This Contractor Staffing Terms and Conditions (“Agreement”), dated as of signature date of the estimate (the “Effective Date”), is by and between Allelon Systems Integration, LLC (the “Allelon”) and the “Client” (as defined in the estimate sheet). WHEREAS, Allelon is engaged in the business of providing workers to perform services for clients on a temporary basis; and WHEREAS, Client desires to engage Allelon to provide such services. WHEREAS, These Terms and Conditions are made part of and govern the estimate provided to Client In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Allelon Duties and Responsibilities.
1.1 Allelon shall:
(a) recruit, screen, interview, and assign its employees (the “Assigned Employees”) to perform the work described in the estimate;
(b) pay Assigned Employees’ wages and provide other benefits as Allelon deems appropriate and pay, withhold, and transmit payroll taxes, provide unemployment insurance and workers’ compensation in an amount no less than required by law, and handle workers’ compensation and unemployment claims involving Assigned Employees;
2. Client Duties and Responsibilities. Client shall properly safeguard and control its premises, processes, or systems, and shall not permit Assigned Employees to operate Client’s vehicles or mobile equipment, or entrust them with unattended premises, property, or other valuables, without Allelon’s express prior written approval or as required by the job described in the estimate; however, Client shall not change Assigned Employees’ job duties without Allelon’s express prior written approval.
3. Payment for Services.
3.1 Allelon shall invoice Client for services provided in accordance with this Agreement on a weekly basis at the rates set forth on the estimate. Payment is due 15 days of receiving the invoice. In addition, Client shall be responsible for all travel expenses incurred by Allelon and Allelon shall include such reimbursable travel expenses on applicable invoices.
3.2 Allelon acknowledges and agrees that Assigned Employees are all exempt from laws requiring overtime pay. Assigned Employees under this Agreement will not be paid a premium for any time worked more than forty (40) hours in any workweek. Allelon acknowledges and agrees that it is solely responsible for ensuring all hours worked by Assigned Employees are paid at the legally required rate and assumes all liability for any non-payment of wages.
4. Relationship of the Parties. The services that Allelon renders to Client under this Agreement and the estimate will be as an independent contractor with respect to Client. Nothing contained in this Agreement will be construed to create a joint venture or partnership, or the relationship of principal and agent, or employer and employee, between Allelon and Client.
5. Indemnification. Each party shall defend, indemnify, and hold harmless the other party and their officers, directors, employees, agents, successors. and permitted assigns from and against all claims, losses, and liabilities, including reasonable attorneys’ fees arising out of or resulting from bodily injury, death of any person, or damage to real or tangible personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of the other party
6. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT [OR LOSS OF DATA] OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT SHALL ALLELON’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES RECEIVED OVER THE PREVIOUS 12 MONTH PERIOD.
7. Term and Termination.
7.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the services specified in the estimate.
7.2 This Agreement may be terminated by either party upon thirty days’ (30) written notice to the other party. Allelon may terminate this Agreement immediately in the event that Client does not pay Allelon all fees owed within 5 days of payment due date as specified in Section 3.1
8. Choice of Law. This Agreement and all related documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Ohio, United States of America without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio
9. Remedies. In the event of a breach or threatened breach by either party of any of the provisions of this Agreement, the parties hereby consent and agree that the non-breaching party shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. Such remedies shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
10. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
11. Non-Solicitation. Client agrees not to directly or indirectly solicit or induce for employment, or employ or engage as an independent contractor any employee of the Allelon during the term of this Agreement and for a period of two years thereafter without the prior written consent of the Allelon.
12. Force Majeure. Notwithstanding anything to the contrary in this Agreement, neither Party shall be liable (except for its payment obligation) for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by events beyond such Party’s reasonable control and without such party’s fault or negligence, which may include, but is not limited to, Acts of God, unforeseen fire, flood, explosion, acts of terrorism, governmental requirement, or any other causes beyond their reasonable control (“Force Majeure”). Any such delay or failure shall suspend the affected Party’s performance under this Agreement until the Force Majeure ceases and the term shall be extended by the length of the suspension.
13. Miscellaneous.
13.1 This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.
13.2 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.3 This Agreement, together with the applicable estimate constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and the estimate, this Agreement shall control:
13.4 This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits, and any other documents incorporated herein by reference shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
13.5 Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
Equal Opportunity Employer. Client and Allelon affirm and agree that they are equal employment opportunity employers and are in full compliance with any and all applicable anti-discrimination laws, rules, and regulations. Client and Allelon agree not to harass, discriminate against, or retaliate against any employee of the other because of his or her race, national origin, age, sex, religion, disability, marital status, or other category protected by law; nor shall either party cause or request the other party to engage in such discrimination, harassment, or retaliation. In the event of any complaint of unlawful discrimination, harassment, or retaliation by any Assigned Employee, Client and Allelon agree to cooperate in the prompt investigation and resolution of such complaint.