Agreement for Services between Greyhound Lines, Inc. and WSS Screening Services
Exhibit
10.7
Agreement
for Services between Greyhound Lines, Inc.
and
WSS Screening Services
This
Agreement for Services ("Agreement") is entered into
as of the 1st day of October 2004 (the "Effective Date") by and between WSS
Screening Services, LLC ('WSS"), a wholly owned
subsidiary of Labwire, Inc. and Greyhound Lines, Inc. (including wholly its
owned subsidiaries that are party to the Agreement) ("Greyhound") and is based
upon that certain Request for Proposal dated April 1, 2004 a copy of which is
attached hereto. This Agreement sets forth the terms and conditions pursuant to
which WSS shall provide and Greyhound shall receive drug and alcohol testing and
related program management services as defined below in Sections 1-3
(collectively the "Services").
1. SERVICES
1.1 At
all times during the Term, WSS shall provide, at minimum, the Services set forth
on Attachment 1 hereto.
2. SERVICE
COMMITMENT
2.1 In
performing the Services WSS will monitor and act in strict compliance with all
laws, rules and regulations (whether federal, state or local) applicable to
Greyhound in connection with the Services and the performance of the Services by
WSS and on behalf of Greyhound ("Laws, Rules and
Regulations"). At no time shall WSS violate any such
Laws, Rules and Regulations.
2.2 Services
will be performed in a timely, professional manner with due skill, competence
and diligence and in accordance with the Service Levels defined in Attachment 1
and as described in this Agreement.
2.3 WSS will
maintain office hours and knowledgeable persons available to respond to
Greyhound under the terms of this Agreement from 8:00 AM to 5:00 PM Central time
each business day. In addition, WSS will provide after-hours and
weekend coverage on an "as needed" basis and a WSS employee will be on-call 24
hours a day 7 days a week to accommodate requests for post-accident
assistance.
2.4 Throughout
the Term, WSS shall properly train and assign personnel sufficient in number to
perform the Services required hereunder. All WSS personnel shall
respond to Greyhound's needs promptly and professionally. It shall be the
responsibility of WSS to understand Greyhound's current and evolving needs as
required by business practices or legal requirements.
2.5 WSS
represents, warrants and covenants that it has read and understands the
Greyhound Company Background information set forth in Sections I and II of the
RFP and that the Services shall meet or exceed the requirements imposed upon
Greyhound by the U.S. Department of Transportation Drug and Alcohol Regulations,
federal, state and local laws, and with the Greyhound Substance Abuse Policy of
each Greyhound company (the foregoing requirements are collectively referred to
as the "Laws, Regulations and
Policies"). WSS acknowledges that it is a vendor of knowledge
and that Greyhound is relying on the expertise of WSS to advise and guide
Greyhound as to requirements of applicable Laws, Rules and Regulations and to
effect the Services in a manner that ensures compliance with all applicable
Laws, Rules and Regulations.
3. COMPENSATION
AND INVOICES
3.1 For
Services rendered hereunder, Greyhound shall pay the fixed fees set forth on
Attachment
2.
3.2 Services
will be monthly invoiced by WSS during the month following the delivery of the
Services and payment will be due from Greyhound within thirty (30) days of date
of receipt of the invoice.
3.3 All
invoices shall include WSS' federal tax identification
number. Each invoice shall contain reasonable and adequate
support documentation providing details for Greyhound to determine the accuracy
and reasonableness of all charges. At a minimum, the invoice will contain the
information and be provided in the current format. Each invoice will be sent to
the designated Greyhound personnel as advised by Greyhound to WSS in writing
from time to time. Invoices will include the test cost, the collection cost, and
any related administrative and storage fees in one price plus any miscellaneous
charges as per the currently agreed upon billing format. There shall not be any
additional fees other than as stated in Attachment 2.
3.4 Out of
pocket expenses are included in the fixed price. Out of pocket
expenses contemplated in connection with on-site training will be reimbursed
provided they have been pre- approved in writing by
Greyhound. All out of pocket expenses must be invoiced in
accordance with the provisions of this Section 3, must be at cost and without
markup, and must be adequately documented.
4. PERSONNEL
4.1 During
the implementation, WSS shall maintain the following
personnel/positions:
4.1.1 A primary
account manager. A primary account manager dedicated solely to the Greyhound
account. The parties acknowledge that WSS has designated Xxxxxxxx Xxxxx to be the
initial account manager for the Greyhound account.
4.1.2 A support
account manager. The support manager may provide support
solely to companies affiliated with Greyhound. The parties
acknowledge that WSS has designated Xxxxxxx Xxxxxx to be the
initial support manager for Xxxxxxxx Xxxxx with respect to the Greyhound
account.
4.1.3 Design
and technical support personnel. This person or
persons shall provide technical, system and architectural support. The parties
acknowledge that WSS has designated Xxxxx Xxxxxxx to be the
initial person to provide technical support.
4.1.4 Expert
personnel with respect to drug testing
issues. The parties acknowledge that WSS has
designated Xxxxxx Xxxxxx
to be the initial person to provide technical support.
4.1.5 Compliance Officer.
The parties acknowledge that WSS has designated Xxx Will to be the initial
Compliance Officer.
4.1.6 WSS
agrees not to reassign the account manager or support manager without the
consent of Greyhound, which consent may be withheld at Greyhound's sole
discretion. The account manager and support manager may be
changed at the request of Greyhound for any reason.
4.2 Each
senior staff member assigned to work on Greyhound Services shall have a minimum
of seven (7) year successful experience in providing client services in the drug
testing industry.
5. TERM
AND TERMINATION
5.1 This
Agreement shall commence as of the Effective Date, and thereafter shall continue
for a period of three (3) years from the Execution Date listed below ("Initial Term"),
unless earlier terminated as provided herein, and shall automatically
renew for up to additional two (2) one (1) year periods (each a "Renewal Term"
and together with the Initial term, collectively referred to herein as
the "Term")
unless either party gives prior written notice to the other party of
intent not to renew thirty (30) days prior to the expiration of the Initial Term
or any Renewal Term.
5.2 Greyhound
may terminate this Agreement without notice upon the occurrence of an event of
default. Each of the following constitutes an event of default
for the purposes of this Agreement:
5.2.1 if WSS
commits any material dishonest or fraudulent act in the performance of any of
its obligations hereunder or any material misrepresentation
hereunder;
5.2.2 if WSS
repeatedly fails to perform the Services in accordance with the service levels
set forth in Attachment 1 more than three (3) times in a consecutive ninety (90)
days period or
5.2.3 if WSS
fails to perform the Services, in accordance with Laws, Rules and
Regulations;
5.2.4 if WSS
otherwise fails to perform or comply with any material term, condition or
covenant of this Agreement and such failure is not corrected within thirty (30)
days after notice of such failure; or
5.2.5 if there
is a change on the scope of Services as to which the parties cannot agree to
pricing within thirty (30) days.
5.3 This
Agreement may be terminated for any reason at any time by mutual agreement of
the parties upon thirty (30) days' written notice of termination.
5.4 Upon the
termination of this Agreement, WSS shall promptly return to Greyhound all
Confidential Information of Greyhound recorded in tangible or electronic form
that is in the possession of WSS shall return the Confidential Information to
Greyhound in an electronic form or database as requested by
Greyhound.
6. INDEMNIFICATION
6.1 WSS
Indemnification. WSS (the "Indemnitor") shall hold
harmless, protect, indemnify and, at Greyhound's option, defend
Greyhound and its subsidiaries, affiliates, and each of their officers and
directors (the "Indemnitees")
from and against any and all claims, demands, proceedings ("Claims") and any losses,
liabilities, damages, costs, payments, fines and expenses, including reasonable
attorneys' fees, costs and expenses, ("Losses") arising out of,
directly or indirectly, any WSS's breach of any provision of this Agreement, or
any errors, omissions, negligence or willful misconduct in connection with
Services rendered or required hereunder, including without limitation, any
independent contractor of WSS, or any employee, agent or permitted subcontractor
thereof, whether prior to, during or after the Term.
6.2 Greyhound
Indemnification. Greyhound (the "Indemnitor") shall hold
harmless, protect, indemnify and, at WSS's option, defend WSS and its
subsidiaries, affiliates, and each of their officers and directors (the "Indemnitees") from and
against any and all claims, demands, proceedings ("Claims") and any losses,
liabilities, damages, costs, payments, fines and expenses, including reasonable
attorneys' fees, costs and expenses, ("Losses") arising out of,
directly or indirectly, any Greyhound's breach of any provision of this
Agreement, or any errors, omissions, negligence or willful misconduct in
connection with information provided or required hereunder, including without
limitation, any independent contractor of Greyhound, or any employee, agent or
permitted subcontractor thereof, whether prior to, during or after the
Term.
7. INSURANCE
GREYHOUND
7.1 For
all matters arising during the Term, WSS shall maintain and cause any
subcontractors to maintain insurance in the amounts, relating to WSS performance
of the Services, as follows:
7.1.1 Workers'
Compensation insurance as prescribed by the law of the state in which services
are performed;
7.1.2 Employer's
liability insurance with limits of at least $500,000 for each
occurrence;
7.1.3 General
Liability insurance, with limits of at least $2,000,000 combined single limit
for bodily injury and property damage for each occurrence;
7.1.4 If the
furnishing to Greyhound involves Services of any medical nature and personnel,
Medical Malpractice insurance including errors and omissions insurance of at
least $1,000,000; and
7.1.5 Umbrella
Liability of at least $10,000,000 (including medical, errors and omissions, as
applicable).
7.2 Where
available, insurance shall designate Greyhound, (including for this purpose the
Greyhound companies and each of their officers, directors and employees as an
additional insured. All such insurance must be primary and required to respond
and pay prior to any other available coverage. Each policy shall provide for
prompt written notice (not to exceed 30 days) from the insurer to the by
registered mail, return receipt requested, in the event of any material
modification or cancellation or termination of the policies referred to in this
Section. WSS, WSS' insurer(s) and anyone claiming by, through, under or in WSS'
behalf shall have no claim, right of action or right of subrogation against
Greyhound based on any loss or liability insured against under the foregoing
insurance. WSS and WSS' subcontractors shall furnish prior to the start of
performance of the Services, certificates or adequate proof of the foregoing
insurance including, if specifically requested by Greyhound, copies of the
endorsements and insurance policies.
WSS'
compliance with this Section 9 shall in no
way affect WSS' indemnity obligations, except to the extent that WSS' insurance
company actual pays Greyhound amounts that WSS otherwise would be obligated to
pay to Greyhound.
8. CONFIDENTIALITY
AND HIPAA
8.1 WSS
agrees to treat any information that it receives from Greyhound or develops in
connection with the performance of this Agreement as the Confidential
Information of Greyhound ^'Confidential
Information"}. Confidential Information shall include the
terms and conditions of this Agreement. WSS shall limit the disclosure of
Confidential Information to those having a need to know in connection with the
performance of the Services and who have agreed to maintain such information as
confidential, shall not use or disclose Confidential Information to any other
third party, and shall take reasonable protective measures to insure the
foregoing. Confidential Information does not include information
that: (a) was in the public domain at the time of disclosure to WSS; (b) was
published or otherwise became a part of the public domain, after disclosure to
WSS, through no fault of WSS; (c) was in the possession of WSS at the time of
disclosure to it by a third party who had a lawful right to such information and
disclosed such information to it, without a breach of duty owed to Greyhound; or
(d) was independently developed by WSS without
reference to the Confidential Information. Further, WSS
may disclose Confidential Information to the extent required by law or order of
a court or governmental agency, provided that timely notice of such disclosure
and an opportunity to object to such disclosure is provided to
Greyhound.
8.2 WSS
acknowledges that by reason of its relationship with Greyhound hereunder,
Confidential Information in the form of personal health information obtained in
connection with the performance of the Services hereunder is subject to
HIPAA. WSS agrees to abide by all the provisions of the
Business Associate Agreement attached hereto as Attachment
4.
8.3 WSS
acknowledges that all data and information received from Greyhound or developed
by WSS in connection with the performance under this Agreement is the property
of Greyhound and Greyhound retains all ownership
rights. Greyhound hereby grants permission for WSS to use any
Greyhound data as required to perform their obligations under this Agreement and
for their internal business purposes subject to the confidentiality and privacy
provisions contained in this Agreement and any applicable Laws, Rules and
Regulations.
9. IMPLEMENTATION
AND CHANGE ORDERS
9.1 Implementation
shall be conducted in accordance with the Implementation Schedule and Milestones
set forth in Attachment
3.
9.2 In the
event of any change in the Laws, Rules or Regulations applicable to the
provision of the Services by WSS hereunder or applicable to the receipt of such
Services by Greyhound hereunder, WSS shall perform this Agreement in a manner
that gives effect to such Laws, Rules and Regulations. If such
a change results in a requirement for additional or other Services hereunder,
WSS promptly shall so advise Greyhound in writing, including the nature of the
Services and the proposed additional or reduced pricing resulting there from
and, thereafter, the parties agree that they will negotiate in good faith an
adjustment to the pricing hereunder to reflect the addition or deletion of
Services. If the parties cannot reach such agreement, Greyhound
may terminate this Agreement without penalty upon payment of amounts then
currently due.
9.3 Prior to
the removal of any collection site from the list of Greyhound collection sites,
WSS shall provide Greyhound with notice of its intent to remove such collection
site and all information with respect to the grounds for its determination to
remove such collection site. Greyhound shall have the right and reasonable
opportunity to approve or deny the removal of such collection site prior to WSS'
taking any action with respect thereto. All additions or
removal requests shall include detailed information as to service and
performance qualifications of the site in question.
10. GENERAL
TERMS
10.1 Binding Nature and
Assignment. Neither this Agreement nor any rights or
obligations hereunder shall be assignable by either party without the prior
written consent of the other party. Subject thereto, this Agreement shall endure
to the benefit of and be binding upon the parties and their respective heirs,
executors, administrators, successors and permitted assigns. Notwithstanding the
foregoing, the parties expressly agree and understand that (1) Greyhound may
assign this Agreement to any affiliated entity of Greyhound or in connection
with the sale of all or substantially all of the stock or assets of Greyhound,
and (2) any other request for the assignment of this Agreement in whole shall
not be unreasonably withheld or delayed.
10.2 Time is of the
Essence. WSS agrees that time is of the essence in the
performance of this Agreement.
10.3 Independent
Contractors. It is understood and agreed that this is an
agreement for the performance of Services and any employee or agent of the
consultant performing the Services hereunder shall not be or be deemed to be an
employee of Greyhound for any purpose and that the relationship of the parties
to each other is that of independent contractors. Neither party hereto shall
make any representations or warranties or incur any liability on behalf of the
other.
10.4 Compliance with Greyhound
Security Policies. When present at any Greyhound
location, WSS shall comply with all applicable security and safety precautions
of Greyhound, including without limitation the display of identification and
restrictions on entry to certain areas.
10.5 No Third Party
Beneficiaries. The obligations of each party to this Agreement shall
inure solely to the benefit of the other party and not third party shall be
deemed a beneficiary of this Agreement.
10.6 Severability. If
any provision of this Agreement is invalid or unenforceable, such invalidity
shall not invalidate or render unenforceable any other part of this Agreement,
but it shall be construed as not containing the particular provision or
provisions held to be invalid or unenforceable.
10.7 Waiver. No delay or
omission by either party hereto to exercise any right occurring upon any
noncompliance or default by the other party with respect to any of the terms of
this Agreement shall impair any such right or power or be construed to be a
waiver thereof. A waiver by either of the parties hereto of any of the
covenants, conditions or agreements to be performed by the other shall not be
construed to be a waiver of any succeeding breach thereof or of any covenant,
condition or agreement herein contained.
10.8 Governing Law, Exclusive
Jurisdiction. This Agreement, and any attachments
hereto, and all the rights and duties of the parties arising from or relating in
any way to the subject matter of this Agreement or the transaction(s)
contemplated by it, shall be governed by, construed, and enforced in accordance
with the laws of the State of Illinois (excluding Illinois conflict of laws
provisions). Any suit or proceeding relating to this Agreement
shall be brought only in Xxxx County. Each of the parties consents to the
exclusive personal jurisdiction and venue of the courts, state and federal,
located in Xxxx County, Illinois.
10.9 No Oral
Modifications. Neither of the parties shall be bound by
any conditions, definitions, understandings or representations with respect to
the subject matter of this Agreement other than as expressly provided herein, or
as duly set forth on or subsequent to the Effective Date hereof in writing and
signed by a proper and duly authorized representative of the party to be bound
thereby.
10.10 Notices. Wherever
under this Agreement one party is required to give notice to the other, such
notice shall be deemed effective: (a) four (4) calendar days after deposit in
the United States Mail, postage prepaid, certified or registered mail, return
receipt requested; (b) one (1) business day after deposit with a national
overnight courier for next day delivery; (c) if given by telex, telegraph,
facsimile or email, one (1) day after transmission, provided confirmation of
such notice is also sent by national overnight courier for next day delivery; or
(d) upon delivery if delivered in person or by messenger, in each case,
addressed to the following addresses (or such other address as either party may
be notified of as described above):
|
To
Greyhound:
|
Greyhound
Lines, Inc.
Attn:
Legal Department
00000
X. Xxxxxx Xxxxxxx Xxxxxx, XX 00000
Facsimile: 972/789
-7430
|
|
With
a copy to:
|
Greyhound
Lines, Inc.
P.O.
Box 660362-0362
000
X. Xx. Xxxx
Xxxxxx,
XX 00000
Attention:
Sr. Director, Safety & Security Department
|
|
To
WSS:
|
WSS
Screening Services, LLC
00000
Xxxxxxxx Xxxxx, Xxxxx 0 Xxxxxxx, XX 00000
Facsimile: 281/597-1261
Attention: Xxxxxxx
Xxxxxx
|
10.11 Captions and
Headings. The division of this Agreement into Sections and the
insertion of captions and headings are for convenience of reference only and
shall not affect the construction or interpretation of this
Agreement.
10.12 Entire
Agreement. The attachments and/or schedules affixed hereto are
incorporated herein by this reference and are an integral part of the Agreement
and shall be read and interpreted together with the Agreement as a single
document. This Agreement sets forth the entire, final and exclusive
agreement between the parties as to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, between the parties. The parties expressly
disclaim the right to claim the enforceability or effectiveness of any oral
modifications to this Agreement or any amendments based on course of dealing,
waiver, reliance, estoppels or other similar legal theory.
IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed as of August 1, 2005 (the "Execution
Date") and each hereby warrants and represents that their respective signatory
(whose signature appears below) is duly authorized to execute this
Agreement.
Greyhound
Lines, Inc.
Name:
Title:
WSS
Screening Services LLC
Name:
//s//
Xxxxxx
Xxxxxx
Title:
CEO
