Client Services Agreement
1. Services
(a) GravyWork Services. Client hereby engages GravyWork to provide the following services (“Services”): (i) recruit, screening, and submitting its employees (“Assigned Employees”) who, in GravyWork’s reasonable business judgment, are best qualified to perform the type of work described in Exhibit A attached hereto and incorporated herein by reference, under Client’s supervision their locations, which details shall be posted online through GravyWork’s software technology portal for its employees (“Platform”); (ii) pay net wages and fringe benefits, if any, directly to each such Assigned Employee; (iii) maintain all necessary personnel and payroll records for each Assigned Employee assigned by GravyWork to Client; (iv) compute Assigned Employees’ wages and withhold applicable federal, state and local taxes and federal social security payments; (v) remit all employee withholdings for Assigned Employees to the proper governmental authorities,
make all required employer contributions for Federal Insurance Contributions Act and pay all premiums for federal and state unemployment insurance; (vi) provide for liability and workers’ compensation insurance coverage in the amounts set forth in Section 7; (vii) at the request of Client, for any valid legal reason, remove any Assigned Employee assigned by GravyWork to Client; provided, that this arrangement shall in no way affect the right of GravyWork, in GravyWork’s sole and absolute discretion as employer, to hire, assign,
reassign and/or terminate any Assigned Employee.
(b) GravyWork Obligations. In performing the Services, GravyWork will: (i) act as the sole employer of the Assigned Employees. All Assigned Employees will be classified as non-exempt employees of GravyWork for all
purposes; (ii) comply with federal, state and local labor and employment laws applicable to Assigned Employees, including the Patient Protection and Affordable Care Act (“ACA”); (iii) comply with all provisions of the ACA applicable to Assigned Employees, including the employer shared responsibility provisions relating to the offer of “minimum essential coverage” to “full-time” employees (as those terms are defined in Code §4980H and related regulations) and the applicable employer information reporting provisions under Code §6055 and §6056 and related regulations.
(c) Right to Control. In addition to GravyWork’s duties and responsibilities set forth in Section 1, GravyWork, as the common law employer, has the right to physically inspect the work site and work processes; to review and address, unilaterally or in coordination with Client, Assigned Employee work performance issues; and to enforce GravyWork’s employment policies relating to Assigned Employee conduct at the worksite.
2. Client Obligations
(a) General Obligations. Client will: (i) properly supervise Assigned Employees performing its work and be responsible for its business operations, products, services, and intellectual property; (ii) properly supervise, control, and safeguard its premises, processes, or systems, and not permit Assigned Employees to operate any vehicle or mobile equipment, or entrust them with unattended premises, cash, checks, keys, credit cards, merchandise, confidential or trade secret information, negotiable instruments, or other valuables without GravyWork’s express prior written approval or as strictly required by the job description provided to GravyWork; (iii) provide Assigned Employees with a safe work site and provide appropriate information, training, and safety equipment with respect to any hazardous substances or conditions
to which they may be exposed at the work site; (iv) not change Assigned Employees’ job duties without GravyWork’s express prior written approval; and (v) exclude Assigned Employees from Client’s benefit plans, policies, and practices, and not make any offer or promise relating to Assigned Employees’ compensation or benefits.
(b) Time Records. Client agrees to review and approve the electronic time records for Assigned Employees through the Platform. Client’s approval of the work time submitted for Assigned Employees through the Platform certifies that the documented hours are correct. Client may authorize one (1) or more members of Client’s staff (each an “Authorized User”) to utilize the Platform to request the services of GravyWork’s Assigned Employees (each a “Shift”). For each Shift, the Authorized User making the Shift shall be responsible to
review and approve Assigned Employees’ electronic time record within two (2) days of the completion of the Shift, or for Shifts that last more than one week, within two (2) days of the end of each week. Such approved electronic time records shall be conclusive and binding upon Client as to the number of compensable hours worked by each Assigned Employee for a given Shift or a given work week, and authorizes GravyWork to bill Client for those hours. If a portion of any invoice is disputed, Client will pay the undisputed portion. In instances where an electronic time record is not reviewed and approved by Client by the applicable deadline, GravyWork may treat such electronic time record as final (an “Unapproved Final Time Record”) and invoice Client pursuant to the information set forth in such Unapproved Final Time Record. Client will be billed for any Assigned Employees who show up ready to work but are dismissed early by the Client for reasons other than worker misconduct. The amount charged will be the greater of either the hours that the worker was onsite or four (4) hours. Client shall not book Assigned Employees for Shifts not posted on the Platform.
(c) Non-Circumvention. During the term of this Agreement and for a period of twelve (12) months thereafter, Client hereby agrees not to directly or indirectly (other than through GravyWork) employ any Assigned Employees, including, but not limited to, through another staffing and/or personnel agency,purveyor of services or trade organization, without obtaining GravyWork’s prior signed written consent. Each party hereby acknowledges and agrees that if Client were to breach this restrictive covenant, then it would be difficult to determine the actual damages incurred by GravyWork. The parties hereby agree that $5,000 (the “Liquidated Damages Amount”) is a reasonable
estimate of the damages that would accrue to GravyWork if a single breach of this restrictive covenant occurred in the future. If Client breaches this restrictive covenant, Client shall pay to GravyWork an amount equal to the Liquidated Damages Amount for each such breach by Client. The parties further hereby agree that the Liquidated Damages Amount is fair and reasonable and would not act as a penalty to Client.
(d) Temp to Hire Employees. During the term of this Agreement, Client may identify and hire an Assigned Employee directly for a $3,500 placement fee. If the Assigned Employee has worked a minimum of three hundred sixty (360) hours for the Client at the time of hire, then the placement fee is reduced to $1,500.
3. Term and Termination
(a) Term. This Agreement will begin on the date first stated above and will continue indefinitely unless otherwise indicated.
(b) Termination. The Agreement may be terminated by either party with or without cause upon thirty (30) days written notice to the other party, except that, if a party becomes bankrupt or insolvent, discontinues operations, or fails to make any payments as required by the Agreement, either party may terminate this Agreement effective immediately upon written notice.
(c) Survival. The terms and conditions of this Section 3 and Section 5 (Confidentiality), Section 6 (Relationship of the Parties), Section 9
(Indemnification), Section 10 (Limitation of Liability), and Section 13 (Miscellaneous) will survive the expiration or termination of this Agreement.
4. Fees and Payment Terms
(a) Compensation. In consideration of the Services provided by GravyWork, Client shall pay the amounts set forth on Exhibit A.
(b) Taxes. Whenever applicable, Client agrees to pay all state and/or local sales tax corresponding to the Assigned Employees assigned by GravyWork to Client.
(c) Payment. Payment of each invoice is due within fifteen (15) days of receipt or agreed upon payment terms. Any invoices not paid within thirty (30) days or as specified in the Order Form will incur a late charge of one percent (1%) per month on any unpaid balance or the maximum legal rate, whichever is higher.
(d) Cancellations. If Client cancels a Shift within twenty-four (24) hours of the scheduled start time or an Assigned Employee reports for a Shift and is turned away, Client shall pay an amount equal to half of candidate’s scheduled shift, up to four (4) hours.
5. Confidentiality.
Both parties may receive information that is proprietary to or confidential to the other party or its affiliates and its and their clients. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than performing under this Agreement or as required by law. No knowledge, possession, or use of Client’s confidential information will be imputed to GravyWork as a result of Assigned Employees’ access to such information.
6. Relationship of the Parties.
The Services rendered by GravyWork to Client under this Agreement will be as an independent contractor with respect to Client, and nothing contained in this Agreement shall be construed to make GravyWork a joint venturer, employee, agent or partner of Client.
7. Insurance.
GravyWork shall maintain, at its own expense, all necessary insurance coverage, including general liability insurance, professional liability insurance, and workers’ compensation insurance, as required by applicable law. Upon Client’s request, GravyWork shall promptly provide a Certificate of Insurance (“COI”) evidencing such coverage. The COI shall include the types and amounts of coverage, the policy numbers, and the effective dates of the policies.
8. Compliance with Law
(a) Both parties represent and warrant to each other that it is in compliance with all applicable laws;
(b) Each party affirms and agrees that it is an equal employment opportunity employer and is in full compliance with any and all applicable
anti-discrimination laws, rules, and regulations. The parties agree not to harass, discriminate against, or retaliate against any employee of the other because of their race, national origin, age, sex, religion, disability, marital status, or other category protected by law; nor shall either party cause or request the other party to engage in such discrimination, harassment, or retaliation. In the event of any complaint of unlawful discrimination, harassment, or retaliation by any Assigned Employee, each party shall cooperate in the prompt investigation and resolution of such complaint.
(c) Each party affirms and agrees that for purposes of all statutory and regulatory requirements for employee leaves of absence, including the Family and Medical Leave Act and any similar state or local law, Client and GravyWork shall cooperate in compliance with any such requirements.
(d) As Client controls the facilities in which Assigned Employees work, Client agrees that it is primarily responsible for maintaining a safe worksite in compliance with the Occupational Safety and Health Act and comparable state laws and regulations thereunder, to the extent those laws apply to Assigned Employees assigned to Client’s worksite, except as may be otherwise agreed in writing signed by the parties hereto. Any such agreement shall be included as an addendum to this Agreement.
9. Indemnification
(a) Mutual Indemnification. To the extent permitted by law, each party will defend, indemnify, and hold Client and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) by a third party to the extent caused by (i) its breach of any of its representation, warranty, or obligations under this Agreement; or (ii) its negligent, fraudulent, or willful misconduct of its officers, employees, or authorized agents in the discharge their duties and responsibilities.
(b) Indemnification Procedure. As a condition precedent to indemnification, the party seeking indemnification will inform the other party
within five (5) business days after it receives notice of any claim, loss, liability, or demand for which it seeks indemnification from the other party; and the party seeking indemnification will cooperate in the investigation and defense of any such matter.
(c) Exclusive Remedy. The provisions in this Section 9 constitute the complete agreement between the parties with respect to indemnification, and each party waives its right to assert any common law indemnification or contribution claim against the other party.
10. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Cooperation.
The parties agree to cooperate fully and to provide assistance to the other party in the investigation and resolution of any complaints, claims, actions, or proceedings that may be brought by or that may involve Assigned Employees.
12. Force Majeure
(a) No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, or hostilities, terrorist threats or act, riot, or other civil unrest; (iv) actions, embargoes, or blockades in effect on or after the date of this Agreement; (v) national or regional emergency; (vi) shortage of adequate power or telecommunications or transportation facilities; (vii) epidemics, pandemics, and quarantines; or (viii) any other event which is beyond the reasonable control of such party (each of the foregoing, a “Force Majeure Event”)
(b) A party whose performance is affected by a Force Majeure Event shall give notice to the other party five (5) days of the Force Majeure Event, stating the period of time the occurrence is expected to continue. During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance. The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume
performance of its obligations as soon as reasonably practicable after the removal of the cause.
13. Miscellaneous
(a) Assignment. Neither party shall assign its rights or delegate its obligations under this Agreement without the other party’s written consent, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(b) Entire Agreement. This Agreement and the exhibits attached to it contain the entire understanding between the parties and supersede all prior agreements and understandings relating to the subject matter of the Agreement.
(c) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and addressed to the parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of delivery) or certified or registered mail (in
each case, return receipt requested, postage pre-paid).
(d) Dispute Resolution. The parties shall settle any dispute, controversy, or claim arising out of, in connection with, or relating to the performance of this Agreement or its termination by arbitration in Fairfax, Virginia, pursuant to the rules of the American Arbitration Association. If the parties are unable to determine a mutually agreeable arbitrator, then each party shall select an arbitrator, and the two arbitrators so selected shall appoint a third arbitrator who will act as the arbitrator. Any award will be final, binding and conclusive upon the parties and a judgment rendered thereon may be entered in any court of competent jurisdiction. The parties shall keep confidential the
existence of the arbitration, the arbitral proceedings, the submissions made by the parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by applicable law.
(e) Governing Law; Jurisdiction. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, is governed by and construed and enforced in accordance with the internal laws of the Commonwealth of Virginia, without giving effect to the provisions, policies, or principles of any state law relating to choice or conflict of laws. Any suit, action, or proceeding based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, must be brought in the federal courts of the United States of America or the courts of Virginia. Each of the parties
hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action, or proceeding.
(f) Severability. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable under applicable law in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Construction. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, and any other documents incorporated herein by reference shall be construed with, and as an integral part of, this Agreement to the same extent as if they
were set forth herein.
(h) Waiver. The failure of a party to enforce the provisions of this Agreement will not be a waiver of any provision or the right of such party
thereafter to enforce each and every provision of this Agreement.
(i) Amendment. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.