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Timothy Smith
Timothy Smith, Lawyer
Category: Employment Law
Satisfied Customers: 2020
Experience:  In-House Counsel for State's Largest Agency
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We are a direct hire placement firm based in Floorida and a

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We are a direct hire placement firm based in Floorida and a potential client wants us to change our terms of business and replace our paragraph numbered 1 with their changes numbered 2:

1. "The Client agrees to hereby release and hold harmless (Our Company Name) and its officers, directors and employees from and against ay and all claims, past, present, and future both known and unknown, regardless of the form of action or legal theory arising out of or related to this agreement and your interaction with any Candidates."

2. “The CLIENT agrees to hereby release and hold harmless (Our Company Name) and its officers, directors and employees from and against any and all claims, past, present and future both known and unknown, regardless of the form of action or legal theory arising out of or related to this Agreement to the extent directly resulting from the negligent or intentionally tortious act or omission of Client.”

How does their request change the meaning of our contract?
Submitted: 10 months ago.
Category: Employment Law
Expert:  Timothy Smith replied 10 months ago.

I hope this message finds you well. I am an attorney with over a decade of contract law experience and it is my privilege to assist you with this matter.

 

As a matter of course, it really does not change the contract provision drastically. Quite obviously, it place a limitation on what the Client can be liable for into essentially two broad categories: (1) negligence - which is fair and away the most common cause of action in any law suit across the nation; and (2) intentional tort of either action - meaning they did it on purpose or without regard of consequence, or an intentional tort of omission - meaning the they had a willing disregard for the action.

 

It also obviously restricts to actions or legal issues with the more narrow language of "client" as opposed to the more broadly construed "candidates".

 

In the grand scheme of things, the new language relative to negligence and torts is not really different, materially speaking, than your existing language. My concern would be more towards the removal of the candidate and replacement and limitation to client.

 

I would suggest meeting in the middle in the contract negotiation with a clause that reads as follows:

 

"The CLIENT agrees to hereby release and hold harmless (Our Company Name) and its officers, directors and employees from and against any and all claims, past, present and future both known and unknown, regardless of the form of action or legal theory arising out of or related to this Agreement to the extent directly resulting from the negligent or intentionally tortuous act or omission of Client, and/or Candidates."

 

The broader language relative to candidates functions to throw a net around those that may have other legal issues relative to the contract that may otherwise try to find loophole to get out procedurally as to the contract. Candidate could be construed to encompass not only those firmly within the contract, but also those that may have peripheral issues relative to the contract but that have worked in some capacity, nevertheless. In short, that one word functions to broaden the net that could be cast in a liability situation.

 

The other language about negligence and torts is actually pretty good language to have in there for all parties involved and is sufficiently broad to encompass virtually any legal issue that could arise. In short, it is just more precise language.

 

In summary, the new language in and of itself really does not change the meaning of the contract in any material way. Moreover, the new negligence language and intentional tort or omission language actually may improve the contract in your favor. However, I would suggest you request the language evidenced above be added in so as to encompass anyone that deals materially and takes action in view of the contractual agreement. It is just broader language that opens up the catch net of the contractual provision.

 

Let me know if you have any additional questions or comments.

 

Best wishes going forward!

 

Timothy Smith, Lawyer
Category: Employment Law
Satisfied Customers: 2020
Experience: In-House Counsel for State's Largest Agency
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