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EXHIBIT 10.12
MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT is made as of this ____ day of , 199__, by and
between Xxxxxxx Services, Inc., a Georgia corporation ("Xxxxxxx"), and ,
a corporation ("Client").
W I T N E S S E T H:
WHEREAS, Client has a need for management services; and
WHEREAS, Xxxxxxx is a leading provider of such management services to
businesses in the United States and Canada;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Services Provided. Xxxxxxx will provide to Client the management
services described in the Scope of Work attached hereto as Exhibit A and made a
part hereof (the "Services") as Client shall require, pursuant to the terms and
conditions of this Agreement. Unless specifically authorized in Exhibit A,
Client agrees that Norrell employees will not be placed in any jobs involving
driving Client vehicles; handling cash, credit card information or other
valuables; lifting over forty (40) pounds; cleaning bathrooms, first responder
tasks or any work in any area with possible exposure to bloodborne pathogens;
handling of or exposure to hazardous substances; work requiring exposure to lead
or asbestos; the operation of any production machinery that is not guarded in
accordance with relevant OSHA requirements; use of any power tools; maintenance
or repair of any machinery; operation of forklifts by employees who have not
been trained and certified in accordance with current OSHA standards; welding;
work requiring the use of respirators (including dust masks); work on or around
navigable bodies of water; and any work above floor level, including elevated
platforms, scaffolding, manlifts, ladders, etc.
2. Term. This Agreement shall continue for a term (the "Term") of
three (3) years after the date first entered above and will be automatically
renewed for two additional one-year terms.
3. Rates for Services; Direct Expenses.
(a) For the initial term of this Agreement, the rates and
payment terms for the performance of the Services pursuant to this Agreement
shall be as set forth in Exhibit B attached hereto and made a part hereof.
Thereafter the rates and payment terms shall be as mutually agreed upon by
Client and Xxxxxxx and shall be set forth in a written amendment to Exhibit B
signed by each of the parties hereto.
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(b) Client shall provide all supplies, materials, office space,
utilities, and other operating expense items necessary for the performance of
the Services. Client shall provide, and maintain in good working order, all
equipment deemed necessary by Client and Xxxxxxx to the provision of the
Services by Xxxxxxx.
4. Invoices.
(a) Xxxxxxx shall, on the fifteenth day of each month, submit
to Client a monthly invoice in advance equal to 1/12th of the annual fee for the
Services to be provided, as described in Exhibit B. Invoices submitted hereunder
shall be due and payable by Client thirty (30) days from invoice date.
Adjustments to the monthly invoice for rate or transaction variances (if any)
will be included in the next month's billing.
(b) Client agrees to pay reasonable costs, expenses and fees of
collection, if Client's account is in default and/or placed with a collection
agency or attorney for collection. In the event of termination of this
Agreement, Client agrees to pay Xxxxxxx for all Services performed prior to the
date of termination.
5. Reports. Xxxxxxx shall provide to Client such written reports as
Xxxxxxx and Client shall agree upon from time to time.
6. Termination. This Agreement may not be terminated prior to the end
of the Term except as follows:
(a) Client may terminate this Agreement for Cause (as herein
defined) upon delivery to Xxxxxxx of written notice of its intent to terminate
for Cause. Client shall include in such notice the basis for such termination
and Xxxxxxx shall have ninety (90) days to rectify or modify its performance,
after which 90 - day period Client shall revoke or affirm its termination. As
used herein, "Cause" shall mean a material breach of the terms of this Agreement
by Xxxxxxx.
(b) Client may terminate this Agreement for Client's
convenience upon payment of liquidated damages in an amount equal to twenty-five
percent (25%) of the remaining fees owed by Client to Xxxxxxx for the remaining
Term of this Agreement. In the event that Client's termination of this Agreement
(either in full or in part) would impose notice requirements on Xxxxxxx pursuant
to the federal Worker Adjustment and Retraining Notification Act and/or state or
local laws or regulations pertaining to business or plant closings, or partial
or complete business cessations or business relocations, Client will provide
Xxxxxxx with at least ninety (90) days prior written notice of such termination.
7. Performance Requirements. Xxxxxxx shall meet or exceed written
performance standards to which Client and Xxxxxxx mutually agree after the
Services have been provided by Xxxxxxx for ninety (90) days ("Performance
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Standards"). The Performance Standards shall be attached to this Agreement as
Exhibit C. In the event no written standards are attached as Exhibit C to this
Agreement, Xxxxxxx shall provide the Services in a commercially reasonable
manner.
8. Laws and Regulations. Xxxxxxx agrees that it will comply with all
laws and regulations applicable to Xxxxxxx'x employees, including the Fair Labor
Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination
in Employment Act of 1967, the Rehabilitation Act of 1973, the Immigration
Reform and Control Act of 1986, and the Americans with Disabilities Act of 1990.
9. Independent Contractor. Xxxxxxx shall act at all times as an
independent contractor, and nothing contained herein shall be construed to
create the relationship of principal and agent, or employer and employee,
between Xxxxxxx and Client.
10. Xxxxxxx Employees.
(a) The Norrell employees assigned to perform the Services for
Client are solely the employees of Xxxxxxx. Xxxxxxx shall have sole
responsibility to counsel, discipline, review, evaluate, set the pay rates of,
and terminate its employees who perform the Services. Xxxxxxx will maintain all
necessary payroll and personnel records, and compute wages and withhold
applicable federal, state and local taxes and social security payments for the
Norrell personnel performing the Services.
(b) During the term of this Agreement and for six (6) months
thereafter, Client agrees not to hire, nor to solicit for the purpose of hiring,
any Norrell employee who has provided Services to Client pursuant to this
Agreement without the prior written approval of Xxxxxxx and payment to Xxxxxxx
of liquidated damages in the amount of $3,000.00 for each Norrell employee
hired.
11. Indemnification.
(a) Xxxxxxx and Client, as Indemnitors, shall each indemnify
and hold harmless the other party to this Agreement and such party's agents and
employees, as Indemnitees, from and against any and all claims, losses, actions,
damages, expenses, and all other liabilities, including but not limited to
attorneys' fees (the "Liabilities"), to the extent arising out of or resulting
from the Indemnitor's negligent performance of or failure to perform its
obligations hereunder to the extent any such Liabilities are attributable to
bodily injury to or death of any person or to damage to or destruction of any
property, provided, however, that the Indemnitor shall not indemnify or hold
harmless the Indemnitee to the extent any such Liabilities are caused by the
negligent or unlawful acts or omissions of the Indemnitee, its agents, employees
or third parties. In the event
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that the Liabilities are the result of the joint or concurrent negligence of
Xxxxxxx and Client, the Indemnitor's duty of indemnification shall be in the
same proportion that the negligence of the Indemnitor contributed thereto.
Client acknowledges and agrees that in no event shall Xxxxxxx, any affiliate, or
any of its officers, directors, employees, or representatives be liable to
Client for any special, indirect, incidental or consequential damages in
connection with this Agreement.
(b) Xxxxxxx agrees to require each of its subcontractors to
execute an indemnification agreement which directly indemnifies Client and holds
it harmless under the same terms and conditions as outlined in this Section 11.
12. Confidentiality.
(a) Xxxxxxx and Client each agree that they will not, either
during the term of Xxxxxxx'x provision of the Services to Client or for three
(3) years thereafter, without the prior written consent of the other party
hereto, disclose or make available any Confidential Information (as herein
defined) to any person or entity, nor shall either party make or cause to be
made, or permit or allow, either on its own behalf or on behalf of others, any
use of the other party's Confidential Information. Xxxxxxx and Client agree not
to use, transcribe, copy, duplicate or otherwise reproduce or retain all or any
portion of the Confidential Information in any manner whatsoever and shall cause
all Confidential Information or copies thereof to be returned to the other party
promptly upon termination of the Services. "Confidential Information" shall mean
all personnel records, fees and charges, and all documents evidencing business
plans, proposals, strategies, sales and marketing information, training and
operations material and memoranda, and pricing and financial information, and
all computer software and computer programs identified to the recipient of such
information by the giving party as proprietary, and which are obtained by or
furnished, disclosed or disseminated to the recipient during the course of
Xxxxxxx'x engagement by Client, as well as all other information provided to one
party to this Agreement by the other party orally or in writing which is
identified as confidential prior to disclosure or delivery to the recipient, and
all information and matters which constitute trade secrets of the disclosing
party, all of which are hereby agreed to be the property of and confidential to
the owner and discloser of such Confidential Information. Notwithstanding the
terms of this Agreement, the obligations of each party as set forth in this
Agreement with respect to the Confidential Information of the other party shall
not apply to any Confidential Information which: (i) is at the time of
disclosure, or thereafter becomes, a part of the public domain through no act or
error by either party; (ii) was otherwise in the lawful possession of the other
party prior to disclosure, as shown by competent evidence; or (iii) is hereafter
received by the other party from a third party lawfully in possession thereof
and who has the lawful power to disclose such to the other party.
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(b) In the event of a breach or threatened breach of the
provisions of this paragraph, Xxxxxxx or Client shall be entitled to an
injunction restraining such breach or threatened breach without having to prove
actual damages. Such injunctive relief as Xxxxxxx or Client may obtain shall be
in addition to other rights and remedies available at law and in equity to the
parties. The rights and obligations of this paragraph shall survive the
termination or expiration of this Agreement for such time as the rights and
obligations created by subparagraph 12(a) above shall continue.
(c) At the request of Client, Xxxxxxx shall have each of its
employees assigned to perform the Services execute a non-disclosure agreement in
a form mutually acceptable to Client and Xxxxxxx.
13. Insurance. Xxxxxxx shall maintain at its expense: (a) Workers'
Compensation and Employer's Liability Insurance, (b) Commercial General
Liability Insurance, and (c) a Fidelity Bond. Xxxxxxx shall require each of its
subcontractors to list Client and Xxxxxxx as additional insureds on each such
subcontractor's Commercial General Liability Insurance. If Xxxxxxx'x insurance
policy is to be canceled or changed by insured or insurer so as to affect the
coverage required by this Agreement, at least ten (10) days prior written notice
of such cancellation or change shall be sent to Client at the address to which
invoices are to be sent by Xxxxxxx.
14. Notices. All notices which it may be necessary or proper for
either Client or Xxxxxxx to give or deliver to the other shall be sent, and
shall be deemed given when received by registered or certified mail, postage
prepaid and return receipt requested, and if given by Client to Xxxxxxx shall be
addressed to:
Xxxxxxx Services, Inc.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn:
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with a copy to: Xxxxxxx Corporation
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, General Counsel
and if given by Xxxxxxx to Client, shall be addressed to:
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Attn:
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15. Assignment. The rights and obligations of the parties hereunder
shall not be assigned without the prior written consent of the other party,
except that Xxxxxxx may assign its rights and obligations hereunder to any
affiliate of Xxxxxxx without the prior written consent of Client, provided that
any such assignment shall in no way affect the rights and obligations of Client
hereunder. Otherwise, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their respective successors and assigns.
16. Amendments. This Agreement, and the provisions hereof, may be
altered, amended, modified or superseded only in a writing executed by both of
the parties hereto.
17. Force Majeure. Neither party shall be liable to the other nor be
deemed to be in breach of this Agreement for failure or delay in rendering
performance arising out of causes factually beyond its control and without its
fault or negligence. Such causes may include, but are not limited to: Acts of
God or the public enemy, wars, fires, floods, epidemics, quarantine
restrictions, strikes, unforeseen freight embargoes or unusually severe weather.
Dates or times of performance shall be extended to the extent of delays excused
by this section, provided that the party whose performance is affected notifies
the other party promptly of the existence and nature of such delay.
18. No Waiver. No waiver of or failure to exercise any option, right
or privilege under the terms of this Agreement by either of the parties hereto
on any occasion or occasions shall be construed to be a waiver of the same or of
any other option, right or privilege on any other occasion.
19. Entire Agreement. This Agreement, together with the Exhibits
referenced herein, shall constitute the entire Agreement between the parties
with respect to the subject matter and supersedes all previous agreements
between Client and Xxxxxxx relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
XXXXXXX SERVICES, INC.
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By: By:
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Title: Title:
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EXHIBIT A
Scope of Work
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EXHIBIT B
Fees for Services
I. Fees for Services.
II. Cost of Living Adjustments
The fees for the Services shall be increased effective on each
anniversary date of this Agreement over the fees shown in Part I above by the
percentage increase equal to the percentage increase in the applicable regional
Consumer Price Index for the month which is two months immediately preceding
such anniversary date over the applicable regional Consumer Price Index for the
same month one year prior.
III. Governmentally Mandated Cost Increases
If Xxxxxxx'x compliance with any law or the requirements of any
governmental agency after the date of execution of this Agreement shall result
in an increase in the labor cost to Xxxxxxx of providing the Services (an "Event
of Change"), then Xxxxxxx shall have the right to immediately increase its fees
to compensate for such increased costs and to place Xxxxxxx in the same position
after any Event of Change as Xxxxxxx was in prior to such Event of Change (e.g.
a change to minimum wage rates, state unemployment insurance, workers'
compensation, mandatory benefits requirements).
