PLEASE READ THE FOLLOWING TERMS OF SERVICE AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR SITES AND OUR SERVICES, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND ALL TERMS INCORPORATED HEREIN BY REFERENCE. IT IS THE RESPONSIBILITY OF YOU, THE USER, CUSTOMER, OR PROSPECTIVE CUSTOMER TO READ THE TERMS AND CONDITIONS BEFORE PROCEEDING TO USE THIS SITE. IF YOU DO NOT EXPRESSLY AGREE TO ALL OF THE TERMS AND CONDITIONS, THEN PLEASE DO NOT ACCESS OR USE OUR SITES OR OUR SERVICES. THIS TERMS OF SERVICE AGREEMENT IS EFFECTIVE AS OF .
March 7, 2018
This Terms of Service Agreement (“Agreement”) is entered into between Hiring and Empowering Solutions, LLC (“H & E”) and the client company named below (“Client”). In consideration of the mutual covenants contained herein and other good and valuable consideration, the parties agree as follows:
This Agreement shall become effective on the date the Client authorizes his or her credit card to be charged to purchase services from H & E (“Effective Date”) and shall continue until work is complete or contract termination as is set forth in the paragraph titled “TERMINATION” below.
The terms of this contract begin when you engage H & E.
- SCOPE OF SERVICES.
H & E will only provide the Services as set forth in the Client’s “Registration” form. Certain terms are defined in more detail herein. Look to your “registration” form for specific details on scope of services. Detailed definitions are clearly outlined below.
All retain services with H & E, LLC. begin and end with consulting services. All “Smart Hire Solution” service fees include consulting services. 40% of your Smart Hire Solution service fees are directly allocated for Consulting services. Should a refund (See “REFUND” below) be granted for any consulting or hiring services after the process has begun, 40% of the allocated consulting service fees will be the warranted issued refund.
- The Smart Hire Solution “90-Day Onboarding and Employee Evaluation” process: This process is designed to help the Client calculate the return on investment (ROI) of a new hire, gain clarity on exact role they should hire for, create a customized job description and Key Performance Indicators (KPIs) and create a KOLBE RIGHT FIT assessment using the Kolbe “A” conative personality profiling system as well as the Gallup Strengthsfinder 2.0 Top 5 Strengths Assessments.
- Consulting is also under the umbrella of human resource management services for Client including, but not limited to, serving as the Client’s designated human resource contact in regards to; employee handbook, employee evaluation process, employee incentive compensation plans, job descriptions, assist in the evaluation of employees, employment practices training, advisory services on employment-related issues and assistance with various other human resource functions, such as interviewing, job offers, performance reviews, disciplinary action, termination and exit interviewing. It is expressly understood that H & E is not a Professional Employer Organization (PEO). At no point in H & E’s relationship with Client will any of Client’s employees be co-employed by both Client and H & E in a Professional Employer Organization capacity. H & E’s human resources services are limited to a consultative capacity only.
- The Team Empowerment Academy: A virtual program designed to lead the Client’s team leader “employee” through a 8 Week online virtual course, including a weekly LIVE video masterclass to monitor their progress over the first eight (8) weeks.
- HIRING AND RECRUITING.
Provided Client has elected to do so, H & E, LLC. will provide Hiring and Recruiting services for Client under separate engagement than Consulting services. H & E, LLC. Hiring and Recruiting Duties and Responsibilities:
- Recruit, screen and interview candidates in accordance with the Smart Hire Solution process, and as necessary to provide Client with a vetted pool of Top Three (3) “Superstar” candidates for the role, as defined by the Smart Hire Solution process. H & E, LLC. will do what it takes to find the Top Three (3) potential superstar candidates, all carefully vetted with complete background checks by an accredited agency (supplied to Client with resume and interview notes) before we waste your time with any candidates.
- Complete debrief consulting calls with Client on all Top Three (3) candidates to provide expert advice on the best candidate for the position.
- Provide Client with the Kolbe “A” and Gallup Strengthsfinder 2.0 Assessment for each candidate within the final vetted pool of candidates. Assessment (s) Testing included in the Smart Hire Solution fee for up to your Top Three (3) candidates.
B. Client’s Duties and Responsibilities Include:
- Fully comply with the Smart Hire Solution process outlined above, to ensure the requirements for this role are crystal clear between all parties involved;
- Work directly with the recruiter to timely answer questions and review information for vetted applicants, timely interview finalist applicants, and prepare a formal offer letter to any applicant selected for hire within one week of making the decision on the final candidate as not to lose the superstar candidate. If Client do not comply with timely communication with H & E Client forgos all “REFUND” rights. The role of the Client is to work timely with H & E to move the recruiting process along efficiently;
- Fully participate in the 90-Day Onboarding process defined above, including, among other activities, (a) the completion of the getting started “Communication Assessment” call within 2 weeks of candidates start date, (b) holding meetings with the Client’s new hire on at least a weekly basis for at least their first ninety (90) days of employment, and (c) keeping H & E well-informed of any changes, concerns or developments pertinent to the Client’s relationship with their new employee as soon as those development arise.
- Client’s successful fulfillment of the duties outlined in this paragraph are a condition precedent to Client being entitled to the Recruiting Guarantee outlined below. If Client fulfills with the 90-Day Onboarding Process, only then Client is eligible to our forty-five (45) Day Recruiting Guarantee.
C. Refunds and Guarantees.
- If the Client, after engaging H & E’s hiring and recruiting services (as defined in this section of the Agreement) and paying all fees in full for the same, (a) ultimately decides that no acceptable applicant can be found, (b) removes the hiring requirement for this contracted-for position, or (c) decides not to complete the recruiting process for any reason, Client will be refunded 50% of the portion of their fee specifically allocated to Recruiting Services as defined herein, and itemized on Client’s invoice. No portion of fees related to H & E’s consulting services is ever deemed refundable. If H & E can’t find viable candidates you want to hire – even after we’ve invested astronomical amounts of time and money into trying our best to do so, we’ll refund 50% of your Recruiting Services fee.
- Recruiting Guarantee. Conditioned on the full completion of Client’s duties as outlined in this section above, especially as relates to The 90-Day Onboarding portions of H & E’s process, Client is entitled to a forty-five (45) Day guarantee for any placement made with the help of H & E’s recruiting services. If the working relationship between Client and the new employee is terminated within forty-five (45) Days of employee’s hire date, H & E will recruit a replacement to hire free of charge and provide The 90-Day Onboarding services for said replacement as well. Client must involve H & E, LLC. to recruit the replacement hire within one month of the termination date of the first hire, or the right to this guarantee is waived. The replacement hire comes with no guarantee, as this guarantee only includes one replacement hire. If the final candidate you hire ends up quitting or getting fired within forty-five (45) Day, H & E will find a replacement for free if you held up your end of the agreement by as stated above.
- REGULATORY COMPLIANCE.
A. H & E is responsible for and hereby agrees to comply with the following: (1) all laws and regulations governing the reporting, collection and payment of federal and state payroll taxes on wages paid under this Agreement, including, but not limited to payment in compliance with: (a) Federal income tax withholding provisions of the Internal Revenue Code; (b) state and/or local income tax withholding provisions, if applicable; (c) Federal Insurance Contributions Act (FICA); (d) Federal Unemployment Tax Act (FUTA); (2) applicable state unemployment tax laws;
For any Leased Employees, as applicable where H & E is directly providing staffing services for you, we’ll be sure to handle all the annoying tax and payroll stuff associated with said employee(s).
B. Further, provided Client has elected to do so per the terms in their invoice for Staffing Services, H & E will assist with (1) unemployment claims management; (2) safety assistance, such as with worker’s compensation administration; (3) the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, as amended, the Family and Medical Leave Act of 1993 (“FMLA”), the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, , the Americans with Disabilities Act (“ADA”), as amended (including provisions thereunder relating to client’s premises), and any other federal, state, county, or local laws, regulations, ordinances and statues which govern the employer/employee relationship.
C. The parties agree that, to the extent required under law, the services provided under this Agreement will comply in all material respects with all federal and state-mandated regulations, rules, or orders applicable to the services provided herein, including but not limited to regulations promulgated under the Health Insurance Portability and Accountability Act (“HIPAA”).
D. Health Care Reform.
- Unless expressly provided in writing otherwise: (a) H & E shall have no responsibility for providing health insurance coverage to any Client employee; (b) H & E shall have no responsibility for compliance with Health Care Reform with respect to each Client employee, including responsibility for any penalties assessed thereunder, if applicable; and (c) Client agrees to be wholly responsible for maintaining compliance Health Care Reform with respect to each of its employees, including any penalties assessed thereunder.
- The indemnification provisions in the indemnification paragraph below shall specifically include any cost, expense, claim, penalty, or liability incurred by H & E as an employer of the Client employees by any individual, governmental agency, or any other person arising from or in connection with: (a) the Client’s administration of any employee benefit plan, as defined under section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and (b) unless otherwise provided in Exhibit A, compliance with Health Care Reform with respect to each client employee, including any penalties assessed thereunder. For purposes of this paragraph, “Health Care Reform” means the Patient Protection and Affordable Care Act (the “ACA”), and any regulations or guidance issued thereunder.
- WORKER’S COMPENSATION INSURANCE.
During the term of this Agreement, Client shall maintain workers’ compensation insurance covering all employees and subcontractors and shall furnish a certificate(s) of insurance verifying such coverage. Client is responsible for having Worker’s Comp. Insurance for all contractors and employees.
- LAW FIRM DISCLAIMER.
H & E does not, however, endorse or recommend any lawyer or law firm. Client understands that H & E is not a legal referral service and make no representations or judgments as to the qualifications, expertise or credentials of any legal service solution that may be brought to Client’s attention. H & E is not a law firm or a substitute for an attorney or law firm. H & E cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. H & E receives nothing of value from either its own clients or any of the lawyers or law firms it may potentially refer work to other than, in some circumstances, a reciprocal referral as defined and authorized by the ABA Model Rules of Professional Conduct in Section 7.2(b)(4).
- FULL DISCLOSURE.
H & E’s obligations hereunder are expressly conditioned upon Client’s full and accurate disclosure of any and all information reasonably requested by H & E both before and after the execution of this Agreement. Client’s failure to provide full and accurate information shall be a breach of this Agreement.
A. Client shall release, defend, indemnify and hold harmless H & E and its officers, directors, shareholders, affiliates, subsidiaries, employees and agents (collectively, the “H & E Indemnified Parties”) from and against any losses, liabilities, claims, obligations and/or expenses including, without limitation, court costs and reasonable attorneys’ fees (collectively “Damages”) that may be incurred by or asserted against any of the H & E Indemnified Parties, arising from or related to, in whole or in part, (i) the acts, errors or omissions of Client (or its agents); (ii) any breach of this Agreement by Client; and (iii)except as otherwise provided in this Agreement, any claims asserted by or liability to third parties arising from or related to, in whole or in part, Client’s business. Client agrees to not hold H & E responsible for any errors or omissions on the clients part, or issues with our vendor partners.
B. H & E shall release, defend, indemnify and hold harmless Client and its officers, directors, shareholders, affiliates, subsidiaries, employees and agents (collectively, the “Client Indemnified parties”) from and against any Damages that may be incurred by or asserted against any of the Client Indemnified Parties, to the extent such Damages arise from or are related to (i) the acts, errors or omissions of H & E (or its agents); and (ii) any breach of this Agreement by H & E; and (iii) except as otherwise provided in this Agreement, any claims asserted by or liability to third parties arising from or related to, in whole or in part, H & E’s business.
- This Agreement may be terminated by H & E by providing Client with seven (7) days’ written notice under the following conditions: (1) Client’s incorrect reporting of employment rosters, employee payroll hours, or the direct payment of cash remuneration to employees; (2) the filing by or against Client of a petition for reorganization or bankruptcy, receivership, insolvency, the making by Client of any assignment for the benefit of creditors, or the sale or transfer of clients business to a third party; and/or (3) Client makes or furnishes to H & E any representation, warranty or other statement of material fact that is false or misleading, or Client fails to disclose to H & E full and complete information as required by this Agreement.
- Client may terminate this Agreement by providing H & E with seven (7) days’ written notice if H & E fails to perform those duties contained above.
- Either party may terminate this Agreement by giving thirty (30) days written notice unless terminated for cause as is set forth in sub-sections (A) and (B) above.
- This Agreement may be terminated immediately for Client’s failure to pay when due any monies required under the terms and conditions of this Agreement.
- If this Agreement is terminated and if the affected employees are entitled to the payment of wages or any accrued vacation, sick or personal leave, Client shall be liable for the payment thereof and will make such payments directly to employee.
- The indemnification and contribution provisions of this Agreement shall survive indefinitely the expiration or other termination of this Agreement.
- INDEPENDENT CONTRACTOR RELATIONSHIP.
Nothing contained in this Agreement shall constitute or be deemed to constitute H & E and Client in the relationship of co-employer, joint employer, employer/employee, master/servant, partners or joint venture’s, it being expressly understood and agreed that the only relationship between H & E and Client created herein shall be that of an independent contractor.
Failure by either party at any time to require performance by the other party or to claim a breach of any provision of this Agreement will not be construed as a waiver of any subsequent breach nor affect the effectiveness of this Agreement, nor any part thereof, nor prejudice either party in regard to any subsequent action.
- SECURITY RIGHTS.
To secure any obligations and the payment of sums hereafter owed by Client to H & E, Client grants H & E the right of set-off, and a security interest under the Uniform Commercial Code in any funds of Client which may now or hereafter be deposited into an account used by H & E for the purpose of payment of taxes, payrolls, fees due H & E or other payments under this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to principles of conflicts of law. Client hereby irrevocably submits itself to the personal jurisdiction of the courts in Douglas County, Colorado unless a party elects to arbitrate a dispute as provided for in this Agreement. Client hereby waives, to the full extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action in such court and any claim that any such action, suit or proceeding has been brought in an inconvenient forum. The parties hereby agree: (a) not to elect a trial by jury of any issue triable of right by a jury; and (b) waive any right to trial by jury fully to the extent that any such right shall not or hereafter exist. This waiver of right to trial by jury is separately given, knowingly and voluntarily, by each of the parties hereto, and this waiver is intended to encompass individually each instance and each issue as to which the right to a jury trial would otherwise accrue. Further, Client hereby certifies that no representative or agent of H & E has represented, expressly or otherwise, that H & E will not seek to enforce this waiver of right to jury trial provision. This agreement is subject to Colorado law.
In the event of a dispute in connection with which any party to this Agreement employs counsel to pursue, protect, or enforce any of the rights afforded that party by the terms hereof, or by the terms of any related agreement or to defend against any claims of any other party hereto which arise out of this Agreement of any related agreement, in or out of court (including appellate courts), in arbitration, bankruptcy cases and proceedings or otherwise, the non-prevailing party in such dispute agrees to pay all attorneys’ fees, expert witnesses’ fees and costs actually incurred by the prevailing party in connection with such dispute and all such fees and costs actually incurred by the prevailing party in collecting or enforcing any settlement agreement, judgment or arbitration award relating to such dispute. If there is a dispute between the parties concerning any aspect of their relationship or this Agreement, either party to such dispute may elect to arbitrate the dispute by serving written notice upon the other. Once a party elects arbitration, such election is binding on both parties and an arbitrator selected from a panel in Douglas County, Colorado provided by the American Arbitration Association or similar entity shall resolve the dispute. The cost of arbitration shall be borne equally by the parties. If both parties agree, the first arbitrator may be rejected, and a second arbitrator may be selected. The Commercial Arbitration Rulers of the American Arbitration Association and the Federal Arbitration Act shall be applied to and govern the arbitration. The arbitrator’s decision shall be final, conclusive and binding, except as permitted by the Federal Arbitration Act. If either party hires a lawyer to dispute this contract in court, the losing party will be liable for all the legal fees of the party who wins. If either party arbitrates the agreement instead of litigation in court, that preference is binding on the other party.
The parties to this Agreement shall not make any material disparaging or negative comments concerning each other, their officers, employees, business practice, operations, or conduct to the public, to industry individuals, or to any potential or current business partner or prospects, except to a party’s business advisors and attorneys, or as required by court subpoena or order.
If a Client’s employee or a government agency or entity files any type of claim, lawsuit or charge against H & E, Client or both, alleging a violation(s) of any law or failure to do something which was otherwise required by law, Client and H & E shall each cooperate with the other’s defense of such claim, lawsuit or charge. H & E and Client will make available to each other upon request any and all documents that either party has in its possession which relate to any such claim, lawsuit or charge. However, neither party shall have the duty to cooperate with the other if the dispute is between the parties themselves, nor shall this provision preclude the raising of cross-claims or third-party claims between Client and H & E, if the circumstances justify such proceedings. The parties agree that this provision shall survive the termination of this Agreement.
We may change the terms of this Agreement from time to time. The terms of this Agreement are incorporated in to any invoice you are sent. It is your responsibility to review the terms of this Agreement for any updates or changes before authorizing payment for any service you are looking to engage us to provide. Payment of our fees constitutes acceptance of the latest terms of this Agreement. All terms are incorporated are post dated on our website (www.hiringandempowering.com) are periodically updated. You agree that you have reviewed all Private Policies, Terms of Service and Refund Policies prior to engagement and payment of any services.
- NON-EXCLUSIVE REMEDIES.
The rights and remedies provided herein shall not be exclusive and the parties shall have rights and remedies now or hereafter provided by law in addition to those provided for in this Agreement. Institution of an action to effect collection of payment of an amount in default at law or the obtaining of a judgment in such action shall not be deemed to be an election by H & E nor shall it bar H & E from pursuing other remedies available to it at law or in equity.
Should Client believe that any billing or other communication between the parties is in error, it shall be the responsibility of Client to notify H & E in a timely manner.
- CONFIDENTIALITY OF AGREEMENT.
Except as required by law or as deemed necessary to record the rights granted herein with the appropriate governmental or to consult with their respective attorneys or accountants, neither party shall release any information to any third party with respect to the terms of this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld.
- CONFIDENTIAL INFORMATION.
- Because each party will have access to information which may be confidential, proprietary, and/or trade secrets of the other party, the parties agree that they will treat confidentially any such information identified to the other as being confidential and not disclose the information to any third party (except to consult with their respective attorneys or accountants) unless otherwise required by law. Client and H & E agree that if either party gives any confidential, proprietary information, and/or trade secrets of the other party to its respective attorneys or accountants, it will take all reasonable steps to ensure that its respective attorneys or accountants preserve the confidential nature of the information. Any other information and date which one party advises the other is confidential, proprietary, and/or a trade secret is included in this paragraph, whether or not such information is considered as such under the law. The parties agree that all H & E forms, manuals, handbooks, or other materials prepared by H & E and used to perform the duties of this Agreement for Client are considered proprietary and are the exclusive property of H & E. Client is responsible for taking the necessary precautions to designate and safeguard information it considers confidential, proprietary and/or a trade secret.
- The parties agree to use the confidential and/or proprietary information to facilitate the performance or enforcement of this Agreement and for no other purpose. If the Agreement is terminated or expires, this provision survives for three (3) years after such event or until the information becomes known to the general public. The parties acknowledge that a breach of this provision would create irreparable harm and, therefore, the non-breaching party would be entitled to an injunction or similar remedy to specifically enforce this provision. The parties specifically acknowledge that money damages alone may not be an adequate remedy for any damage that might be suffered as a result of a breach of this provision. Nothing in this provision shall be construed as prohibiting the non-breaching party from any other remedy or remedies including, but not limited to, recovery of damages.
- The parties also acknowledge that Client is the owner of any intellectual property rights existing before the term of this Agreement or created during the term of the Agreement relating to the business of Client, including, but not limited to, inventions, patents, copyrights, and trade secrets. Client, as owner of the intellectual property, is responsible for ensuring that these are protected as well as for payment of any associated costs.
Client hereby agrees to pay H & E the specified invoice amounts on a periodic basis and as determined by H & E for services performed by H & E and for all fees. The fees and the payment terms thereof are specified in the Client’s invoice, which is hereby made a part of this Agreement. Any amount not paid when due is subject to a late penalty of ten (10) percent of the amount due or fraction thereof that remains outstanding. Checks returned unpaid from Client’s bank will be subject to a ten (10) percent late fee plus any additional costs incurred to collect the unpaid balance. H & E reserves the right to suspend the services outlined in this Agreement immediately until full payment has been made of any amount past due. Client shall pay for H & E’s services rendered under this Agreement with a credit card, bank wire transfer through Automatic Clearing House (ACH) transfer, negotiable bank drafts, or cashier’s check. Client hereby agrees that for each debit return or nonsufficient funds occurrence (“NSF”), Client will be charged H & E’s then current daily NSF charge (currently $100) plus any and all fees and costs associated with the NSF, including, without limitation, H & E’s attorney’s fees and costs of collection and those fees, costs and damages set forth herein. H & E may: (a) reverse any deposit or payment made to an employee or other person or entity; (b) freeze any other funds without notice to the Client; (c) revoke Client’s ACH privileges; and/or terminate this Agreement immediately and without prior notice upon any such event. In the event of a debit return or NSF, the Client is required to wire the funds directly to the processor or account(s) identified by H & E the same day as notice of such debit return or NSF. Additional charges imposed by the Client’s bank are separate from H & E charges and are the Client’s responsibility.
To the full extent permitted by law, if any payment is made later than the day after the date that it is due, Client shall pay H & E the following:
- Interest on any outstanding amount from the date which is fourteen (14) days after payment is due until the date the amount is paid at the rate of .000658% per day (24% percent per annum) (“Default Rate”), or at the highest rate allowed under law.
- In the event of a dispute in connection with which any party to this Agreement employs counsel to pursue, protect, or enforce any of the rights afforded that party by the terms hereof, or by the terms of any related agreement or to defend against any claims of any other party hereto which arise out of this Agreement of any related agreement, in or out of court (including appellate courts), in arbitration, bankruptcy cases and proceedings or otherwise, the non-prevailing party in such dispute agrees to pay all attorneys’ fees, expert witnesses’ fees and costs actually incurred by the prevailing party in connection with such dispute and all such fees and costs actually incurred by the prevailing party in collecting or enforcing any settlement agreement, judgment or arbitration award relating to such dispute. If H & E ever has to use legal proceedings to fight over fees, the loser of such a dispute has to pay the winner’s attorney’s fees.
- DATA ACCESS, TRANSMISSIONS, AND INFORMATION SECURITY BREACHES.
Certain H & E products and services may be provided through and accessed by Client through the Internet at a website provided by H & E, including third-party services and services hosted by H & E on behalf of Client (“Site”). To the extent any Services are provided through the Internet, Client acknowledges that H & E is not responsible for information submitted by Client through the Site and absolves H & E of any liability for any claims arising from Client or Client employee information submitted through the Site. Client agrees to take commercially reasonable precautions to maintain the privacy of usernames and passwords. In addition, Client acknowledges that security of transmissions over the Internet cannot be guaranteed. H & E is not responsible for (i) Client’s or Client employees’ access to the Internet; (ii) interception or interruptions of communications through the Internet; or (iii) changes or losses of data through the Internet. Each party will be responsible for complying with all requirements of applicable law or regulation regarding information security including information security breaches involving Client’s information, data files and Client employees’ information that is stored on the computer systems of such party or its affiliates or vendors.
Any notice or demand to be given hereunder by either party shall be effected by personal delivery in writing or by registered mail, postage prepaid return receipt requested, or by overnight express delivery. Mailed notices shall be addressed to the party’s formal business address, but each party may change the address by written notice in accordance with this paragraph.
H & E may adjust the contract rates and fees listed in your invoice as a result of any statutory changes, employee taxes, gross receipts tax, or other costs incurred by H & E. Such adjustments shall be effective on the date of the mandated change. H & E will give Client ten (10) days prior written notice of any increases before implementing them. Any such increases shall become part of this Agreement.
Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized by their respective entities and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. An electronic copy of the executed Agreement shall be as binding as the original.
- ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with regard to this subject matter and supersedes any and all agreements, whether oral or written between the parties with respect to its subject matter. Client acknowledges that it has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement including but not limited to any statement made by an employee or marketing agent of H & E. Client acknowledges that H & E has made no representation that H & E’s services will improve the performance of Client’s business.