Contract No. 00-0000-000
AMENDED AND RESTATED GENERAL SERVICES AGREEMENT
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THIS AMENDED AND RESTATED GENERAL SERVICES AGREEMENT (the "Agreement") is
made as of the first day of April, 1996, between FEDERAL EXPRESS CORPORATION
("Federal") and TECH FORCE CORPORATION ("Contractor"), and amends and restates
the General Services Agreement entered into by Federal and Contractor as of June
19, 1992 (as subsequently amended) in its entirety.
RECITALS
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1. Federal desires to engage a contractor to perform the services described
in this Agreement.
2. Contractor is willing and able to perform the services for Federal in
accordance with the terms of this Agreement.
3. The parties entered into a General Services Agreement as of June 19,
1992 (as subsequently amended) and now desire to amend and restate such General
Services Agreement in its entirety.
FOR AND IN CONSIDERATION of the mutual covenants contained in this
Agreement, Federal and Contractor (the"parties") agree as follows:
Section 1. Effect. This Agreement amends and restates the General Services
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Agreement entered into by Federal and Contractor as of June 19, 1992 (as
subsequently amended) in its entirety, which such General Services Agreement
shall have no further force or effect.
Section 2. Scope of Work. In consideration of Federal's payments under this
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Agreement, Contractor shall perform in accordance with the terms of this
Agreement the services described in Exhibits A and A-1 (the "Services").
Section 3. Term and Termination. (a) The term of this Agreement (the
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"Term") shall commence as of April 1, 1996 and shall expire when the Services
are completed, which shall not be later than March 31, 1999 (the "Completion
Date").
(b) Federal shall have the unlimited right to terminate this Agreement
before the Completion Date by giving written notice to Contractor. In such
event, Contractor shall be entitled only to portions of the Fee earned as of the
effective date of termination.
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Section 4. Contractor's Fee. In consideration of Contractor's complete
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performance of the Services in accordance with this Agreement, Federal shall pay
Contractor a fee (the "Fee") determined in accordance with Exhibit B and Section
6, and payable as provided in Exhibit B. However, no portion of the Fee shall
be payable unless properly documented in accordance with Section 6.
Section 5. Taxes. Unless otherwise provided in Exhibit B, the Fee includes
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the amount of any present or future sales, use, excise or other similar tax
applicable to the performance of the Work ("Tax"), and Federal shall have no
responsibility for the payment of any such Tax. Contractor shall include a
statement on its invoice that all taxes are included in the amount billed.
Section 6. Invoices and Payment. (a) Contractor shall invoice Federal for
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sums payable under this Agreement as provide in Exhibit B. Contractor shall
submit to Federal an invoice for Services completed during the invoice period as
specified in Exhibit B. Contractor's invoices must be accompanied by copies of
invoices from its subcontractors (if any) and any other reasonable documentation
as may be requested by Federal for its proper review of Contractor's invoice.
Contractor's invoice shall include the statement referenced in Section 5.
(b) Federal shall promptly review Contractor's invoice and approve for
payment such amounts as Federal reasonably determines to be properly due under
the Agreement. Payment by Federal shall be made within thirty (30) days of
Federal's receipt and approval of Contractor's invoice. Federal shall state in
writing its reason for withholding any or all of the monies requested by
Contractor.
Section 7. Right of Audit. Contractor shall keep full and accurate records
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and documentation to substantiate the amounts claimed in any invoice, which
records shall be made available to Federal at all times. In addition,
Contractor's records shall be open to audit by Federal or any authorized
representative of Federal during the term of this Agreement and until two years
after completion of the Services or earlier termination of this Agreement,
whichever occurs first.
Section 8. Right to Withhold Payments. In addition to its right to
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withhold payments under Section 6, Federal may withhold any payment in whole or
part to protect itself from (i) defective or unsatisfactory performance of the
Services by Contractor, (ii) third-party claims filed or reasonable evidence
indicating probable filing of third-party claims arising from Contractor's
performance of the Services, (iii) failure of Contractor to make payments
properly to any of its subcontractors, or (iv) evidence of fraud, overbilling
or overpayments discovered upon audit.
Section 9. Independent Contractor Relationship. The parties intend that an
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independent contractor relationship will be created by this Agreement. Federal
is interested only in the results of Contractor's work and shall not exercise
any control
over the conduct or supervision of the Services or the means of its
performance. Contractor shall have full responsibility for the payment of all
federal, state and local taxes and contributions, including penalties and
interest, imposed pursuant to unemployment insurance, social security, income
tax, workers' compensation or any other similar statute, and Contractor shall be
solely responsible for any liality to third parties resulting from the negligent
or intentional acts or omissions of Contractor, its agents, employees or
subcontractors arising from or occuring in the course of the Services.
Section 10. Disclosure of Information. Contractor acknowledges that certain
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of Federal's valuable, confidential and proprietary information may come into
Contractor's possession. Accordingly, Contractor agrees that all such
information furnished to Cofntractor by Federal shall remain the exclusive
property of Federal, and agrees to hold all information it obtains from or about
Federal in strictest confidence, not to use such information other than for the
performance of the Services, and to cause any of its employees or subcontractors
to whom such information is transmitted to be bound to the same obligaiton of
confidentiality to which Contractor is bound. Contractor shall not communicate
Federal's information in any form to any third party without Federal's prior
written consent. In the event of any violation of this provision, Federal shall
be entitled to preliminary and permanent injunctive relief as well as an
equitable accounting of all profits or benefits arising out of such violation,
which remedy shall be in addition to any other rights or remedies to which
Federal may be entitled.
Section 11. Indemnification. Contractor agrees to indemnify, defend and hold
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harmless Federal, its directors, officers and employees from any and all
liabilities, damages, losses, expenses, demands, claims, suits or judgments,
including reasonable attorney's fees and expensses, in any way related to the
Services, including but not limited to any claim for payment made by a
subcontractor, agent or employee of Contractor, or any claim arising out of the
breach by Contractor of any covenants, warranties or representations contained
in this Agreement. Contractor's obligation to so indemnify, defend and hold
harmless Federal shall survive the expiration or ealier termination of this
Agreement.
Section 12. Insurance. Contractor shall maintain and furnish to Federal
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certificates evidencing the types of insurance coverage and endorsements
specified in Exhibit D. Such insurance shall be written by insurance companies
licensed to do business in the state where the Services are performed, shall be
in form and substance satisfactory to Federal, and shall provide that insurance
will not be subject to cancellation, termination, or change except after thirty
(30) days' written notice to Federal.
Section 13. Safety, Order and Security. Contractor shall enforce strict
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discipline and good order among its employees, and shall take all necessary
precautions in the performance of
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the Services to insure the safety of all persons and property. Contractor will
comply with all security rules made by Federal and, at Federal's request and
subject to applicable laws, will cooperate with Federal in the investigation of
any of Contractor's employees suspected of theft or other wrongdoing with
respect to Federal and its property.
Section 14. Standard of Performance. Contractor agrees that the Services
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will be performed by qualified, careful and efficient employees. Contractor
warrants that all Services furnished under this Agreement is of high quality and
workmanship. Contractor shall replace or reperform, as deemed necessary by
Federal, any of the Services that fail to meet Federal's technical or quality
standards set forth in the Tech Force Commitment to FedEx Customer-Supplier
Agreement executed December 21, 1995 (the "Customer-Supplier Agreement") and in
the FedEx Customer Supplier Alignment ("CSA") document (the "CSA document"),
without additional cost to Federal.
Section 15. Changes in Services. (a) Federal may order extra work or make
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changes by altering, adding to or deducting from the Services by signing a
change order in the form of Exhibit C ("Change Order"). Services pursuant to a
valid Change Order shall be performed subject to the conditions of this
Agreement.
(b) Federal also by written instruction to Contractor may make changes in the
Services not involving extra cost and not inconsistent with the purposes of the
Services without execution of a Change Order, but otherwise, no extra service
shall be done or changes made unless pursuant to a Change Order, and no claim
for an addition to the Fee or an extension of the Completion Date shall be valid
unless so ordered in a signed Change Order.
(c) Upon receipt of a written request from Federal for changes in the
Services or for extra work which would affect the Fee or the Completion Date,
Contractor shall submit a statement detailing Contractor's proposal for
accomplishing the changes proposed by Federal and the effect, if any, on the Fee
and the Completion Date. If Federal accepts Contractor's proposal, a Change
Order shall be executed by the parties to effect the Services, the Fee and
Completion Date, as agreed.
Section 16. Compliance with Laws. (a) Contractor agrees that it will comply
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with all applicable federal, state and local laws, regulations, and codes in the
performance of this Agreement. To the extent applicable to Contractor, it agrees
to comply with the affirmative action requirements applicable to contacts with
government contractors, as set forth in Title 41 of the Code of Federal
Regulations and incorporated into this Agreement by reference.
(b) Contractor agrees to indemnify, defend and hold harmless Federal, its
officers, directors and employees from and against any and all claims, losses,
demands, actions, administrative proceedings, liabilities and judgments,
including reasonable attorneys' fees and expenses, arising from Contractor's or
its subcontractor's failure to comply with the provisions of this
Section.
Section 17. Miscellaneous. (a) Assignment. This Agreement shall inure to
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the benefit of and be binding upon each of the parties and their respective
successors and assigns, but neither the rights nor the duties of either party
under this Agreement may be voluntarily assigned or delegated without the prior
written consent of the other party, except that Federal may assign all or any
part of its rights and delegate its duties under this Agreement to a
wholly-owned subsidiary.
(b) Section Headings. All section headings and captions used in this
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Agreement are purely for convenience and shall not affect the interpretation of
this Agreement.
(c) Exhibits. All exhibits described in this Agreement shall be deemed to
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be incorporated in and made a part of this Agreement, except that if there is
any inconsistency between this Agreement and the provisions of any exhibit the
provisions of this Agreement shall control. Terms used in an exhibit and also
used in this Agreement shall have the same meaning in the exhibit as in this
Agreement.
(d) Applicable Law. This Agreement shall be governed by and interpreted in
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accordance with the laws of Tennessee, and the parties submit to the
jurisdiction of any appropriate court within Tennessee for adjudication of
disputes arising from this Agreement.
(e) Modification. Except as otherwise provided, this Agreement shall not
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be modified except by written agreement signed on behalf of Federal and the
Contractor by their respective authorized officers.
(f) Exclusive Agreement. This Agreement supersedes all prior
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understandings, representations, negotiations and correspondence between the
parties, constitutes the entire agreement between them with respect to the
matters described, and shall not be modified or affected by any course of
dealing, course of performance or usage of trade.
(g) Severability. If any provision of this Agreement is held to be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired.
(h) Waiver. The failure of either party at any time to require performance
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by the other of any provision of this Agreement shall in no way affect that
party's right to enforce such provision, nor shall the waiver by either party of
any breach of any provision of this Agreement be taken or held to be a waiver of
any further breach of the same provision or any other provision.
(i) Survival. The provisions of this Agreement which by their nature
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extend beyond the expiration or earlier termination of the Agreement will
survive and remain in effect until all obligations are satisfied. Specifically,
the Contractor's
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obligations to indemnify Federal shall survive this Agreement.
(j) Disclosure. The Contractor shall in each instance obtain the prior
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written approval of Federal concerning exact text and timing of news releases,
articles, brochures, advertisements, prepared speeches and other information
releases concerning this Agreement.
(k) Change of Control. In addition to such other rights as Federal may
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have, Federal shall have the right to immediately terminate this Agreement upon
any change in the majority ownership or voting control of the capital stock,
business or assets of Contractor. Contractor shall promptly notify Federal in
writing of any such change in control.
(l) Further Assurances. Each party agrees that it will take such
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actions, provide such documents, do such things and provide such further
assurances as may reasonably be requested by the other party during the term of
this Agreement. Contractor agrees to provide to Federal, from time to time,
such financial information as Federal may reasonably request to determine
Contractor's ability to perform its obligations under this Agreement.
(m) Counterparts. This Agreement may be executed in any number of
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counterparts and each fully executed counterpart shall be deemed an original.
(n) Notices. All notices, approvals, requests, consents and other
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communications given pursuant to this Agreement shall be in writing and shall be
effective when received if hand-delivered, sent by facsimile, sent by Federal
Express service or sent by United States certified or registered mail, addressed
as follows:
If to Contractor: Tech Force Corporation
Attn: Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
If to Federal: Federal Express Corporation
Attn: Xxxxxxxx Canon
0000 XXXX Xxxxx
Xxxxxxx, XX 00000
Section 18. Ownership of Equipment. Notwithstanding any other provision
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of this Agreement, Federal shall be deemed the owner of the Equipment
(hereinafter defined) at all times and upon the request of Federal, Contractor
shall immediately return to Federal any Equipment in the possession of
Contractor.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first above written.
APPROVED FEDERAL EXPRESS CORPORATION
AS TO LEGAL FORM
CHW 9/8/96
------------------ By: /s/[SIGNATURE APPEARS HERE]
LEGAL DEPT. ------------------------------
Title: Vice President
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("Federal")
TECH FORCE CORPORATION
By: /s/[SIGNATURE APPEARS HERE]
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Title: President
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("Contractor")
Note: The following exhibits to this document will be provided upon request:
Exhibit A Scope of Work
Exhibit B Fee & Payment Procedure
Exhibit C Change Order Form
Exhibit D Contractor's Insurance
