This Agreement sets forth the terms and conditions under which contracting services (the "Services") will be provided by Contractor below ("Contractor") to ehs International, Inc (“ehsInc”).
ARTICLE 1. CONTRACTUAL RELATIONSHIP
During the conduct of this Agreement, Contractor shall operate as, and have the status of, an independent contractor and shall not act as, or be an agent, joint venture, or employee of, ehsInc. As an independent contractor, Contractor will be solely responsible for selecting the procedures and methods for performing the Scope of Services described in this Agreement. Contractor acknowledges that it is not entitled to the rights or benefits afforded to ehsInc's employees, including disability or unemployment insurance, workers' compensation, medical insurance, sick leave, or any other employment benefit. Contractor is responsible for providing, at its own expense, disability, unemployment, and other insurance, workers' compensation, training, permits, and licenses for itself and for its employees and subcontractors. Contractor is responsible for paying when due all federal, state and local taxes, including estimated taxes, incurred as result of the payments paid by ehsInc to Contractor for the Services. Upon request, Contractor will provide ehsInc with proof of timely payment. Contractor agrees to indemnify ehsInc for any claims, costs, losses, fees, penalties, interest, or damages suffered by ehsInc resulting from Contractor's failure to comply with this provision.
Contractor's duties and obligations under this Agreement may not be assigned by it. However, Contractor may employ other Contractor personnel, suitably trained and skilled persons, or companies to perform any specified part of this Agreement. Contractor represents that it is fully experienced, properly qualified, registered, licensed, equipped, organized, and financed to perform the work under this Contract. Nothing contained in this Contract or any subcontract shall create any contractual relationship between any such supplier or subcontractor and ehsInc.
ARTICLE 2. CONFIDENTIALITY
2.1This Agreement concerns confidential information related or belonging to ehsInc or its clients (each a "Client") that Contractor may become aware of in connection with any Services under this Agreement. "Confidential Information" includes without limitation any information about corporate organization or management, staffing, finance, employee performance, compensation of others, research, marketing, strategies, Clients' current and prospective needs, and information ehsInc or a Client receives from other parties. "Confidential Information" also includes the above information pertaining to a Client's customer. Contractor agrees: a)to use such information only in the performance of the Services; b)to hold such information in confidence and trust, limiting disclosure to Contractor's employees having a need to know and who are bound by a written confidentiality agreement comparable to this Article 2; and c)to use all precautions designated by ehsInc to ensure that such information is not disclosed to unauthorized persons or used in an unauthorized manner, both during and after any Services under this Agreement, using measures that are at least as stringent as those used to safeguard Contractor's own confidential information (but in no case using less than reasonable care). 2.2Ownership of Rights. ehsInc acknowledges that Contractor private labeled goods and other Contractor's Confidential Information are proprietary to Contractor, and that Contractor retains all worldwide right, title and interest, including, without limitation, all copyrights, patents, trade secrets, trademarks, service marks, and all other intellectual and proprietary rights or licenses of any kind as may exist now or hereafter come into existence ("Intellectual Property Rights") in and to the Services, and Contractor's Confidential Information. To the extent that ehsInc makes any improvements, modifications, suggestions, updates, upgrades or enhancements to the Services ("Improvements"). ehsInc shall promptly disclose such Improvements to Contractor. 2.3In consideration of the engagement of both parties under the terms of this Agreement and in consideration of the benefits derived by both parties under the terms of this Agreement, both parties covenant and agree: a)It will not, directly or indirectly, for their own account or benefit, or for the account or benefit of any other person or party, communicate to any person or entity any trade secrets, customer lists, information (financial or otherwise), strategies or any other business data or secrets of either party. b)Both parties covenant against disclosure as set forth in subparagraph (a) above shall continue for a period of two (2) years from the termination date of this Agreement.
Contractor will not remove any originals or copies of any Work Product or ehsInc property from ehsInc-authorized premises or location without ehsInc's prior permission. Contractor acknowledges that any unauthorized use or disclosure of Work Product or other ehsInc property shall constitute unfair competition. Contractor agrees not to engage in any such unfair competition with ehsInc.
2.4During the term of this Agreement and for a period of two (2) years following the termination of this Agreement, Contractor agrees not to 1) call on, or solicit any Clients that Contractor became aware of as a result of performing the Services or 2) solicit for hiring any of ehsInc's or its client's employees or contractors that Contractor became aware of as a result of performing the Services. Contractor acknowledges that ehsInc's relationships with its Clients, employees, and contractors are Confidential Information of ehsInc that has been developed through significant time, effort, and expense and that any breach of my obligations under this subsection is unfair competition. Contractor agrees not to engage in any unfair competition with ehsInc.
ARTICLE 3. SCOPE OF SERVICES
Contractor agrees to provide ehsInc the Services for the term and per the rate schedule described in Attachment A incorporated herein by reference, which constitutes the contractual Scope of Services and is incorporated thereby in this Agreement. A Specific Project Scope of Work described in Attachment B will be provided by the Contractor and accepted by an authorized Officer of both ehsInc and Contractor before work can begin and which specifies the Client, the project, the term and the compensation in an agreed upon format. The Services shall be conducted for the individual or Corporate Division contracted as the Client during the period described. The Scope of Services to be conducted shall not be materially different from, or more or less extensive than, those specified in Attachment A, unless such modifications are reduced to writing and signed by authorized Officers of both ehsInc and Contractor. For additional services, a written scope of services, including schedule and estimated budget, shall be drawn up and signed by authorized Officers of both ehsInc and Contractor.
The Contractor's services shall be performed in character, sequence and timing in the same manner and to the same extent as those required of ehsInc in their agreement with its Client ("ehsInc Client Agreement"). Any provisions of the ehsInc Client Agreement regarding insurance, liability, indemnification, dispute resolution, assignment, termination and ownership and use of documents shall also apply to the Contractor and Contractor shall, regarding its services, have all of the same such obligations to ehsInc that ehsInc has pursuant to the ehsInc Client Agreement. Contractor shall also indemnify ehsInc to the same extent that ehsInc is obligated to indemnify its Client under the ehsInc Client Agreement. In the event of any conflict between the provisions of the ehsInc Client Agreement and this Agreement, the provision placing the more comprehensive or greater obligation on the Contractor shall control. A copy of the ehsInc Client Agreement, omitting the amount of compensation, is attached and incorporated by reference into this Agreement.
ehsInc understands that the Scope of Services contracted by this Agreement is provided by Contractor for ehsInc's exclusive use and for the benefit of the Client. Such Services, data, recommendations, proposals, reports, and similar information provided by Contractor are not to be used or relied upon by other parties except as required by design and licensing requirements of the project for which the Services are provided.
ARTICLE 4. COMPENSATION AND PAYMENT
As full consideration for the performance of the Specific Scope of Services described herein, ehsInc shall pay Contractor the compensation provided through this process and agreed upon by both parties. Rates are based on industry standard.
Contractor shall submit their invoices to ehsInc showing the Services performed during the Invoice period and the charges incurred in the performance of said Services. Invoices are to be submitted as agreed or at the end of the project, whichever occurs sooner to:
26741 Portola Parkway #1E823
Foothill Ranch, CA 92610
Attn: Accounts Payable
OR email to
ehsInc shall pay the full amount of the Invoice when paid by Client, or within forty five (45) days, whichever is shorter. If, however, ehsInc objects to all or any portion of any Invoice, ehsInc shall notify Contractor in writing within ten (10) days from date of receipt of Invoice and shall pay that portion of the Invoice not in dispute when paid by Client. ehsInc and Contractor shall immediately make every effort to settle the disputed portion of the Invoice.
ARTICLE 5. PROFESSIONAL RESPONSIBILITY
Contractor represents that the Services shall be performed (within the limits prescribed by ehsInc) in a manner consistent with that level of care and skill ordinarily exercised by other professional contractors in its field of specialty under similar circumstances.
ARTICLE 6. LIABILITY
Contractor agrees to provide workers' compensation insurance for its assistants, employees, and agents indicating compliance with state workers' compensation laws and employers' liability insurance with a minimum of one million dollars ($1,000,000) for injury, death or disease to any employee and agrees to hold harmless and indemnify ehsInc for any claims arising out of any injury, disability, or death of such parties. Contractor further agrees to indemnify and hold harmless ehsInc, its shareholders, directors, officers, employees and agents from any claims, costs (including attorneys' fees), arising from any breach of this Agreement, willful or negligent act, or omission committed by Contractor, its assistants, employees, subcontractors, or agents during the performance of the Services.
Contractor shall, at its own expense, maintain during the performance of this contract professional liability, general liability and auto liability insurance of the coverage and amounts and as provided herein. Automobile Liability Insurance shall include coverage for bodily injury and property damage for owned (if any), hired and non-owned vehicles and shall not be less than one million dollars ($1,000,000) combined single limit for any one occurrence. Comprehensive or commercial general liability insurance shall include coverage of bodily injury, property damage and personal injury for premises, operations, products/completed operations and contractual liability. The amount of the insurance shall not be less than one million dollars ($1,000,000) combined single limit (claims made policies are not acceptable) The policy of professional liability insurance (including contractual liability) shall include coverage for professional errors and omissions and shall not be less than one million dollars ($1,000,000).
Before commencing any work, Contractor shall provide ehsInc a certificate of insurance with proof of the required policies and endorsements showing ehsInc, its shareholders, directors, officers, employees and agents have been named as an additional insured under the Contractor's policy. Workers' compensation and employers' liability policy shall include a waiver of subrogation in favor of ehsInc. The certificate of insurance shall state that the policies will not be canceled without 30 days prior written notice to ehsInc. Documentation of this action should be in the form of an insurance certificate and shall be sent to the attention of:
26741 Portola Parkway #1E823
Foothill Ranch, CA 92610
Attn: Risk Manager
ARTICLE 7. SUSPENSION
ehsInc or Contractor may, with fourteen (14) days' notice in writing, suspend at any time the performance of all or any portion of the Services. Upon receipt of such notice from ehsInc, Contractor shall immediately discontinue Services, placing of orders, contracts, and rental agreements to the extent that they relate to the suspended Services, on the date and to the extent specified in the notice; and, unless otherwise specifically stated in the notice, Contractor shall continue to protect and maintain the work theretofore completed, including those portions on which Services have been suspended.
In the event of such suspension, Contractor shall be reimbursed for the following documented charges that Contractor reasonably incurs, without duplication of any charges, to the extent that such charges result from the suspension of Services:
Standby charges to compensate Contractor for keeping, to the extent required in the notice, its organization and equipment committed to the work site(s) in a standby status, and for the expense of maintaining and protecting that portion of the Services upon which activities have been suspended; and
All reasonable charges associated with demobilization and relocation of Contractor's plant, personnel, subcontractors, and equipment, and charges, which Contractor is or will be legally obligated to pay related to the performance of the Services rendered.
ARTICLE 8. EARLY TERMINATION
The term of this Agreement is set forth in Attachment A. ehsInc or Contractor may terminate all or part of this Agreement at any time by giving written notice of termination. Upon receipt of a termination notice from ehsInc, Contractor shall immediately discontinue Services on the date and to the extent specified in the notice, in the manner specified in Article 7 of this Agreement regarding suspension of Services. Following receipt of payment in accordance with Article 4 of this Agreement, Contractor shall have no further claims against ehsInc with respect thereto. Contractor shall at that time return to ehsInc all Confidential Information covered under Article 2 of this Agreement.
ARTICLE 9. FORCE MAJEURE
If Contractor fails to perform its obligations under this Agreement because of causes beyond the reasonable control of Contractor, Contractor's performance shall be excused except for its obligation to protect and maintain the work theretofore completed, for a period equal to the period of such cause for failure to perform [but not to exceed thirty (30) days], as long as Contractor gives ehsInc notice within two (2) days after the event causing the failure. Such causes include, but are not restricted to, acts of God, acts of war or of a public enemy, acts of the Government of the United States or of the several states, or any foreign country, or any of them acting in their sovereign capacity, fires, floods, epidemics, riots, quarantine restrictions, strikes, civil insurrections, freight embargoes, and weather. Notwithstanding the foregoing, if such causes of Contractor's failure to perform result from any act, negligence or omission by Contractor, then such causes shall not excuse the performance of Contractor under this Agreement.
ARTICLE 10. NOTICES, SIGNATURES, AND AUTHORIZED REPRESENTATIVES
The following signatories are the authorized Officers of ehsInc and Contractor for the execution of this Agreement. Each Attachment shall set forth the name and address of the respective authorized Officers of the parties for the administration of that Attachment. Any information or notices required or permitted under this Agreement or any Attachment shall be deemed to have been sufficiently given if delivered either personally or by mail to the undersigned Officer or other authorized Officer identified in the applicable Attachment. Mailed notices may be affected by registered or certified mail, postage prepaid with return receipt requested. Notices delivered personally will be deemed communicated as of receipt; mailed notices as of two (2) days after mailing.
ARTICLE 11. ARBITRATION
In the event of any dispute or claim resulting from or arising out of this Agreement, the parties agree that all such disputes (with the exception of those arising under Article 2 of this Agreement), shall be submitted in Orange County, California to binding arbitration under the commercial rules of the American Arbitration Association and that any decision may be enforced in a court competent jurisdiction.
ARTICLE 12. ASSIGNMENT
Assignment of this contract by Contractor without prior written consent of ehsInc shall be void. Subject to the foregoing, this Agreement shall be binding on the parties' successors and assigns.
ARTICLE 13. ENTIRE AGREEMENT AND SEVERABILITY
This Agreement constitutes the complete and exclusive agreement between ehsInc and Contractor. It supersedes all prior oral or written understandings, communications, or agreements not specifically incorporated herein. This Agreement may not be modified except in a writing duly signed by an authorized representative of ehsInc and Contractor. If any provision in this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. If any provision is so held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable.
In the event that Contractor generates a contractual document that contains additional terms and conditions (such as a purchase order) that may be inconsistent with the provisions set forth in this Agreement, it is understood and agreed upon that this Agreement is the prevailing document.
ARTICLE 14. ATTORNEYS' FEES AND GOVERNING LAW
If any arbitration or action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, in addition to any other relief to which that party may be entitled. This Agreement will be governed by and construed in accordance with the laws of the State of California (excluding its conflict-of-laws provisions) with exclusive jurisdiction in Santa Clara County, California.
ARTICLE 15. SURVIVAL
Articles 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 14, and 15 shall survive termination or expiration of this Agreement.
UPON ACCEPTANCE does not guarantee contractor agreement until ehsInc executes final agreement.