EXHIBIT 10.9
Administaff.
CLIENT SERVICE AGREEMENT
THIS CLIENT SERVICE AGREEMENT ("the Agreement"), is made by and between
Administaff Companies. Inc ("Administaff"'), a Delaware corporation, with its
principal place of business at 00000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx. Xxxxx
00000-0000, and GARDEN ESCAPE, INC. ("Client").
I. PERSONNEL
1.1 Subject to the terms of this Agreement Administaff agrees to furnish Client
and Client agrees to engage from Administaff, employees (hereinafter sometimes
referred to as "Assigned Employees") for the job functions listed in Exhibit A
("Confidential Census"). Client warrants that information supplied to
Administaff concerning the employee functions is accurate.
1.2 Administaff and Client certify that a shared employment relationship (as
that term is defined in (S)3.364 Staff Leasing Services, Texas Administrative
Code, i.e. that an employment relationship among an assigned employee, client
company, and staff leasing company in which by written contract and in fact the
staff leasing company and client company share employment responsibilities)
exists by virtue of this Agreement between Client and Administaff as to the
Assigned Employees, that this Agreement meets the requirements and conditions
set out in (S)3.364 and that each party will retain a copy of this Agreement in
its files.
1.3 Administaff certifies that none of the Assigned Employees furnished under
this Agreement were employed previously by Administaff other than through a
shared employment relationship.
1.4 in the event that Client has been in existence for more than one year
(including changes in legal entity, merger or corporate reorganization) Client
certifies as follows:
a. that Client has been in existence for at least one year prior to the
effective date of this Agreement (including changes in legal entity,
merger, and corporate reorganization):
b. that at least 75% of the Assigned Employees providing services under
this Agreement were previously employees of Client for a period of
three (3) months prior to commencement of this Agreement; and
c. that none of the Assigned Employees were employed previously by an
entity that previously provided or currently provides taxable services
to the Client.
1.5 In the event that Client has been in existence for less than one year
(excluding changes in legal entity, merger or corporate reorganization) Client
certifies as follows:
a. that Client has been in existence for less than one year (excluding
changes in legal entity, merger, or corporate reorganization); and
b. that none of the Assigned Employees were employed previously by an
entity that previously provided or currently provides taxable services
to the Client.
II. TERM OF AGREEMENT
This Agreement shall commence on the date this Agreement is executed and remain
in force and effect for a term of one (1) year ("Initial Term"). Following the
Initial Term, this Agreement shall remain in full force and effect for
successive monthly terms (the "Extended Terms") until either (1) the Agreement
is renewed; or, (ii) the Agreement is terminated. During the Initial Term and
any Extended Term of this Agreement, either Administaff or Client may terminate
this Agreement by giving thirty (30) days prior written notice.
III. ADMINISTRATION
3.1 There are a number of federal and state statutory, common law and
regulatory provisions which define the employer-employee relationship.
"Employer" status is based upon the function for which the employer-employee
relationship is being considered.
3.2 Administaff is the employer of those persons furnished to Client and listed
on Exhibit A and is liable as such for the following purposes:
a. compliance with rules and regulations governing the reporting and
payment of all federal and state taxes on payroll wages paid under
this Agreement including, but not limited to: (i) federal income tax
withholding provisions of the Internal Revenue Code; (ii) state and/or
local income tax withholding provisions, if applicable; (iii) Federal
Insurance Contributions Act (FICA); (iv) Federal Unemployment Tax Act
(FUTA); and (v) applicable state unemployment provisions;
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b. except as provided in Paragraph 3.4g below, compliance with applicable
workers' compensation laws including, but not limited to: (i)
procuring workers' compensation insurance; (ii) completing and filing
all required reports; and (iii) managing claims;
c. compliance with the Consolidated Omnibus Reconciliation Act (COBRA);
d. compliance with the Immigration Reform and Control Act (IRCA);
e. compliance with the Consumer Credit Protection Act, Title III;
f procuring and providing employee benefits;
g. monitoring and transmitting to Client changes in governmental
regulations relating to policies and practices governing the employer-
employee relationship including, but not limited to, issues such as
recruiting, interviewing, testing, selecting, orientation of,
training, evaluating, replacing, supervision, disciplining and
terminating employees.
3.3 Client is the employer of those persons furnished by Administaff and listed
on Exhibit A and is liable as such for the following purposes:
a. compliance with Occupational Safety and Health Administration (OSHA)
regulations;
b. compliance with Environmental Protection Agency (EPA) regulations and
any state and/or local equivalent;
c. compliance with government contracting provisions including, but not
limited to: (i) Executive Order 11246; (ii) Vocational Rehabilitation
Act of 1973; (iii) Vietnam Era Veteran's Readjustment Assistance Act
of 1974; (iv) Xxxxx-Xxxxxx Public Contracts Art; (v) Xxxxx-Xxxxx Act;
and (vi) Service Contract Act of 1965;
d. compliance with the Fair Labor Standards Act (FLSA);
e. compliance with the Worker Adjustment and Retraining Notification Act
(WARN);
f compliance with any professional licensing requirements;
g. compliance with any fidelity bonding requirements;
h. professional liability, including but not limited to malpractice or
errors and omissions coverage and compliance with any regulation
mandating such coverage;
i. Section 414(o) of the Internal Revenue Code (avoidance of certain
pension and non-pension employee benefits requirements) (except as
provided in paragraph 3.4c below);
j. assignment to, and ownership of, all intellectual property rights
including, but not limited to, inventions, whether patentable or not,
and patents resulting therefrom, copyrights and trade secrets and all
confidentiality agreements regarding proprietary information.
3.4 Administaff and Client will be considered co-employers ("dual or joint
employers") of those persons furnished to Client by Administaff and listed on
Exhibit A for the following purposes:
a. compliance with Title VII of the 1964 Civil Rights Act;
b. compliance with the Age Discrimination in Employment Act (ADEA).
c. compliance with the Employee Retirement Income Security Act (ERISA)
(except as provided by paragraph 33i above);
d. compliance with the Polygraph Protection Act;
e. compliance with the Federal Drug Free Workplace Act and any state
and/or local equivalent;
f compliance with state employment discrimination laws including, but
not limited to, Article 5221k, Texas Revised Civil Statutes;
g. employer liability under workers' compensation laws;
h. implementation of policies and practices relating to the employer-
employee relationship such as recruiting, interviewing, testing,
selecting, orientation of, training, evaluating, replacing,
supervision, disciplining and terminating employees; and
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i. selection of fringe benefits including, but not limited to, holidays,
vacation, sick leave, parental leave, military leave, and leave of
absence.
3.5 Nothing in paragraphs 3.2, 3.3 or 3.4 above shall be construed to require
either Administaff or Client to provide any of the matters referred to therein
except as provided by law or as otherwise specifically provided by this contract
3.6 For the purposes of this Agreement, determination of employer status for
situations not sot forth and not contemplated herein shall be made by mutual
agreement of Administaff and Client.
IV. SUPERVISION
Administaff shall designate one or more on-site supervisors from among its
employees furnished to Client and listed on Exhibit A. On-site supervisors shall
direct operational and administrative matters relating to services provided by
Administaff's employees and shall carry out Administaff's policies and
procedures formulated in accordance with Paragraph 3.4h above.
V. ENROLLMENT FEE
Client agrees to pay Administaff a non-refundable enrollment fee in the sum
specified in Exhibit B (Client Service Application). This enrollment fee is due
and payable at the time that this Agreement is signed by Client.
VI. SERVICE FEE
In exchange for the personnel services provided by Administaff hereunder,
Administaff and Client agree as follows:
6.1 The Administaff fee rate percentage is set forth in Exhibit B (Client
Service Application) and is calculated utilizing the data submitted by Client in
Exhibit A. If such information is inaccurate, Client shall immediately agree to
amend Exhibit A to reflect the current information and shall pay, within ten
(10) days notice from Administaff of the error, any additional costs incurred by
Administaff as a result of the inaccuracy.
6.2 Each pay period, Client shall pay Administaff its fee comprised of (i) the
gross payroll of Administaff employees leased to Client during such pay period;
and, (ii) a service fee equal to the fee rate percentage specified in Exhibit B
multiplied by the actual gross payroll of Administaff employees furnished to
Client during such pay period.
6.3 Administaff shall not adjust the fee rate percentage for Client during any
term of this Agreement except for adjustments made necessary by:
(i) statutory and regulatory changes, including, but not limited to,
adjustments to FICA, federal and/or state unemployment taxes and
workers, compensation; and/or
(ii) changes in the information supplied on Exhibit A (Confidential Census)
initiated by Client to the extent that such change, when applied to
the recalculation of the fee rate percentage, causes an increase or
decrease of at least one fee rate percentage point.
6.4 In addition to the foregoing, during any Extended Term, Administaff may
adjust the fee rate percentage upon thirty (30) days written notice to Client.
6.5 Any increases in the fee rate percentages for statutory or regulatory
changes in employment taxes, insurance costs or job functions shall be effective
on the date of such statutory or regulatory increase or change.
6.6 Any increase in the fee will be billed with the next effective payroll and
be kept current at all times except for retroactive changes or statutory and/or
regulatory changes unknown at the time the payroll is billed.
6.7 Any change in the fee rate percentage shall be reflected in a revised
Exhibit B which shall then be made apart of this Agreement.
6.8 The fee provided for by this Agreement shall be due and payable at least
one (1) working day prior to the date of payroll delivery.
6.9 Client shall use a method of payment approved in advance by Administaff.
6.10 Client or on-site supervisor shall report to Administaff all time worked by
all Administaff employees furnished to Client each pay period and shall provide
Administaff with written verification of same.
6.11 Client shall notify Administaff within two (2) working days of any error in
billing.
6.12 Client shall reimburse Administaff for services not contemplated by this
Agreement which may be required by Client.
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VII. INSURANCE
7.1 Administaff shall furnish, and keep in full force and effect at all times
during the term of this Agreement, worker's compensation insurance covering all
Administaff employees furnished to Client pursuant to the terms of this
Agreement. Upon written request by Client, Administaff shall furnish a
certificate of insurance verifying such coverage.
7.2 Client shall furnish, and keep in force and effect at all times during the
term of this Agreement, comprehensive general liability insurance including
products/completed operations coverage with minimum limits of $1,000,000 per
occurrence and $2,000,000 aggregate. Client shall cause its insurance carrier to
issue a certificate of insurance to Administaff, Inc. confirming this coverage
and to give not less than thirty (30) days advance notice of cancellation or
material change.
7.3 Client shall furnish, and keep in force and effect at all times during the
term of this Agreement, comprehensive automobile liability insurance covering
all owned. hired and non-owned automobiles with a minimum limit of $1,000,000
per occurrence combined single limit bodily injury and property damage
liability. The policy shall also provide uninsured motorists insurance with a
minimum combined single limit of Sixty Thousand Dollars ($60,000.00). In states
where "no fault" laws apply, Personal Injury Protection (P.I.P.) or equivalent
coverage shall be required to meet the requirements of the state. The client
shall cause its insurance carrier to issue a certificate of insurance to
Administaff, Inc. confirming this coverage and to give not less than thirty (30)
days advance notice of cancellation or material change.
7.4 Client shall deliver copies of all insurance certificates required
pursuant to this Article signed by authorized representatives of the insurance
companies to Administaff within fifteen (15) days of the commencement date of
this Agreement.
VII. EMPLOYMENT AGREEMENT
Each employee furnished by Administaff to Client and listed on Exhibit A shall
be required to execute an Employment Agreement as set forth in Exhibit C
(Employment Agreement Form) before such employee shall commence the term of
assignment with Client.
IX. DEFAULT
9.1 Acts of default by Client shall include, but are not limited to:
a. failure of Client to pay a fee when due;
b. failure of Client to comply within thirty (30) days of any directive
of Administaff, when such directive is promulgated or made necessary
by; (i) a federal. state or local governmental body, department or
agency; or (ii) an insurance carrier providing coverage to Administaff
and/or its employees;
c. direct payment of taxable wages by Client to Administaff employees for
services contemplated by this Agreement;
d. commission or omission of any act that usurps any right or obligation
of Administaff as an employer of the employees covered by this
Agreement; and/or,
e. violation by Client of any provision of this Agreement.
9.2 In the event Administaff incurs any expenses, fines and/or liabilities as
a result of an act of default by Client as set forth above, Client shall
reimburse Administaff for all actual expenses, fines and/or liabilities,
including, but not limited to. reasonable attorneys' fees, court costs and any
related expenses.
9.3 In the event that this Agreement is terminated due to a default by Client,
Client shall pay Administaff a sum equal to the fee rate percentage multiplied
by the estimated gross payroll for the remaining contract period as liquidated
damages, but such payment does not release Client from its obligations under
this Agreement, or from liability for future breach of such obligations.
9.4 Upon an act of default by Client other than under Paragraph 9.1c above,
Administaff shall have the option, in its sole and absolute discretion, of
terminating this Agreement, and in the event Administaff exercises such option,
this Agreement shall, terminate on the date written notice of same is delivered
to Client. In the event, however, of an act of default by Client under Paragraph
9.1c. above, Administaff shall have the option in its sole and absolute
discretion of terminating this Agreement effective on the date of such act.
X. INDEMNITY
10.1 Client hereby agrees to indemnify, defend and hold Administaff harmless
from and against any and all liability, expense (including court costs and
attorneys' fees) and claims for damage of any nature whatsoever, whether known
or unknown and whether direct or indirect, as though expressly set forth and
described herein, which Administaff may incur, suffer, become liable for or
which may be asserted or claimed against Administaff as a result of the acts,
errors or omissions, including negligent acts and statutory violations, of
Client.
10.2 Administaff hereby agrees to indemnify, defend and hold Client harmless
from and against any and all liability, expense (including court costs and
attorneys' fees) and claims for damage of any nature whatsoever, whether known
or unknown and whether direct or indirect, as though
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expressly set forth and described herein, which Client may incur, suffer, become
liable for or which may be asserted or claimed against Client as a result of the
acts, errors or omissions. including negligent acts and statutory violations, of
Administaff.
10.3 Client and Administaff expressly agree that the indemnification provisions
of this Agreement shall not be limited to claims, expenses, or liabilities for
which one of them is solely liable, but shall also apply to claims, expenses and
liabilities for which client and Administaff are jointly and concurrently
liable. In such event, if either of them advances funds in connection with a
claim, expense or liability which is subject to this Article X in excess of its
pro rata share, said party shall be indemnified by the other party hereto for
such excess amounts.
XI. MISCELLANEOUS
11.1 This Agreement may be amended from time to time as agreed by the parties
in writing. Such amendment shall become effective on the date so designated when
signed by both Administaff and Client.
11.2 Client and Administaff warrant and represent to each other that, prior to
the commencement of this Agreement no separate agreements or arrangements exist
that would obligate Client or Administaff except as set forth herein.
11.3 Client and Administaff agree to immediately report to each other all
accidents and injuries involving Administaff employees assigned to Client.
11.4 Client agrees to comply, at its sole cost and expense, with any applicable
specific directives promulgated by: (i) a federal, state or local governmental
body, department or agency, (ii) an insurance carrier providing coverage to
Administaff and/or its employees affecting this Agreement and/or (iii)
Administaff as made necessary by circumstances which currently or specifically
affect Administaff, Client or Administaff's employees.
11.5 This Agreement is between Administaff and Client and creates no individual
rights of Administaff employee as against Client.
11.6 Administaff and Administaff's workers' compensation insurance carrier
shall have the right to inspect Client's premises, including any job site to
which Client assigns Administaff's employees. To the extent possible, such
inspection shall be scheduled at a mutually convenient time.
XII. ARBITRATION
12.1 Administaff and Client agree and stipulate that all claims, disputes and
other matters in question between Administaff and Client arising out of, or
relating to this Agreement or the breach thereof will be decided by arbitration
in accordance with the Federal Arbitration Act (9 U.S.C. (S)(S) 10 and 11) and
the Commercial Arbitration Rules of the American Arbitration Association then
obtaining subject to the limitations of this Article XII. This agreement to so
arbitrate and any other agreement or consent to arbitrate entered into in
accordance herewith as provided in this Article XII will be specifically
enforceable under the prevailing law of any court having jurisdiction.
12.2 Notice of the demand for arbitration will be filed in writing with the
other party to the Agreement and with the American Arbitration Association. The
demand for arbitration shall be made within a reasonable time after the claim,
dispute or other matter in question has arisen, and in no event shall any such
demand be made after the date when institution of legal or equitable proceedings
based on such claim, dispute or other matter in question would be barred by the
applicable statute of limitations.
12.3 No arbitration arising out of or relating to, this Agreement shall include
by consolidation, joinder or in any other manner any other person or entity who
is not a party to this contract unless:
a. the inclusion of such other person or entity is necessary if complete
relief is to be afforded among those who are already parties to the
arbitration, and/or such other person or entity is substantially
involved in a question of law or fact which is common to those who are
already parties to the arbitration and which will wise in such
proceedings, and,
b. the written consent of the other person or entity sought to be
included and Administaff and Client has been obtained for such
inclusion, which consent shag make specific reference to this
paragraph; but no such consent shall constitute consent to arbitration
of any dispute not specifically described in such consent or to
arbitration with any party not specifically identified in such
consent.
12.4 The award rendered by the arbitrators will be final, judgment may be
entered upon it in any court having jurisdiction thereof and will not be subject
to modification or appeal except to the extent permitted by Sections 10 and 11
of the Federal Arbitration Act (9 U.S.C. (S)(S) 10 and II).
XIII. ASSIGNMENT
Neither party shall assign this Agreement or its rights and duties hereunder, or
any interest heroin, without the prior written consent of the other party.
XIV. ATTORNEYS' FEES
The prevailing party in any enforcement action arising in respect to this
Agreement shall be entitled to recover from the other party all costs of such
enforcement action including, without limitation, reasonable attorneys' fees,
court costs and related expenses.
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XV. GOVERNING LAW
EXCEPT FOR ARTICLE XII OF THIS AGREEMENT, WHICH SHALL BE GOVERNED BY THE FEDERAL
ARBITRATION ACT (9 US.C. (S)(S) 10 AND 11), THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF TEXAS.
XVI. ENTIRE AGREEMENT
This instrument, including the Exhibits attached hereto, contains the entire
Agreement of the parties and supersedes all prior and contemporaneous agreements
or understandings, whether written or oral, with respect to the subject matter
hereof. No amendment or modification hereto shall be valid unless in writing and
signed by both parties hereto.
XVII. SEVERABILITY
If any provision of this Agreement, or any amendment thereof, should be invalid,
the remaining provision shall remain in effect and be so construed as to
effectuate the intent and purposes of this Agreement and any amendments thereto.
XVIII. NOTICES
All notices, requests and communications provided hereunder shall be in writing,
and hand delivered or mailed by United States registered, certified, or express
mail, return receipt requested, and addressed to the party's principal place of
business as set forth in this Agreement adjacent the signature of each party (of
to such other address provided in writing by such party).
XIX. WAIVER
The waiver by either party hereto of a breach of any term or provision of this
Agreement shall not operate or be construed as a waiver of a subsequent breach
of the same provision by any party or of a breach of any other term or provision
of this Agreement.
XX. EXHIBITS
The following exhibits are attached to this Agreement and incorporated herein by
reference for all purposes:
A. Exhibit A ("Confidential Census");
B. Exhibit B ("Client Service Application"); and,
C. Exhibit C ("Employment Agreement Form").
THIS AGREEMENT is duly executed this 1st day of July, 1997.
FOR CLIENT: GARDEN ESCAPE, INC. ADMINISTAFF COMPANIES, INC.
----------------------------
00000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000-0000
(000)000-0000
By: /S/ Xxxxx X. X'Xxxxx By: /S/ Xxx X. Xxxxxx
---------------------------- ---------------------------
(Signature) Vice President Vice President
Xxxxx X. X'Xxxxx
----------------------------
(Name-Typed or Printed)
Address: ______________________
_____________________
_____________________
_____________________
Tel. No: _____________________
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ADDENDUM
This Addendum is attached to and made a part of that certain Client Service
Agreement (the Agreement) of even date, between Administaff Companies, Inc.
(Administaff), and Garden Escape, Inc., (Client). In the event of a conflict
between this Addendum and the Agreement, this Addendum shall control.
ARTICLE II. TERM OF AGREEMENT
Article II, Term of Agreement, shall be amended to read as follows:
"This Agreement shall commence on the 7/1/97 and
-------------------------------
shall remain in force and effect until terminated as provided herein.
Either Administaff or Client may terminate this Agreement by giving thirty
(30) days prior written notice."
ARTICLE III. ADMINISTRATION
Article III, Administration, Paragraph 3.2. preamble, shall be amended to
read as follows:
"3.2 Administaff is the employer of those persons furnished to Client and
listed on Exhibit "A" (the "Employees") and is liable as such for the
following purposes."
Article III, Administration, Paragraph 3.2 a., shall be amended to read as
follows:
"a. compliance with rules and regulations governing the reporting and
payment of all federal and state taxes on payroll wages paid under
this Agreement and the co-employment relationships existing between
Client and the Employees (provided that, and only to the extent that,
such relationships have first been fully disclosed to Administaff's
Account Executive so as to permit such compliance) including, but not
limited to: (i) federal income tax withholding provisions of the
Internal Revenue Code; (ii) state and/or local income tax withholding
provisions, if applicable; (iii) Federal Insurance Contributions Act
(FICA); (iv) Federal Unemployment Tax Act (FUTA); and (v) applicable
state unemployment provisions;
Article III, Administration, Paragraph 3.2 f., shall be amended to read as
follows:
"f. procuring and providing employee benefits and compliance with ERISA
with respect to the benefits procured or provided;"
Article III, Administration, Paragraph 3.2 j., shall be amended to read as
follows:
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"j. assignment to, and ownership of all intellectual property rights
including, but not limited to, inventions, whether patentable or not,
and patents resulting therefrom, copyrights, trademarks, and trade
secrets and all confidentiality agreements regarding proprietary
information;"
Article III, Administration, Paragraph 3.3, shall be amended to add
subparagraph K. as follows:
"k. administration and management (including, but not by way of
limitation, ERISA compliance, tax reporting, and fiduciary
requirements) of any Client sponsored stock option, equity based,
deferred or other incentive compensation plan provided by Client."
Article III, Administration, Paragraph 3.4.c., shall be amended to read as
follows:
"c. compliance with the Employee Retirement Income Security Act (ERISA)
(except as provided by 3.2 f., 3.3 i., and 3.3 k above);"
ARTICLE IV. SUPERVISION
Article IV., Supervision, shall be amended to read as follows:
"Administaff shall designate one or more on-site supervisors from among its
employees furnished to Client and listed on Exhibit A as supervisory
employees. On-site supervisors shall direct operational and administrative
matters relating to services provided by Administaff's employees and shall
carry out Administaff's policies and procedures formulated in accordance
with Paragraph 3.4 h., above."
ARTICLE VI. SERVICE FEE
Article VI., Service Fee, Paragraph 6.3 preamble shall be amended to read
as follows:
"6.3 ADMINISTAFF shall not adjust the fee rate percentage for CLIENT more
often than once annually during the term of this Agreement except for
adjustments made necessary by:"
Article VI., Service Fee, Paragraph 6.5 shall be amended to read as
follows:
"6.5 Any increases in the fee rate percentages for statutory or regulatory
changes in employment taxes, insurance costs or job functions shall be
effective on the date of such statutory or regulatory increase or change
provided that Administaff has given Client reasonably timely notice of such
change (except, however, that job function changes made by Client shall
require no such notice)."
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Article VI., Service Fee, Paragraph 6.11 shall be amended to read as
follows:
"6.11 Client shall use its best efforts to notify Administaff within two
(2) days of any error in billing."
Article VI., Service Fee, shall be amended to add Paragraph 6.13 as
follows:
"6.13 Bonuses are compensation paid to leased employees in excess of the
wages that are contemplated as part of the employee's regular pay under
this Client Service Agreement (as set forth in Schedule A). Client and
Administaff agree that a bonus may be paid to each leased employee no more
frequently than twice per employee per calendar quarter. Any compensation
in excess of the compensation that is contemplated as part of the leased
employees regular pay which is paid more frequently than twice per calendar
quarter shall be deemed to be a commission and shall be subject to
application of the fee rate percentage described in paragraph 6.1 and on
Schedule B for the calculation of the service fee due Administaff in
accordance with paragraph 6.2 of this Agreement. When bonuses are paid in
accordance with this paragraph, Administaff's service fees shall be
calculated by adding the direct payroll expenses associated with the
employee's bonus pay, including applicable FICA, federal and state
unemployment taxes and insurance, workers' compensation, and a check
writing fee of fifteen dollars per bonus check.
When a bonus is reported to the Account Executive from the Client, the
Account Executive will verify that wages contemplated by the Client Service
Agreement as set forth in Schedules A and B have, in fact, been paid, and
all service fees have been collected. Once this verification has been made,
the terms of this paragraph shall apply."
ARTICLE IX. DEFAULT
Article IX., Default, Paragraph 9.1 b., shall be amended to read as
follows:
"b. failure of Client to comply within forty-five (45) days of any
directive of Administaff, when such directive is promulgated or
made necessary by: (i) a federal, state or local government body,
department or agency; or (ii) an insurance carrier providing
coverage to Administaff and/or its employees;"
Article IX., Default, Paragraph 9.1 d., shall be amended to read as
follows:
"d. commission or omission of any act that usurps any right or
obligation, as stated in Paragraphs 3.2 and 3.4 above, of
Administaff as an employer of the employees covered by this
Agreement; and/or"
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Article IX., Default, Paragraph 9.1 e., shall be amended to read as
follows:
"a. a material violation by Client of any provision of this
Agreement,"
Article IX, Default, Paragraph 9.3, shall be deleted in its entirety:
Article IX, Default, Paragraph 9.4, shall be amended to read as follows:
"9.4 Upon an act of default by Client other than under Paragraph 9.1 a., or
9.1 c., Administaff shall give Client thirty (30) calendar days notice and
opportunity to cure prior to terminating this Agreement. If Client fails to
cure such default within thirty (30) days following delivery of notice of
the default to the Client's principal place of business as provided in
Article XVIII of this Agreement, Administaff shall have the option, in its
sole and absolute discretion, of terminating this Agreement and in the
event Administaff exercises such option, this Agreement shall terminate on
the date written notice of same is delivered to Client. In the event,
however, or an act of default by Client under Paragraph 9.1 a or 9.1 c
above, Administaff shall have the option in its sole and absolute
discretion of terminating this Agreement effective on the date of such
act."
ARTICLE X. INDEMNITY
Article X., Indemnity, Paragraph 10.3, shall be amended to read as follows:
"10.3 Client and Administaff expressly agree that the indemnification
provisions of the Agreement shall not be limited to claims, expenses, or
liabilities for which one of them is solely liable, but shall also apply to
claims, expenses and liabilities for which Client and Administaff are
jointly or concurrently liable. In such event, if either of them advances
funds in connection with a claim, expense or liability which is subject to
this Article X in excess of its pro rata share, said, party shall be
indemnified by the other party hereto for such excess amounts, provided,
however, that in no event shall a party be liable to the other party for
losses caused by the party seeking indemnification."
ARTICLE XI. MISCELLANEOUS
Article XI., Miscellaneous, Paragraph 11.4 shall be amended to read as
follows:
"11.4 Client agrees to comply, at its sole cost and expense, with any
applicable specific directives promulgated by: (i) federal, state, or local
government body, department, or agency, (ii) an insurance carrier providing
coverage to Administaff and the Employees affected by this Agreement and/or
(iii) Administaff as made reasonably necessary by circumstances which
currently or specifically affect Administaff, Client or Administaff's
employees."
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Article XI., Miscellaneous, shall be amended to add Paragraph 11. 7 as
follows:
"11.7 Client and Administaff agree that client is the owner of the
proprietary interest in all intellectual property rights relating to the
operation of Client's business including, but not limited to, inventions
(whether patentable or not), and patents resulting therefrom, copyrights
and trade secrets and all confidentiality agreements regarding proprietary
information related to or associated with the work performed by the leased
employee that is conceived or developed by the leased employee while
assigned to the Client, and Administaff unconditionally transfers, conveys,
relinquishes, and releases to Client all right, title, interest, and claims
which Administaff has now or which it may acquire in the future with
respect to such proprietary interest or intellectual property right
relating to the operation of Client's business."
This Addendum is executed and effective of even date with the Client
Services Agreement Dated 7/1/97, between the parties hereto, to which it is
------
attached and incorporated by reference.
ADMINISTAFF COMPANIES, INC. GARDEN ESCAPE, INC.
By: /s/ Xxx X. Xxxxx By: /s/ Xxxxx X. X'Xxxxx
--------------------------- ------------------------------------
Xxx X. Xxxxxx Xxxxx X. X'Xxxxx
---------------------------- ------------------------------------
Printed Name Printed Name
Title: Vice President, Sales & Title: Vice President, Operations
Marketing
5
