myHRcounsel Terms & Conditions

 

 1.         Definitions

1.1       “Client” means the myHRcounsel Client or Affiliate identified in any applicable Master Services Agreement and Statement of Work.

1.2.       “Affiliate(s)” means any entity directly or indirectly controlled by, controlling or under common control with either Party.  An entity will be deemed to control another entity if it has the power to direct the management or policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.  All rights granted under these Terms and Conditions to the Client extend to Affiliates and any references to Client include its Affiliates, exclusive of any License rights.

1.3.       “Terms and Conditions” shall mean these Terms and Conditions between myHRcounsel and Client, together with all exhibits and addendums attached hereto or associated herewith, now or in the future.

1.4.        “Documentation” means all operating manuals, user manuals, training and marketing materials, guides, product descriptions, product specifications, technical manuals, supporting materials and other information relating to the Services and provided by on behalf of myHRcounsel to the Client.

1.5.       “myHRcounsel Personnel” means any third party, including, but not limited to any person employed by myHRcounsel, its affiliates, or an independent contractor, engaged by or on behalf of myHRcounsel and providing Services to Client hereunder. 

1.6.        “Services” means human resources and employment law advice, collectively.

1.7.       “Party” or “Parties” means the entities identified in any applicable Master Services Agreement and Statement of Work.

1.8.       Other definitions that appear throughout these Terms and Conditions are defined in their respective sections or subsections, but apply throughout these Terms and Conditions as though they were listed above.

2.       Termination.

(a)    Client’s failure to pay fees for services when due, or any violation of the Terms and Conditions set forth herein, shall be grounds for immediate termination of use of the Services provided by myHRcounsel with or without prior notice to Client.

(b)   Effect of Termination and Survival.

Upon any termination of these Terms and Conditions:

i.  Client will immediately destroy all copies of the myHRcounsel Confidential Information in its possession or under its control; and

ii.  myHRcounsel will destroy any Client Confidential Information in its possession or under its control.

iii.  Within thirty (30) days of termination of the Services, Client will pay myHRcounsel all accrued unpaid fees and charges.

iv.   Survival. The following Sections: “myHRcounsel Disclaimer,” “Limitation of Liability,” “Confidential Information,” “Indemnification,” “Termination,” and “Miscellaneous” shall survive any expiration or termination of these Terms and Conditions.

3.      Services.

(a)       System Access.

i.      myHRcounsel will provide Client access to its Zendesk system, which includes a knowledge base and access to submit questions electronically 24 hours a day.

 ii.      myHRcounsel will have the appropriate staff to ensure:

1.      Inquiries are answered and initial information on account is transcribed

2.      Inquiry is triaged to clarify question/issue and routed to appropriate HR expert to answer  Client question

4.      HR Concierge Services

 myHRcounsel will provide Client with human resource management and employment law compliance assistance:

HUMAN RESOURCES AUDIT AND RECOMMENDATIONS

·         Review/provide up-to-date employee handbook      

·         Online/on-call assistance with human resource management

·         Legal research, document reviews, and recommendations for employment law and human resources questions

·         Advice on investigation and resolution of employee complaints

·         EEOC (Equal Employment Opportunity Commission)

·         FMLA (Family Medical Leave Act)

·         ADA (Americans with Disabilities Act/disability accommodations)

·         FLSA (Fair Labor Standards Act/wage & hour concerns)

·         ACA (Affordable Care Act/health care reform)

·         Form I-9 (immigration compliance)

·          Performance management tools and support

EMPLOYEE ON-BOARDING

·         Interview policy and procedures

·         Non-compete terms and conditions

·         Employment offer letters

·         Independent contractor agreements

·         Consultant agreements

·         Employee agreements

EMPLOYEE OFF-BOARDING

·         Guidance for managers on disciplinary actions, layoffs, and terminations

·         Assistance with documentation for personnel files

·         Termination checklist

·         Review or drafting of termination letter

·         Non-compete enforcement advice

·         Assistance responding to employee questions or complaints

RELATED EMPLOYMENT LEGAL SUPPORT

·         Proactive state and federal law updates

·         Employment law compliance reviews

·         Legal advice on employment law and human resources topics affecting your business

·         Affordable Care Act/health care reform updates

·         Employment agreements

(a) Modifications. myHRcounsel reserves the right to modify the services at its sole discretion from time to time with or with or without notice.

(b) Additional Services. “Additional Services” will mean those services requested by Client that are outside the scope of the Services detailed herein. If Client requests provision of Additional Services, myHRcounsel will review such written request, and if the Parties agree in writing for such Additional Services, including any fee adjustments, then myHRcounsel may provide such Additional Services as set forth in a jointly developed change order.

(c)       Exclusions; Conflicts

 i.      The following items and matters are specifically excluded from the HR Concierge, and are not to be considered or treated as plan benefits:

1.       Any action that directly or indirectly involves myHRcounsel, LLC, or any of its affiliates, directors, agents, or employees;

2.      Any action that directly or indirectly involves any firm providing legal services under the HR Concierge; provided, however, that a firm may, at its sole discretion and risk, represent a Client in a matter in which another affiliated firm is representing another party as legal counsel;

3.      Any adversarial action by a Client that directly or indirectly involves any other Client;

4.      Any action based on acts or occurrences that are alleged to have occurred or conditions that were reasonably anticipated or foreseeable before the Client’s enrollment that did or may give rise to a lawsuit by or against such Client; provided, however, that myHRcounsel or an affiliated firm may, in its sole discretion and at its own risk, disregard this exclusion;

5.      Any action that resulted in the prior recruitment or retention by the  Client of another attorney; provided, however, that myHRcounsel or an affiliated firm may, in its sole discretion and at its sole risk, disregard this exclusion;

6.      Any matter involving the laws of jurisdictions outside of the United States or its subdivisions;

7.      Any appeal to an appellate court; provided, however, that myHRcounsel or an affiliated firm may, in its sole discretion and at its sole risk, disregard this exclusion;

8.      Any matter that, in the myHRcounsel’s opinion, is frivolous in nature or objective;

9.      Any case matter or requested service that is determined by myHRcounsel to lack sufficient merit to warrant pursuit, or that myHRcounsel decides has been raised an inordinate or unreasonable number of times without a change in circumstances;

10.   Any matter that will result in violation of the Rules of Professional Conduct or other law, as determined in myHRcounsel's sole direction;

11.   Any course of action involving myHRcounsel's services that myHRcounsel reasonably believes is criminal or fraudulent; or

12.   Any legal matters that are those of third-parties (e.g., customers of Client or a Client's employee's personal legal issue).

 

5.      Responsibilities.

(a) Client’s Responsibilities.

i.  Client will appoint an individual (“Client’s Contract Manager”) who from the effective date will serve as the primary Client representative under these Terms and Conditions. The Client’s representative will (A) have overall responsibility for managing and coordinating the performance of Client’s obligations under these Terms and Conditions, and (B) be authorized to act for and on behalf of Client with respect to all matters relating to these Terms and Conditions.

 

(b) myHRcounsel's Responsibilities.

i.  myHRcounsel will appoint an individual (“myHRcounsel’s Client Manager”) who from the effective date will serve as the primary Client representative under these Terms and Conditions. myHRcounsel’s Client Manager will (A) have overall responsibility for managing and coordinating the performance of myHRcounsel’s obligations under these terms and conditions, and (B) be authorized to act for and on behalf of myHRcounsel with respect to all matters relating to these Terms and Conditions.

6.         Confidential Information.

(a) Definition. "Confidential Information" of a Party means:

i.  (i) any Client information or technology; (ii) any myHRcounsel information or technology; (iii) any Client information owned by myHRcounsel or its affiliates, including but not limited to Wagner, Falconer & Judd, Ltd.; (iv) the terms and pricing under these Terms and Conditions or any other affiliated agreement; and (v) all information clearly marked as confidential by the disclosing Party at the time of disclosure or, if disclosed orally, summarized in writing, marked as confidential and delivered to the receiving Party within thirty (30) days of disclosure. Confidential Information will not include information that: (A) is in or enters the public domain without breach of these Terms and Conditions or any other affiliated agreement; (B) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (C) the receiving Party knew prior to receiving such information from the disclosing Party or develops independently.

(b) Restrictions. Each Party agrees:

i. that it will not use any Confidential Information of the other Party for any purpose other than to exercise its rights and perform its obligations under these Terms and Conditions or any other affiliated agreement;

ii. that it will not disclose to any third party any Confidential Information of the other Party except as expressly permitted in these Terms and Conditions, provided, however, that either Party (“Recipient”) may (A) disclose the Confidential Information of the other Party (“Discloser”) to Recipient's employees and contractors who need to know such information and who are bound in writing by restrictions regarding disclosure and use of such Confidential Information comparable to those set forth herein, and (B) use or disclose such Confidential Information to the extent Recipient is legally compelled to disclose such Confidential Information, provided, however, that prior to any such compelled disclosure, Recipient will give Discloser reasonable advance notice of any disclosure and will cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information; and

iii. that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own confidential or proprietary information of a similar nature.

7.      Warranties.

myHRcounsel Disclaimer. ALL DESIGNATED SERVICES, AND SERVICES RENDERED OR EQUIPMENT SUPPLIED IN CONNECTION WITH THIS AGREEMENT, ARE RENDERED AND SUPPLIED "AS IS," UNLESS SPECIFICALLY NOTED TO THE CONTRARY. MYHRCOUNSEL AND ITS AFFILIATES MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE DESIGNATED SERVICES, AND SERVICES RENDERED OR EQUIPMENT SUPPLIED IN CONNECTION WITH THIS AGREEMENT AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8.      Limitation of Liability.

IN NO EVENT WILL MYHRCOUNSEL'S LIABILITY, NOR THE LIABILITY OF ITS AFFILIATES,ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY DAMAGES OR LIABILITY FROM ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, OR OTHERWISE, EXCEED THE AMOUNT PAID BY CLIENT TO MYHRCOUNSEL HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO ANY CLAIM. EXCEPT WITH RESPECT TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL BE LIABLE FOR ANY ACTUAL OR ALLEGED INFRINGEMENT BY ANY THIRD PARTY MATERIALS ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE DESIGNATED SERVICES OR MYHRCOUNSEL OR CLIENT TECHNOLOGY.

9.       Indemnification. 

(a)    myHRcounsel Indemnity.  myHRcounsel will defend Client from and against all Claims against Client and pay all related damages, costs, and other liabilities resulting from (i) the delivery of myHRcounsel’s services, and (ii) the negligence by myHRcounsel in the performance of obligations under these Terms and Conditions.

(b)   Client Indemnity. Client will defend myHRcounsel from and against any and all Claims against myHRcounsel and pay all related damages, costs and other liabilities resulting from (i) Client’s unauthorized marketing or resale of myHRcounsel Services under these Terms and Conditions, and (ii) the negligence by Client in the performance of obligations under these Terms and Conditions or its delivery of services to its clients whether bundled or not with myHRcounsel’s services.

10.      Dispute Resolution.

(a) Initial Good Faith Negotiation. All disputes, controversies, or claims arising out of these Terms and Conditions shall first be negotiated between the Parties’ executive officers in good faith.

(b) Injunctive Relief.  Nothing in these Terms and Conditions shall bar myHRcounsel’s right to seek specific performance of the provisions of these Terms and Conditions and injunctive relief against threatened conduct that will cause it loss or damages, including applicable rules for obtaining restraining orders and preliminary injunctions.  Client agrees that myHRcounsel may obtain such injunctive relief in addition to such further or other relief as may be available at law or in equity. Client agrees that myHRcounsel will not be required to post a bond to obtain any injunctive relief and that Client’s only remedy if an injunction is entered against Client will be the dissolution of that injunction, if warranted, upon due hearing. All claims for damages by reason of the wrongful issuance of such injunction being expressly waived hereby.

 (c) Costs and Legal Fees.  If myHRcounsel engages legal counsel in connection with any failure by Client to comply with these Terms and Conditions, Client shall reimburse myHRcounsel for costs and expenses incurred by myHRcounsel, including, without limitation, reasonable accountants’, attorneys’, attorneys’ assistants, arbitrators’ and expert witness fees, cost of investigation and proof of facts, court costs, other litigation expenses, and travel and living expenses, whether incurred prior to, in preparation for, in contemplation of or in connection with the filing of any judicial or arbitration proceeding to enforce these Terms and Conditions.

(d) Arbitration. Any and all disputes arising out of, under or in connection with these Terms and Conditions, expressly excluding injunctive relief or specific performance as detailed herein, but including, without limitation, its validity, interpretation, performance, and breach, shall be finally and confidentially settled under the Rules of Arbitration of the American Arbitration Association. The arbitration shall take place in Minneapolis, Minnesota. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails. The judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. Notwithstanding the foregoing, myHRcounsel shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Client in the event that, in the opinion of myHRcounsel, such action is necessary or desirable. The Parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.

(e) Payment Provisions During Dispute. Client will not withhold payments during a dispute, but instead, pay disputed amounts into an escrow account, which will be promptly dispersed to the appropriate party upon resolution of the dispute.

(f) Discussions and Documents. Discussions and correspondence among the representatives referenced in this Section and prepared for purposes of the dispute negotiations shall be treated as confidential information developed for purposes of settlement, shall be exempt from discovery and production, and shall not be admissible in any arbitration or judicial proceeding initiated after the completion of such discussions. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and may, if otherwise admissible, be admitted in evidence in any subsequent proceeding.

11.  Miscellaneous.

(a) Notices. Notices under these Terms and Conditions will be in writing and will be deemed given when delivered personally, by facsimile (with confirmation of receipt), or conventional mail (registered or certified, postage prepaid with return receipt requested). Notices will be addressed to the Parties at the addresses appearing in the introductory paragraph of these Terms and Conditions, but each Party may change the address by written notice in accordance with this paragraph.

(b) Assignment. These Terms and Conditions will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. Neither Party may transfer or assign these Terms and Conditions without the other Party’s prior written consent.

 (c) Relationship of the Parties. In providing the content and services, myHRcounsel is acting as an independent contractor. Except as expressly set forth in these Terms and Conditions, neither Party undertakes to perform any obligation of the other Party or any other person, whether regulatory or contractual, or to assume any responsibility for the business or operations of the other Party or any other person. myHRcounsel will not be considered or be deemed to be an employee, joint-venture, or partner of Client or any other person, and no other similar relationship is intended or created by and between myHRcounsel and Client. myHRcounsel has the sole right to supervise, mandate, contract, direct, procure, provide, or cause to be provided all designated services. Neither Party will make any representation, express or implied, that such Party is an employee, agent or legal representative of the other Party, nor will either Party assume or incur liabilities or obligations of any kind to a third party in the name or on behalf of such Party. Nothing contained in these Terms and Conditions is intended or is to be construed to create a partnership, employment, joint venture, or agency relationship between myHRcounsel and Client.

(d) Force Majeure. myHRcounsel will not be deemed to be in default of, or to have breached, any provision of these Terms and Conditions as a result of, or be liable for any loss, damage, or penalty resulting from, any act, omission, or condition beyond myHRcounsel’s reasonable control, including without limitation acts of God, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods, or other natural disaster or Client’s, users’ or any third party’s actions, hardware, software or communications equipment or facilities (each a “Force Majeure Event”).

(e) Choice of Law. This Terms and Conditions will be governed by and construed in accordance with the laws of the State of Minnesota without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Minnesota to the rights and duties of the Parties. The Parties hereby expressly waive and disclaim any applicability of the provisions of the United Nations Convention on the International Sale of Goods.

(f) Subject Headings. The subject headings or captions of the sections and subsections of these Terms and Conditions are included solely for purposes of convenience and reference only and will not be deemed to explain, modify, limit, amplify, or aid in the meaning, construction or interpretation of any of the provisions of these Terms and Conditions.