidential Information may cause irreparable injury that is inadequately compensable in monetary damages.  Accordingly, either party may seek injunctive relief in any court of competent jurisdiction for the breach or threatened breach of this Section in addition to any other remedies in law or equity.

7.0              INDEMNITY

7.1              General Third Party Indemnity. 

Each party agrees to indemnify and hold harmless the other with respect to all third party claims, costs (including reasonable attorneys' fees), damages, fines, or losses to the extend caused or alleged to have been caused by the acts, omissions or negligence of the indemnifying party, its agents, employees or representatives, as determined by a court of competent jurisdiction

7.2              Indemnification Procedures.

(a.)           Upon becoming aware of any matter which is subject to the indemnification provision in this Agreement (a “Claim”), Employer must give notice of the Claim to Supplier, accompanied by a copy of any written documentation regarding the Claim received by Employer.

(b.)           Supplier will, at its option, settle or defend, at its own expense and with its own counsel, the Claim.  Employer will have the right, at its option, to participate in the settlement or defense of the Claim, with its own counsel and at its own expense; but Supplier will have the right to control the settlement or defense.  The Supplier will not enter into any settlement that imposes any liability or obligation on Employer or admission of wrongdoing on the party of Employer, without Employer’s prior written consent.  The parties will cooperate in the settlement or defense and give each other full access to all relevant information. 

(c.)           If the Supplier fails to (i) notify Employer of Supplier’s intent to take any action within 30 days after receipt of a notice of a Claim or (ii) proceed in good faith with the prompt resolution of the Claim, then Employer, with prior written notice to Supplier and without waiving any rights to indemnification, including reimbursement of reasonable legal fees and legal costs, may defend or settle the Claim without the prior written consent of Supplier.  Supplier will reimburse Employer on demand for all Damages incurred by Employer in defending or settling the Claim.

8.0              LIMITATION OF DAMAGES

Neither party will be liable to the other for consequential, indirect or punitive damages for any cause of action, whether in contract, tort or otherwise. Consequential damages include, but are not limited to, lost profits, lost revenues and lost business opportunities, whether the other party was or should have been aware of the possibility of these damages.

9.0              DISPUTE RESOLUTION

9.1              Forum Selection. 

Except as necessary to enforce indemnity or defense obligations, the parties must bring court proceedings in Missouri District Court located in St. Louis County, Missouri, or in the United States District Court for the Eastern District of Missouri in St. Louis, Missouri.  Each party agrees to personal jurisdiction in either court.

9.2              Waiver of Jury Trial. 

EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING AMONG THE PARTIES UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THIS AGREEMENT, WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE.

The agreement of each party to waive its right to a jury trial will be binding on its successors and assignees.

10.0          GENERAL

10.1          Notices. 

Notices provided under this Agreement must be in writing and delivered by (i) certified mail, return receipt requested, (ii) hand delivered, (iii) facsimile with receipt of a “Transmission OK” acknowledgment, (iv) e-mail, or (v) delivery by a reputable overnight carrier service (in the case of delivery by facsimile or e-mail the notice must be followed by a copy of the notice being delivered by a means provided in (i), (ii) or (v)).  The notice will be deemed given on the day the notice is received.  In the case of notice by facsimile or e-mail, the notice is deemed received at the local time of the receiving machine, and if not received, then the date the follow-up copy is received.  Notices must be delivered to the following addresses or at such other addresses as may be later designated by notice:

Employer:	Supplier:
Attn: Fax: Email:	RailroadJobs.biz P. O. Box 191 Stanton, KY 40380 Attn: Contracts Management Fax:  606-663-4700

 

10.2          Independent Contractor. 

Supplier and Supplier personnel are independent contractors for all purposes and at all times. Supplier has the responsibility for, and control over, the methods and details of performing Services.  Supplier will provide all tools, materials, training, hiring, supervision, work policies and procedures, and be responsible for the compensation, discipline and termination of Supplier personnel. 

10.3          Governing Law. 

THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES ARE GOVERNED BY THE LAWS OF THE STATE OF MISSOURI, WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES. 

10.4          Waiver and Severability. 

The waiver of a breach of any term or condition of this Agreement will not constitute the waiver of any other breach of the same or any other term.  To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party.  If any provision of this Agreement is held to be unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision.

10.5          Survival. 

The following sections will survive expiration or termination of this Agreement for any reason:  Compensation, Invoicing, Effect of Termination, Warranties, Confidential Information, Indemnity, Limitation of Damages, Dispute Resolution and Governing Law.

10.6          Remedies. 

All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately.  The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.

10.7          Construction.

This Agreement will not be construed against either party due to authorship.  Except for the indemnification rights and obligations in this Agreement, nothing in this Agreement gives anyone, other than the parties and any permitted assignees, any rights or remedies under this Agreement.

10.8          Counterparts

This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.

10.9          Entire Agreement; Modifications; Inconsistencies. 

This Agreement and any attachments constitute the entire agreement of the parties as to the subject matter of this Agreement, and supersedes all prior or contemporaneous agreements, proposals, discussions or correspondence, whether written or oral.  This Agreement and any attachment may not be amended or modified except in writing signed by an authorized representative of each party. 

Signed:

	RailroadJobs.Biz
(signature)	(signature)
Print name:	Print name:
Title:	Title:
Date:	Date: