SUPPLIER SERVICES AGREEMENT
THIS SUPPLIER SERVICES AGREEMENT (the "Agreement") is entered into as of ______, 20__, by and between Ultimate Staffing Services, a division of Roth Staffing Companies, L.P. (“Ultimate”), and ______("Supplier”).
WHEREAS, Ultimate has been engaged to provide services for _ServiceNow Inc._, including for purposes of this Agreement any of its parents, affiliates, subsidiaries, divisions, and any of its or their predecessors, successors and assigns (collectively “Client”), including professional and consulting services to provide, arrange for and facilitate Client’s procurement of temporary staffing services (the “Program”), and
WHEREAS, Supplier desires to participate in the Program for the purpose of providing Supplier Personnel to perform services at work sites of Ultimate’s Client,;
NOW THEREFORE, in consideration of the parties’ mutual covenants, conditions and promises contained herein, and other good and valuable consideration, the parties agree as follows:
1.Supplier shall accept this Agreement as revoking and terminating any agreement or arrangement for the provision of temporary staffing services to Client, and shall accept payment hereunder as payment in full for all such services from the Effective Date of this Agreement.
2.Upon request by Ultimate, Supplier will provide to Ultimate Supplier’s own employees, consultants, contractors or subcontractors (if subcontractor’s are permitted by Client) (collectively, “SupplierPersonnel”) on an as needed basis, to fill job classifications set forth herein (the “Services”), pursuant to the terms and conditions of this Agreement.
3.The Supplemental Services shall be performed for the benefit of Ultimate’s Client. The parties mutually agree that Client is expressly named as third party beneficiary of all rights granted to Ultimate under this Agreement, but Client shall have none of the obligations imposed on Ultimate hereunder. This Agreement is subject to the terms of a services agreement between Ultimate and Client (“Services Agreement”) and shall terminate upon the termination of such Services Agreement, unless sooner terminated as provided herein.
4.Supplier shall be responsible to recruit, screen, test, qualify, reference check and assign Supplier Personnel to perform assignment duties at work sites designated by Client. Supplier shall have sole responsibility to counsel, discipline, review, evaluate, and terminate Supplier’s Personnel. Supplier warrants that all Supplier Personnel shall be legally authorized to work in the United States. Supplier shall be solely responsible for all wages, benefits and all other compensation, if any, due Supplier Personnel assigned to perform services under this Agreement. Supplier warrants that it shall satisfy all payroll reporting and withholding, payment and provision of Workers’ Compensation, Unemployment Compensation, FICA, FUTA, OASDIC, and any other benefits and compensation related obligations and expenses related to Supplier Personnel placed on assignment under this Agreement. Neither Ultimate nor Ultimate’s Client shall have any obligation to withhold federal, state or local income tax, or employee’s portion of FICA or other payroll taxes from any Supplier Personnel. Supplier further warrants that it will comply with all other applicable state or local laws or regulations applicable to this Agreement and to the Supplier as an employer of Supplier Personnel, including but not limited to those regarding hiring, termination, compensation, hours of work or other conditions of employment.
5.Supplier represents and warrants that all Supplier Personnel assigned to Ultimate’s Client possess or meet the requisite skills, qualifications and requirements set forth herein, or in applicable Exhibits, as appropriate.
6.Ultimate or Ultimate’s Client may request the removal or cancellation of the assignment of any Supplier Personnel at any time and for any or no lawful reason, with or without prior notice. Supplier shall replace such personnel immediately upon request and at no added charge unless advance arrangements with Ultimate have been made prior to Supplier replacing such personnel.
7.Audit; Record Retention. Ultimate and/or Client shall have the right to inspectand audit all books, records, correspondence, receipts, vouchers, memoranda, payment records, attendance cards, time sheets,etc., of Supplier, Supplier’s subcontractors and any other entity used by Supplier in performing this Agreement. Supplier shall, and shall cause its subcontractors and any other entities to, preserve all such records for a period of two years after final payment hereunder. Supplier shall provide for such right to audit by Ultimate and Client in all contracts with subcontractors and other entities relating to this Agreement.
8.Contact With Client. Supplier acknowledges and agrees that all Client requests for Services and any related matters will be exclusively directed to and handled by Ultimate. Supplier shall receive all Services requirements directly from Ultimate, and Supplier shall submit all candidates directly to Ultimate (and not to Client). Unless otherwise directed by Ultimate, Supplier will deal directly and exclusively with Ultimate with respect to the Services and any related matters (including direct or indirect solicitation of business) to Client. In the event that Supplier receives a job order or a communication from any Client manager it will immediately refer the Client manager to Ultimate. Supplier agrees that no Supplier Personnel will be presented directly to aClient manager for temporary or temporary to hire or direct hire positions.
9.Positions and Rates.
55% Markup______
10.Administrative Fee. Supplier charges for the Services will be calculated at the above bill rates or markup rates, as applicable. Ultimate will deduct and retain an administrative fee equal to 3% of the Supplier’s total charges for the Services.
11.Pre-assignment Screening Criteria and Other Client-Specific Requirements.
(a)Supplier shall ensure that, while performing services on Client property, Supplier and Supplier Personnel conform to all Client rules and regulations regarding any applicable employee/contractor conduct and policies.
(b)Supplier shall not discriminate because of race, color, religion, sex, age, national origin, sexual orientation or preference, marital status, disability, or status as a Vietnam Veteran, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities concerning employees of the temporary labor program. Supplier affirms that it is an equal opportunity employer and shall comply with all federal, state and local laws, regulations and executive orders.
(c)Supplier agrees that it shall comply with all applicable immigration and employment laws, including the Employment Verification Procedures set forth in the Immigration Reform and Control Act of 1986, as amended, and USCIS regulations, and further affirms that all SupplierPersonnel provided to Client are legally authorized to accept employment in the United States with Client and to perform services under this Agreement.
(d)Client reserves the right to review the résumés or conduct interviews of Supplier Personnel prior to their assignment.
(e)Drug Screening. Supplier shall ensure that any and all Supplier Personnel who perform temporary services for Client shall have satisfactorily completed a drug screen within the previous six-month period. Supplierwill absorb the cost of the drug screen and shall use Client’s approved Drug Testing supplier, if required by Client. All drug screening shall comply with current Clientpolicies[SB1].
(f)Background Checks - Criminal. Supplier shall complete a background check for all Supplier Personnel who perform temporary services for Client. SupplierPersonnel shall have satisfactorily completed a criminal background screen (any felony convictions and multiple misdemeanor convictions going back seven years) prior to beginning assignment at Client. Supplierwill absorb the cost of the criminal checks and shall use Client’s approved Background Services supplier, if required by Client. All background checks shall comply with Client’s current security policies.
12.Timesheets/Time Clock. Supplier shall require its employees to utilize Ultimate’s time clock at the Client’s premises. In such event, Ultimate will provide Supplier with a time record for SupplierPersonnel after the end of each work week by email on the Tuesday following the work.
13.Invoicing Procedure. Supplier shall adhere to the following payment procedure:
(a)Electronic timecards must be provided to Ultimate by Monday at noon. The timecard must contain the electronic signature of the Client representative. As stated above, Ultimate Staffing will send a time record report with all approvals no later than the Tuesday after the end of each work week provided that the electronic timecard has been submitted and approved by Monday at noon. All timecards must be submitted for approval within thirty (30) days of the services provided date. Client is not obligated to pay for services if timecards have not been submitted within thirty (30) calendar days of the services provided date.
(b)Ultimate will pay Supplier (less Ultimate administrative fee) within fifteen (15) days of Ultimate’s receipt of payment in full of an invoice from Client. Notwithstanding any of Supplier’s payment terms listed on its timecard(s), Supplier agrees that Ultimate is notobligated to and will not pay any Supplier billed hours unless and until Ultimate has received payment from Client for such billed hours.
(c)Any invoice disputes are to be submitted in writing to Ultimate within thirty (30) days of issuance of Ultimate’s payment of invoice to Supplier. Any disputes after thirty (30) days will not be valid.
14.Notwithstanding anything in this Agreement, any Exhibit or other writing to the contrary, Supplier understands and agrees that Ultimate shall not be obligated to pay Supplier for services rendered hereunder unless and until Ultimate receives payment for such services from Ultimate’s Client. Supplier agrees that Ultimate may elect to advance payment to Supplier before Ultimate has received full or partial payment from Ultimate’s Client, but that Ultimate shall do so only while preserving its rights under this provision. Ultimate shall have the right regarding any such advanced funds for which Ultimate does not receive full payment from Ultimate’s Client within a reasonable period of time to an immediate refund on demand from Supplier or to credit such advanced funds against any other funds due to Supplier on any engagement or for any reason under this Agreement or otherwise, to the extent of the non-payment by Ultimate’s Client. In addition, should Ultimate be required to return any payments to Client, or its agents, assignees, trustees in bankruptcy, or debtors in interest, for any reason, including, but not limited to, unsatisfactory performance of Supplier’s employees or due to Client’s insolvency, bankruptcy, or dissolution, Supplier expressly agrees that Ultimate shall have no payment obligation to Supplier and/or that Supplier shall immediately return and refund all such payments to Ultimate on demand from Ultimate. Supplier agrees to pay any attorneys’ fees or costs associated with Ultimate’s enforcement of this paragraph14 and 14(a) below.
- Specifically, if, pursuant to the United States bankruptcy laws or similar state laws, Ultimate is ordered to repay to Client (or its successor in interest) money that was paid by Client to Ultimate and further paid by Ultimate to Supplier for Supplier’s services delivered to Client, Supplier shall, upon Ultimate’s demand, refund that amount of money to Ultimate. These amounts include, without limitation, amounts deemed “preferential payments.”
15.Ultimate will only pay using Supplier timecards and will NOT reference Supplier invoices.
16.Supplier guarantees its Services will be performed to the satisfaction of Ultimate and agrees to allow Ultimate reasonable time to consult with Client to determine if Services provided by Supplier were performed in a satisfactory manner. If Ultimate determines within a reasonable time frame that the Services provided by any Supplier Personnel is not satisfactory, and Supplier is so notified by Ultimate, neither Ultimate nor Client will be charged for such Services and Supplier may be required to provide replacement personnel upon notification or within a mutually agreed upon period of time[SB2].
17.Term; Termination.
(a) The term of this Agreement shall be one (1) year, and shall automatically renew for like additional terms, unless terminated by either party upon thirty (30) days prior written notice to the other, or upon termination of the Services Agreement.
(b)Ultimate shall have the right to immediately cancel this Agreement upon written notice to Supplier in the event Ultimate, in its sole discretion, determines Supplier’s performance to be unsatisfactory or in the event of any breach of the obligations of this Agreement by Supplier, or in the event Supplier fails to submit accuratetime slips in a timely manner.
(c)In the event of termination or expiration of this Agreement, at the discretion of Ultimate, each Supplier Personnel will continue the assignment through the period of time referenced on the current work order, or if none, through the duration of the assignment end-date, unless determined otherwise by Ultimate Supplier will not remove Supplier Personnel from assignment at Client prior to completion of assignment for reasons other than Ultimate’s failure to pay in a timely manner for the services provided.
(d)Notwithstanding anything to the contrary in this Agreement, Supplier acknowledges that any violation of the terms of this Agreement may result in the immediate termination of the Agreement at Ultimate’s sole discretion. In the event of such immediate termination, in addition to any other rights Ultimate has upon breach of the Agreement or termination, all Supplier Personnel currently working on assignment at Client may be transitioned to Ultimate’s or Client’s payroll for the duration of their assignment with Client, and Supplier shall waive any placement fee, conversion fee or liquidated damages in the event of such transition.
18.Supplier shall act at all times as an independent contractor, and nothing contained herein shall be construed to create the relationship of principal and agent, or employer and employee, between Supplier (including the Supplier Employees) and Client or Supplier (including the SupplierPersonnel) and Ultimate. The SupplierPersonnel are at all times the employees of Supplier.
19.Supplier agrees to indemnify, defend and hold harmless Ultimate and Client for any and all claims, suits, demands, losses, damages, expenses or other liabilities (including attorney’s fees and costs), to the extent arising out of, relating to, resulting from or in any way connected with the negligent acts or omissions of Supplier or SupplierPersonneland/or any agents or subcontractors of Supplier. Under no circumstances shall either party be liable to the other for any indirect, special or consequential damages (including, not limited to, loss of profits, interest, earnings or use) whether arising in contract, tort or otherwise.
20.If Client desires to hire any SupplierPersonnel, Client will notify Ultimate, and Ultimate shall notify Supplier. Client may directly hire any Supplier Personnelat any time after such Personnel has been assigned to Client for at least 720 hours without liability for payment to Supplier of any fee or liquidated damages. Ultimate may directly hire any SupplierPersonnel at any time after the Personnel has been assigned to Client for at least 18weeks or 720 hours without liability for payment to Supplier of any fee or liquidated damages.
21.If Client chooses to convert a Supplier Personnel prior to the 720 hour period, an early temporary to hire conversion fee will be calculated at 15% of the annual salary paid by Client to the Supplier Personnel, prorated based upon the percent of time completed of the conversion period. For example, if Client converted a Supplier Personnel after such Personnel worked for 600 hours at Client and Client paid the Supplier Personnel a salary of $50,000.00, the conversion fee would be $1,249.99 ($50,000 x 0.15 x [120/720]).
22.Insurance.
(a)Supplier shall maintain at its expense: (i) Workers' Compensation to comply with statutory limits; (ii) Employer's Liability Insurance in an amount not less than One Million Dollars ($1,000,000.00) per bodily injury by accident or disease; $1,000,000 each employee and $1,000,000 policy limit; (iii) Broad Form Commercial General Liability in the amount of not less than $1,000,000 per occurrence and in the aggregate for bodily injury including death and $1,000,000 per occurrence and in the aggregate for property damage and $2,000,000 aggregate; (iv) Business Auto Coverage Liability for owned, hired, and non-owned autos in the amount of $1,000,000 per accident combined single limit-bodily injury and property damages; (v) Professional/Errors and Omissions (E&O) insurance for any wrongful act arising out of Supplier’s performance of services within the scope of the agreement in the amount of $2,000,000 per occurrence Employee Dishonesty/Fidelity Bond of not less than One Million Dollars ($1,000,000.00) for each claim and in the aggregate. Such coverage shall include employee dishonesty 3rd party liability coverage; and (vi) Umbrella or excess policy providing excess coverage for the general liability, and automobile insurance in an amount not less than $3,000,000 or such greater amount as is needed for the specific job.
(b)Supplier shall list Ultimate and Client as additional insureds on its Commercial General Liability Insurance. If Supplier's insurance policy is to be canceled or changed by insured or insurer so as to affect the coverage required by this Agreement, at least thirty (30) days prior written notice of such cancellation or change shall be sent to Ultimate at the address to which invoices are to be sent by Supplier. Supplier shall provide Ultimate with a certificate or certificates of insurance evidencing the coverages set forth hereinabove upon execution of this Agreement.
23.Confidentiality.
(a)Supplier agrees that it will not, either during the term of Supplier's provision of the Services or for five years thereafter, disclose or make available any Confidential Information (as herein defined) of Ultimate or Client to any person or entity, nor shall Supplier make or cause to be made, or permit or allow, either on its own behalf or on behalf of others, any use of such Confidential Information; provided, however, Supplier is not prohibited from disclosing or using any Confidential Information which becomes part of the public domain through no fault of or breach of this Agreement by Supplier. Supplier agrees not to use, transcribe, copy, duplicate or otherwise reproduce or retain all or any portion of the Confidential Information of Ultimate or Client in any manner whatsoever and shall cause such Confidential Information or copies thereof to be returned to provider of such Confidential Information promptly upon termination of the Services.