iLABOR NETWORK SUPPLIER AGREEMENT
This
iLABOR NETWORK SUPPLIER AGREEMENT (the “Agreement”), is made
and entered into as of the 28th day of February, 2008, by and
between ClearPoint Resources, Inc., a Delaware corporation, located at 0000
Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 (the “ClearPoint”), and
StaffChex, Inc., a California , located at 0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 ( “StaffChex”) and StaffChex Servicing,
LLC., a California Limited Liability company, located at 0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 (“StaffChex Servicing” and together with
StaffChex, the “Company”). ClearPoint and the Company, intending to
be legally bound hereby, agree as follows:
1. Services. ClearPoint
has created the iLabor Network (the “Network”), where
third party clients (a “Client”) can engage
ClearPoint to provide them with qualified temporary personnel (“Temp(s)”) through a
network of Temp vendors (the “Suppliers”), such as
the Company. The Company hereby agrees to become a Supplier, on a
non-exclusive basis, and to fulfill all accepted and agreed-upon orders for
Temps obtained through the Network. The terms of any individual
project (a “Project”) will be
outlined on the Network and/or in a Project acceptance document, and shall be
agreed to separately on a Project-by-Project basis and subject to mutual
acceptance by Company and ClearPoint. ClearPoint reserves the right to cancel
without liability, an order for Temps at any time prior to placement of the
Temps with a Client. With respect to any Project, the Company agrees to process
all of its collective temporary staffing services though the Network. All of the
entities subsumed under the defined term “Company” hereunder collectively
represent every entity in the StaffChex corporate family that provides temporary
staffing services. During the term of this Agreement, the StafChex corporate
family shall not provide temporary staffing services through any
entity (whether existing on the date hereof or hereafter created or acquired)
other than those subsumed under the term “Company” hereunder. During the term of
this Agreement, the Company shall not circumvent this Agreement by providing
temporary staffing services through any entity (whether existing on the date
hereof or hereafter created or acquired) not subsumed under the term “Company”
hereunder.
2. Term;
Termination. Accept as set forth in following sentence, this
Agreement shall continue perpetually and can only be cancelled by the mutual
written consent of both ClearPoint and the Company. Notwithstanding anything to
contrary contained in this Agreement, after February 28, 2012, this Agreement
shall automatically terminate upon the sale of all of the stock or all of
substantially all of the assets of the Company (whether by merger,
consolidation, sale of stock, operation of law or otherwise). Upon
termination, Client shall promptly discontinue all use of the
Network. If a Client terminates its engagement with ClearPoint, and
the Company is performing services under a Project for such Client, then upon
notification by ClearPoint (the “Notice”) the Company
shall immediately cease performing services under such Project for such
Client. ClearPoint shall not be responsible to pay the Company for
services performed after ClearPoint has sent the Notice to the
Company.
3. Compensation; Payment Terms;
Insurance; Taxes. For services performed in accordance with
the Project requirements, ClearPoint will pay the Company for billable work
hours approved by the Client at the agreed-upon hourly xxxx rate (the “Fee”). ClearPoint
will pay the Company its Fee within thirty (30) business days of receipt of
payment from Client. If Client fails to pay ClearPoint, then
ClearPoint is not liable to the Company for such fee. The Company will carry and
maintain sufficient workmen’s compensation, liability and other insurance
customary in this industry covering all Temps placed with a
Client. The Company will be solely responsible for the payment of all
Temp wages, benefits, applicable taxes (including, but not limited to, social
security, federal, state, local or any other employee payroll taxes) and
insurance costs arising from the Company’s performance of the services requested
by Client. The hourly xxxx rate includes payment for all taxes, fees,
fringe benefits, insurance, workmen’s compensation coverage, profit and
overhead. The Company shall use ClearPoint’s web-based computer
program for time reporting.
The
Company shall also pay to ClearPoint two and one-quarter percent (2.25%) of all
collections from its xxxxxxxx for temporary staffing services provided by the
Company, regardless of whether such services were provided through the Network
(the “Compensation”); provided, however, that if
collections for any given year exceed $110,000,000, such Compensation shall be
reduced to one and one-half percent (1.50%) for each dollar exceeding
$110,000,000; provided, further, however, that if
collections for any given year exceed $150,000,000, such Compensation shall be
reduced to one and one-quarter percent (1.25%) for each dollar exceeding
$150,000,000. In addition to any other remedies available at law, equity or
otherwise, unpaid Compensation shall be subject to interest at the rate of one
and one-half percent (1.50%) per month. If ClearPoint fails to receive any
Compensation owed to it following any applicable notice and cure periods set
forth herein, such failure to pay shall be deemed a material breach of this
Agreement.
The
Compensation shall be paid to ClearPoint on the 1st
business day of each week (each a “Payment Date”), in arrears (such payment to
cover the collections by the Company from its clients during the prior week).
If, after the fifth (5th)
business day following any particular Payment Date (a “Shortfall Date”), Company
has not paid applicable Compensation (or any part thereof) to ClearPoint and
such amount is disputed in good faith (a “Shortfall”), ClearPoint shall notify
the Company of such Shortfall (“Shortfall Notice”). If after the fifth (5th)
business day following a Shortfall Notice, Company has not paid the applicable
Compensation (or any portion thereof) to ClearPoint, ClearPoint shall have the
right to require that the Shortfall and all future Compensation be paid directly
from any receivables factoring company of the Company. Following approval by any
applicable receivables factoring company of the Company, ClearPoint shall have a
second position, priority security interest in any and all assets of the Company
for any Shortfall. The Company covenants to enter into customary security
agreement with ClearPoint and to permit ClearPoint to issue UCC-1 financing
statements on the respective assets. The Company shall provide ClearPoint access
to all reporting regarding lockbox receipts and weekly submissions to Company’s
lenders, all on a weekly basis.
Within
two (2) years after each year of this Agreement, ClearPoint shall have the right
to have an independent third party (the “Auditor”) audit the directly relevant
financial records generated by the Company for the limited purpose of verifying
the accuracy of the amount of the payments owed to ClearPoint under this
Agreement. ClearPoint may cause the Auditor to perform such an audit no more
than twice in any twelve (12) month period, however, if any discrepancies are
identified in an audit, then ClearPoint can thereafter perform audits not more
than four (4) times per year. ClearPoint shall give reasonable advance notice to
the Company, and each audit shall be conducted during normal business hours. The
expenses of the Auditor shall be paid by ClearPoint unless, in any given audit,
ClearPoint determines that the Compensation paid to ClearPoint differs from that
audit by more than five percent (5%), in which case the reasonable expense of
the Auditor shall be paid by the Company.
The
Company shall not be permitted to assign, convey, sell, transfer or lease the
Customer Account Property (or the underlying Customer Agreements) transferred to
the Company pursuant to the Asset Purchase Agreement, dated the date hereof, by
and between the Company and ClearPoint, without obtaining the prior written
consent of ClearPoint; provided, however, ClearPoint’s consent will not be
required if the assignment, conveyance, sale, transfer or lease of the Customer
Account Property (or the underlying Customer Agreements) occurs after February
28, 2012 and is part of a sale of all the stock or all of substantially of all
the assets of the Company (whether by merger, consolidation, sale of stock,
operation of law or otherwise).
4. Restrictions on Use; Rights;
Exclusivity; Confidentiality. The Company agrees not to (a)
allow unauthorized parties to access the Network, or (b) reverse engineer or
disassemble the Network. ClearPoint exclusively retains all right,
title and interest in the Network (and any parts thereof) and any and all
intellectual property rights therein. All rights not expressly
granted herein are reserved by ClearPoint. Unless otherwise directed
by ClearPoint, the Company will interface directly and exclusively with
ClearPoint, never directly with the Client for any reason. Each party
shall keep confidential and not disclose to any third party or use for its own
or a third party’s benefit, except as expressly permitted herein, any
confidential information disclosed by the other party, or any confidential
information to which such party has access or an opportunity to gain
knowledge.
5. Indemnification; Limitations
on Liability. Each party (the “Indemnifying Party”)
shall indemnify, defend and hold harmless the other party, and its directors,
officers, employees, subsidiaries, representatives, agents, successors and
assigns (each, an “Indemnified Party”)
from any loss, liability, damage, claim, cause of action, cost, fee, penalty or
expense (including, without limitation, reasonable attorneys’ fees) in
connection with any third party claim, suit, action, judgment or other
proceeding brought or threatened against an Indemnified Party, to the extent
based on or arising from a breach by the Indemnifying Party of this Agreement or
the terms on the Network or in a Project acceptance
document. Notwithstanding anything in this Agreement or the terms on
the Network or in a Project acceptance document to the contrary, (a) neither
party shall be liable to the other for any consequential, incidental, indirect,
special, punitive or exemplary damages (including without limitation lost
profits, lost savings, and lost future earnings or economic advantage) suffered
or incurred by such other party in connection with this Agreement, even if such
party has been advised of such damages, and (b) ClearPoint’s liability to the
Company in connection with this Agreement shall not exceed the net fee earned by
ClearPoint from the Company during the three-month period immediately preceding
the date on which the Company’s claim against ClearPoint accrued; provided
however, that nothing in this clause (b) shall be deemed to limit the liability
of ClearPoint under any other agreement between the Company and ClearPoint,
including without limitation, the Asset Purchase Agreement reference
above.
6. Miscellaneous. This
Agreement (a) along with the terms on the Network or in a Project acceptance
document, represents the entire agreement between the parties and supersedes all
prior agreements relating to the subject matter herein, (b) may not be modified
or amended except in writing signed by the parties, (c) shall be governed by and
determined in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to its conflict of laws, (d) 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, and (e) shall be binding
upon and inure to the benefit of the parties hereto and their successors and
permitted assigns, and (f) cannot be assigned by the Company (whether by merger,
consolidation, sale of stock, operation of law or otherwise) without the prior
written consent of ClearPoint. The waiver of a breach of this
Agreement shall not be construed as a waiver of any succeeding breach, nor shall
any delay or omission to exercise any right operate as a waiver of such
right. ClearPoint is an independent contractor, and nothing herein
creates a partnership, agency or employment relationship between ClearPoint and
Company. ClearPoint is not, and shall not be deemed to be, the
employer of any Temp.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this iLabor
Network Supplier Agreement as of the date first above written.
| CLEARPOINT RESOURCES, INC. | STAFFCHEX, INC. | ||||
| By: |
/s/
Xxxxxxx Xxxxxx
|
By: |
/s/
Xxxxx Xxxxx
|
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| Name: |
Xxxxxxx
Xxxxxx
|
Name: |
Xxxxx
Xxxxx
|
||
| Title: |
Chief
Executive Officer
|
Title: |
Chief
Executive Officer
|
||
| STAFFCHEX SERVICING, LLC | |||||
|
|
By: |
/s/
Xxxxx Xxxxx
|
|||
|
|
Name: |
Xxxxx
Xxxxx
|
|||
|
|
Title: |
Chief
Executive Officer
|
|||
