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HomeMy Public PortalAboutAppleOne Conditions of Service Agmt 01 15 20200 Appleon , CONDITIONS OF SERVICE This Conditions of Service ("Agreement") is between Town of Gulf Stream ("Client") and Howroyd-Wright Employment Agency, Inc. dba AppleOne Employment Services ("AppleOne"). In consideration of the parties' mutual covenants, conditions, and promises contained herein, the parties agree as follows: TEMPORARY AND TEMPORARY -TO -HIRE SERVICES 1. Employees or associates of AppleOne and any of its subcontractors temporarily assigned to Client shall be referred to in the singular as "Temporary Employee" and in the plural as "Temporary Employees." Temporary Employees are subject at all times to Client's direct and indirect supervision; AppleOne does not supervise such employees on their assignments. Client further agrees that while on assignment with Client, Temporary Employees shall not be permitted, without express advance written approval by an officer of AppleOne, to i) engage in travel or otherwise operate a motor vehicle or any non -office machinery or equipment on behalf of Client, ii) handle cash or valuables or negotiable instruments (Client shall also not pay Temporary Employees directly or advance any funds to them.), iii) be permitted unsupervised or uncontrolled access to confidential or proprietary information, including confidential access codes, iv) be permitted unsupervised access to or control of Client's business premises, v) remove any property of Client from Client's business premises, vi) purchase, consume or distribute any alcohol, or vii) consume drugs, unless advance written authorization is provided by a physician. Should any Temporary Employee be permitted to engage in any of the activities described in i) - vii) above, AppleOne shall have no responsibility arising therefrom, and Client agrees to indemnify, defend and hold harmless AppleOne for any and all liabilities, losses, claims, injuries, suits, judgments, expenses, charges, fines, interest or penalties (collectively, "Losses") resulting from the employee's conduct. 2. Background check services are available for an additional fee to Client and must be agreed to in a writing between AppleOne and Client. Background check services may be conducted by one or more of AppleOne's preferred, independent third -party vendors (e.g., A -Check Global). Client shall indemnify, defend and hold harmless AppleOne for any and all Losses arising from or related to the background checks and the performance thereof. 3. AppleOne provides its services in compliance with its obligations as an equal opportunity/affirmative action employer. AppleOne's recruiting procedures are free of discrimination based on race, religion, color, age (40 or 40+), sex, sexual orientation, gender identity, national origin, disability, Vietnam era or other protected veteran status or any other legally protected group status. 4. Client agrees to indemnify, defend and hold harmless AppleOne and its subsidiaries and related entities, and all of their respective officers, directors, shareholders, employees, agents and representatives (collectively, "AppleOne Parties") for Losses arising out of any violation of laws by Client. In addition, Client agrees to comply with all laws, regulations and ordinances relating to work site health and safety, and agrees to provide Temporary Employees a safe and healthful workplace. Client agrees to indemnify, defend and hold harmless AppleOne Parties for Losses arising out of Client's violations of the Occupational Safety and Health Act of 1970, or any similar state law with respect to workplaces owned, leased or supervised by Client, and/or to which Temporary Employees are assigned. For any serious injury, illness or death of a Temporary Employee occurring in a place of employment or in connection with an AppleOne employee's assignment with Client, Client shall notify AppleOne immediately (Notification to AppleOne is also required in the event of any accident or medical treatment.) and is required to report immediately, by telephone or fax, to the nearest Occupational Safety and Health Administration ("OSHA") office. Client is authorized and required by AppleOne to make the report on behalf of both AppleOne and Client. Client shall provide to OSHA all information required by applicable law, as well as AppleOne's name, address, phone number and contact person, and the Temporary Employee's name. Client shall notify AppleOne immediately after the report has been made. 5. Client will not reassign or relocate a Temporary Employee without prior written authorization by AppleOne. Client agrees to assume all liability for any third party claim arising after any reassignment or relocation that occurs without such authorization. 6. Client understands that Temporary Employees are assigned to Client to render temporary services, and that absent an agreement to the contrary, are not assigned to become employed by Client. Client acknowledges the considerable expense incurred by AppleOne to advertise, recruit, evaluate, train and quality control its employees. Conditions of Service 2019 Page 1 of 5 AppleOne Confidential Information Legal Template 12312018 Client will not, without prior written authorization by AppleOne, hire an AppleOne employee, interfere with the employment relationship between AppleOne and its employee, or directly or indirectly cause an AppleOne employee to transfer to another temporary help service. 7. Client understands that AppleOne may refer candidates for Client's evaluation or assign AppleOne employees to render temporary services at Client often while such persons seek direct hire employment through AppleOne. If Client, either directly or indirectly, such as through any company within Client's control, solicits, offers employment to and/or hires any AppleOne candidate or employee as an employee or consultant in any position, or utilizes such person's services through another temporary or outsourcing service, or any party affiliated with Client refers such person to any other employer and said person becomes employed by that employer: i) at any time from the date such person's identity is provided by AppleOne to Client until six (6) months thereafter, or ii) within six (6) months after termination of such person's temporary assignment through AppleOne at Client, whichever is the later, Client agrees to pay AppleOne a direct hire fee in accordance with AppleOne's standard fee schedule stipulated by the parties to be equal to thirty percent (30%) of such person's first year annualized wage or salary. Unless Client presents written evidence to AppleOne of Client's prior knowledge of an AppleOne referred candidate i) within three (3) business days of AppleOne's referral of such candidate to Client, or ii) prior to Client's interview of such candidate, or iii) prior to AppleOne's assignment of such candidate at Client, whichever is earliest, Client understands and agrees that Client is liable for the payment of any direct hire fee due to AppleOne pursuant to this Agreement. 8. AppleOne offers temporary -to -hire services to Client. An AppleOne employee temporarily assigned to Client is an employee of AppleOne until released to Client. Should Client be interested in hiring an AppleOne referred candidate or employee, Client shall contact AppleOne, who will establish the terms and conditions for releasing such person to Client's payroll, including the conversion fee to be paid by Client if such terms are not otherwise agreed to between the parties. If any Client accounts are in default according to the payment terms in Section 11, Client shall bring the accounts current prior to the hiring. If Client hires an AppleOne employee with a Client account in default, Client agrees to pay AppleOne a conversion fee equivalent to the direct hire fee as set forth in Section 7 of this Agreement. INVOICING AND PAYMENT 9. Client understands that Temporary Employees must be paid weekly, and agrees to promptly review and approve or verify timecards or hours worked. Client will be liable for any and all charges incurred based upon Client approved or verified timecards or hours or similar information submitted by Client to AppleOne. If timecards or hours lack timely Client approval or verification, AppleOne will process payroll and invoices based upon the timecards or hours submitted by the employees. 10. Client shall reimburse AppleOne for any expenses that are incurred by AppleOne or Temporary Employees, which are reasonably related to, and arise out of, the services provided by AppleOne under the terms of this Agreement ("Reimbursable Expenses"). Expenses for travel shall not be invoiced or reimbursed unless such travel expenses have been previously authorized by Client. 11. AppleOne shall invoice Client weekly. Payment of invoices is due upon receipt. Client agrees that an account balance that remains unpaid thirty (30) days after the invoice date will be considered in default and that AppleOne may assess a default charge of one and one-half percent (1.5%) per month on any such balance. Client agrees to pay any such default charges and any costs of collection, including attorneys' fees. 12. Client's payment method (Check box.): ❑ ApplePay's eCheck. Client may sign up at www. �lay.c0rr . ❑ ACH/Other shall be discussed between Client and the AppleOne representative. Notwithstanding anything to the contrary in this Agreement, in the event that AppleOne is subject to any third party fees or costs related to AppleOne's compliance with Client's invoicing or payment policies or practices (e.g., Ariba fees, credit card fees, etc.), AppleOne will pass such fees or costs through to Client without markup. 13. Client and AppleOne acknowledge that through the Patient Protection and Affordable Care Act of 2010, as amended ("ACA"), and regulations promulgated thereby, statutory requirements have been imposed upon certain employers of certain employees working in the United States. AppleOne is committed to fulfilling its ACA obligations through offering ACA -compliant benefits to eligible contingent workers, including Temporary Employees. In demonstrating Client's commitment to ACA compliance, Client agrees to share in ACA -related costs by paying a $0.54 surcharge for each hour of service provided by each AppleOne employee assigned to Client. The surcharge will be billed to Client in a separate line item on the invoice. Conditions of Service 2019 Page 2 of 5 AppleOne Confidential Information Legal Template 12312018 14. Federal, state or local laws, either currently existing or enacted in the future, may require AppleOne to provide covered employees (including without limitation Temporary Employees) with certain paid sick leave (Each such law is a "Sick Time Law."). AppleOne and Client agree to comply with all provisions of each Sick Time Law with respect to employees assigned to or through Client as such laws become effective. To address the costs for compliance with a Sick Time Law, the parties agree that AppleOne will invoice Client for the paid sick time of a Temporary Employee according to the markup percentage or hourly bill rate that AppleOne charges for such employee provided that the specific criteria required for the payment of such sick time to such employee under the applicable Sick Time Law has been met. 15. Unless otherwise agreed to by the parties elsewhere in the Agreement and/or in any of the Agreement's mutually agreed upon ancillary exhibit(s) or document(s), to the extent that AppleOne may be required to pay the Temporary Employee overtime under any federal, state or local law, AppleOne, as applicable, will bill Client i) based upon the Temporary Employee's legally applicable hourly pay rate for overtime work plus the markup percentage for the Temporary Employee, or ii) an overtime bill rate, which will be calculated by applying a multiplier of 1.5 or 2.0 (for double time, where applicable) to the Temporary Employee's hourly bill rate. 16. Additional agreed upon pricing for the services to Client under this Agreement may be set forth in one (1) or more exhibit(s) to this Agreement or as mutually agreed upon by the parties in writing. The parties agree that upon thirty (30) days' written notice to Client, pricing under this Agreement may change if AppleOne's expenses for statutory or other fixed costs increase, or if new or additional statutory or government -imposed taxes, fees or costs are incurred by AppleOne after the Effective Date. These taxes, fees or costs may include, but are not limited to those related to: Workers' Compensation Insurance, State Unemployment Insurance, federal, state or local taxes, regulations or ordinances (including but not limited to Wage Determinations, Health & Welfare Benefits, SCLS/SCA, vacation pay, holiday pay, Sick Time Laws or minimum wage laws), or an increase in the ACA surcharge. The parties agree that such written notice may be in the form of an electronic communication, including email. OTHER TERMS 17. Despite anything to the contrary in the Agreement, Client shall defend, indemnify and hold harmless AppleOne Parties from and against any and all Losses to the extent caused by Client's failure to inform AppleOne, in writing, that Client or any job orders or services hereunder, are subject to Federal Acquisition Regulation and/or Defense Federal Acquisition Regulation Supplement, Service Contract Labor Standards, formerly known as the McNamara -O'Hara Service Contract Act of 1965 ("SCLS/SCA"), Davis -Bacon Act of 1931, Federal Paid Sick Leave (EO 13706), or any other federal law where a security clearance or any kind of government -issued credential or designation is required. 18. To the maximum extent permitted by applicable law, neither Client nor AppleOne shall have any liability for any indirect, consequential, special or incidental damages, damages for loss of profits or revenues, whether in an action in contract or tort, even if such party has been advised of the possibility of such damages, unless such party has engaged in gross negligence or willful misconduct or the damages arise from a third party claim for which a party is entitled to indemnification in this Agreement. 19. This Agreement supersedes any and all other agreements, either oral or written, between the parties or anyone acting on behalf of a party hereto, with respect to the subject matter hereof. This Agreement contains all of the covenants, conditions, warranties, representations, inducements, promises or agreements (oral, written, on a website, or otherwise) ("Promises") between the parties with respect to the subject matter hereof. Each party hereto acknowledges that no Promises have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other Promises, which are not contained herein, shall be valid or binding. Any oral Promises or modifications concerning this Agreement shall be of no force or effect, except by a subsequent written amendment to this Agreement. 20. The confidential and/or proprietary information of the disclosing party will be held in strict confidence by the receiving party and will not be disclosed by the receiving party to any third party, or used by the receiving party for its own purposes, except to the extent that such disclosure or use is necessary in the performance by the receiving party of its obligations under this Agreement. The receiving party upon the request of the disclosing party will destroy or return all writings or documents that contain information subject to the protections of this section. 21. The laws of the State of California shall govern this Agreement, its interpretation and any disputes regarding the services. Any action concerning this Agreement or the services shall be instituted in the state or federal courts Conditions of Service 2019 Page 3 of 5 AppleOne Confidential Information Legal Template 12312018 located in County of Los Angeles in the State of California, and AppleOne and Client agree to the exclusive personal jurisdiction of said courts and waive any rights to a change of venue. In the event that a party hereto commences any legal or equitable action or other proceeding, the prevailing party shall be entitled to recover reasonable attorneys' fees in addition to any other relief. 22. This Agreement shall be in effect from the last date set forth below ("Effective Date") and shall continue until terminated at any time by either party in writing. Absent a prior agreement between the parties, services provided by AppleOne to Client before the Effective Date shall be considered as having been provided subject to the provisions of this Agreement. The rights and obligations in this Agreement, which by their nature should survive, will remain in full force and effect following the termination of this Agreement. 23. In the event that any provision of this Agreement shall be unenforceable or inoperative as a matter of law, the remaining provisions shall remain in full force and effect. 24. A waiver of a breach of any covenant, condition, or promise of this Agreement shall not be deemed a waiver of any succeeding breach of the same or any other covenant, condition, or promise of this Agreement. No waiver shall be deemed to have been given unless given in writing. 25. The parties agree that this Agreement (and/or any of the Agreement's mutually agreed upon ancillary exhibit(s) or document(s)) may be electronically signed and that any electronic signature appearing on this Agreement (and/or such exhibit(s) or document(s)) is the same as a handwritten signature for the purposes of validity, enforceability and admissibility. Further, the parties agree that this Agreement may be executed in counterparts, each of which together shall be deemed one and the same instrument. Moreover, the exchange of this entire executed Agreement (and/or such exhibit(s) or document(s)) that is in photostatic or portable document format (.pdf) form by electronic mail or by another electronic means shall be considered original(s) and shall constitute effective execution and delivery of the original(s). For Client Signatur Town Man Title Gregory L. Dunham Printed Name 1/15/2020 Date 100 Sea Rd. Address Gulf Stream, FL 33483 Address For AppleOne Signature Title Printed Name Date 327W B Address Glendale, CA 91204 Address PLEASE SEND A SIGNED PHOTOSTATIC COPY OF THE AGREEMENT TO: Rebecca Tew AT EMAIL: rtew(a)gulf-stream.orq Conditions of Service 2019 Page 4 of 5 AppleOne Confidential Information Legal Template 12312018