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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 85089
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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breach of contract

Resolved Question:

Submitted: 10 months ago.
Category: Legal
Expert:  Ely replied 10 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

Thank you for your question, however, it is somewhat limited. What are you asking here, exactly?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 10 months ago.

Good afternoon


I need a 6 page IT Consultancy contract to be examined to determine if it is legally binding or not.


Thank you.

Expert:  Ely replied 10 months ago.
J,

I could potentially do this. Can you attach the draft fee agreement so I can take a look? You can do this in one of three ways:

1) attach it using the paperclip icon in the toolbar; or
2) email it to experts@justanswer.com with a link to the following in the body...

http://www.justanswer.com/law/7tank-breach-contract.html
...and it would be forwarded to me; or'

3) Copy and paste it into the window.

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 10 months ago.

Thanks very much Ely. If this is too hard to read I'll email it to you. The attachment didn't work.


 


STAFF CONSULTANT EMPLOYMENT AGREEMENT
This Staff Consultant Employment Agreement (“Agreement”) is entered into on May 24, 2013 between Global Technical Talent, Inc.XXXXX Portsmouth New Hampshire 03801 (“Employer”); and John New, 5 Cross Hill Road, Bethel, CT 06801 (“Staff Consultant”). The parties agree as follows:
1. SCOPE OF DUTIES: Staff Consultant shall perform computer programming, software development, systems analysis, professional engineering, consulting, technical writing or other specialized technical work as he/she is directed to perform by Employer for Employer’s Clients (“Clients”) using his/her own discretion and independent judgment.
2. TERM & LOCATION: Staff Consultant’s employment will start on 06/03/2013 and is anticipated to continue till 12/02/2013 or until terminated by Employer or Staff Consultant. Staff Consultant may resign with or without a reason as long as Employer has received the professional courtesy of at least ten business days advance written notice of Staff Consultant’s intention to resign.
Client Name and Location:
Work to be accomplished from, Norwalk, CT for Bridgewater Associates
3. COMPENSATION, TIME RECORDS & DEDUCTIONS: Employer agrees to pay Staff Consultant according to the Compensation Plan below. For each assignment, Staff Consultant will record the hours he/she worked on each day on a Monday through Sunday weekly basis. For each weekly time record submitted to Employer, Staff Consultant shall obtain Client’s signature confirming and approving the hours worked by Staff Consultant which shall be conclusive proof of the time worked each time period by Staff Consultant. Staff Consultant recognizes that Employer or Client may modify or supplement these procedures, orally or in writing, and Staff Consultant agrees to comply with future modifications or additions. Employer will deduct amounts from Staff Consultant’s compensation as required by applicable law, including deductions for income tax withholding, the Federal Insurance Corporation Act (FICA) tax, and Medicare withholding. Employer may be required by law to recognize certain court orders, liens, and wage assignments.
Compensation Plan: Staff Consultant shall be paid $700.00 per day for each day worked by Staff Consultant. No other compensation in any form will be provided unless expressly stated in “Other Compensation” below. The payroll period is biweekly and runs fourteen days from Monday through the second Sunday on a defined schedule. Staff Consultants receive their direct bank deposit or paycheck (which will be ready for pickup or it will be mailed) on the Friday following the pay period which represents compensation for the two week period ending on the proceeding Sunday. Staff Consultant agrees that he/she is responsible for ensuring that the weekly time record approved by the Client is received by
Employer’s accounting office no later than Monday at 2PM EST (“Processing Deadline”) each week. Any time records received after the Processing Deadline will be scheduled for payment during the following payment period. Time records not approved by Client will not be processed for payment.
Note: None
4. BENEFITS: Employer will pay all taxes for Staff Consultant’s required coverage under federal and state unemployment and worker’s compensation insurance laws. Staff Consultant is entitled to no other benefits of any kind unless expressly stated in “Other Benefits” below. Staff Consultant acknowledges and agrees that he/she is not an employee of any Client and is not entitled to any Client benefits, guarantees or other rights of Client’s employees (whether expressly granted or arising by operation of law), including, but not limited to, group insurance, liability insurance, disability insurance, paid vacations, sick leave or other leave, retirement plans, stock options or other ownership or bonus plans, health plans, or premium overtime pay. Staff Consultant expressly waives any claim or entitlement to Client benefits.
Other Benefits: None
5. HOURS: Staff Consultant shall typically work the same hours as Client’s employees while performing work at Client’s site, unless otherwise directed by Employer (who shall set and enforce Staff Consultant’s schedule and number of hours worked).
6. PERSONAL SERVICES OF STAFF CONSULTANT: Staff Consultant must personally perform all work at the work site designated in this Agreement or as directed by Client or Employer and may not delegate any of his/her responsibilities. Staff Consultant shall not hire supervise or compensate assistants, except as Employer may specifically direct in writing.
7. EXCLUSIVITY: During the term of this Agreement and during the hours that Staff Consultant is providing the work being compensated for, Staff Consultant will devote his/her full attention to providing services exclusively as directed by Employer and shall not perform services for others during this time.
8. NON-PERFORMANCE OF SERVICES & NON-RECRUITMENT: During the term of this Agreement and for twelve (12) months after the end of the employment relationship (whether Employer or Staff Consultant initiated the termination), Staff Consultant agrees that he/she shall not in any individual or representative capacity (e.g. as a principal, employer, stockholder, partner, agent, consultant, independent contractor, or employee): (a) directly or indirectly provide, solicit or advise another of the opportunity to provide, any services to a client where Staff Consultant previously provided services to the client on behalf of Employer or was otherwise introduced through Employer; (b) directly or indirectly, retain or solicit for him or herself or for another party, the services
of any of the Employer’s Staff Consultants or others introduced through Employer; or (c) refer any candidates directly to client for employment. For purposes of this paragraph, “introduced through Employer” means where a client, Staff Consultant, contractor, other individual came to the attention of Staff Consultant in any manner through Employer. "Client" includes any affiliates, customers or clients of the Client.
9. REIMBURSEMENT OF EXPENSES: Employer shall reimburse Staff Consultant for ordinary and necessary business expenses incurred in the course of performing work under this Agreement, provided that Staff Consultant has obtained Advance Written Approval. Staff Consultant will be deemed to have received Advance Written Approval when Staff Consultant has submitted a prior written request for reimbursement of specific expenditures and Staff Consultant has received from Employer prior written notification of approval for each of the requested expenditures. In order to receive payment for any expenditure for which Advance Written Approval has been obtained, Staff Consultant must submit to the satisfaction of Employer and/or Client, an itemized accounting of expenditures along with supporting receipts and other documentation and requested information. Employer’s Clients may require an approval process whereby the expense accounting be examined and authorized by Clients prior to submittal to Employer for reimbursement. Staff Consultant is required to comply with the expense reimbursement rules, limits and guidelines set forth by Employer and/or Clients. Expenses will be reimbursed on the following schedule:
 Properly completed and Client approved expense reports received by 2PM EST on the 5th day of each month will paid and mailed 10 business days later.
 Properly completed and Client approved expense reports received by 2PM EST on the 20th day of each month will paid and mailed 10 business days later.
Should any of the expense reimbursement related dates fall on an Employers non-business day, the closest business day will apply.
10. DIRECTION, SUPERVISION & COOPERATION: In performing the work assigned by Employer, Staff Consultant will adhere to all applicable policies, procedures and rules of both Employer and Client. Staff Consultant acknowledges Employer has the right to direct Staff Consultant as to when, where and how Staff Consultant is to perform work. In working on Client’s project, Staff Consultant will ordinarily work as required by Employer in accordance with the directions of the Client. Staff Consultant will provide his/her immediate supervisor at Employer with progress and status reports of his/her work efforts as requested. Staff Consultant’s performance is subject to review by both Employer and Client
11. EMPLOYMENT AT WILL: The parties acknowledge and agree that the employment relationship created by this Agreement is employment-at-will. Nothing in this Agreement shall be deemed to restrict Employer’s right to terminate Staff Consultant at any time, with or without cause and with or without prior notice
12. CONFIDENTIALITY & NON-DISCLOSURE: Staff Consultant agrees not to disclose to any third party, confidential information or materials of Employer, the Client, or anyone with a business or employment relationship with Employer or Client. Staff Consultant further agrees that he/she will not use, remove, transfer, transmit, reproduce or otherwise deal with confidential information or other tangible or intangible property of another party, except for the sole purpose of performing his/her services as a Staff Consultant of Employer on Client’s project. As used in this Agreement, the phrase “confidential information or materials” includes, but is not limited to, all information belonging to Employer or Clients related to their respective services and products, customers, business methods, strategies, and practices, internal operations, pricing and billing, financial data, costs, personnel information (including names, educational background, prior experience and availability), customer and supplier contacts and needs, sales lists, technology, software, computer programs, other documentation, computer systems, inventions, developments, trade secrets of every kind and character and all other information that might reasonably be deemed confidential.
Staff Consultant further agrees that he/she will not directly or indirectly disclose to any person, including to the Client or to any coworkers either during or after his/her period of employment, Staff Consultant’s wage rates and terms; provided, however, that Staff Consultant may disclose such information to Staff Consultant’s spouse, accountant, financial institution (provided they agree to keep the information confidential) and to the extent required by law.
13. TERMINATION, RETURN OF PROPERTY: Staff Consultant agrees that upon termination of an assignment with any Client or employment with Employer, Staff Consultant will return all computers, software, peripherals, keys, pass cards, identification cards, listings, policy and procedure manuals, inventions, records, data, plans, programs, tapes or discs, letters, memos or other documents, materials or other property of any nature that are in Staff Consultant’s possession or control to the Client or Employer, respectively.
Upon notification of the termination of an assignment, regardless of notice, Staff Consultant agrees to immediately follow the directions of Employer and/or Client as to the exit process and unless instructed to make no future attempt to contact Client or others on assignment at Client for whatever reason within the limits of Paragraph 8.
14. OWNERSHIP OF INTELLECTUAL PROPERTY: Staff Consultant will immediately disclose to Employer and Client all discoveries, inventions, enhancements, improvements and similar creations (collectively, "Creations") made, in whole or in part, by Staff Consultant in the course of or related to providing services to the Client. Staff Consultant further agrees that all documents, deliverables, software, systems designs, discs, tapes and any other materials (collectively, "Materials") created in whole or in part by Staff Consultant, in the course of or related to providing services to the Client shall be the property of the Client. All ownership of any Creations or Materials shall vest exclusively with the Client, including, but not limited to, any copyright rights, patent rights or any other intellectual property rights. Staff Consultant hereby assigns to Client all
right, title and interest that Staff Consultant may have in such Materials and Creations without entitlement to any additional compensation and free of all liens and encumbrances of any type. Staff Consultant agrees upon request (whether during or after term of this Agreement) to execute any documents and assist Client in any way deemed necessary (which may include assisting Client’s attorneys in filing papers or prosecuting litigation) to register or perfect Client’s intellectual property rights. Any rights conferred upon Client under this paragraph may only be waived or assigned in writing signed by an authorized representative of Client. Where Staff Consultant is performing work for Employer and there is no identifiable Client, the term “Client” in this paragraph shall mean “Employer”.
15. REPRESENTATIONS: Staff Consultant warrants to the best of his/her knowledge, information, and belief: (a) all information provided to Employer and Client related to Staff Consultant’s qualifications is accurate; (b) Staff Consultant has no conflict-of-interest in working for Employer or performing services for Client; and (c) Staff Consultant is not subject to any contractual limitations on his/her ability to perform services under this Agreement. Staff Consultant shall immediately notify Employer should any of the facts relating to these representations change at any time.
Staff Consultant agrees to; (a) be a Citizen or Permanent Resident of the United States, or have a valid United States Visa authorizing employment in the United States. Prior to the commencement of work, Staff Consultant agrees to provide Employer with a properly completed IRS Form I-9 verifying work authorization; (b) supply Employer and/or Clients with additional verification information if required for, but not limited to, building, network and/or parking access; and (c) authorize Employer and/or Clients to perform a Background Check prior to their employment. Prior to the commencement of work, Staff Consultant agrees to authorize a release for this purpose.
16. BREACH: In the event of Staff Consultant’s breach of paragraphs 7, 8, 12, 13 or 14, Staff Consultant acknowledges and agrees that Employer will suffer irreparable harm and money damages would be an inadequate remedy, entitling Employer to seek injunctive relief. Employer’s right to seek injunctive relief is without waiver or limitation to any other remedies Employer has at law or in equity.
17. OTHER PROVISIONS: This Agreement and any attached exhibits represent the entire agreement of the parties and supersedes and terminates all prior agreements. Any modification of this Agreement must be in writing and signed by both parties. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the waiving party; a waiver on any one occasion shall not be effective as a waiver on future occasions. This Agreement shall inure to the benefit of and shall be binding on the parties, the successors and assigns of Employer and the heirs and personal representatives of Staff Consultant. Staff Consultant may not assign his rights or obligations under this Agreement. Paragraphs 8, 12, and 14 shall survive termination. If any provision of this Agreement is determined to be unenforceable in whole or in part, all remaining provisions shall be given full effect to the extent possible without the unenforceable provision. This Agreement shall be governed by the laws of the State of
New Hampshire without regard to choice of law principles, and any litigation shall be brought in the state or federal courts of the State of New Hampshire. Staff Consultant agrees to the exercise of personal jurisdiction over him/her by such courts to the fullest extent permitted by law.
Staff Consultant represents that he/she has read, understands and agrees to the terms of this Staff Consultant Employment Agreement, has had an opportunity to ask any questions and to seek the assistance of an attorney regarding their legal effect, and is not relying upon any advice from Employer.
Global Technical Talent, Inc. John New, Staff Consultant
By: __________________________ By:__________________________
Print Name: Erica Almeida
Title: Manager, Contracts and Operations S.S.N.: ___________________

Expert:  Ely replied 10 months ago.
J,

Thank you for your reply. While I look over this, can you please tell me what exactly what you feel is the issue here and why this may not be enforceable?
Customer: replied 10 months ago.

I signed with this company after being offered a position. 2 days later, I was offered a position in TX that is a much better fit for my skill set. I'd prefer the TX position.

 

I'm not sure if that makes me shallow or shows lack of character. It does bother my conscience very much though.

 

I was wondering if there were any loophole possibilities with Paragraph #2?

Expert:  Ely replied 10 months ago.
Thank you, friend.

So I have some good news and some bad news. I will begin with the bad news, first.

The clause is enforceable. There is nothing about it that can "void" its effectiveness, I am afraid. However, the good news is that that really does not matter. Allow me to explain. The law holds that a party cannot be made to work for someone else. This is because doing so would be tantamount to forced labor. As such, if someone in your position breaks the contract, even without giving ten days as required, then there is little that can be done. The worst they can do is sue you for the difference between what they would be paying you, and what they would be forced to (reasonably) pay someone else at last notice to "fill in" for you.

But in reality, in the majority of such cases, the company simply sighs, and forget the matter. In reality, they can likely get someone else for the SAME salary as you (or less) to fill in, and if so, they cannot sue you, because to sue someone, a Plaintiff would have to show damages (and there would be none here).

In summary:

1) They cannot make you work;
2) They can sue you if the last minute replacement has to be paid MORE, but;
3) Most companies never do so; and
4) They likely can find someone else at your salary level anyhow, and if so, then they cannot sue because they would have no damages to seek relief for.

I hope this helps and clarifies. Good luck.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 85089
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 9 other Legal Specialists are ready to help you
Customer: replied 10 months ago.

Thank you very much Ely. I really appreciate your feedback.

Expert:  Ely replied 10 months ago.

You are very welcome!

Customer: replied 10 months ago.

Hi Ely,


May I ask one more question?


Can they sue me for any issues they may have between them and the client I was supposed to work for?


Say their client is nasty to the new employer. Could the employer come back to me for any litigation?

Expert:  Ely replied 10 months ago.
J,

No problem.

Can they sue me for any issues they may have between them and the client I was supposed to work for?

No.

Say their client is nasty to the new employer. Could the employer come back to me for any litigation?

Not really, because there is simply not enough causation (relation between you and the new party) to warrant this.
Customer: replied 10 months ago.

Thanks again Ely. Much appreciated.

Expert:  Ely replied 10 months ago.
No problem.

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