EXHIBIT 10.41
Diversified Human Resources, Inc.
CLIENT SERVICE AGREEMENT
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This Agreement (the "Agreement") effective on the date shown on Addendum I is
between the following parties:
Diversified Human Resources, Inc. One Source Technology
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Referred herein as "DHR" Referred herein as "Client"
GENERALLY APPLICABLE PROVISIONS
1.1 Personnel. DHR will lease to Client services of our employees (referred to
herein as "leased Employees") for the positions summarized by the occupational
classification codes contained in Addendum I, beginning on the effective date
shown in Addendum I and ending on the date of termination of this Agreement.
Client represents that the information which Client has supplied to DHR
concerning these positions is current and accurate as of the effective date of
this Agreement, and agrees to notify DHR in writing within one business day of
any changes to the information on Addendum I; failure of Client to inform DHR of
any newly hired employees within one business day entitles DHR, at its option,
to refuse to treat any such newly hired employee as a leased employee under this
Agreement.
1.2 Supervision. One or more leased employees will be designated to supervise
the leased employees assigned to Client. These on-site supervisors shall be
referred to herein as "supervising employees".
1.3 No Third-Party Beneficiaries. This Agreement is between Client and DHR and
creates no individual rights of the leased employees or any other third parties
as against either Client or DHR. ADMINISTRATION
2.1 There are a number of federal and state statutory, common law, and
regulatory provisions that define the employer-employee relationship. "Employer"
status is based upon the function for which the employer-employee relationship
is being considered. The parties agree that DHR will be the statutory employer
for purposes of the physical payment of wages to the leased employees and will
be responsible for: (1) the physical payment of wages to the leased employees
and compliance with rules and regulations governing the reporting and payment of
all federal and state taxes on payroll wages paid to leased employees except as
mandated by any applicable state law; and (2) compliance with applicable
workers' compensation laws including but not limited to(i) procuring and
maintaining workers' compensation insurance; (ii) completing and filing required
reports; and (iii) administering claims. On the other hand, Client will be a
co-employer of the leased employees with sole or shared responsibilities to the
leased employees, except as to the responsibilities expressly assumed by DHR in
this section 2.1.
SAFE WORK ENVIRONMENT
Because the leased employees will be assigned to Client's workplace, Client must
ensure that the workplace is at least as safe as the law requires. DHR retains a
right of direction and control over management of safety, risk, and hazard
control at the worksite or sites affecting leased employees. Client therefore
agrees as follows:
3.1 Client will provide a safe workplace and safe equipment and supplies for the
leased employees.
3.2 Client will comply with all federal, state and local health and safety laws,
regulations, ordinances, directives and rules relating to the workplace.
3.3 Client will comply with all directives from DHR, any consultants which DHR
hires, DHR's workers' compensation carrier, and any governmental agencies having
jurisdiction over the workplace or employees' health and safety.
3.4 Client will provide and ensure the use of all personal protective equipment
as required by federal, state or local laws, regulations, ordinances, directives
or rules, or as deemed necessary by DHR, any consultants which DHR hires, or
DHR's workers' compensation carrier.
3.5 Client will, within 24 hours, report to DHR all accidents and injuries
involving leased employees, and Client will cooperate with DHR, DHR's workers'
compensation carrier, and/ or any consultants which DHR hires in connection with
workplace injuries.
3.6 DHR, DHR's workers' compensations carrier, and any consultants which DHR
hires, shall have the right to inspect Client's workplace, including but not
limited to any job sites to which Client assigns any leased employees. To the
extent possible, such inspections shall be scheduled at mutually convenient
times.
COVENANTS, REPRESENTATION AND WARRANTIES
4.1 Client will comply with DHR employment policies and directives and will
provide DHR with timely notice of absences, tardiness, misconduct, and
terminations or neglect of duties of any leased employees.
4.2 Client represents and warrants to DHR that, prior to the effective date of
the Agreement, Client has complied with all applicable requirements of COBRA, as
amended.
4.3 Client will not discriminate against leased employees on the basis of race,
religion, color, age, sex, national origin, handicap or because any leased
employee has reported, or is about to report, a violation or suspected violation
of any law, nor shall Client retaliate against any such employee. Client will
not sexually or otherwise harass any leased employees and will reasonably
accommodate any qualified disabled applicant or employee.
4.4 Client and DHR acknowledge, understand, and agree that, notwithstanding any
other provision of the Agreement, access to any property, whether real,
appurtenant, or personal as well as the accommodation of said property to any
person who may be handicapped, disabled, or perceived as being handicapped or
disabled, over which real or personal property Client has ownership,
administration, maintenance, or some other control, whether leased by DHR or
some other entity, shall be the sole and exclusive responsibility of Client.
4.5 Client and DHR agree to cooperate, upon the request of the other party, in
the investigation and/or defense of any employment issue, claim, charge, or suit
involving any leased employee and Client or DHR. This covenant to cooperate will
survive the termination of this Agreement and will require either party to
assist the other by making available its employees and agents for interviews
with the other party's agents, including its attorneys, and interviews with or
appearances before any governmental agency or court as the party invoking the
provisions of this section reasonably requests. This covenant of cooperation
shall terminate upon the receipt of a written notice, given by either party to
the other, that the party giving notice has determined that it has claims
against the other for any breach of this Agreement.
FEES
5.1 Client will pay DHR a fee for services which DHR provides to Client, based
on the Invoice Rates shown by occupational classification codes and by state on
Addendum I. All invoice amounts are due immediately when Client receives an
invoice or on the invoice date, whichever is earlier, which is prior to the
payment of wages as described in Section 2.1 of this Agreement. All payments to
DHR will be made on the invoice date unless other arrangements are agreed upon
by DHR in writing. Any past due amount will bear interest at the maximum legal
rate or the rate of 24% per annum, whichever is less, from the due date until
paid.
5.2 DHR has the right to increase Client's fee:
a. Upon giving Client at least thirty (30) days advance written notice after
this Agreement has been in effect three hundred thirty five (335) days.
b. At any time, if there is an increase in payroll taxes, workers' compensation
insurance costs, or employee benefits. Any increase in DHR's fees due to
increases in payroll taxes, workers' compensation insurance premiums, or
employee benefits will be effective immediately with the effective date of the
increase. DHR reserves the right, in its sole discretion, to invoice Client on a
retroactive basis for any increase in the Invoice Rates as a result of an
increase in payroll taxes, workers' compensation insurance costs, or employee
benefits costs not reflected in any previous invoice for the applicable
period(s). The right to invoice retroactively will extend beyond termination of
this Agreement.
c. At any time there is a change to the information stated in Addendum I.
5.3 A supervising employee will report to DHR all time worked by the leased
employees during each pay period and Client will provide DHR with written
verification of same following each pay period.
INSURANCE REQUIREMENTS
6.1 DHR will furnish and keep in force and effect at all times during the term
of this Agreement workers' compensation insurance coverage in connection with
the work performed by leased employees assigned to Client pursuant to this
Agreement, except as provided in Section 1.1 of this agreement. Workers'
compensation insurance obtained by DHR in connection with this Agreement shall
not apply to contract or subcontract laborers performing services for the
benefit of Client except as provided by applicable law.
6.2 Client will, at Client's own expense, furnish and keep in force and effect
at all times during the term of this Agreement, Client's own policy of workers'
compensation insurance which shall apply to all persons providing services to
Client, except for work performed by leased employees assigned to Client
pursuant to this Agreement.
6.3 Client will, at Client's own expense, furnish and keep in force and effect
at all times during the term of this Agreement, the following insurance
coverage, from a licensed insurance company: a. commercial general liability
insurance in standard form covering Client's operations, written on an
occurrence basis with minimum limits of One Million and No/100 Dollars
($1,000,000) with DHR listed as additional insured; b. comprehensive automobile
liability insurance for all owned, hired and non-owned vehicles, with minimum
limits of One Million and No/100 Dollars ($1,000,000) combined single limits per
occurrence for bodily injury and property damage liability with DHR listed as
additional insured.
6.4 The parties shall cause each of their carriers of insurance that have or
will issue any insurance coverage required under this Agreement, to issue to the
other party certificates of insurance which specify the required coverages and
endorsements and which provide for not less than thirty (30) days advance
notification of cancellation, non-renewal or material change. Client further
agrees to comply with all applicable Department of Transportation, Interstate
Commerce Commission and Motor Carriers Act requirements and regulations if
Client uses leased employees to operate motor vehicles.
6.5 Each party to this Agreement hereby waives any claim against the other
party, by way of subrogation or otherwise, which arises during the term of the
Agreement for personal injuries or death and/or for any and all loss of or
damage to any of its property if such claim is covered by polices of insurance,
to the extent that any damage or losses resulting from such claim are recovered
under such policies of insurance.
DEFAULT
7.1 Acts of default by Client shall include, but are not limited to:
a. failure to pay any fee when due;
b. failure to comply within ten (10) days of any reasonable directives of DHR or
with any directive promulgated or made necessary by (i) a federal, state or
local governmental body, department or agency; or (ii) an insurance carrier
providing coverage to DHR or the leased employees;
c. direct payment of wages to leased employees for services provided pursuant to
this Agreement;
d. commission or omission of any act that usurps any of DHR's rights or
obligations as employer of the leased employee;
e. violation of any provision of this Agreement;
f. failure to provide reasonable documentation, cooperation under Section 4.5,
or information requested of the Client by DHR; or
g. a material misrepresentation of a fact material to this Agreement.
h. failure to operate the business and to use DHR's services on a regular,
predictable basis, as defined by Client's standard payroll period.
7.2 Client shall reimburse DHR for all actual expenses, fines, fees, costs, and
liabilities which DHR incurs as a result of Client's default, including but not
limited to reasonable attorneys' fees, court costs and related expenses.
7.3 Upon an act of default by Client, DHR shall have the option, in its sole and
absolute discretion, of terminating the Agreement immediately with written
notice. In the event DHR exercises such option, this Agreement shall terminate
on the date of the clients last pay period utilizing DHR's services.
INDEMNITY
8.1 Client agrees to indemnify, defend and hold DHR and its shareholders,
directors, officers, employees, successors, and assigns harmless from and
against any and all liabilities, expenses (including court costs and attorneys'
fees) and claims for damage of any nature whatsoever (whether in tort, contract,
equitable relief, injunctive relief, or otherwise), whether known or unknown and
whether direct or indirect, which DHR or any of those individuals will suffer or
incur as a result of Client's and/or the leased employees' acts, errors, or
omissions, including negligent acts and statutory violations. At the option of
DHR, the Client shall participate in the defense of any such claims and shall
cooperate fully in the defense of any claim.
8.2 Because Client retains direct contact with, and certain management of, the
leased employees, Client agrees that any liability imposed by a court, tribunal,
or governmental agency, which liability is the result of the violation of a
leased employee's legal rights as an employee, Client will assume all such
liability and will indemnify, defend and hold DHR harmless against any and all
liabilities, expenses(including court costs and attorney's fees) and claims for
damage of any nature whatsoever (whether in tort, contact, equitable relief, or
otherwise), whether known or unknown and whether direct or indirect, unless: (1)
the basis for the liability is the violation of an employee's statutory or
common law rights, and DHR had been given written notice by the leased employee
or the leased employee's supervisor, which notice provided DHR with a sufficient
opportunity to correct or avoid the liability; and (2) the liability is the
result of DHR's failure to maintain appropriate workers' compensation insurance
for a leased employee.
8.3 Because the Client retains the right to run its business as it sees fit
consistent with this Agreement and applicable laws, Client bears sole
responsibility and bears all of the risk for making decisions related to
strategic, operational and/or other business decisions regardless of any and all
input from one or more of the leased employees.
8.4 DHR makes no representations and/or warranties of any kind with respect to
the leased employees, including but not limited to their skills, abilities,
background, and/or criminal history.
AMENDMENT AND TERMINATION
9.1 Amendments. This Agreement may be amended from time to time as agreed by the
parties in writing. The parties agree to amend this Agreement as necessary upon
a change in law which makes any provision hereof impossible to perform or which
significantly changes the cost of performance. Any amendments shall become
effective on the designated date after the amendment is signed by both parties.
9.2 Termination. This Agreement can be terminated by DHR, without cause, by
giving the client at least thirty (30) days' advance notice of termination.
Client may terminate this Agreement with ten (10) days advance notice.
MISCELLANEOUS
10.1 Assignment. The Client shall not assign this Agreement or its rights and
duties hereunder, or any interest herein, without prior written consent of DHR.
10.2 Attorneys' Fees. The prevailing party in any action arising in respect to
the Agreement shall be entitled to recover from the other party all cost of such
action including, without limitations, reasonable attorneys' fees, court costs
and related expenses.
10.3 Choice of Law. This Agreement shall be governed by the laws of the State of
Arizona without regard to Arizona's choice of law principles.
10.4 Entire Agreement. This Agreement, including all addenda attached hereto and
executed by both parties, contains the entire Agreement of the parties and
supersedes any and all agreements, whether written or oral, with respect to its
subject matter. No amendment or modification hereto shall be valid unless in
writing and signed by both parties hereto. Failure by either party at any time
to require performance by the other party or to thereof, nor prejudice either
party as regards to any subsequent action.
10.5 Severability. If any provision of this Agreement, or any amendment thereof,
is or should become invalid, the remaining provisions shall remain in effect and
be so construed as to effectuate the intent and purpose of this Agreement and
any amendments.
10.6 Notices. All notices, requests, and communications provided hereunder shall
be in writing, and hand delivered or mailed by United States registered or
certified mail, or by overnight courier, return receipt requested, and addressed
to the party's address as set forth in this Agreement.
10.7 Waiver. The waiver by either party hereto of a breach of any term or
provision of this Agreement shall not be construed as a waiver of a subsequent
breach of the same provision by any party or of a breach of any other term or
provision of the Agreement.
10.8 Limitation on Damages. Notwithstanding anything herein or in any other
Agreement or document to the contrary, Client expressly agrees that DHR shall
not, under any circumstances, be liable for any special, incidental or
consequential damages of any nature whatsoever arising under or relating to this
Agreement.
ADDENDA
The following addenda, as indicated by "X", are attached to this Agreement and
incorporated herein by reference for all purposes:
a. Addendum I - Schedule of Fees X
b. Addendum II - Miscellaneous Provisions X
ACCEPTED BY CLIENT: ACCEPTED BY DHR:
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BY: ______________________________________ BY: _________________________________
PRINT NAME: ______________________________ PRINT NAME: _________________________
TITLE: ___________________________________ TITLE: ______________________________
DATE: ____________________________________ DATE: _______________________________
ADDENDUM I
SCHEDULE OF FEES
Client Name: One Source Technology
State WC Class Code Description % of Gross Payroll
Set-up Fee: $0.00
Advance Payroll Deposit: $0.00
Total due upon signing this Agreement: $0.00
The following fee represents a percentage of gross payroll processed for the
employees leased by DHR, to the client. The fee shall be due by the client to
DHR before the client receives payroll checks or benefits from DHR. This fee
shall apply towards cost of payroll, employer taxes (FICA, FUTA, SUTA), DHR
administration costs, and workers' compensation coverage for the employees
leased to client.
WC Class Code State Description % of Gross Payroll
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3574 AZ Computing, recording or office machine mfg, noc 13.92%
5191 UT Office machine or appliance installation or repair 12.75%
5191 OR Office machine or appliance installation or repair 14.00%
5191 CO Office machine or appliance installation or repair 14.37%
5191 CA Office machine or appliance installation or repair 17.55%
5191 AZ Office machine or appliance installation or repair 13.31%
8742 AZ Salespersons - outside 12.99%
8810 CO Clerical Office Employees 12.51%
8810 AZ Clerical Office Employees 12.87%
Effective Date: ____________________
CLIENT INTIALS ________________
DHR INTIALS ________________
**These rates are valid for 10 business days after presentation.
ADDENDUM II
MISCELLANEOUS PROVISIONS
SUPERVISOR AGREEMENT
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This agreement is entered into this _________ day of _______________ , ________
between Diversified Human Resources, Inc. (herein referred to as DHR), and One
Source Technology (herein referred to as supervisor).
Whereas, Supervisor wishes to be employed by DHR as a supervisor to other
employees of DHR who are assigned to One Source Technology (herein referred to
as client) in accordance with the agreement this addendum is attached to.
1. Term. This agreement shall remain in effect as long as employee is employed
by DHR and as long as the client is obtaining services from DHR.
2. Duties. Supervisor shall serve as the supervisor of "leased employees" at the
client's location or place of business. The supervisor shall be responsible for
the direct supervision and control of the "leased employees," including but not
limited to, the hiring, termination, scheduling, setting of pay rates, and
direct control of the "leased employees."
Supervisor:
By: ________________________________________
Print Name: __________________________________
Date: _______________________________________
DHR:
By: _________________________________________
Print Name: __________________________________
Date: _______________________________________
