Vet-1-1 SERVICES TERMS AND CONDITIONS
THESE SERVICES TERMS AND CONDITIONS (THESE “TERMS”) TOGETHER WITH: (I) ANY FEE INFORMATION SEPARATELY PROVIDED BY VET-1-1 (“FEE SCHEDULE”); AND/OR (II) ANY OTHER DOCUMENTS EXECUTED BY BOTH PARTIES THAT INDICATE THAT THEY ARE GOVERNED BY OR SUBJECT TO THESE TERMS (COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT”) SET FORTH THE TERMS AND CONDITIONS THAT APPLY TO THE SERVICES PROVIDED BY VET-1-1 TO CLIENT.
As used herein, the term “Vet-1-1” shall mean the Vet-1-1 legal entity providing the applicable services and the term “Client” shall mean Client’s legal entity receiving the services and its Affiliates. “Affiliate” shall mean with respect to a party hereto, any legal entity, whether existing now or in the future, that either directly or indirectly controls, is controlled by or is under common control with such party.
CONTROLLING DOCUMENT/ENTIRE AGREEMENT
SERVICES SPECIFIC TERMS
Client has requested that Vet-1-1 supply certain personnel to Client on a temporary basis to supplement Client’s work force. Vet-1-1 will supply such workers to Client (each, an “Assigned Worker”) as Client may from time to time request, to work under Clients’ direction, control, and supervision, all as set forth more fully in this Agreement.
ASSIGNED WORKERS AND ASSIGNMENT
Vet-1-1 will recruit, screen, interview, and assign its Assigned Workers, to perform the type of work specified by Client under Client’s supervision at the location(s) specified by Client (each, an “Assignment”). Client may not change Assigned Workers’ job duties in an Assignment without Vet-1-1’s express prior written approval. Any changes to an Assignment may result in additional fees. Client is solely responsible for any financial obligations incurred by altering an Assigned Worker’s time worked during an Assignment. If Client makes a request for staffing with less than 72 hours notice (a “Short Notice Assignment”) and Vet-1-1 attempts to fulfill the request and or fills the request, but Client then declines that pre-approved Assigned Worker or cancels the Assignment after such worker is assigned, the Client shall pay the Short Notice Assignment “Call-in” and cancellation fees identified in the Fee Schedule. Client will pay Vet 1-1 for all the time the Assigned Worker is on the Assignment, excluding only that time during an Assignment when the Assigned Worker is on any breaks required by the Fee Schedule, or which are otherwise legally required without pay. Vet-1-1 may substitute workers if necessary. Vet-1-1 will use reasonable efforts to notify the Client within a timely manner of the need for a substitute.
Assigned Workers are presumed to be non-exempt from laws requiring premium pay for overtime, holiday work, or weekend work. Vet-1-1 will charge Client special rates for premium work time only when an Assigned Worker’s work on assignment to Client, viewed by itself, would legally require premium pay and Client has authorized, directed, or allowed the Assigned Worker to work such premium work time. Client’s special billing rate for premium hours will be the same multiple of the regular billing rate as Vet-1-1 is required to apply to the Assigned Worker’s regular pay rate. For example, when federal law requires 150% of pay for work exceeding forty (40) hours in a week, Client will be billed at 150% of the regular bill rate for those hours.
In addition to the bill rates specified in the Fee Schedule, Client will pay Vet-1-1 the amount of all new or increased labor costs associated with Client’s Assigned Workers that Vet-1-1 is legally required to pay, such as wages, benefits, payroll taxes, social program contributions, or charges linked to benefit levels until the parties agree on new bill rates.
The parties agree to cooperate fully and to provide assistance to the other party in the investigation and resolution of any complaints, claims, actions, or proceedings that may be brought by or that may involve Assigned Workers.
VET-1-1’S DUTIES AND RESPONSIBILITIES
- Recruit, screen, interview, and assign its Assigned Workers, to perform the Assignment.
- Pay Assigned Workers’ wages and provide them with the benefits that Vet-1-1 offers to them, if any. Pay, withhold, and transmit payroll taxes; provide unemployment insurance, general liability insurance, registry bond and workers’ compensation benefits; and handle unemployment and workers’ compensation claims involving Assigned Workers.
- Require Assigned Workers to sign agreements acknowledging that they are not entitled to holidays, vacations, disability benefits, insurance, pensions, or retirement plans, or any other benefits offered or provided by Client.
- Require Assigned Workers to sign confidentiality agreements before they begin their assignments with Client.
- Make reasonable efforts to provide a similarly qualified replacement Assigned Worker to the Client if the Assigned Worker does not report to work or becomes unavailable due to illness or other excusable reason.
CLIENT’S DUTIES AND RESPONSIBILITIES
- Properly supervise, direct, and be responsible for all actions and conduct of the Assigned Workers performing the specified work, as well as running the Client during the Assignment.
- Properly supervise, control, and safeguard its premises, processes, and systems; not permit or require Assigned Workers to operate any vehicle or mobile equipment, but limit their duties strictly to duties normally performed in an office and require Assigned Workers to work only in an office environment.
- Provide Assigned Workers with a safe work site and provide appropriate information, training, and safety equipment with respect to any hazardous substances or conditions to which they may be exposed at the work site.
- Exclude Assigned Workers from Client’s benefit plans, policies, and practices, and not make any offer or promise relating to Assigned Workers’ compensation or benefits.
- Not entrust Assigned Workers with unattended premises, cash, checks, keys, credit cards, merchandise, confidential or trade secret information, negotiable instruments, or other valuables without Vet-1-1’s express prior written approval or as strictly required by the job description provided to Vet-1-1.
- Provide a licensed veterinarian under which support staff, including the Assigned Worker, will work.
- Be solely responsible for the time, tasks, duties, and activities of the Assigned Worker.
- To maintain all necessary licenses and be in good standing with state and federal agencies.
A “Direct Placement” is a situation where the Vet-1-1 is hired by Client as a recruiter to identify and pre-screen a candidate (each, a “Referred Worker”) for a position with the Client, who may then be employed directly by the Client, without regard to the previous relationship of the Referred Worker to the Vet-1-1.
A Direct Placement is considered successfully completed upon the completion of the first day of the employment of the Referred Worker with the Client, following which the Vet-1-1 will invoice the Client for an amount equal to the fee specified in the Fee Schedule.
IF CLIENT EMPLOYS, CONTRACTS, OR HIRES, DIRECTLY OR INDIRECTLY, AS AN EMPLOYEE, ANY VET 1-1 EMPLOYEE, INDEPENDENT CONTRACTOR, OR OTHER WORKER, OR OTHER ASSOCIATE, WHO WAS AN ASSIGNED WORKER WITH CLIENT WITHIN ONE (1) YEAR OF THE END OF THAT ASSIGNED WORKER’S LAST SHIFT WITH THE CLIENT OR DURING WORKER’S ASSIGNMENT OR WORKER’S ‘PROFILE’ WAS SENT TO THE CLIENT, THEN CLIENT MUST NOTIFY VET-1-1 IMMEDIATELY. CLIENT SHALL PAY VET 1-1 A PLACEMENT/CONVERSION FEE AS DETERMINED BY THE AGREED ON FEE SCHEDULE. SUCH FEES ARE APPLICABLE REGARDLESS OF WHETHER THE ASSIGNED WORKER IS HIRED AT ANOTHER LOCATION, SUBSIDIARY, OR SISTER FACILITY AND IF THE CLIENT ACTIVELY RECRUITS THE ASSIGNED WORKER FOR A POSITION. ANY SUCH FEES DUE FOR A DIRECT PLACEMENT WILL BE PROMPTLY INVOICED TO CLIENT AFTER VET-1-1 IS NOTIFIED THEREOF.
For clarity, the provisions of this Direct Placement section shall survive any termination of this Agreement.
The following general terms and conditions apply to all services provided hereunder.
The Agreement is effective as the date of commencement of any services being performed and shall continue in force and effect unless terminated in accordance herewith.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
“Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary, including, without limitation, any business and marketing plans or strategies, business opportunities, financial information, pricing information, and worker information. Confidential Information excludes information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was rightfully obtained by recipient from a third party.
The recipient agrees not to disclose Confidential Information except to its Affiliates, and its and their employees and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under the Agreement and shall at all times use at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law or by the rules or requirements of any stock exchange on which the securities of the recipient is listed, but in any event only after reasonable notice to the disclosing party and cooperating in an attempt to obtain confidential treatment. Unauthorized disclosure of Confidential Information shall cause harm not compensable by damages, and the disclosing party shall be entitled to seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
Vet-1-1 shall invoice Client on a weekly basis for any services that Vet-1-1 properly performs. Client will be responsible to pay Client the amount(s) specified therein within fifteen (15) days of its receipt of each such invoice. Invoices not paid within fifteen (15) days from receipt will be considered past-due. Past-due invoices will be charged a fee of 1.5% per month until paid. Invoices will be supported by the pertinent time sheets or other agreed system for documenting time worked by the Assigned Workers. Should Vet-1-1 be required to engage the services of an attorney or collection firm in connection with this Agreement or to enforce payment hereunder, Vet-1-1 shall be entitled to reasonable attorney’s or collection fees and costs. Client’s signature or other agreed method of approval of the work time submitted for Assigned Workers certifies that the documented hours are correct and authorizes Vet-1-1 to invoice Client for those hours. If a portion of any invoice is disputed (each, a “Billing Dispute”), Client will timely pay the undisputed portion and must notify Vet-1-1 in writing of the nature of the Billing Dispute as promptly as practicable after its determination that such a dispute exists but no later than the date on which the disputed amounts are due to be paid. The parties will work in good faith to resolve each Billing Dispute within ten (10) days following the date on which Vet-1-1 received Client’s notification thereof. If the parties are unable to resolve the Billing Dispute within such ten (10) day period, it may be resolved pursuant to the dispute resolution section of the Agreement.
ACKNOWLEDGMENTS; LIABILITY AND INSURANCE
Client acknowledges that it is solely responsible for all aspects of its business, including, without limitation, compliance with applicable laws, its business operations, products, services, and maintaining its intellectual property. Client must properly supervise, control, and safeguard its premises, processes, and systems.
Client acknowledges that it is solely responsible for all acts or omissions of the Assigned Worker during the Assignment.
Vet-1-1 is not liable for, and the Client specifically releases Vet-1-1 from any liability for, or arising out of, any Assigned Worker’s breach of any exclusivity, non-solicitation, or non-compete agreement the Client may have with an Assigned Worker or otherwise.
Client acknowledges that Vet-1-1 is not responsible for Assigned Workers missing their shifts for any reason outside of the direct control of Vet-1-1.
Client agrees to carry appropriate general liability, property, and malpractice insurance covering all locations where the Assignment takes place, with at least the following types and limits of insurance or other coverage:
- Employer’s liability insurance with limits of $1,000,000.
- Commercial general liability insurance, including personal injury, contractual liability, and property damage, with limits of $1,000,000.
In addition to any specific insurance coverage requirements set forth above, Client shall at all times during the term maintain any insurance coverage that is required by law and/or as is the common Client in Client’s business, which may include, without limitation, health, workers’ compensation, unemployment compensation, disability, liability, or auto insurance. Upon request, Client shall promptly provide Vet-1-1 with certificates of insurance or evidence of coverage reflecting that it is in compliance with the foregoing.
TERMINATION FOR CAUSE
Either party may immediately terminate the Agreement upon written notice to the other party if: (i) such other party is in breach of the Agreement and, if curable, fails to cure such breach with fifteen (15) days of notice thereof; or (ii) the other party files a petition in bankruptcy, becomes insolvent, or dissolves. If the case of any termination of this Agreement, Client agrees to pay any cancellation fees that may be applicable and incurred as a result thereof and Client will remain solely responsible for all fees due for any Assigned Workers until their Assignments end.
Termination of the Agreement is not an exclusive remedy and the exercise of either party of any remedy under the Agreement will be without prejudice to any other remedies it may have under the Agreement, by law or otherwise.
REPRESENTATIONS & WARRANTIES
Each party represents and warrants that: (i) its performance under the Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which it is bound; (ii) it has the full right and power to enter into and perform the Agreement without the consent of any third party; and (iii) there are no pending claims, suits, actions, allegations, charges, or investigations brought by a third party, governmental authority or industry body (“Third Party Actions”), and such party is not aware of any threatened Third Party Actions, that would prevent such party from performing under the Agreement. Each party will promptly notify the other party if it becomes aware of any actual or threatened Third Party Action that could affect its ability to fully perform under the Agreement.
EXCEPT FOR CLIENT’S WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
VET-1-1 PROVIDES THE SERVICES “AS IS” and EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT SHALL BE OBLIGATED TO PAY VET-1-1 THE FEES DUE FOR EACH ASSIGNED WORKER IRRESPECTIVE OF THE RESULTS OF ANY WORK PERFORMED BY SUCH ASSIGNED WORKER.
INDEMNIFICATION AND LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, VET-1-1 WILL DEFEND, INDEMNIFY, AND HOLD CLIENT AND ITS PARENT, SUBSIDIARIES, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES HARMLESS FROM ALL THIRD PARTY CLAIMS, AND RELATED LOSSES, AND LIABILITIES (INCLUDING REASONABLE ATTORNEYS’ FEES) TO THE EXTENT CAUSED BY VET-1-1’S FAILURE TO PROPERLY PERFORM ITS DUTIES AND RESPONSIBILITIES SET FORTH ABOVE; OR THE GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF VET-1-1.
TO THE EXTENT PERMITTED BY LAW, CLIENT WILL DEFEND, INDEMNIFY, AND HOLD VET-1-1 AND ITS PARENT, SUBSIDIARIES, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES HARMLESS FROM ALL CLAIMS, LOSSES, AND LIABILITIES (INCLUDING REASONABLE ATTORNEYS’ FEES) TO THE EXTENT CAUSED BY CLIENT’S BREACH OF THIS AGREEMENT; ITS FAILURE TO PROPERLY PERFORM ITS DUTIES AND RESPONSIBILITIES SET FORTH ABOVE; OR THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF CLIENT OR CLIENT’S OFFICERS, EMPLOYEES, OR AUTHORIZED AGENTS IN ITS AND THEIR PERFORMANCE HEREUNDER.
Each party shall give the other party prompt written notice of any claim, loss or liability for which it is seeking indemnity pursuant hereto. The indemnifying party shall control the defense and settlement of such claim, loss or liability, but the other party shall have the right to participate in the defense of any such claim, loss or liability with counsel of its own choosing at its cost. In no event will the indemnifying party settle, compromise or consent to the entry of a judgment in a manner that that would impose
any unindemnified or nonmonetary liability on the other party, without the other party’s prior written consent, which shall not be unreasonably withheld.
VET-1-1’S TOTAL LIABILITY TO CLIENT FOR ANY CLAIMS, LOSSES, EXPENSES, OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT FROM ANY CAUSE OR CAUSES, INCLUDING VET-1-1’S NEGLIGENCE OR WILLFUL MISCONDUCT, SHALL NOT IN ANY CASE EXCEED THE TOTAL AMOUNT PAID TO VET-1-1 BY CLIENT WITHIN THE LAST TWELVE (12) MONTHS PRIOR TO ANY CLAIM GIVING RISE TO ANY SUCH INCIDENT.
IN NO CASE WILL VET-1-1 BE RESPONSIBLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, OR LOST PROFIT DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT , REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) AND REGARDLESS OF HOW CHARACTERIZED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COMPLIANCE WITH LAW
Both parties shall comply with all applicable laws and regulations in their performance under the Agreement (including, without limitation, the applicable laws, orders, policies and regulations of the U.S. and any other jurisdiction in which services are provided.
Except as specifically approved by Vet-1-1 in advance in writing (email is sufficient) Client will not use Vet-1-1’s trademarks, service marks, trade names, logo or other product or service designations for any purpose, or make any public statement whatsoever (including, without limitation, press releases) regarding the existence of or details regarding the parties’ relationship.
No right or obligation under the Agreement may be assigned by Client without the prior written consent of Vet-1-1, and any purported assignment without such consent will be null and void ab initio. Vet-1-1 may, at any time and from time to time, assign any or all of its rights and obligations under the Agreement to any of its Affiliates. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, if any.
Unless otherwise specified in an Ordering Document, Client will keep and maintain complete and accurate records relevant to its performance under the Agreement and will retain those records for as long as is required by law and/or as is the common Client in Client’s business.
Vet-1-1 or its nominee may, upon reasonable notice to Client, audit those relevant records of Client to ensure its compliance with the terms and conditions of the Agreement. Any such audit shall be conducted in a manner as to not unreasonably interfere with Client’s business activities. If any such audit reveals that Client has breached any material term of the Agreement, then Client shall pay Vet-1-1’s costs and expenses of conducting such audit and promptly remedy the breach.
All notices required or permitted by the Agreement must be in writing addressed to an authorized representative of the other party. In the case of a notice to Client, such notice will be deemed given when sent by confirmed email to an authorized representative of Client. In the case of a notice to Vet-1-1, such notice will be deemed given when sent by confirmed email to an authorized representative of Vet-1-1 with a copy to firstname.lastname@example.org.
Client and Vet-1-1 are independent contractors and no partnership or joint venture shall be deemed to exist between them as a result of the relationship contemplated hereby.
If any provision of the Agreement is held invalid or unenforceable to any extent or in any application, the remainder of the terms of the Agreement, or the application thereof to different persons or circumstances or in different jurisdictions, shall not be affected thereby.
This Agreement shall be governed by the laws of the State of Colorado, without reference to conflict of laws principles.
DISPUTE RESOLUTION, JURISDICTION AND VENUE
If there is a dispute between the parties arising out of, or in connection with, the Agreement the parties agree that they will first attempt to resolve the dispute through good faith negotiations between one or more senior management members of each party. If either party believes that such negotiations will not result in a resolution, then it shall so notify the other party and thereafter either party may commence litigation in the state or federal courts in Denver, Colorado. The parties irrevocably submit to the exclusive jurisdiction of those courts and agree that final judgment in any action or proceeding brought in such courts will be conclusive and may be enforced in any other jurisdiction by suit on the judgment (a certified copy of which will be conclusive evidence of the judgment) or in any other manner provided by law. Each party irrevocably waives to the fullest extent permitted by applicable law: (i) any objection it may have to the laying of venue in any court referred to above; (ii) any claim that any such action or proceeding has been brought in an inconvenient forum; and (iii) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process.
Notwithstanding anything to the contrary in the Agreement, either party may at any time seek equitable relief in order to protect its confidential information or intellectual property; provided that it must does so in the state or federal courts in Denver, Colorado. The parties hereby waive any bond or other security requirements that may be necessary for obtaining equitable relief.
In any action to enforce the terms and conditions of the Agreement, the prevailing party shall be entitled to recover all court costs, reasonable attorneys’ fees and related expenses, in addition to any other relief to which it may be entitled.
SURVIVAL OF OBLIGATIONS
Any rights and obligations that by their nature extend beyond the expiration or termination of the Agreement shall survive the expiration or termination of the Agreement, including, without limitation, each party’s confidentiality obligations, Client’s indemnification obligations and the limitation of liability.
Neither party will be liable for any failure to perform, caused by circumstances beyond its reasonable control, including, without limitation, acts of God, acts of war, or government action, provided it promptly notifies the other party and uses reasonable efforts to correct its failure to perform.
No failure or delay of either party in exercising at any time any of its rights, powers or remedies under the Agreement, in exercising any election or option provided herein, or in requiring the performance by the other party of any of the provisions herein will in any way be construed to be a waiver of such provisions, and any waiver of any provision granted on one occasion shall not be deemed a waiver of such provision on other occasions.
CHANGES TO THESE TERMS
The version of these Terms in effect as of the date of the performance of the applicable services will govern the provision of such services. Vet-1-1 shall at all times have the right to make changes to these Terms provided that such changes shall only apply to any future service performed.