Advisor HR Culinary, Inc.
PROFESSIONAL EMPLOYER AGREEMENT
Agreement made by and between Advisor HR Culinary, Inc.(Advisor HR) a __________________Company and
________________________________________________________________________________(“Client”), a ________________________Company. (Collectively the “Parties”)
WHEREAS, Advisor HR Culinary is a Professional Employer Organization (“PEO”) providing Professional Employer Services as defined in and subject to N. C. G. S. 58 – 89A.
WHEREAS, Client intends to enter into a Co-Employment Relationship with Advisor HR Culinary regarding the Covered Employees pursuant to the terms of this Agreement;
NOW THEREFORE, in consideration of the mutual promises and benefits contained herein, the Parties agree as follows:
1. Co-Employment Relationship. It is the intention of the Parties to create a Co-Employment Relationship that is an ongoing relationship rather than a temporary or project-specific one, wherein the rights, duties and obligations of the employment relationship have been allocated between Advisor HR Culinary and Client pursuant to this Agreement. Advisor HR Culinary will provide Professional Employer Services pursuant to the terms of this Agreement for all or a majority of the employees providing services to the Client or a division or work unit of the Client who shall be defined as the Covered Employees. An employee of the Client shall not become a Covered Employee under this Agreement until the Client and employee comply with the requirements set forth in Section 7a of this Agreement. Nothing in this Agreement or the relationship between the Parties shall be deemed to create a joint employer relationship. Advisor HR Culinary shall provide a co-employee notice to each Covered Employee setting forth the general nature of this Co-Employment Relationship between and among Advisor HR Culinary, the Client and the Covered Employee.
2. Advisor HR Culinary Services. Advisor HR Culinary shall be responsible for the payment of wages to the Covered Employees and shall collect, report and remit payroll related and unemployment taxes, and to the extent set forth in this Agreement, make payments for employee benefits for Covered Employees. Advisor HR Culinary’s responsibility for the payment of wages does not include any obligation between the Client and a Covered Employee for payments beyond, or in addition to, the Covered Employee’s salary, draw, or regular rate of pay, including bonuses, commissions, severances pay, deferred compensation, profit sharing, or vacation, sick, or other paid time off pay. Advisor HR Culinary shall be deemed as the employer of the Covered Employees under Internal Revenue Code § 3401(d) as controlling the payment of wages.
Advisor HR Culinary shall (i) compile, prepare and maintain all payroll and employee information records required for the Covered Employees, make all proper payroll deductions for benefits provided to the Covered Employees and shall file all related employment tax returns as required by local, State and Federal law; (ii) assume responsibility for administrative matters relating to compensation of the Covered Employees and the provision of such fringe benefits as agreed upon by Client and Advisor HR Culinary; and (iii) secure and maintain workers’ compensation insurance coverage for the Covered Employees as required by law and this Agreement; (iv) establish workplace employment and risk management policies and procedures; (v) provide human resources services; represent Client in connection with state unemployment proceedings and collect and remit unemployment tax payments pursuant to N. C. G. S. 58 – 89A. Advisor HR Culinary may increase the amounts for unemployment insurance shown on Exhibit A in response to any increase in unemployment insurance taxes, increase in wage base, rate, or any special assessment and including any retroactive increases, which must be paid during the Term of this Agreement or which applies to the time period during which this Agreement was in effect.
Term of Agreement.
a. Initial Term. This Agreement shall commence on____________________(“Effective Date”) and remain in full force and effect for a period of one (1) year. After the Initial Term, this Agreement shall stay in effect until terminated by either Party with thirty (30) days written notice to the other Party. In the event this Agreement is terminated by Client on less than thirty (30) days notice, Client shall be subject to termination charges as described in Section 4(e). During or after the Initial Term, Advisor HR Culinary may immediately terminate the Agreement if Client shall be in Default of this Agreement, as described in Section 10. Further, in such case, termination may, at the option of Advisor HR Culinary, occur retroactive to the date of Default.
b. Automatic Termination. This Agreement shall terminate automatically, without notice, in the event of:
i.the Client’s failure to pay any charges or fees when due; or
ii.the bankruptcy, dissolution, receivership or cessation of Client’s business.
c. Reinstatement. Client may reinstate this Agreement, if it has been automatically terminated pursuant to Section 3(b) above, by paying all past due charges and fees, all interest, charges and fees due for the post automatic termination period and also posting an (additional) security deposit, equal to 125% of the total amount of the defaulted invoice prior to the expiration of the first payroll period subsequent to the automatic termination.
Payment and Terms.
Client shall pay Advisor HRAdvisor HR Culinary the rates and amounts set forth in Exhibit A for taxes, insurance and fees. These rates and fees do not reflect Advisor HR Culinary’s actual costs. The rates and fees set forth in Exhibit A shall remain in effect during the term of the Agreement unless otherwise indicated to Client in writing.
In addition to the rates and fees set forth in Exhibit A, Client shall make the following payments to Advisor HR Culinary:
a. Initial Set-Up Fee. Upon the execution of this Agreement, Client shall pay to Advisor HR Culinary an initial set-up fee of $ FREE. .
b.. Client agrees to pay to Advisor HR Culinary all invoiced fees/expenses as described on Administrative Cost, Tax Rate Work Comp, and Summary Cost Comparison documents including but not limited to; FlCA, SUTA, FUTA, Administration Fee, EPLI, Set-up Fee and Delivery Fee as well as any and all additional invoiced expenses submitted by Advisor HR Culinary and previously approved by the Client. Based on the proposal of services, the weekly per employee per payroll fees will be $_________. Subsequent to the Initial Term, Advisor HR Culinary may adjust the Administration Fee upon sixty (60) days’ written notice.
c. In accordance with the payment procedures described herein, Client shall pay to Advisor HR Culinary the rates identified on the attached “Exhibit A”, plus all costs herein incurred by Advisor HR Culinary in connection with the Covered Employees for the period(s) covered during the term of the Agreement, for which Advisor HR Culinary has not specified a rate or fee, including, but not limited to, all payroll (inclusive of bonuses and special payments), all applicable Federal, State and local taxes (including any increase in wage base, rate, or any special assessment and including any retroactive increases), all premiums and contributions in connection with employee benefits, all insurance (including, but not limited to, health, dental, optical, life, accident and disability) premiums, all workers’ compensation premiums, all unemployment compensation charges and all payments in connection with all pension, deferred compensation or retirement plans. In the event of the sale, dissolution, liquidation, reorganization or closing of Client’s business during the term of this Agreement which causes Advisor HR Culinary to terminate or lay off any Covered Employee under this Agreement, Client agrees to promptly reimburse Advisor HR Culinary for actual costs incurred by Advisor HR Culinary in connection with the termination or layoff of such employees (including, but not limited to, all severance benefits and unemployment expenses and charges incurred by Advisor HR Culinary with respect to such employees, for any costs or charges incurred by Advisor HR Culinary which result from Client’s failure or refusal to comply with Advisor HR Culinary’ directives regarding the termination or layoff of such employees or any costs or charges incurred by Advisor HR Culinary which result from Client’s failure or refusal to comply with the terms of this Agreement).
i. Invoice. Advisor HR Culinary shall deliver to Client on a per payroll basis an itemized invoice describing all charges applicable to the Covered Employees covered by the prior payroll period, including the Administration Fee and Reimbursements described in Section 4(c).
Payment. Client authorizes Advisor HR Culinary to debit Client’s account (ACH Authorization Form), the full amount of the invoice as described in Section 4(d)i, on the 20thday of each month for the Covered Employees. Failure of Client to fund designated bank account may result in Advisor HR Culinary withholding payroll checks and/or additional charges as described in Section 4(d)v.
Modification. Any adjustment to Federal, State or local taxes, governmental or non-governmental insurance premiums, contributions for employee benefits applicable hereto, or any other Reimbursements or any change in the status of the Covered Employees shall be effective on the date of such adjustment or change. Further, in the event Advisor HR Culinary inadvertently fails to timely include such additional cost on the next periodic invoice when same became due, even if as a result of an administrative error, that amount shall be due retroactive to the date of change, as mandated by the above authority or otherwise, and shall be due by Client upon the next proper invoicing.
iv. Billing Dispute. Client shall be solely responsible for and verify all time submissions of Covered Employees. If Client disputes the accuracy of any invoice delivered pursuant to Section 4(e), Client shall, within five (5) business days of receipt, deliver a written notice and detailed explanation of such dispute to Advisor HR Culinary. If that notice is not received within such five (5) day period, the accuracy of such invoice shall be assumed and Client shall have waived any objections to the accuracy of such invoice. Any such errors shall be corrected by a debit or credit to Client’s future invoices.
v. Interest Charge. Any amount not paid when due under this Agreement, shall accrue interest at a rate of fifteen percent (15%) per annum. Any check, or ACH, returned for insufficient funds shall be assessed the following: $50.00 the first occurrence, $250.00 the 2nd occurrence, $500.00 the 3rd occurrence, and thereafter. Thereafter, at the discretion of Advisor HR Culinary, Client will be required to pay with immediately available funds before receiving payroll.
e. In the event that this agreement is terminated early or on less than thirty (30) days notice, by either party; (i) the Client shall continue to be responsible for any insurance or employment liabilities prepaid or incurred by Advisor HR Culinary with respect to the Covered Employees at the time of termination, and (ii) Client agrees to pay to Advisor HR Culinary an early termination charge of one hundred twenty five dollars ($125.00) per Covered Employee.
5. Workers’ Compensation Insurance.
a.Advisor HR Culinary may be requested to secure workers’ compensation insurance covering the Covered Employees with statutory limits of $1,000,000 each accident, each employee, and policy limit. Advisor HR Culinary, upon written request from the client, will secure coverage with higher statutory limits and the client shall be responsible for all additional costs. Any such coverage shall be maintained throughout the term of this Agreement. Advisor HR Culinary, upon written request, shall provide to Client on or before the Effective Date, documentation evidencing that such insurance is valid and in full force and effect as of the Effective Date. Advisor HR Culinary shall have the right, from time to time, to change workers’ compensation insurance coverage and/or insurance carriers at its discretion, provided such changes shall not cause any interruption or lapse of insurance coverage to Client. Client shall cooperate with any safety inspections or audits conducted by any workers’ compensation carrier and assist Advisor HR Culinary with the completion of any insurance applications and/or reports.
b. Return-to-Work Program. Client agrees to establish and communicate to all Employees, in cooperation with Advisor HR Culinary, a Return-to-Work program including job descriptions of potential light duty work and compensation, and agrees to participate in such program for any Employee injured during the term of the Agreement. Failure to participate in this program will result in charges to the Client for workers’ compensation benefits disbursed in lieu of earned wages for performing modified duty assignments.
6. Health Insurance.
a. Advisor HR Culinary shall offer and administer on the clients behalf, a benefit plan in the client’s name which includes major medical coverage for all eligible employees who have complied with Advisor HR Culinary’s carrier’s underwriting requirements and with the provisions of their employment agreement, if applicable. Offered benefits are conditioned upon Client’s compliance with this Agreement.
b. Client shall pay health care contributions or premiums when due. The failure to pay health care contributions or premiums when due will result in termination of coverage to Client and/or the Covered Employee. Advisor HR Culinary reserves the right to require prepayment of health care contributions or premiums by Client and/or the Covered Employees.
c. In the event of temporary layoff, Client and/or Covered Employee shall continue to pay health care contributions or premiums, unless they elect to discontinue coverage. If health care contributions or premiums are not paid promptly, insurance coverage will lapse pursuant to the terms of the insurance plan. If coverage is terminated and subsequently the Covered Employee returns to full time work, he/she will be required to submit proof of insurability acceptable to Advisor HR Culinary and its insurance carrier and shall be subject to such other matters as the insurance company may require.
d. Advisor HR Culinary reserves the right to refuse to issue medical insurance to applicants who do not meet Advisor HR Culinary’s carrier’s underwriting requirements.
e. Advisor HR Culinary shall comply with the requirements of COBRA for all eligible employees. If COBRA premiums are not timely paid by the Client or the Covered Employee(s), as determined under applicable Federal law, COBRA coverage will terminate as of the end of the period for which the last payment was timely made. The Client shall timely provide Advisor HR Culinary with all such information as may be requested by Advisor HR Culinary to permit it to satisfy the requirements of COBRA and Client shall be responsible for all losses incurred by Advisor HR Culinary as a result of Client’s failure to do so.
f. Effective as of the date of this Agreement, Client will not sponsor or maintain its own self-funded health (including dental and vision) plan or cafeteria plan as those terms are defined under Sections 105 and 125 of the Internal Revenue Code of 1986, as amended, without notifying Advisor HR Culinary in writing of the plan and its terms.
g. Client acknowledges that it will retain full responsibility and liability for any employee benefit plan(s) it provides the Client’s Covered Employees and shall indemnify Advisor HR Culinary and hold harmless Advisor HR Culinary as a result of such action.
7. Responsibilities of Advisor HR Culinary and Client as to Covered Employees.
a. Not withstanding the Effective Date, Advisor HR Culinary’s obligations under this Agreement to the Covered Employees, including but not limited to obligations related to benefits, insurance, and workers compensation coverage shall not commence until a 72-hour verification period has expired from the time the Client has provided Advisor HR Culinary with the name, address, and properly completed and signed new hire acknowledgement and verification and enrollment forms for the former employee of Client (Former Employee) or new Covered Employee. On or before the Effective Date indicated in Section 3a, Client shall secure and deliver to Advisor HR Culinary (i) written authorization from each of the Former Employees stating that Client may deliver to Advisor HR Culinary the entire personnel file and all information pertaining to the employment relationship of Client and the Former Employees, and (ii) such acknowledgments from each of the Former Employees regarding Client and Advisor HR Culinary’s respective responsibilities under this Agreement, under any specific Client - Employee Contracts and to the Former Employees generally.
b. Advisor HR Culinary and Client shall each have the right to exercise direction and control related to the management of safety, risk and personnel matters at all work site locations. However, Advisor HR Culinary shall consult with Client on such matters, and Client shall have the responsibility to consult with Advisor HR Culinary on such matters including but not limited to, the following:
i. Client agrees to consult with Advisor HR Culinary prior to taking any employment action with Covered Employees such as hiring, discharge, disciplinary action and reductions in force. Client understands and agrees that any employment related advice provided by Advisor HR Culinary is not legal advice, nor is Advisor HR Culinary in the profession of providing legal services;
ii.safety inspections of Client’s equipment and worksite; and
iii.Promulgating and administering employment policies.
c. Advisor HR Culinary shall be entitled to install, in conspicuous locations, bulletin board(s) at Client’s work site(s), in order to effectively communicate with the Covered Employees. Client shall cooperate with Advisor HR Culinary in maintaining the integrity of such bulletin board(s) and shall, upon request, insert or post information for the Covered Employees as requested or required by Advisor HR Culinary from time to time.
d. Client agrees to cooperate fully when required to assist Advisor HR Culinary in defending against unemployment compensation claims, workers’ compensation claims, grievancesand for arbitration, administrative proceedings or litigation resulting from personnel decisions pertaining to, or the employment of, the Covered Employees or otherwise. Client’s cooperation shall include, but not limited to, the completion of termination reports and, if requested, attendance at hearings, depositions or trials as a witness, answering of questions or interrogatories under oath or otherwise and providing access to, producing or compiling Client’s documents relating to the Covered Employees. Further, such obligation shall survive the termination of this Agreement.
e. Actions of Covered Employees acting as supervisors for Client which are in violation of law or which result in liability will be outside the scope of their responsibility as Covered Employees and in such an event, supervisory employees will be acting solely as the agents of Client.
f. Advisor HR Culinary shall not be considered to be a responsible employer of the Covered Employees for purposes of claims of illegal discrimination involving disability, race, sex, sexual harassment, religion, color, age, national origin, marital status, weight, height, sexual orientation, veteran status, retaliation, any other local, State or Federal employment law.
g. Covered Employees shall be treated as employees of the Client for purposes of confidentiality and non-competition obligations of the Covered Employees to Client and for purposes of assignment to Client, and ownership by Client, under agreement, by law or otherwise, of all intellectual property rights related to Client’s business, including but not limited to, inventions, whether patentable or not, and patents resulting there from, copyrights, service marks and trade secrets.
8. Client Responsibilities, Representations, Warranties and Covenants.
Health and Safety Compliance. Client shall comply with all health, safety and hazardous material laws, regulations, ordinances and rules which are applicable to the operation of its business and the Covered Employees, including but not limited to the Occupational Safety and Health Act of 1970 (“OSHA”). Client shall cooperate in implementing and enforcing work place safety and risk management policies and comply at its own expense with any directives, policies, procedures or safety manuals promulgated by Advisor HR Culinary, its insurance carriers or agents, or any government agency having jurisdiction over the workplace safety of Clients’ place of business or the Covered Employees. Client represents that its working environment, equipment and machinery currently meet all federal, state and local safety standards and that they will be maintained in compliance with such standards for the duration of this Agreement. Client shall also provide, at its own expense, all personnel protective equipment as required. Client shall report all employee accidents and injuries to Advisor HR Culinary within twenty-four (24) hours of occurrence on such forms as are requested by Advisor HR Culinary, Advisor HR Culinary’s workers’ compensation insurance carrier and Advisor HR Culinary’s liability insurance carriers shall have the right to inspect Client’s place(s) of business at all reasonable times to insure compliance with this Section and with the terms of the Agreement.
b. Conduct of Client’s Business. Client is solely responsible for the direction and control of Covered Employees as is necessary to conduct Client’s business and the day-to day job duties of the Covered Employees. Client is solely responsible for the quality, adequacy and safety of the goods or services produced or sold in Client’s Business.
c. Supervision, Training and Control. Client is solely responsible for directing, supervising, training and controlling the work of the Covered Employees with respect to the business activities of the Client, and is solely responsible for the acts, errors or omissions of the Covered Employees regarding those Activities. Advisor HR Culinary is not liable for the acts, errors or omissions of a Client or Covered Employee when the Covered Employee is acting under the express direction and control of the Client.
d. Selection and Screening of Covered Employees. Except as may be set forth in Exhibit C regarding Advisor HR Culinary’s obligations to perform background checks, verification of employment history, credit or criminal histories, Client shall be solely responsible for interviewing prospective employees, matching work skills with job requirements, assigning job duties, determining hours, methods of operation, performance requirements and compensation for Covered Employees. Client is solely responsible for compliance with all regulatory, statutory and licensure requirements for its business and the Covered Employees.
e. ADA Compliance. Client will comply, at its own expense, with any building or equipment modifications and the cost of any accommodations required by the American with Disabilities Act, as amend, or such other similar local, state or federal laws, regulations, or orders.
f. National Labor Relations Act. Client agrees to abide by the National Labor Relations Act. Because the decision to operate as a union or a non union business is a core business decision belonging solely to the Client, Client is responsible for all decisions related to a union organizing campaign, the negotiation of a collective bargaining agreement, and the processing of grievances and arbitrations under any collective bargaining agreement.
g. Government Contracts. Client warrants that it is not a federal, state or local government contractor or subcontractor and that none of the Covered Employees perform work on government contracts, except as previously disclosed in writing to Advisor HR Culinary. Client agrees to provide written notice to Advisor HR Culinary prior to entering into any government contract.
h. Employability Eligibility. Client warrants that all Covered Employees have provided proof of employment eligibility documents as required by state and federal laws and regulations at the time of said Covered Employees’ employment. Advisor HR Culinary, with the assistance of Client, shall obtain fully completed I-9 Forms for each Covered Employee upon the Effective Date of this Agreement and during the Term of this Agreement.
i. Family and Medical Leave Act. If the Client is subject to the Family and Medical Leave Act (“FMLA”) the Client is deemed to be the Primary Employer pursuant to the regulations, shall be responsible for all notice requirements, and shall cooperate in reinstating Covered Employees upon completion of any leave.
j. Drug Free Workplace. Client shall cooperate in establishing and implementing a drug free workplace policy or program for the Covered Employees.
k. WARN Notices.Client assumes all responsibility and liability under the Worker Adjustment and Retraining Notification Act to provide the required notices under that Statute to all Former Employees and all Covered Employees.
l. Client Reporting Requirements. Client agrees it will provide to Advisor HR Culinary at the end of each pay period, records of actual time worked by each Covered Employee and verify that all hours worked by the Covered Employees that are reported to Advisor HR Culinary are accurate and in accordance with the requirements of the Fair Labor Standards Act and other Federal, State or local laws. These records as submitted to Advisor HR Culinary shall become the basis for Advisor HR Culinary to issue all payroll checks. Advisor HR Culinary shall not be responsible for incorrect, improper or fraudulent records of hours worked. Client shall provide Advisor HR Culinary with periodic reports as requested by Advisor HR Culinary from time to time on forms established by Advisor HR Culinary (the “Client Reports”). Client shall also provide any other information which is reasonably requested by Advisor HR Culinary. Client represents and warrants that the information provided to Advisor HR Culinary in, or in connection with, this Agreement, the Client Reports or otherwise, shall be complete and accurate and that Advisor HR Culinary may rely upon such information.
Client Employee Plans. Prior to the execution of this Agreement, Client has supplied Advisor HR Culinary with a true correct and complete list of all pension, 401(k), fringe benefit, profit-sharing, retirement, deferred compensation, welfare, medical insurance, disability, bonus, vacation pay, severance pay and other similar plans, programs and agreements, collective bargaining agreements, employment and consulting agreements, non-competition agreements, trust agreements, executive compensation plans, employee stock option and stock purchase plans and other similar plans, agreements, memoranda of understanding, arrangements or commitments to which the Client is a party or by which Client is bound (“Client Employee Contracts”) relating to the Former Employees who become Covered Employees. For the term of this Agreement, Client shall continue to provide Advisor HR Culinary with notice of new or revised Client Employee Contracts. Client will deliver copies of the Client Employee Contracts to Advisor HR Culinary upon written request by Advisor HR Culinary Except as communicated in writing to Advisor HR Culinary prior to the execution of this Agreement, no Client Employee Plan provides health, life insurance or other benefits for retirees. Client is not a member of a “controlled group” or an “affiliated service group” or one under “common control” as these terms are defined in Section 414(b), (c) or (m) of the Internal Revenue Code of 1986, as amended. Advisor HR Culinary is relying upon the list of Client Employee Contracts described in Exhibit B and any omission or misrepresentation by Client would be a basis for termination of this Agreement by Advisor HR Culinary.
Employee Relations. Client warrants for six (6) years prior to the Effective Date it has been in full compliance with all Federal, state and local laws regarding employment practices and is not engaged in any unfair labor practice or discriminatory or otherwise illegal employment practices, and there are no arrears in the payment of wages, taxes, workers’ compensation assessments or penalties. Except as Client has disclosed in writing prior to the execution of this Agreement, no Former Employee is represented by any labor union. Client has deducted and remitted to the relevant governmental or other authority or person all income taxes, unemployment insurance contributions and any taxes or other amounts relating to the Former Employees which it is required by statute or otherwise to deduct or remit to such authority or person.
i. Client shall furnish and keep in full force and effect at all times during the term of this Agreement, comprehensive general liability insurance on its entire business operation and comprehensive automobile insurance liability covering all automobiles in Client’s business, including non-owned vehicles used in Client’s business. The comprehensive general liability insurance shall insure bodily injury and property damages for a minimum combined single limit of One Million Dollars ($1,000,000.00) and shall include uninsured motorist insurance with a minimum combined single limit of Sixty Thousand Dollars ($60,000.00). In states where “no-fault” laws apply, equivalent personal injury and property damage coverage shall be included. If Client renders professional services it shall obtain Professional Liability Insurance. If the Client’s business includes the sale of alcoholic beverages, it shall obtain Liquor Liability Insurance. Client shall cause its insurer to name Advisor HR Culinary as additional insured and shall issue such a certificate of insurance to Advisor HR Culinary within thirty (30) days after the Effective Date. Said policies shall provide at least thirty (30) days advance notice to Advisor HR Culinary of any suspension or cancellation or any material change in policy limits, benefits or coverages. Client shall provide to Advisor HR Culinary, on or before the Effective Date, documentation evidencing that all of foregoing insurance is valid and in full force and effect as of the Effective Date.
ii. In the event Client utilizes or contracts with third party contractors and subcontractors, Client shall require subcontractors to carry the same insurance coverage required above and shall furnish Advisor HR Culinary with copies of certificates of insurance, including proof that Advisor HR Culinary is named by such contractors and subcontractors as an additional named insured on those policies.
p. Waiverof Subrogation. Client and Advisor HR Culinary release and discharge each other, and any officer, agent, employee or representative of such party, from any liability whatsoever arising from any loss, damage or injury to the extent of any insurance recovery received by the insured party for such loss, damage or injury.
Legal Proceedings. Client hereby represents and warrants that,
i. During the past six (6) years there have not been, and there are not currently pending or threatened, any governmental investigation, administrative proceeding (including but not limited to UIA, EEOC, NLRB, OFCCP, OSHA or Wage and Hour matters), investigation, claim, lawsuit, audit or other adversarial proceeding in which Client has been involved relating to Client’s employees, employee benefit or retirement plans or matters, the Client Employee Contracts, employment taxes or employment matters generally or which could in any manner adversely impact Advisor HR Culinary or the performance by Advisor HR Culinary of its obligations under this Agreement.
ii There is no threatened or pending litigation or other proceeding, or any basis therefore, against Client by any Former Employee or group of Former Employees which is based or arises out of any such Former Employee’s employment relationship with Client, including but not limited to, claim for breach of contract, tort, discrimination, employee benefits, wrongful termination or any and all common law or statutory claims.
r. Survival. All representation and warranties made by Client herein shall survive the term of this Agreement. The representations and warranties in this Section are deemed to be material and Advisor HR Culinary enters into this Agreement relying on those representations and warranties.
a. Client hereby agrees to release, defend, indemnify Advisor HR Culinary and hold harmless Advisor HR Culinary and its officers, directors, shareholders, member, affiliates, subsidiaries, employees (except Client’s Covered Employees), agents and consultants (collectively, the “Indemnify Advisor HR Culinary Parties”, and individually, the “Indemnified Advisor HR Culinary Party”) from and against all claims, actions or causes of action, assessments, losses, damages, judgments, arbitration awards, liabilities (whether absolute or accrued, contingent or otherwise), costs and expenses, including, but not limited to, loss of business goodwill, profits or other consequential, special or incidental damages, interest penalties and attorney fees and expenses asserted (collectively referred to as “Damages”) against, imposed upon or incurred by any Indemnified Advisor HR Culinary Party, directly or indirectly, by reason of or resulting from or relating to any of the following:
i. Breach or misrepresentation by Client of any term, condition, covenant, obligation or warranty made or contained in this Agreement or in any certificate or other instrument or document furnished or to be furnished to Advisor HR Culinary under this Agreement, including, but not limited to, failure of Client to cooperate in the defense of employment claims, litigation, grievance and arbitration under Section 7(d) herein;
ii. Litigation, claims or other liability arising out of Client’s products and services or arising from the acts, or failures to act, by Client and/or its employees, agents, former employees or former agents, and/or the Covered Employees, including, but not limited to, acts or failures to act constituting negligence, tortuous, willful or other misconduct, criminal or dishonest conduct or other conduct in violation of applicable Federal, State or local law or the terms and conditions of this Agreement;
iii. Litigation or claims arising from any action, or failure to act, by Advisor HR Culinary at the direction of Client;
iv. Litigation or claims by the Covered Employees against Advisor HR Culinary (including those arising under the Client Employee contracts), other than litigation or claims arising from Advisor HR Culinary’s violations of the terms and conditions of this Agreement or litigation or claims arising from any action, or failure to act, by Client at the direction of Advisor HR Culinary.
The parties agree to cooperate in such a manner as to preserve and uphold the confidentiality of all confidential business records and the attorney-client and attorney work-product privileges. Each party agrees (i) it will use its best efforts in any action, suit or proceeding in which it has assumed the defense or participated in (consistent with applicable law and rules of procedures) to preserve any applicable attorney-client or work-product privilege, and (ii) all communications between any party hereto and counsel responsible for or participating in the defense of any action, suit or proceeding shall, to the extent possible, be made so as to preserve any applicable attorney-client or attorney work-product privilege.
10. Termination Due to Breach. The Client shall immediately be in “Default” under this Agreement if:
a.Client fails to pay any sum when due pursuant to this Agreement or maintain the required deposit described in Section 4.
b.Client breaches, or there is any misrepresentation in, any term, condition, covenant, obligation or warranty made or contained in this Agreement or in any Exhibit, certificate or other instrument or document furnished by Client under this Agreement or otherwise;
c. Client fails to comply with any directive from Advisor HR Culinary or any governmental authority, including, but not limited to, any directive regarding health, safety, or personnel decisions, or commits any acts which adversely affect Advisor HR Culinary’s rights as a co-employer of the Covered Employees under this Agreement;
d.Advisor HR Culinary reasonably believes that Client or its employees, agents, former Employees or former agents and/or the Covered Employees engaged in tortuous, willful or other misconduct, criminal or dishonest conduct or conduct in violation of applicable Federal, State or local law:
e.Any bankruptcy, receivership or insolvency proceeding is instituted by or against Client;
f.Advisor HR Culinary, in its discretion, deems Client’s financial condition or ability to timely pay Advisor HR Culinary invoices impaired, whether based on Client’s actual or perceived financial condition, market factors or other outside factors.
g.Upon a breach by Client of this Agreement, all sums due by Client to Advisor HR Culinary shall become immediately due and payable.
a. Assignment. Client cannot assign this Agreement nor its rights and duties here under, nor any interest herein, without prior written consent from the other, provided that Advisor HR Culinary may assign this Agreement to an affiliate.
b. Agreement Cooperation.The parties represent that the Agreement, and any addenda and/or exhibits attached thereto, have been jointly drafted for the purpose of contract construction and performance.
c. Amendment. None of the terms and provisions of this Agreement may be modified or amended in any way except by an instrument in writing executed by each party hereto.
d. Entire Agreement. This Agreement constitutes the entire agreement between the parties with regard to the subject matter herein. No oral or written agreements, practice or course of dealing between the parties relating to the subject matter herein shall supersede this Agreement.
e. Waiver. Failure by either party hereto 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 validity and operation of this Agreement, nor prejudice either party with regard to any subsequent action.
f. Forms. Client shall exclusively utilize the forms provided by Advisor HR Culinary in dealing with the Covered Employees.
g. Notices. Any notice or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered personally or sent by confirmed facsimile transmission, telex, telecopy or other wire transmission (with request for assurance of delivery in a manner typical with respect to communications of that type), overnight courier (postage prepaid), registered or certified mail (postage prepaid with return receipt requested) addressed to the party’s principal place of business (attention to the President) or to such other address of which the parties may have given notice. Unless otherwise specified herein, notices shall be deemed received (i) on the date delivered, if delivered personally, by wire transmission or confirmed facsimile transmission; (ii) on the next business day after deposit with an overnight air courier; or (iii) three (3) business days after being sent, if sent by registered or certified mail.
h. Election to Assume or Reject Agreement. Client agrees that in the event that a bankruptcy proceeding is instituted by or against Client pursuant to Title 11 of the United States Code, as amended (the “Code”), Client shall immediately (but in no event later than five (5) business days after such proceeding is instituted) assume or reject this Agreement pursuant to Section 365 of the Code and, if the Client does not accept or reject this Agreement within such period, Client agrees, and shall stipulate, that Advisor HR Culinary is entitled to relief from the automatic stay imposed by Section 362 of the Code, notwithstanding Client’s rights under the Code to the contrary.
i. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement or any alleged breach thereof may be submitted to and settled by a court of appropriate jurisdiction or the American Arbitration Association (“AAA”). The choice of forum shall be made in the sole discretion of Advisor HR Culinary If Advisor HR Culinary should elect to proceed to arbitration, the then applicable Commercial Arbitration Rules of the AAA shall be followed. The arbitration award shall be final and binding on all parties and judgment upon the award rendered may be entered in any court having jurisdiction thereof. Whether the dispute proceeds in a court of competent jurisdiction or in arbitration, if Advisor HR Culinary is the prevailing party, Advisor HR Culinary shall be entitled to an award reflecting both a reasonable attorney fee and its costs to resolve the dispute. In the case of the AAA, costs recoverable by Advisor HR Culinary shall include any administrative costs assessed by the AAA and the cost of the arbitrator.
j. Severability. If any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herewith shall not in any way be affected, impaired or prejudiced thereby.
k. Force Majeure. Neither party hereto shall be liable to the other for any loss of business or any other damages caused by an interruption of this Agreement whereas such interruption is due to war, act of terrorism, rebellion or insurrection, an act of God, fire, government statute, order or regulation prohibiting the performance of this Agreement, riots, strikes, labor stoppages, lockouts or labor disputes to the extent such occurrences are not caused by the actions of the party seeking relief under this section, or other causes beyond the reasonable control of Advisor HR Culinary or Client.
l. Successors and Assigns. This Agreement shall be binding upon Advisor HR Culinary and Client and the successors, transferees and assigns of each.
m. Section Headings. The Section Heading of this Agreement are for the convenience of the parties only and in no way alter, modify, amend, limit or restrict contractual obligation of the parties under this Agreement
This Agreement has been executed on this the ______day of ______________________, 2019.
By: Barry Aaron
Its: Senior Vice President-Portfolio Management
Advisor HR Culinary
Client Company Name:
Client Contact Name:
Client Contact Title: