TERMS OF SERVICE AGREEMENT

This Terms of Service Agreement (“Agreement”) is entered into between Agents of Efficiency, Inc. (“Agents of Efficiency”) and the client company named below (“Client”). In consideration of the mutual covenants contained herein and other good and valuable consideration, the parties agree as follows:

THE DETAILS...
BASICALLY...
1. TERM.

The details...

This Agreement shall become effective on the date the Client authorizes his or her credit card to be charged to purchase services from Agents of Efficiency (“Effective Date”) and, unless otherwise provided for in this Agreement, shall continue until terminated as is set forth in the paragraph titled “TERMINATION” below.

Basically...

Starts when you sign it. Continues unless you stop it. (See #13)

2. SCOPE OF SERVICES.

The details...

Agents of Efficiency will provide only the Services as set forth herein and initialed in Exhibit A and will not provide any other services.

Basically...

We’ll provide the services explained in Exhibit A (below).

3. CONSULTING.

The details...

Provided Client has elected to do so, Agents of Efficiency will provide operations consulting to small businesses, giving advice and recommendations on best practices and recommended solutions. Subject to Exhibit A, such advice may include, but is not limited to, operations management, help with finding sources of financing, helping prepare and review proposals, finding new markets and opportunities, and identifying opportunities to improve efficiency. However, Client understands that Agents of Efficiency is not a law firm and does not provide any form of legal advice.

Basically...

If you chose this service, we’ll provide top-shelf consulting to help find ways for you to run cleaner and leaner. (Just realize: we’re not a law firm, and can’t give any form of legal advice)

4. HUMAN RESOURCES SERVICES.

The details...

Provided Client has elected to do so, Agents of Efficiency will provide human resource management services for Client on a consulting basis, including, but not limited to, serving as the Client’s designated human resource contact, draft/amend Client’s employee handbook, provide appropriate forms, policies and job descriptions, assist in the evaluation of employees’ exempt/non-exempt status, employment practices training, advisory services on employment-related claims and assistance with various other human resource functions, such as interviewing, job offers, performance reviews, disciplinary action, termination and exit interviewing. It is expressly understood that Agents of Efficiency is not a Professional Employer Organization. At no point in Agents of Efficiency’s relationship with Client will any of Client’s employees be co-employed by both Client and Agents of Efficiency in a Professional Employer Organization capacity. Agents of Efficiency’s human resources services are limited to a consultative capacity only. It is further understood that Agents of Efficiency is not a law firm and cannot render legal advice, nor is it intending to provide any legal advice.

Basically...

If you chose this service, we’ll provide an amazingly easy and comprehensive way to manage your human resources. (Just realize, we’re not a PEO, and will never coemploy your staff.)

5. REFERRAL SERVICES.

The details...

In an effort to provide a holistic and comprehensive plan to address clients’ operational needs, Agents of Efficiency maintains a network of service providers it frequently connects its clients to that have a proven track-record of efficiently solving expressed problems complained of by client company owners. Examples of organizations within this network include, but are not limited to, payroll providers, accounting firms, IT support companies and marketing firms. Provided Client has elected to do so, Agents of Efficiency will connect Client to certain service providers that Client and Agents of Efficiency agree to be a good fit for Client’s specific needs. Client understands that while Agents of Efficiency may maintain certain referral relationships with some of these service providers, it has no meaningful ability to direct or control the actions of these companies. Client thus agrees to expressly indemnify, hold harmless, protect and defend Agents of Efficiency, all of its subsidiaries, affiliates, agents and employees from any and all claims, attorney’s fees and court costs, out-of-pocket expenses, damages (including compensatory and punitive damages) and liabilities arising from or related to a dispute between Client and a service provider other than Agents of Efficiency, even if referred to by Agents of Efficiency. Further, Agents of Efficiency does not warrant that any particular referral shall be of any particular skill level, nor can it guarantee any particular result for Client from such referral.

Basically...

We provide our services through a valuable network of carefully vetted strategic partners. We trust each vendor partner to deliver exceptional service, but ultimately, they are each independent companies. So, if there’s ever a dispute between you and one of our vendors, it’s between you and them. (Also, while we provide the best possible network of vendors for you, we can’t guarantee any particular result from our work together.)

6. VENDOR MANAGEMENT.

The details...

In an effort to provide a simple and turn-key process by which its client companies can utilize the services of a number of service providers to execute on operational tasks, while still maintaining one key point of contact to manage all those processes, Agents of Efficiency provides vendor management services to certain clients in the form of a dedicated account manager. Provided Client has elected to utilize this service, Client understands that the existence of an Agents of Efficiency account manager to help Client with vendor management services does not in any way change the underlying fact that Agents of Efficiency has no meaningful ability to direct or control the actions of external companies, and instead merely serves as an intermediary between Client and these third party companies. Client thus agrees to expressly indemnify, hold harmless, protect and defend Agents of Efficiency, all of its subsidiaries, affiliates, agents and employees from any and all claims, attorney’s fees and court costs, out-of-pocket expenses, damages (including compensatory and punitive damages) and liabilities arising from or related to a dispute between Client and a service provider other than Agents of Efficiency, even if referred to by Agents of Efficiency.

Basically...

If you elect this service we’ll provide you with an AOE account manager to serve as a single point of contact to help manage all the services we provide for you. That account manager helps facilitates all of your account activity, but doesn’t have any control of each respective vendor partner. Similar to #5, any disputes between you and a vendor partner are between you and them.

7. LAW FIRM DISCLAIMER.

The details...

Among the many services Agents of Efficiency provides its clients, Agents of Efficiency helps certain clients understand some of the options available from various legal services providers relevant to small businesses in the client’s jurisdiction. Agents of Efficiency does not, however, endorse or recommend any lawyer or law firm. Client understands that Agents of Efficiency is not a legal referral service and make no representations or judgements as to the qualifications, expertise or credentials of any legal service solution that may be brought to Client’s attention. Agents of Efficiency is not a law firm or a substitute for an attorney or law firm. Agents of Efficiency cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Agents of Efficiency receives nothing of value from either its own clients or any of the lawyers or law firms it may potentially refer work to other than, in some circumstances, a reciprocal referral as defined and authorized by the ABA Model Rules of Professional Conduct in Section 7.2(b)(4).

Basically...

As a value-added in-house service, we can help you sort through legal service options based on your needs, but we can’t endorse any specific lawyer or firm, nor can we offer specific legal advice.

8. STAFFING.

The details...

Provided Client has elected to do so, Agents of Efficiency will provide certain staffing services to Client.

  •  Agents of Efficiency’s Duties and Responsibilities. Agents of Efficiency will:
    1.   At the request of Client, recruit, screen, interview, and assign its employees (“Assigned Employees”) to perform the type of work described on Exhibit 1 under Client’s supervision from time to time. Such Assigned Employees shall provide services under Client management and supervision and, except for Assigned Employees who work from home or engage in Client-related travel, at a facility or in an environment controlled by Client. Attached hereto as Exhibit 2 is a list of the names of the Assigned Employee(s) to be placed initially with Client, and the starting date for each Assigned Employee. Unless otherwise agreed to by the parties, this Agreement shall apply to additional Assigned Employees provided by Agents of Efficiency as requested by Client hereunder from time to time. Should Client request additional services subsequent to the execution of this Agreement, and such services are not listed herein, or should either Client or Agents of Efficiency request changes to rates, compensation or other terms for any Assigned Employee working under the terms of this Agreement, any such additions or changes will be mutually agreed to in writing and executed by the authorized representatives securing this Agreement. Such agreed-upon terms shall become a part of this Agreement, as amended;
    2. Pay the Assigned Employees such wages as are agreed upon between the parties.
    3. Provide the Assigned Employees such benefits as are agreed upon between the parties and set forth on Exhibit 3, or as may be required under law, including the Affordable Care Act and any guidance or regulations issued thereunder, and any other benefits as are agreed upon between the parties;
    4. Pay, withhold, and transmit payroll taxes; provide unemployment insurance and workers’ compensation benefits; and handle unemployment and workers’ compensation claims involving Assigned Employees; and
    5. Require all Assigned Employees to agree to comply with the Client’s employee handbook; sign confidentiality agreements (in the form of Exhibit 4) before they begin their assignments to Client; and require certain Assigned Employees designated by Client, if any, to sign agreements (in form acceptable to Client) before they begin their assignments to Client.
  •  Assigned Employee Status.  All individuals assigned to Client pursuant to this Section 8 shall, for all purposes under this Agreement, be considered employees of Agents of Efficiency only. Agents of Efficiency shall assume the sole and exclusive responsibility for the payment of wages to individuals for services performed and the withholding of Federal, State and local income taxes, paying Federal Social Security and Medicare income taxes, unemployment insurance and maintaining worker’s compensation coverage in an amount and under such terms as required by state law. Agents of Efficiency shall treat all staff assigned to Client as “employees” of Agents of Efficiency and not as “independent contractors”. Agents of Efficiency shall not terminate any Assigned Employee without the approval of Client, such approval not to be unreasonably withheld. Agents of Efficiency warrants that it is in compliance with all State and Federal laws applicable to the employment of the individuals who are referred to Client. In order to insure compliance with the requirements of this section, Client may at any time during or after the terms of this Agreement, audit and inspect all books, documents, files and records of Agents of Efficiency relating to its performance under this Agreement. Client, without limitation, shall have access to: all payroll records, Federal, State and local tax withholding records, and other filings and records related to Workers’ Compensation, Disability Insurance, and Unemployment Insurance. Any breach of agreement concerning the “misclassification” of employees to “independent contractor” status, failure to withhold all applicable payroll taxes, assigning without Workers’ Compensation Insurance may result in termination of this Agreement, at the election of Client.
  •   Client’s Duties and Responsibilities. Client will:
    1. Properly supervise Assigned Employees performing its work and be responsible for its business operations, products, services, and intellectual property;
    2. Properly supervise, control, and safeguard its premises, processes, or systems, and not permit Assigned Employees to operate any vehicle or mobile equipment, or entrust them with unattended premises (except for off-site employees), cash, checks, keys, credit cards, merchandise, confidential or trade secret information, negotiable instruments, or other valuables, in each case without Agents of Efficiency’s approval or as reasonably required in the performance of the applicable Assigned Employee’s job description;
    3. Provide Assigned Employees who are working at Client’s facilities with a safe work site and provide such Assigned Employees appropriate information, training, and safety equipment with respect to any hazardous substances or conditions to which they may be exposed at Client’s facilities;
    4. Not change Assigned Employees’ job duties without Agents of Efficiency’s approval, not to be unreasonably withheld;
    5. Not make any offer or promise relating to Assigned Employees’ compensation or benefits without Agents of Efficiency’s approval, not to be unreasonably withheld;
    6. At all times maintain on deposit with Agents of Efficiency a cash amount equal to one month’s estimated charges hereunder (as estimated by Agents of Efficiency in its reasonable discretion), as security for (and not in payment of) amounts due hereunder. Following termination of this Agreement, such deposit shall be refunded to Client, less any amounts applied by Agents of Efficiency in its sole discretion to amounts due hereunder;
    7. Within the first forty (40) hours worked by any Assigned Employee(s), Client shall review the Assigned Employee(s) performance and decide whether to continue the engagement of such Assigned Employee. If Client is dissatisfied with the performance of the Assigned Employee, and Client wishes Agents of Efficiency to terminate its engagement of such Assigned Employee, Client must notify Agents of Efficiency within the initial forty (40) hours, specifying the reasons for its dissatisfaction, and Client shall not be required to pay for the hours worked by that Assigned Employee during the initial forty (40) hour period, provided its reasons for termination are not unlawful and are bona fide in Agents of Efficiency’ reasonable judgment. If Client becomes dissatisfied with the performance of an Assigned Employee after the initial forty (40) hour period, Client may request that Agents of Efficiency terminate the engagement of the at Assigned Employee upon written notice to Agents of Efficiency, and Client shall pay for all hours worked by the terminated Assigned Employee from the first hour worked up to and including termination

Basically...

Usually we partner with separate staffing companies to help clients out with their staffing needs. If that’s the nature of your relationship, see #5 above.

 

But if you’ve elected to have us help you with certain staffing needs, we promise to do all the things required by law to make that relationship legit.

 

Basically we’re responsible for things like paying wages and payroll taxes, providing benefits, and all that type of stuff for for any “leased employee” we give you who is really employed by AOE.

 

 

 

So, any “leased employee” we provide to you on a temporary basis is treated as an AOE employee for all legal purposes

 

 

 

 

… but that doesn’t mean you can abdigate your responsibilty to do right by any employee we lease you. It’s your job to…

 

Properly supervise them.

 

 

Give them a safe work environment.

 

Keep us in the loop if there are any changes to their job description.

 

 

 

 

 

 

Don’t go making promises you can’t deliver on RE benefits or compensation.

 

Keep a current deposit on account with AOE so we can continue to pay his or her salary as required.

 

Otherwise, after that first 40 hours, you can cancel your relationship any time, just no refunds. And let us know, within the first 40 hours of coming on board, if you’re not happy with the person we’ve connected you to for a full refund of any fees charged for their services.

 

Otherwise, after that first 40 hours, you can cancel your relationship any time, just no refunds.

9. REGULATORY COMPLIANCE.

The details...

    • Agents of Efficiency is responsible for and hereby agrees to comply with the following: (1) all laws and regulations governing the reporting, collection and payment of federal and state payroll taxes on wages paid under this Agreement, including, but not limited to payment in compliance with: (a) Federal income tax withholding provisions of the Internal Revenue Code; (b) state and/or local income tax withholding provisions, if applicable; (c) Federal Insurance Contributions Act (FICA); (d) Federal Unemployment Tax Act (FUTA); (2) applicable state unemployment tax laws;
    • Further, provided Client has elected to do so per Exhibit A, Agents of Efficiency will assist with (1) unemployment claims management; (2) safety assistance, such as with worker’s compensation administration; (3) the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, as amended, the Family and Medical Leave Act of 1993 (“FMLA”), the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, , the Americans with Disabilities Act (“ADA”), as amended (including provisions thereunder relating to client’s premises), and any other federal, state, county, or local laws, regulations, ordinances and statues which govern the employer/employee relationship.
    • The parties agree that, to the extent required under law, the services provided under this Agreement will comply in all material respects with all federal and state-mandated regulations, rules, or orders applicable to the services provided herein, including but not limited to regulations promulgated under the Health Insurance Portability and Accountability Act (“HIPAA”).
    • Health Care Reform.

1. Unless expressly provided in Exhibit A:

        1. Agents of Efficiency shall have no responsibility for providing health insurance coverage to any Client employee;
        2. Agents of Efficiency shall have no responsibility for compliance with Health Care Reform with respect to each Client employee, including responsibility for any penalties assessed thereunder, if applicable; and
        3. Client agrees to be wholly responsible for maintaining compliance Health Care Reform with respect to each of its employees, including any penalties assessed thereunder.

2. Indemnification. The indemnification provisions in Paragraph 12 below shall specifically include any cost, expense, claim, penalty, or liability incurred by Agents of Efficiency as an employer of the Client employees by any individual, governmental agency, or any other person arising from or in connection with: (1) the Client’s administration of any employee benefit plan, as defined under section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and (2) unless otherwise provided in Exhibit A, compliance with Health Care Reform with respect to each client employee, including any penalties assessed thereunder.

For purposes of this Paragraph 8(e), “Health Care Reform” means the Patient Protection and Affordable Care Act (the “ACA”), and any regulations or guidance issued thereunder.

Basically...

For any leased employees, as applicable where AOE is directly providing staffing services for you, we’ll be sure to handle all the annoying tax and payroll stuff associated with said employee(s).

 

 

 

 

And if you want us to, we’ll also help you make sure you understand and are above board on things like unemployment claims management, safety best practices, and fair labor standards.

 

 

 

And we’ll both be sure to comply with all laws, including HIPAA, among others.

 

 

But unless expressly outlined in Exhibit A, we don’t do Obamacare. We aren’t responsible for providing health insurance, or complying with Obamacare for you.

 

 

 

 

And if you chose to provide the employee with any benefits, and mismanage it somehow that gets AOE in trouble, you’ll get our back and cover any costs we have to incur as a result of your error if that happens.

10. WORKERS’ COMPENSATION INSURANCE.

The details...

During the term of this Agreement, Client shall maintain workers’ compensation insurance covering all employees and subcontractors and shall furnish a certificate(s) of insurance verifying such coverage.

Basically...

You’re responsible for having Worker’s Comp. Insurance for all contractors and employees, including leased employees.

11. FULL DISCLOSURE.

The details...

Agents of Efficiency’s obligations hereunder are expressly conditioned upon Client’s full and accurate disclosure of any and all information reasonably requested by Agents of Efficiency both before and after the execution of this Agreement. Client’s failure to provide full and accurate information shall be a breach of this Agreement.

Basically...

Don’t lie. Your mom would be so disappointed), or withhold critical information. (for shame.)

12. INDEMNIFICATION.

The details...

  •  Client shall release, defend, indemnify and hold harmless Agents of Efficiency and its officers, directors, shareholders, affiliates, subsidiaries, employees and agents (collectively, the “Agents of Efficiency Indemnified Parties”) from and against any losses, liabilities, claims, obligations and/or expenses including, without limitation, court costs and reasonable attorneys’ fees (collectively “Damages”) that may be incurred by or asserted against any of the Agents of Efficiency Indemnified Parties, arising from or related to, in whole or in part, (i) the acts, errors or omissions of Client (or its agents); (ii) any breach of this Agreement by Client; and (iii)except as otherwise provided in this Agreement, any claims asserted by or liability to third parties arising from or related to, in whole or in part, Client’s business.
  •  Agents of Efficiency shall release, defend, indemnify and hold harmless Client and its officers, directors, shareholders, affiliates, subsidiaries, employees and agents (collectively, the “Client Indemnified parties”) from and against any Damages that may be incurred by or asserted against any of the Client Indemnified Parties, to the extent such Damages arise from or are related to (i) the acts, errors or omissions of Agents of Efficiency (or its agents); and (ii) any breach of this Agreement by Agents of Efficiency; and (iii) except as otherwise provided in this Agreement, any claims asserted by or liability to third parties arising from or related to, in whole or in part, Agents of Efficiency’s business.

These indemnifications shall survive the termination of this Agreement.

Basically...

Release from damages

 

You agree to not hold us responsible for any errors or slip-ups on your part, or issues with our vendor partners.

 

 

 

Vice versa.

 

 

These promises extend even after our contract ends. Speaking of which…

13. TERMINATION.

The details...

  • This Agreement may be terminated by Agents of Efficiency by providing Client with seven (7) days’ written notice under the following conditions: (1) Client’s incorrect reporting of employment rosters, employee payroll hours, or the direct payment of cash remuneration to employees; (2) the filing by or against Client of a petition for reorganization or bankruptcy, receivership, insolvency, the making by Client of any assignment for the benefit of creditors, or the sale or transfer of clients business to a third party; and/or (4) Client makes or furnishes to Agents of Efficiency any representation, warranty or other statement of material fact that is false or misleading, or Client fails to disclose to Agents of Efficiency full and complete information as required by this Agreement.
  • Client may terminate this Agreement by providing Agents of Efficiency with seven (7) days’ written notice if Agents of Efficiency fails to perform those duties contained above.
  • Either party may terminate this Agreement by giving thirty (30) days written notice unless terminated for cause as is set forth in Sections 12(a) and 12(b) above.
  • This Agreement may be terminated immediate for Client’s failure to pay when due any monies required under the terms and conditions of this Agreement;
  • If this Agreement is terminated and if the affected employees are entitled to the payment of wages or any accrued vacation, sick or personal leave, Client shall be liable for the payment thereof and will make such payments directly to employee.
  • The indemnification and contribution provisions of this Agreement shall survive indefinitely the expiration or other termination of this Agreement.

Basically...

Calling it Quits.

We can cancel with 7 days notice if: 1. You provide incorrect reporting, 2. You run out of money, 3. You lie (Don’t lie. Your mom would be so disappointed), or withhold critical information. (for shame.)

You can cancel with 7 days notice if we don’t do what we said we’d do.

Either one of us can cancel with 30 days notice, no matter what.

We can cancel immediately if payment lags beyond the agreed terms.

These agreements extend even after our contract ends.

… including the indemnification stuff.

14. THIRD PARTIES.

The details...

This Agreement is intended solely for the mutual benefit of the parties hereto and does not create any rights of any kind in a third party. Agents of Efficiency reserves the right to assign its rights, duties and obligations hereunder from time to time to an affiliated entity that is under common ownership and control with Agents of Efficiency or its successors.

Basically...

Even though we we generally work with vendors, this agreement is between you and us.

15. INDEPENDENT CONTRACTOR RELATIONSHIP.

The details...

Nothing contained in this Agreement shall constitute or be deemed to constitute Agents of Efficiency and Client in the relationship of coemployer, joint employer, employer/employee, master/servant, partners or joint venture’s, it being expressly understood and agreed that the only relationship between Agents of Efficiency and Client created herein shall be that of an independent contractor

Basically...

We are officially defined as an independent contractor. That is all.

16. WAIVER.

The details...

Failure by either party at any time to require performance by the other party or to claim a breach of any provision of this Agreement will not be construed as a waiver of any subsequent breach nor affect the effectiveness of this Agreement, nor any part thereof, nor prejudice either party in regard to any subsequent action.

Basically...

If we don’t hold you to your part, shame on us. And vice versa. (But it doesn’t effect our contract.)

17. SECURITY RIGHTS.

The details...

To secure any obligations and the payment of sums hereafter owed by Client to Agents of Efficiency, Client grants Agents of Efficiency the right of set-off, and a security interest under the Uniform Commercial Code in any funds of Client which may now or hereafter be deposited into an account used by Agents of Efficiency for the purpose of payment of taxes, payrolls, fees due Agents of Efficiency or other payments under this Agreement.

Basically...

We can use money deposited into our accounts to pay obligations incurred under this agreement.

18. JURISDICTION.

The details...

This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard to principles of conflicts of law. Client hereby irrevocably submits itself to the personal jurisdiction of the courts in Chester County, Pennsylvania unless a party elects to arbitrate a dispute as provided for in this Agreement. Client hereby waives, to the full extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action in such court and any claim that any such action, suit or proceeding has been brought in an inconvenient forum. The parties hereby agree: (a) not to elect a trial by jury of any issue triable of right by a jury; and (b) waive any right to trial by jury fully to the extent that any such right shall not or hereafter exist. This waiver of right to trial by jury is separately given, knowingly and voluntarily, by each of the parties hereto, and this waiver is intended to encompass individually each instance and each issue as to which the right to a jury trial would otherwise accrue. Further, Client hereby certifies that no representative or agent of Agents of Efficiency has represented, expressly or otherwise, that Agents of Efficiency will not seek to enforce this waiver of right to jury trial provision.

Basically...

This agreement is subject to Pennsylvania law.

19. DISPUTES.

The details...

In the event of a dispute in connection with which any party to this Agreement employs counsel to pursue, protect, or enforce any of the rights afforded that party by the terms hereof, or by the terms of any related agreement or to defend against any claims of any other party hereto which arise out of this Agreement of any related agreement, in or out of court (including appellate courts), in arbitration, bankruptcy cases and proceedings or otherwise, the non-prevailing party in such dispute agrees to pay all attorneys’ fees, expert witnesses’ fees and costs actually incurred by the prevailing party in connection with such dispute and all such fees and costs actually incurred by the prevailing party in collecting or enforcing any settlement agreement, judgment or arbitration award relating to such dispute. If there is a dispute between the parties concerning any aspect of their relationship or this Agreement, either party to such dispute may elect to arbitrate the dispute by serving written notice upon the other. Once a party elects arbitration, such election is binding on both parties and an arbitrator selected from a panel in Chester County, Pennsylvania provided by the American Arbitration Association or similar entity shall resolve the dispute. The cost of arbitration shall be borne equally by the parties. If both parties agree, the first arbitrator may be rejected and a second arbitrator may be selected. The Commercial Arbitration Rulers of the American Arbitration Association and the Federal Arbitration Act shall be applied to and govern the arbitration. The arbitrator’s decision shall be final, conclusive and binding, except as permitted by the Federal Arbitration Act.

Basically...

If we ever can’t play nice, and someone has to hire a lawyer to fight about this contract in court, the losing party will be on the hook for all the legal fees of the party who wins.

 

And if either party would prefer to arbitrate the matter instead of fighting it out in court, that preference is binding on the other party

20. NON DISPARAGEMENT.

The details...

The parties to this Agreement shall not make any material disparaging or negative comments concerning each other, their officers, employees, business practice, operations, or conduct to the public, to industry individuals, or to any potential or current business partner or prospects, except to a party’s business advisors and attorneys, or as required by court subpoena or order.

Basically...

If one or both of us is cranky for any reason when we end our relationship, we promise not to air our dirty laundry in public and talk smack about each other to potential or current customers or partners.

21. COOPERATION.

The details...

If a Client’s employee or a government agency or entity files any type of claim, lawsuit or charge against Agents of Efficiency, Client or both, alleging a violation(s) of any law or failure to do something which was otherwise required by law, Client and Agents of Efficiency shall each cooperate with the other’s defense of such claim, lawsuit or charge. Agents of Efficiency and Client will make available to each other upon request any and all documents that either party has in its possession which relate to any such claim, lawsuit or charge. However, neither party shall have the duty to cooperate with the other if the dispute is between the parties themselves, nor shall this provision preclude the raising of cross claims or third party claims between Client and Agents of Efficiency, if the circumstances justify such proceedings. The parties agree that this provision shall survive the termination of this Agreement.

Basically...

If a leased employee gets cranky at their “employer” things can get sticky as they may chose to sue one or both of us in that event. If that happens, unless our beef is between each other for some reason, we’ll both try and help each other out with lawsuit nuissances as best as we can to settle the dispute quickly and efficiently

22. INVALID PROVISIONS.

The details...

Should any term, condition, or provision of this Agreement be held to be invalid or unenforceable the balance of this agreement shall remain in force and stand as if the unenforceable part did not exist. The captions in this Agreement are provided for convenience only and are not part of the terms and conditions of this Agreement.

Basically...

If a judge doesn’t like one provision of thie contract, that doesn’t mean we throw the baby out with the bathwater.

23. CHANGES.

The details...

Any modifications to this Agreement must be in writing and executed by Authorized Representatives of both parties to be enforceable.

Basically...

All changes must be made in writing

24. NON-EXCLUSIVE REMEDIES.

The details...

The rights and remedies provided herein shall not be exclusive and the parties shall have rights and remedies now or hereafter provided by law in addition to those provided for in this Agreement. Institution of an action to effect collection of payment of an amount in default at law or the obtaining of a judgment in such action shall not be deemed to be an election by Agents of Efficiency nor shall it bar Agents of Efficiency from pursuing other remedies available to it at law or in equity.

Basically...

Just because some remedies for certain wrongs are laid out here doesn’t mean that’s the entire universe of remedies available under this contract.

25. ERRORS.

The details...

Should Client believe that any billing or other communication between the parties is in error, it shall be the responsibility of Client to notify Agents of Efficiency in a timely manner.

Basically...

If we’re not billing you according to this contract, please tell us.

26. CONFIDENTIALITY OF AGREEMENT.

The details...

Except as required by law or as deemed necessary to record the rights granted herein with the appropriate governmental or to consult with their respective attorneys or accountants, neither party shall release any information to any third party with respect to the terms of this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld.

Basically...

We know this contract is pretty cool… but please keep it between you and us.

27. CONFIDENTIAL INFORMATION.

The details...

  • Because each party will have access to information which may be confidential, proprietary, and/or trade secrets of the other party, the parties agree that they will treat confidentially any such information identified to the other as being confidential and not disclose the information to any third party (except to consult with their respective attorneys or accountants) unless otherwise required by law. Client and Agents of Efficiency agree that if either party gives any confidential, proprietary information, and/or trade secrets of the other party to its respective attorneys or accountants, it will take all reasonable steps to ensure that its respective attorneys or accountants preserve the confidential nature of the information. Any other information and date which one party advises the other is confidential, proprietary, and/or a trade secret is included in this Paragraph, whether or not such information is considered as such under the law. The parties agree that all Agents of Efficiency forms, manuals, handbooks, or other materials prepared by Agents of Efficiency and used to perform the duties of this Agreement for Client are considered proprietary and are the exclusive property of Agents of Efficiency. Client is responsible for taking the necessary precautions to designate and safeguard information it considers confidential, proprietary and/or a trade secret.
  • The parties agree to use the confidential and/or proprietary information to facilitate the performance or enforcement of this Agreement and for no other purpose. If the Agreement is terminated or expires, this provision survives for three (3) years after such event or until the information becomes known to the general public. The parties acknowledge that a breach of this provision would create irreparable harm and, therefore, the non-breaching party would be entitled to an injunction or similar remedy to specifically enforce this provision. The parties specifically acknowledge that money damages alone may not be an adequate remedy for any damage that might be suffered as a result of a breach of this provision. Nothing in this provision shall be construed as prohibiting the non-breaching party from any other remedy or remedies including, but not limited to, recovery of damages.
  • The parties also acknowledge that Client is the owner of any intellectual property rights existing before the term of this Agreement or created during the term of the Agreement relating to the business of Client, including, but not limited to, inventions, patents, copyrights, and trade secrets. Client, as owner of the intellectual property, is responsible for ensuring that these are protected as well as for payment of any associated costs.

Basically...

We really take confidentiality seriously as a critical component to us having a relationship built on trust.

 

We won’t go around sharing any of your proprietary company documents or trade secrets with anyone, and we expect the same courtesy from you.

28. PAYMENT.

The details...

Client hereby agrees to pay Agents of Efficiency the specified invoice amounts on a periodic basis and as determined by Agents of Efficiency for services performed by Agents of Efficiency and for all fees and taxes. The fees and the payment terms thereof are specified in the Exhibit A, Confidential Data Sheet attached to this Agreement are hereby made a part of this Agreement. Any amount not paid when due is subject to a late penalty of ten (10) percent of the amount due or fraction thereof that remains outstanding. Checks returned unpaid from Client’s bank will be subject to a ten (10) percent late fee plus any additional costs incurred to collect the unpaid balance. Agents of Efficiency reserves the right to suspend the services outlined in this Agreement immediately until full payment has been made of any amount past due. Client shall pay for Agents of Efficiency’s services rendered under this Agreement with a credit card, bank wire transfer through Automatic Clearing House (ACH) transfer, negotiable bank drafts, or cashier’s check. Client hereby agrees that for each debit return or nonsufficient funds occurrence (“NSF”), Client will be charged Agents of Efficiency’s then current daily NSF charge (currently $100) plus any and all fees and costs associated with the NSF, including, without limitation, Agents of Efficiency’s attorney’s fees and costs of collection and those fees, costs and damages set forth herein. Agents of Efficiency may: a) reverse any deposit or payment made to an employee or other person or entity; b) freeze any other funds without notice to the Client or employee; c) revoke Client’s ACH privileges; and/or terminate this Agreement immediately and without prior notice upon any such event. In the event of a debit return or NSF, the Client is required to wire the funds directly to the processor or account(s) identified by Agents of Efficiency the same day as notice of such debit return or NSF. Additional charges imposed by the Client’s bank are separate from Agents of Efficiency charges and are the Client’s responsibility.

 

To the full extent permitted by law, if any payment is made later than the day after the date that it is due, Client shall pay Agents of Efficiency the following:

  • Interest on any outstanding amount from the date which is fourteen (14) days after payment is due until the date the amount is paid at the rate of .000658% per day (24% percent per annum) (“Default Rate”), or at the highest rate allowed under law.
  • In the event of a dispute in connection with which any party to this Agreement employs counsel to pursue, protect, or enforce any of the rights afforded that party by the terms hereof, or by the terms of any related agreement or to defend against any claims of any other party hereto which arise out of this Agreement of any related agreement, in or out of court (including appellate courts), in arbitration, bankruptcy cases and proceedings or otherwise, the non-prevailing party in such dispute agrees to pay all attorneys’ fees, expert witnesses’ fees and costs actually incurred by the prevailing party in connection with such dispute and all such fees and costs actually incurred by the prevailing party in collecting or enforcing any settlement agreement, judgment or arbitration award relating to such dispute

Basically...

We count on your timely payment of fees as outlined in Exhibit A for us to have the resources to do what we do for you. Please keep the payments coming on time, or we’ll have to hit you up with late payment fees or other fees to cover the cash flow headaches created from the collections hassle.

29. DATA ACCESS, TRANSMISSIONS, AND INFORMATION SECURITY BREACHES.

The details...

Certain Agents of Efficiency products and services may be provided through and accessed by Client through the Internet at a website provided by Agents of Efficiency, including those hosted by Agents of Efficiency on behalf of Client (“Site”). To the extent any Services are provided through the Internet, such Services are referred to as “HRIS.” Client acknowledges that Agents of Efficiency is not responsible for information submitted by Client through the Site and absolves Agents of Efficiency of any liability for any claims arising from Client or Client employee information submitted through the Site. Client agrees to take commercially reasonable precautions to maintain the privacy of usernames and passwords for any HRIS. In addition, Client acknowledges that security of transmissions over the Internet cannot be guaranteed. Agents of Efficiency is not responsible for (i) Client’s or Client employees’ access to the Internet; (ii) interception or interruptions of communications through the Internet; or (iii) changes or losses of data through the Internet. Each party will be responsible for complying with all requirements of applicable law or regulation regarding information security including information security breaches involving Client’s information, data files and Client employees’ information that is stored on the computer systems of such party or its affiliates or vendors.

Basically...

Again, we take confidentiality seriously, and that includes protecting your privacy and data online, to the extent our relationship involves electronic data transmission. We try and follow all the latest best practices and security protocals toward that end. But, let’s be honest. If hackers can get into the CIA, and companies like eBay and Sony, we can only promise so much here. You get that.

30. NOTICES.

The details...

Any notice or demand to be given hereunder by either party shall be effected by personal delivery in writing or by registered mail, postage prepaid return receipt requested, facsimile, or by overnight express delivery. Mailed notices shall be addressed to the party’s address listed above, but each party may change the address by written notice in accordance with this paragraph.

Basically...

Remember, all changes to this contract must be in writing. Specifically, here are the details.

31. ADJUSTMENTS.

The details...

Agents of Efficiency may adjust the contract rates and fees listed in Exhibit A as a result of any statutory changes employee taxes, gross receipts tax, or other costs incurred by Agents of Efficiency. Such adjustments shall be effective on the date of the mandated change. Agents of Efficiency will give Client ten (10) days prior written notice of any increases before implementing them. Any such increases shall become part of this Agreement.

Basically...

Rates change over time for a whole host of reasons… we’ll let you know in writing if ours do, with 10 days notice.

32. CLIENT CHECK.

The details...

Client authorizes Agents of Efficiency to perform a check on the credit and the background of the Client and its owners and officers in conjunction with the Personal Guarantee attached hereto

Basically...

If we need a personal guarantee from you as part of ACH stuff, we may perform a credit check as part of that process.

33. REPRESENTATIONS.

The details...

Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized by their respective entities and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. A facsimile copy of the executed Agreement shall be as binding as the original.

Basically...

This is a real, valid, legally enforceable contract.

34. ENTIRE AGREEMENT.

The details...

This Agreement constitutes the entire agreement between the parties with regard to this subject matter and supersedes any and all agreements, whether oral or written between the parties with respect to its subject matter. Client acknowledges that it has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement including but not limited to any statement made by an employee or marketing agent of Agents of Efficiency. Client acknowledges that Agents of Efficiency has made no representation that Agents of Efficiency’s services will improve the performance of Client’s business.

Basically...

If it’s not written here, we didn’t promise it. Period.