EXHIBIT 10.4
AGREEMENT TO PROVIDE SERVICES
This Agreement to Provide Services (the "Agreement"), is made and entered into
effective this 8th day of July, 1997, by and between DESA International, Inc.,
0000 Xxxxxxxxxx Xxxxx, P.O. Box 90004, Bowing Green, Kentucky 42102-9004,
(hereafter referred to as "Company"), and The Xxxxxxxx Xxxxx Company, located at
X.X. Xxx 0000, Xxxxxx, Xxxxxxxxx 00000, (hereinafter referred to as "Supplier").
WITNESSETH:
WHEREAS, Company desires to lease Supplier's employees to supplement its work
force in the operation of its manufacturing process at its plant(s) located at:
Shelbyville and Manchester, Tennessee, (herein referred to as the "Plant"); and
WHEREAS, Supplier is ready, willing, and able to provide personnel in sufficient
quantities to work in Company's manufacturing process at the Plant (herein
referred to as "Services").
NOW, THEREFORE, in consideration of the above recitals, terms, and covenants of
this Agreement, and other valuable consideration, the receipt of which is
acknowledged, the parties agree to follows:
1. SERVICES. Supplier agrees to supply Company with Supplier's employees to
provide Services at the Company's Plant in such quantities as may be deemed
necessary by Company for its manufacturing process at the Plant. Supplier agrees
to have a sufficient number of employees qualified and able to report for work
at the Plant upon notice from Company that such Services are required. Supplier
agrees that in the event it becomes unable for any reason to supply Company with
a sufficient number of employees to satisfy Company's labor requirements or
qualifications that it will contract with other similar leasing companies to
supply Company with qualified workers in quantities required by Company. If
Supplier contracts with other leasing companies to supply Services under this
Agreement, such Services will be provided under the same terms and conditions
set forth in this Agreement. Nothing in this Agreement shall be construed to
limit Company's right to contract with third parties as may be necessary from
time to time during the term of this Agreement to ensure that it has a
sufficient number of workers for manufacturing purposes at its Plant.
2. SUPPLIER AS EMPLOYER (A) Both parties agree that the personnel provided to
Company under and pursuant to this Agreement are employees of Supplier to the
fullest extent allowed by applicable law. Supplier agrees that it has the sole
legal responsibility for the prompt payment of all wages, unemployment
compensation taxes, maintaining adequate workers' compensation insurance, the
payment of all employment taxes including F.I.C.A. and Medicare taxes, the
payment of all employee health and pension benefits, and the payment of any
other fringe benefits provided to its employees. Supplier's employees shall not
be entitled to, nor eligible for, and shall not participate in any of the
Company's pension, health, or other fringe benefit plans is limited solely to
the Company's employees. Supplier
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agrees that at all times material to this Agreement it shall use due diligence
to ensure that it is fully complying with all labor laws and laws regarding
equal employment opportunities, whether Federal, state or local, including but
not limited to, all immigration laws, the Occupational Safety and Health Act
("OSHA"), all wage and hour laws, collective bargaining obligations, the
Americans with Disabilities Act of 1990, the Family and Medical Leave Act
("FMLA"), and workers' compensation laws.
(B) Supplier's employees providing Services to Company's Plant shall remain
employees of Supplier throughout their assignment at Company, and shall not be
considered employees of Company. Company shall have no responsibilities
associated with that of an employer as it relates to Supplier's employees. In
order to carry out its obligations hereunder, Supplier shall designated one or
more "on-site supervisors" from among the personnel assigned to the Plant. The
on-site supervisors shall oversee administrative and managerial matters relating
to Supplier's employees and shall be under the direct supervision of Supplier's
management team. The on-site supervisor with cooperation from Company's
management team shall determine the policies and procedures to be followed by
Supplier's employees regarding the time and performance of their duties.
3. WORK ENVIRONMENT. Company shall take all reasonable steps to ensure that the
work environment provided to Supplier's employees is in compliance with all
applicable Federal, state and local law governing the workplace, but by so doing
shall not be considered the employer of Supplier's employees who work at
Company's Plant.
4. TRADE SECRETS. In Company's sole discretion, Supplier's employees may be
required to enter into trade secrecy agreements with Company to protect
Company's proprietary trade secrets, in a form acceptable to the Company.
Company shall take reasonable steps to protect confidential information, cash on
hand, and inventory; however, Supplier shall be liable to Company for Supplier's
employee theft of Company property. Supplier may at its own expense bond
Supplier's employees providing Services to Company.
5. QUANTITY OF SERVICE. Supplier agrees that Services are to be provided to
Company on an as needed basis, based on the demand for Company's product.
6. LICENSES. In providing Services to Company, Supplier shall be responsible for
the cost of any special licenses required by Supplier's employees to perform the
Services.
7. COMPENSATION. Company agrees to pay Supplier in a timely manner for the
Services rendered hereunder in accordance with the labor classification and
hourly rate structure and pricing structure set forth on Exhibit "B", which may
be revised from time to time by mutual written agreement of the parties. Exhibit
"B" is attached hereto, and incorporated herein by reference to this Agreement.
8. DOCUMENTATION OF EARNINGS. Supplier's employees performing Services for
Company pursuant to this Agreement shall be bound by the provisions of this
Agreement. Company shall maintain, and furnish to Supplier, records reflecting
actual hours worked by Supplier's employees at its Plant. Supplier shall be
responsible for maintaining and verifying any earnings reported and paid to the
Supplier's employees.
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9. WORK INJURIES. Any Supplier employee sustaining any known work related to
injury or occupational disease or illness shall report same immediately to
Supplier. Supplier agrees to notify Company of any injury, occupational disease
or illness reported by its employees within 24 hours from the time any such
injury is reported by its employees assigned to the Plant. Supplier agrees to
indemnify and hold Company harmless from any claim by Supplier's employees for
workers' compensation benefits including the cost of defense, attorney's fees,
penalties, fines, judgments, or awards of benefits.
10. INDEMNIFICATION. Supplier agrees to indemnify and hold Company, its
officers, directors, agents, and employees harmless from and against all
liabilities, penalties, fines, judgments and decrees, damages, losses, actions,
or causes of action, costs, and expenses (including attorney's fees), caused, in
whole or in part, by either of the following:
A. Supplier's violation or non compliance with any Federal, state or
local labor laws and laws regarding equal employment opportunities
including, but not limited to the following: unemployment compensation,
workers' compensation insurance, employment taxes including F.I.C.A.
and Medicare taxes, immigration laws, OSHA, wage and hour laws,
collective bargaining obligations, the Americans with Disabilities Act
of 1990, the FMLA, any laws which prohibit discrimination on the basis
of national origin, race, color, religion, age or sex, wrongful
discharge laws, and health and pension benefits laws; or
B. Supplier's employees' act or omissions resulting in personal injury,
death, or property damage to:
(1) Themselves or their own property; (2) Other employees or
the property of other employees; (3) Third persons or the
property of third persons; or (4) The Company's property
11. INDEPENDENT CONTRACTOR. The status of Supplier is that of an independent
contractor and not of an agent or employee of Company and as such, Supplier
shall not have the right or power to enter into any contracts, agreement, or
other commitments on behalf of Company.
12. INSURANCE. Supplier shall maintain in full force and effect the following
insurance coverage, and provide Company with a "Certificate of Insurance" naming
Company as Certificate Holder;
A. Comprehensive general liability insurance in the minimum amount of
$1,000,000 combined singled limit that will cover all losses Company's
property, property of third parties, or personal injuries caused, in
whole or in part, by Supplier's employees.
B. Employer liability insurance in the minimum amount of $1,000,000.
C. Workers' compensation insurance in accordance with the laws of all
states in which Supplier's employees provide Services to Company.
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D. Automobile liability insurance related to the use of automobiles by
Supplier's employees while on the job.
Each such policy shall be on an "occurrence" basis. However, if an "occurrence"
policy is not available, Supplier shall maintain an equivalent "claims made"
policy until the expiration of all statutes of limitation applicable to any
claim that could arise under this Agreement by virtue of the acts or omissions
of Supplier's employees. Company shall be named as an additional insured on all
such policies of insurance. All such policies shall require the insurer to
provide company with notice of impending cancellation, in the same manner as it
si required to provide such notice to Supplier. If Supplier shall fail to pay
premium when due, Company, in its sole discretion, may pay the same and Supplier
shall reimburse Company for the full amount of such premium within five (5)
business days after Company's payment. If reimbursement is not made within such
period, Company may deduct the full amount from the payments Company is required
to make to Supplier under paragraph 7 of this Agreement.
12. TERM. The term of this Agreement shall commence on the date the Agreement is
signed by the second party to sign the Agreement, and shall continue until
either party gives written notice to the other party of its intent to terminate
the Agreement. This agreement may be terminated upon giving the following
notices:
A. By Company, at any time, upon thirty (30) days prior written
notice; or
B. By Supplier, at any time, upon sixty (60) days prior written
notice.
13. NOTICES. Any notice provided for or concerning this Agreement shall be in
writing and be deemed sufficiently given when sent by certified or registered
mail, if sent to the respective address of each party as set forth below:
If to the Company: DESA International, Inc.
Attention: Xxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile Number: 502/745-7750
If to the Supplier: The Xxxxxxxx Xxxxx Company, Inc.
Att: Xxxxx XxXxxxxxx
000 X. Xxxx Xxxxxx
X.X. 0000
Xxxxxx, XX 00000
Fax: 000-000-0000
14. ENTIRE AGREEMENT. This Agreement shall constitute the entire Agreement
between the parties, and any prior understanding or representation of any kind
preceding the date of this Agreement shall not be binding upon either party
except to the extent incorporated in this Agreement.
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15. CHOICE OF LAW. It is agreed that as to any controversy regarding the
construction and performance of this Agreement between the parties such shall be
construed according to the laws of the Commonwealth of Kentucky, with the
Commonwealth of Kentucky being the venue of any litigation between the parties.
16. AMENDMENTS. Any modification of this Agreement or additional obligation
assumed by either party in connection with this Agreement shall be binding only
if evidenced in writing signed by each party or an authorized representative of
each party.
17. WAIVER OF BREACH. The waiver of a breach of any provision of this Agreement
by either party shall not operate or be construed as a waiver of any subsequent
breach by either party. No waiver shall be valid unless it is in writing and
signed by an authorized officer of the party granting the waiver.
18. HEADINGS. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
19. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
20. MUTUAL NEGOTIATION. This Agreement, and the language contained herein have
been arrived at by mutual negotiation of the parties, accordingly, no provision
shall be construed against one party or in favor of another party merely by
reason of draftsmanship.
21. ATTORNEY'S FEE. In any action to enforce any provision of this Agreement,
the party seeking to enforce this Agreement shall be entitled to recover the
costs and expenses of any such litigation, including reasonable attorney's fees,
in addition to all rights and remedies of law.
22. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in the City of Bowling Green,
Kentucky, in accordance with the then governing rules of the American
Arbitration Association. Judgment upon the award rendered may be entered and
enforced in any court of competent jurisdiction.
23. SEVERABILITY. If any provision, paragraph, or subparagraph of this Agreement
is adjusted by any court of law to be void or unenforceable, in whole or in
part, such adjudication shall not be deemed to affect the validity of the
remainder of the Agreement, including any other provision, paragraph, and
subparagraph. Each provision, paragraph, and subparagraph of this Agreement is
declared to be separable from every other provision, paragraph, and subparagraph
and constitutes a separate and distinct covenant.
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IN TESTIMONY WHEREOF, the parties hereto have executed this Agreement
on this day and date first above written:
DESA INTERNATIONAL, INC. _____________________________________
BY:______________________ BY:_________________________________
TITLE:__________________ TITLE:______________________________
EXHIBIT "A"
Supplier's employees shall not be entitled to, nor eligible for, and shall not
participate in any of the Company's pension, health, or other fringe benefit
plans which are listed below. Such participation in Company's fringe benefit
plans is limited solely to the Company's employees.
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EXHIBIT "B"
Company agrees to pay Supplier in a timely manner for the Services rendered
under the Agreement in accordance with the labor classification and hourly rate
structure and pricing structure set forth below.
LEASED WORKER ACKNOWLEDGMENT FORM
PLEASE READ THIS ACKNOWLEDGMENT FORM CAREFULLY BEFORE
SIGNING BELOW.
This will confirm my understanding of my assignment as a leased worker at DESA
International, Inc. ("DESA").
I understand that I am an employee of _______________________________ (the
"Supplier') and not of DESA International, Inc. I further understand that this
Supplier and not DESA will be responsible for paying may salary, withholding
from my salary income, social security, Medicare, and unemployment taxes, and
paying workers' compensation benefits on my behalf.
I also acknowledge and agree that as an employee of the Supplier, I am not
eligible to participate in any of DESA's employee benefit programs listed below,
nor will I be eligible to participate in these programs in the future unless I
apply for, am offered, and accept employment with DESA in a class, category, or
capacity that makes me eligible to participate in these programs.
I understand and agree that should I ever apply for and accept an offer of
employment with DESA, I would become eligible to participate in DESA's employee
benefit programs at the time, in accordance with the terms of each plan and
DESA's policies and procedures.
EMPLOYEE BENEFITS
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Leased Supplier Employee's Signature Date
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Print Name of Leased Supplier Employee
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Witness Date
EXHIBIT "A"
Supplier's employees shall not be entitled to, nor eligible for, and shall not
participate in any of the Company's pension, health, or other fringe benefit
plans is limited solely to the Company's employees.
Rate: 43% xxxx-up over hourly pay
Rate is effective through Xxxxx 31, 1998, except for cost increases for health
insurance. If minimum wage and/or federal, state, or local taxes change or
federal, state or locally mandated benefits should increase within this period,
we reserve the right to adjust our xxxx rates accordingly with thirty (30) days
written notice.
This agreement insures both training time agreement and a guarantee of 1.5
percent return of Xxxxxxxx-Xxxxx invoices for months with no OSHA recordable
incidents. Payout for month with no recordable incidents will be sixty days
after accident free month due to Tennessee Workers Compensation Law that states
employee has thirty days to report incident.
Xxxx rate includes cost of on-site facilities manager. Xxxx rate includes cost
of five (5) days risk management training annually.
