SOCIAL VEND PROGRAM AGREEMENT
Updated Tuesday, April 26th, 2022
1. PARTIES. This Program Agreement (“Agreement”) is made on and effective from [Document.CreatedDate] (“Effective Date”) by and between [organization.name] (the “Principal”), and SVUSA, inc (“Agency”) (each a “Party” and collectively the “Parties”), as Principal wishes to appoint the Agency as its agent to provide staffing and payroll services. The Parties therefore hereby agree as follows:
2. PURPOSE; APPOINTMENT. The Principal hereby appoints the Agency as its Agent to perform the duties listed in attached Exhibit A (the “Duties”). The Agency accepts the appointment and agrees to perform the Duties and act as the Principal’s Agent in accordance with the terms and conditions of this Agreement. Additional future Statements of Work (“SOW”) may be executed by the parties and attached to this agreement.
3. REPRESENTATIONS AND WARRANTIES. The Parties hereby represent and warrant that (a) they have the legal authority to enter into this Agreement; (b) each party has the right to grant the licenses contained herein; (c) the execution, delivery and performance of this agreement will not conflict with, or result in a breach of, any agreement to which they are a party or by which they are bound; (d) that the Services and all documents and materials supplied or specified will comply with all applicable laws and regulations; and (e) each Party warrants it has and will comply fully with all applicable laws, regulations, statutes, and ordinances.
4. TERM. This Agreement is effective as of the Effective Date and, unless otherwise terminated in accord with provisions of this Agreement, will continue until the Duties have been satisfactorily completed and the Agency has been paid in full (the “Term”). The word “Term” shall mean the full term of the Agreement, as extended pursuant to this Section or otherwise.
5. RESPONSIBILITIES; SCOPE OF AUTHORITY. Responsibilities of the parties are listed in Exhibit A. The Agency shall not represent itself as having any powers except those specified in this Agreement. Without limiting the foregoing, the Agency shall not obligate the Principal in any way except as stated in this Agreement or otherwise specifically authorized in writing by the Principal.
6. COMPENSATION. Principal shall pay the Agency upon terms outlined in Exhibit A and payable to the Agency resulting from efforts of the Agency during the Term.
- Agency solely responsible for taxes. The Agency acknowledges that the Agency is not the Principal’s employee and that the Agency is solely responsible for reporting and paying any tax or other cost assessed on the basis of the Principal’s payment of compensation to the Agency under this Agreement.
- Principal will not withhold taxes. The Agency acknowledges and agrees that the Principal will not withhold any amount of compensation for the Agency’s taxes, including but not limited to income tax, social security and Medicare tax, workers’ compensation taxes or costs, unemployment compensation taxes or costs, or any other tax, cost, fee, or charge related to the Agency’s compensation for services under this Agreement.
- Reimbursement of expenses. In addition to reimbursement for expenses as laid out in Exhibit A, and subject to the Principal’s prior written approval, the Principal shall reimburse the Agency for unusual or extraordinary expenses incurred by the Agency.
- Credit cards. SVUSA, inc, is authorized to automatically charge the credit card indicated in this authorization form according to the terms outlined in this agreement. This payment authorization is for the goods/services described within, for the amount indicated only, and is valid for this use only. Principal certifies that signor is an authorized user of this credit card and that Principal will not dispute the payment with their credit card company; so long as the transaction corresponds to the terms indicated in this agreement.
- Invoices, late fees. Invoice payments will be charged when incurred or will be due within 15 days of receipt if no credit card is on file. Late Payments or declined charges may result in penalties equal to the cost of the overdue amounts plus 15% late fee. Principal agrees to reimburse all reasonable actual costs incurred in the collection of overdue amounts.
- Deposits. in consideration of staffing and organization efforts, deposits are considered earned upon receipt.
- Hiring of Agency Staff. Principal understands that Agency is in the business of identifying, training, and providing skilled Staff. Principal agrees that it shall not contact any Agency Staff except through Agency for a period of 14 months after the end of the Term. If Principal hires any Agency Staff, Principal agrees to pay Agency a fee of $2,500.00.
7. TERMINATION. This Agreement may be terminated (a) by either Party for a material breach of any provision of this Agreement by the other Party, if the material breach is not cured within 30 days of receipt of written notice thereof; or (b) by Principal for convenience with 30 days written notice. Following the termination of this Agreement in accordance with this Section, Principal shall promptly pay Agency according to the terms of Exhibit A for its actual performance of up to receipt of notice of the termination.
8. PERSONNEL. Agent shall:
* Recruit, screen, interview, and skill test when applicable, and assign their staff members being provided ("Staff") to perform the type of work described in Exhibit A. Drug tests and criminal record checks of potential staff members will be made upon request of Principal and at Principal's additional cost;
* Pay Staff's wages and provide them with the benefits that Agent offers to them;
* Pay, withhold, and transmit, as appropriate, all payroll taxes; provide unemployment insurance and workers' compensation benefits; and handle unemployment and workers' compensation claims involving Staff;
* Require Staff to sign Agent's policies and procedures and application forms which may include but are not limited to the attendance policy, drug free workplace policy, the EEO and ADA policy, worker's compensation, confidentiality agreement, harassment policy and safety rules. The Staff also acknowledges that they are legally independent contractors* contracted by Agent and not Principal and therefore are not entitled to holidays, vacations, disability benefits, insurance, pensions, or retirement plans, or any other benefits offered or provided by Principal;
* Comply with federal, state and local labor and employment laws applicable to Staff, including the Immigration Reform and Control Act of 1986; the Internal Revenue Code (Code); the Employee Retirement Income Security Act (ERISA); the Health Insurance Portability and Accountability Act (HIPAA); the Family Medical Leave Act, Title VII of the Civil Right Act of 1964; the American with Disabilities Act; the Fair Labor Standards Act; the Consolidated Omnibus Budget Reconciliation Act (COBRA); the Uniformed Services Employment and Reemployment Rights Act of 1994; and the Patient Protection and Affordable Care Act (ACA). *Staff Contractors in California will be designated as temporary employees, pursuant to AB 5 and related rules.
9. CONFIDENTIALITY. Agent agrees that Agent will not, directly or indirectly, during or after the Term of the Agreement, disclose in any manner, or use or permit others to use, any information or material regarding Principal, any of its parent, subsidiary or affiliated companies, employees and/or businesses, which information or material is compiled by, obtained by, or furnished to Agent, regardless of whether such information or material is specifically designated by Principal as confidential and proprietary. It is understood that the foregoing obligation shall not apply to any part of the information which: (a) is or becomes generally available to the public (other than by disclosure by Agent); (b) becomes available to Agent on a non-confidential basis from a source which is entitled to disclose it to Agent; or (c) is in the possession of Agent as of the date hereof which Principal specifically has designated in writing as non-confidential.
10. REFUNDS. No Refunds will be permitted. The client understands that the entirety of the fees outlined in this agreement are due within (7) days after the event. The terms of this agreement are binding and may not be canceled for any reason.
11. CANCELLATION OF SERVICES. Except in the case of a "force majeure" event as set forth below, if Agent cancels, suspends, postpones or materially modifies the proposed services after this Agreement is executed, no compensation is due and owing by Principal to Agent, and Agent shall refund any amounts paid to Agent by Principal under this Agreement. If Principal cancels, suspends, postpones or materially modifies the proposed services after this Agreement is executed, the full term of the fees will be used as credit for future services for a period of up to 6 months. After such time, any credit is forfeit.
12. FORCE MAJEURE. Each party's performance shall be excused during the period of any "condition of force majeure." The term condition of "force majeure" shall mean an unforeseeable event which is beyond the control of the parties and that makes it commercially impracticable or illegal for such party to perform its obligations hereunder (i.e., such as the closure or destruction of the facility). In no event shall any weather-related condition causing transportation difficulties be considered a condition of force majeure allowing cancellation by Principal. An event cancelled due to a condition of force majeure shall be re-scheduled, if at all possible, as soon as practical once the period of any condition of force majeure has passed.
13. INSURANCE. Throughout the Term of this Agreement, Agent shall provide and maintain in full force and effect, at its expense, the following minimum insurance coverages:
* Commercial General Liability Insurance with limits not less than $1,000,000 per occurrence, $2,000,000 in the aggregate. The policy shall include coverage for liabilities arising out of premises, operations, independent contractors, products, completed operations, personal & advertising injury, and liability assumed under an insured contract. This insurance shall apply separately to each insured against whom claim is made or suit is brought subject to the respective limit of liability;
* Workers’ Compensation Insurance as required by applicable law, and Employer’s Liability Insurance with a limit not less than $1,000,000 per occurrence; All such insurance required above shall be primary and non-contributory, and written by insurance companies qualified to do business in the state for which services are performed. Policies shall name Principal and its parent, subsidiaries, members and affiliated companies, including their respective directors, officers, employees, and agents (the “Additional Insureds”), as additional insureds and shall contain a waiver of subrogation in favor of such Additional Insureds. The Additional Insured requirement applies to all coverages, except Workers’ Compensation. The waiver of subrogation applies to all coverages. The Agency will immediately notify the Principal if such insurance terminates, is cancelled, suspended, or changes materially, including but not limited to a change in the amount of insurance.
13. INDEMNIFICATION. Each Party will indemnify, hold harmless, and defend the other Party, and its officers, directors, employees, agents and affiliates from and against any and all claims, litigations, losses, liabilities, costs, and other expenses, including reasonable attorney’s fees, incurred as a result of or related to the services provided under this agreement. Agent shall indemnify, hold harmless, and defend the Principal, and its officers, directors, employees, agents and affiliates from and against any and all claims, litigations, losses, liabilities, costs and other expenses, including attorney’s fees, which arise out of or relate to the negligence or willful misconduct of Agent, or Agent’s employees, agents or subcontractors. Each Party shall promptly notify the other of the existence of any action giving rise to a claim under this section and shall give the other Party reasonably opportunity to defend the action at their own expense.
14. USE OF TRADEMARKS. The Agency recognizes the Principal’s (and their respective clients) right, title, and interest in and to their service marks, trademarks, and trade names and agrees not to engage in any activities or commit any acts that may contest, dispute, or otherwise impair the right, title, and interest therein. The Agency shall not apply for, acquire, or claim any right, title, or interest in or to any such service marks, trademarks, or trade names, or others that may be confusingly similar to any of them, through advertising or otherwise. This shall not be construed to preclude Agency from identifying clients for whom they have provided services.
15. RELATIONSHIP OF PARTIES. The Agency is an independent contractor and is not an employee of the Principal.
16. ASSIGNMENT. Neither Party may assign this Agreement or any interest herein without the other’s express prior written consent. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
17. NO IMPLIED WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
18. GOVERNING LAW; VENUE; JURISDICTION; AND ADDITIONAL TERMS. Parties consent to the following terms: (a) Governing Law and Venue, Wavier of Jury Trial, Attorney Fees: This agreement shall be governed by the law of Colorado, without regard to its conflicts of law provisions. Venue for any action will lie in Denver, Colorado. Parties consent to personal jurisdiction therein. Parties intentionally waive any right to a jury trial. In any litigation arising out of this agreement, each party shall be responsible for its own attorney fees and costs. (b) Severability: If any provision of this Agreement is held to be invalid or unenforceable for any reason, (i) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision and (ii) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and effect. (c) Headings: The headings of sections herein are provided for reference only and are not intended to be a part of or affect the meaning of any section. (d) Signatures: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature. Parties may also confirm this Agreement via clicked confirmation link.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between the Parties concerning its subject matter and supersedes all prior discussions, agreements, and representations, whether oral or written, and whether or not executed by either Party. No modification, or amendment may be made to this Agreement unless reduced to writing and executed by both Parties.