As Staffing Firm's Services to Client, Staffing Firm will assign certain of its employees ("Drivers") to drive and do other work as expressly agreed to by the Staffing Firm for Client's business or organization. Staffing Firm does not guarantee that all Client orders will be filled. Although Staffing Firm may use the services of a professional employer organization to provide benefits and other employer of record services related to the Drivers, Staffing Firm remains the Drivers' common law employer, with risks and responsibilities that include:
Driver Qualification Files and Payroll Records.
Upon 72 hours of notice by Client during normal business hours, Staffing Firm shall maintain and make available for inspection and copying at its office, Driver qualification files and payroll records associated with work a Driver performed for Client. Staffing Firm will maintain complete and accurate records to substantiate all invoices to Client hereunder. Such records may include payroll records, attendance records, and time summaries, and Staffing Firm will retain such records for a period of one year from the date of each related invoice for review by Client.
Drug and Background Screening; Road Testing; Compensable Time
Staffing Firm shall provide Drivers that have been properly screened to perform work as commercial drivers under the Federal Motor Carrier Safety Regulations (49 CFR Parts 382-399). Such screening shall include Department of Transportation ("DOT") drug testing, background checks, reference checks, and licensing. For purposes of compliance with the regulations and for Staffing Firm's drug and alcohol testing program for Staffing Firm Drivers, Staffing Firm is Client's agent. However, Staffing Firm shall apply its own adjudication and selection criteria to the results of background checks when placing Drivers on assignment to Client. Client may, at its own expense, independently drug and/or alcohol test Drivers.
Client shall be solely responsible for performing any road-testing procedures that it desires or that may be required. Staffing Firm will determine whether training, interviewing, or testing time spent by Drivers or candidates to become Drivers will be treated as time worked, resulting in pay and billing for that time.
Driving and Safety
Client shall properly supervise and control all Drivers performing services and shall be responsible for Client's business operations, vehicles, products, services and intellectual property. Client shall provide all vehicles, equipment, and tools required for Drivers to safely perform the services requested pursuant to this Agreement. Staffing Firm shall have no responsibility for any vehicle or equipment related expenses, including, but not limited to fuel, licenses (state and federal requirements), repairs and permits for motor vehicles.
Client shall comply with all applicable federal and state laws and regulations regarding its operation, and the operation, inspection and maintenance of motor vehicles and equipment and shall not require or permit Staffing Firm's Drivers or employees to operate any motor vehicles or equipment in a manner that is. Client agrees to maintain all of the equipment and vehicles provided to or used by Drivers or which are used by or on behalf of Client within the work environment provided by Client in good and safe working order.
Client shall not cause or permit Driver(s) to perform any maintenance on, make any repairs to, or alter Client's vehicles or equipment except in a limited situation of life threatening event which may include but is not limited to floods, fires, and or other similar acts of God and always subject to Staffing Firm’s advanced express approval..
Client agrees to fully indemnify the Staffing Firm from and against any losses, liabilities, damages, harm or injury to the Client’s and or third parties’ (person or property) resulting from: (i) Driver’s emergency maintenances, (ii) Drivers operating Client’s vehicles, and or equipments, (iii) any vehicle or equipment violations, (iv) traffic violations, or (v) fines imposed on any Driver by the DOT or by any other government agency. Client shall comply with all regulations and guidance of the Occupational Safety and Health Administration ("OSHA") and its state counterparts.
Relationship of Parties
The Parties are independent contractors and are not each other's partners, joint venturers, principals, agents, insurers, or representatives. Drivers are not authorized to commit Staffing Firm to any obligation, duty, or position.
Removal of Drivers; End of Assignments
At Client's direction at any time and for any reason, Staffing Firm will remove any Drivers from assignment to Client. Staffing Firm may also remove Drivers from assignment at any time and, if the reasons for removal permit, will give Client at least one week of prior notice of such removal. Client will notify Staffing Firm of its decision to end a Driver's work assignment and of any other reason why the assignment is ending or has ended.
Drivers’ Agreements for Benefit Waivers, Confidentiality, and Work For Hire
Staffing Firm will require Drivers to acknowledge that they will have no right to participate in any of Client's employee benefit plans or benefit-oriented policies, to agree to keep in confidence any confidential information they might receive or observe on assignment for Client, and to acknowledge Client's right to all creative “work for hire” performed by them for Client. At Client's request, Staffing Firm will require Drivers to sign Client's versions of such agreements, if those versions are approved by Staffing Firm. On Client's request, Staffing Firm will execute assignments to Client of any rights that it may have to intellectual property developed by Drivers pursuant to their assignment to Client. Information observed by or disclosed to Drivers will not be considered to have been observed by or disclosed to Staffing Firm.
Special Terms and Indemnity For Affordable Care Act
Staffing Firm maintains a health plan under which it offers “minimum essential coverage” to its “full-time” employees and their “dependents,” as the foregoing quoted terms are defined by the Affordable Care Act of 2010 and its regulations, as interpreted by the federal courts. Staffing Firm shall add a surcharge on its invoices to Client for such coverage. Refer to Schedule A for pricing.
To the extent required by law, Staffing Firm will report Drivers as Staffing Firm's employees in reports that Staffing Firm files and furnishes under Internal Revenue Code §§6055 and 6056. If an insurer for Staffing Firm files and furnishes reports and statements required under Internal Revenue Code §6055, Staffing Firm will ensure that the insurer includes the Drivers and identifies Staffing Firm as the plan sponsor of the coverage provided to them.
Staffing Firm will indemnify Client for any “assessable payment” for which Client becomes finally and unappealably liable under Internal Revenue Code §4980H with respect to Drivers, to the extent such payment is caused by any failure by Staffing Firm to comply with this Agreement. If Client receives notification from any government entity of its potential liability for any such taxes, penalties, or other liabilities relating to Drivers, Staffing Firm shall fully cooperate, at its reasonable expense, with Client's efforts to object to or appeal any such determination of liability or potential liability. This indemnity obligation is conditioned on:
- Client's notification of Staffing Firm within ten days after Client's obligation for such payments is finally and unappealably determined by the U.S. Government;
- Client's offer for Staffing Firm to fully control the defense or settlement of the allegation from the outset of the process; and
- Client's complete cooperation with Staffing Firm's elective defense or settlement efforts.
Staffing Firm shall not have this indemnity obligation if Client makes any claim, representation of facts, admission, or acquiescence to any government agency to the effect that Drivers are Client's common law or joint employees, as determined under the Affordable Care Act.
Staffing Firm will cover Staffing Firm's staffing operations with the following types and limits of insurance coverage:
- Workers' compensation, in amounts no less than required by law
- Employer's liability insurance with a limit of $1,000,000 per accident
- Commercial automobile liability insurance with a $1,000,000 combined single limit on vehicles owned, leased, or rented by Staffing Firm
- Commercial General Liability insurance, including personal injury, contractual liability, and property damage, with a $1,000,000 limit per occurrence and $2,000,000 aggregate limit
- Commercial blanket bond insurance with limits of $1,000,000 per occurrence. The blanket bond will include Client’s property.
- Umbrella liability insurance with limits of $5,000,000
On Client's request, Staffing Firm will give Client certificates of this insurance coverage or, with the insurer's concurrence, make Client an additional insured for Staffing Firm's Services, excluding Client's negligence liability or indemnity stipulations for its own risks and responsibilities as listed by this Agreement.
Client shall maintain the following insurance covering Client's business operations and the equipment operated by Staffing Firm Drivers and covering Staffing Firm and its Drivers against claims related to general liability, bodily injury, and property damage:
- Worker's Compensation insurance or state-sanctioned self-insurance for the limits required by law
- Commercial General Liability with limits not less than $1,000,000
- Comprehensive Business Automobile Liability Insurance with limits not less than $1,000,000 for all owned, nonowned and hired vehicles and equipment operated by Staffing Firm's Drivers.
- Excess liability insurance of not less than $4,000,000
- All other insurance required under laws, ordinances and regulations
The Client’s Commercial General Liability, Comprehensive Business Automobile insurance, and Excess liability insurance shall be primary and non-contributory. Staffing Firm and its Drivers shall be added as additional insured on all Client’s policies. Client shall furnish to Staffing Firm Certificates of Insurance, copies of endorsements waiving subrogation against Staffing Firm, and copies of endorsements naming or otherwise establishing Staffing Firm and its Drivers as additional insureds under each such policy. Insurance shall be purchased from insurance companies admitted and licensed to do business in the states in which the Client's vehicles are to be operated and with an AM Best rating of A-VIII or greater.
If Client's straight time bill rates are not set by a supplemental Rate Schedule to this Agreement, Staffing Firm will document the rates approved by Client via email to Client or by entry into Staffing Firm's computer system at the time of assignment. Rates not agreed to for a stated term may be prospectively changed by Staffing Firm upon 7 days of notice to Client. Staffing Firm will not bill Client for any bonuses or non-mandated time off benefits that Staffing Firm may extend to Drivers. Any sales, use, value added, excise, or similar taxes that apply to sales to Client will be added to Client's invoices as a separate item. Rates expressed as “markups” shall indicate bill rates that consist of the Driver's pay rate plus the amount of the stated markup percentage applied to that pay rate.
All Drivers are enrolled in a drug & alcohol testing program, for which Client shall be billed an administrative fee. Refer to Schedule A for pricing.
If a Driver works in a state or other jurisdiction that mandates paid sick leave, Client shall pay to Staffing Firm an additional percentage of the Driver's Rate for the Driver's work in that state or jurisdiction. Refer to Schedule A for pricing.
If any actual or government-mandated cost (such as a required wage, minimum wage, payroll tax, insurance premium, assessment, assessable payment, contribution, benefit, or fee) that is beyond the reasonable control of Staffing Firm is imposed, increased, adjusted, or newly introduced with respect to Drivers assigned to Client, Staffing Firm will notify Client at least fourteen days prior to the effective date of the cost increase and add its pretax cost, without markup, to Client's invoices (or separately invoice the costs) for all periods of work covered by the Rate Schedule or other rates quoted before the costs accrue.
lf Client decreases Staffing Firm’s service that is part of a bundle offering, the remaining services(s) shall be subject to price increases.
Drivers are presumed to be nonexempt from overtime laws. Staffing Firm will charge Client premium rates for overtime work when a Driver's work on assignment to Client, taken alone, would legally require premium overtime pay and Client has authorized, directed, or knowingly allowed the Driver to work those hours. Client's bill rate for overtime hours will be the same multiple of the regular time bill rate as Staffing Firm is required to apply to the Driver's regular time pay rate. In addition to complying with the overtime pay requirements of law, Staffing Firm shall bill Client 1.5 times its regular rate, and will in return pay Drivers 1.5 times their pay rates for any day's work hours in excess of what has been expressly stated per the Schedule A (as such daily work hours would be reckoned under the FLSA), to the extent that those hours are not already compensable as legally required overtime.
Invoicing, Time Worked, and Payment
Client authorizes Staffing Firm to check Client’s credit in connection with this Agreement. Client agrees to pay Staffing Firm for all Time Worked by Drivers assigned to Client, plus all additional costs and/or fees set forth in this Agreement. Time Worked may include time related to Driver interviews with Client for potential Staffing Firm assignments, at rates consistent with the pay and bill rates proposed for the position and the candidate's pay rate history. Client shall promptly either approve or dispute the time worked that is reported by Drivers, and time worked that is reported by an automated timekeeping system will be deemed approved by Client.
If Client limits a Driver's work day to fewer hours than expressly agreed pursuant to Schedule A, Staffing Firm may deem that day to include the agreed upon number of hours worked pursuant to Schedule A and may bill Client for the agreed upon hours pursuant to Schedule A.
If Client cancels an assignment within two hours prior to start of the assignment, Staffing Firm will bill Client for a cancellation charge, which shall be eight hours of Driver work time.
Staffing Firm will bill Client for reimbursement of cost plus 18% of assignment-related expenses that are approved in advance by Client, paid by Staffing Firm, and documented to Client by receipts, including, but not limited to, motels, airfare, meals, and taxi service.
Staffing Firm will send invoices for each work week to Client's designated location or representative during the following week. Payment by Client to Staffing Firm is due to be received within seven (7) calendar days of the invoice date, with no retained percentage withheld from payment due Staffing Firm, and without regard to Client's receipt of payment from any other party. Client will promptly notify Staffing Firm of any disputed item, and Staffing Firm will work with Client to resolve such item. Invoices that are undisputed by Client for more than 5 days after the invoice date will be presumed correct and will constitute Client's irrevocable acceptance of such charges and Client's waiver of the right to later dispute or reject any charges stated on the invoice.
Client will pay the undisputed portion of invoices without any offset or deduction and will identify which invoice number(s) each payment is intended to satisfy. Client shall pay interest on each invoice balance that remains unpaid after 30 days from the date of the invoice, at the rate of 0.04% of the unpaid amount per day, calculated from the date of the invoice to the date payment is received by Staffing Firm. Client will pay Staffing Firm all of the reasonable expenses, costs, and fees Staffing Firm incurs to collect overdue invoice payments from Client.
Staffing Firm will comply with state laws, rules or regulations requiring additional compensation or benefits for Drivers, and additional fees for such costs will be passed on to the Client.
Conversion of Drivers or Candidates
Client will obtain the services of each driver who has been employed during the previous 120 days only through Staffing Firm, unless Client tells Staffing Firm in advance of its wish to obtain the Driver's services by direct hire or by assignment, arrangement, or contract from a non-Staffing Firm source (a “conversion”) and either:
- Continues or reinitiates the Driver's Staffing Firm assignment until the Driver completes a total of 1,600 work hours for Client on exclusive assignment from Staffing Firm and Client has paid Staffing Firm for all of those hours;
- Waits at least 180 days after the Driver's last Staffing Firm assignment to Client before obtaining the Driver's services; or
- Pays Staffing Firm an immediate conversion fee of $7,500.
If Client converts a Driver without informing Staffing Firm and satisfying one of above options, Client will pay Staffing Firm a conversion fee of $7,500.
If Staffing Firm refers a candidate for Client’s consideration as a Driver or direct employee, but the Driver is never assigned to Client, and Client, within 120 days after the referral, obtains that candidate’s services by direct hire or by assignment, arrangement, or contract from a non-Staffing Firm source, Client will pay Staffing Firm a placement fee of $7,500.
In arranging for direct hiring or other conversions, Client may not rely on the hiring processes or information that Staffing Firm used in hiring and assigning the converted candidate as a Driver.
Each party will bear or insure only the risks and responsibilities inherent in its own business or stated in this Agreement and, as permitted by law, will be obligated to pay or indemnify the other party only for claims, losses, penalties, and damages to the extent they arise directly from those risks and responsibilities in connection with business done under this Agreement, plus, to the same extent, all reasonable and necessary costs, expenses, and legal fees associated with them. Indemnification of “each party” shall include the employees, officers, directors, and owners of Staffing Firm and Client. When multiple risks or responsibilities are involved in an indemnity issue, they will be applied according to their comparative shares of causation of the events and damages. Risks or responsibilities not allocated by this Agreement will be borne by each party in proportion to the extent that the risk or responsibility is inherent in that party's business. Client’s driving-related business (including loading and unloading) inherently includes the risks and consequences of the acts or omissions of qualified humans working in that business, regardless of their negligence or misconduct.
A party need not pay the other party for special, indirect, consequential, or lost profit damages suffered directly by the other party. To obtain indemnification, a party must promptly notify the other party, cooperate in resolving the claim, and (when liability to third parties is involved) yield reasonable control of the claim's resolution to the other party. If the parties do not agree on the indemnification obligations attaching to a pending matter, indemnification payments and duties will not be required until the underlying matter is finally resolved and the facts bearing on indemnification have been determined. The parties will cooperate with each other in the investigations and resolution of all claims and other matters involving Drivers.
In the event of any proceeding to enforce the provisions of this Agreement, the prevailing Party shall be entitled to an award of costs and reasonable attorneys’ fees incurred by the prevailing party.
No Waiver of Rights
The failure of either Party to strictly enforce any provision(s) of this Agreement will not be construed as a waiver or as excusing either Party from future performances in strict accordance with the provisions of the Agreement.
This Agreement will continue in force unless one party gives the other party at least 30 days written notice of its intention to conclude it. Conclusion of the Agreement will end the staffing relationship, but the Agreement will continue to govern the parties' rights and obligations with respect to the business done and the Drivers assigned before conclusion of the Agreement.
Entire Agreement; Amendment
This Agreement and any attachments contain all of the terms between Client and Staffing Firm on the subject of staffing services and replaces all prior agreements and representations on the subject. This Agreement may be modified or supplemented only by a signed and dated written amendment referring to it. Forms and other communications that may be used by the parties in their staffing relationship (including purchase orders, timecards, invoice recitals, correspondence, and electronic mail) will not supersede, supplement, modify, or control this agreement.
All Notices arising out of Parties’ responsibilities and obligations pursuant to the underlying Service Agreement (including but not limited to formal/legal notification of any kind, sort or form) shall be in writing and shall be deemed effectively given when mailed via United States Postal Services to: Gillette Blackhurst, PLC 3850 E. Baseline Road, Suite 125 Mesa, Arizona 85206.