SCHEDULE FOR STAFFING SERVICES
This Schedule for Staffing Services between One Way Safety LLC (“OWS”) and Customer is governed by and incorporates the Terms and Conditions. Capitalized terms not defined herein shall have the meaning set forth in the Terms and Conditions.
SCOPE; SERVICES
1.1 Engagement. Customer has retained OWS to locate, screen and offer for selection by Customer temporary safety specialists who meet the qualifications or certifications to perform the jobs or duties defined.
1.2 OWS Services.
• a) Provide Candidates: OWS shall provide to Customer candidates who meet the qualifications defined by the Customer. Upon receipt of a PO or
contract from Customer to OWS of Customer’s selection of any candidates offered by OWS, OWS shall employ or retain, as applicable, the candidate(s)
selected by Customer to perform the jobs or duties. Each such employed or retained person or entity shall be an “Assigned Specialist”.
• b) Pay Specialists: OWS shall pay the Assigned Specialists during the period for which the Assigned Specialist is performing services for Customer.
CUSTOMER OBLIGATIONS
2.1 Determination of Qualifications and Needs. Customer agrees and acknowledges that it is responsible for determining, and has determined, the scope, nature and type of services it seeks from temporary safety specialists to meet its needs, the specific jobs and duties it seeks to fill, and the qualifications it requires for the jobs or duties.
2.2 Notice of Selection and Start Date. Customer shall notify OWS of:
• a) The candidate selection from OWS;
• b) The start date for Assigned Specialists; and
• c) The expected duration of the assignment.
2.3 Replacement Candidates. Customer at all times retains the right to terminate the services of any Assigned Specialist upon notice to OWS, and to request replacement candidates for that Assigned Specialist upon notice to OWS. Upon receipt of such a request, OWS shall provide Customer replacement candidates for the Assigned Specialist which meet Customer’s requirements. Thereafter, Customer shall provide OWS with notice as to the replacement candidate it has selected and the start date of the replacement Assigned Specialist.
2.4 Notice of Termination of Assignment. Except in the circumstances described in Paragraph 2.3, Customer shall provide OWS with at least 7 days’ notice of the completion date for each Assigned Specialist. For purposes hereof, completion means that OWS shall no longer employ, hire or retain and pay the Assigned Specialist on behalf of Customer effective on such date. Such notice from Customer of completion of an assignment for any Assigned Specialist shall specify the circumstances of the completion, including whether the required work has been completed, and/or whether the Assigned Specialist has been hired or retained by the Customer.
FEE
3.1 Components. Customer shall pay OWS as follows:
• Invoices: Thereafter, Customer shall pay OWS for the Assigned Specialist(s) in the amounts or at the rates set forth on the PO for the work performed by the Assigned Specialist(s). OWS shall invoice Customer on a weekly basis, and Customer shall pay the OWS invoice within thirty (30) days thereof. Time is
of the essence with respect to such payments.
3.2 Direct Hire / Conversion Fee. Customer acknowledges that OWS has invested significant time and effort in identifying, screening, and maintaining a pool of candidates which meet the requirements identified by Customer, as well as in coordinating and paying the Assigned Specialist(s). In the event Customer (or any affiliate of Customer) hires, engages, or retains any candidate or Assigned Specialist directly—whether as an employee, officer, consultant, or independent contractor—within twenty-four (24) months following the introduction of the candidate or the end of the Assigned Specialist’s assignment (whichever is later), Customer shall pay OWS liquidated damages. The liquidated damages shall equal the total amount invoiced (or projected to be invoiced) to Customer for that Assigned Specialist over a 12-month period (calculated as 52 weeks at the full weekly billing rate), or one full year of the candidate's projected annualized compensation, whichever is greater. The parties agree that this amount represents a reasonable pre-estimate of OWS's actual damage, is not a penalty, and is a fair quantification of OWS's loss.
EXCLUSIVE REMEDY
4.1 Replacement. In the event Customer is dissatisfied with any Assigned Specialist or the services provided by the Assigned Specialist, Customer’s exclusive remedy is to notify OWS of such dissatisfaction and to obtain replacement candidate(s) as set forth in Paragraph 2.3 above. Customer agrees and acknowledges that the provision by OWS of replacement candidates as provided in Paragraph 2.3 is an adequate remedy.
LIMITED WARRANTY
5.1 Warranty. OWS warrants to Customer that candidates offered to Customer meet the certification or qualification requirements described on Exhibit S1. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, OWS MAKES NO OTHER WARRANTY, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES.
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
6.1 Incorporation. All other terms and conditions with respect to the Services, including without limitation, the disclaimer of warranties and limitation of liability provisions, are as set forth in the Terms and Conditions.
7. Effective Date. Agreement is enforced from the time OWS supplies resume/quotes to the client and or a PO or contract is in place.
TERMS AND CONDITIONS
1. STRUCTURE. These Terms and Conditions (“Terms”) govern the provision of staffing or any other itemized services (“Services”) or sale or rental of equipment (“Equipment”) provided by One Way Safety (“OWS”) to Customer pursuant to a schedule executed by the parties (“Schedule”) or otherwise. OWS is not bound by any order until a Schedule is signed by an officer of OWS at OWS’s headquarters. Customer’s acceptance of the Services and/or
Equipment constitutes Customer’s assent to these Terms.
2. PAYMENT AND PRICING. The price shall include the price for the Services and Equipment as set forth in the Schedule(s) and/or invoices, any applicable transportation, freight and related service charges for the Equipment, and all Taxes (as defined below) (collectively, “Fee”). The Fee shall be payable by Customer upon the due date set forth in the Schedule and/or in any invoice and shall be deemed delinquent unless it includes all amounts due including the Late Fee as provided below. Time is of the essence with respect to all payments due. If Customerdisputes any fees or charges, Customer must notify OWS in writing of the dispute within ten (10) days of the date of the affected invoice, or Customer waives the dispute.
3. LATE FEES; TAXES. If Customer fails to make any payment in full on or before its due date as set forth in a Schedule or invoice (or if no due date is provided, within thirty (30) days from the date of the invoice), Customer shall pay interest on the part of the payment that is late in the amount of 1.5% per month or any part of a month, or the maximum interest rate allowed by law, whichever is less, from the due date to the date paid (“Late Fee”). The Late Fee is without waiver of any of OWS’s other rights and remedies due to such a default. Customer shall pay all taxes and fees associated with the sale or rental of the Equipment, including without limitation, sales, use, personal property, excise and value added taxes including all fines, interest or penalties assessed by federal, state, and/or local authorities (“Taxes”). Customer shall promptly pay all Taxes whether included in the original invoice or invoiced at a later time.
4. TRANSPORTATION, DELIVERY AND RISK OF LOSS. Delivery of any Equipment to Customer occurs when Equipment is placed for shipment at OWS’s facility (or that of the third party manufacturer or other supplier) (“Delivery”). All transportation and freight charges shall be F.O.B. OWS’s facility or that of the third party manufacturer or supplier. Customer shall pay all transportation, freight and related service charges. CUSTOMER BEARS ALL RISK OF LOSS
AFTER DELIVERY.
5. INDEPENDENT CONTRACTOR. OWS is an independent contractor. Nothing herein creates a relationship, express or implied, of employer-employee or principal-agent between Customer and OWS or between Customer and any personnel supplied by OWS.
6. INSURANCE. Customer, at its own expense and at all times during the Term, shall maintain liability insurance in such minimum amounts and with such deductibles as OWS may require, insuring against all claims, actions, liabilities, damages, losses, costs that may be asserted by or incurred as a result of Services and/or Equipment provided by OWS. Unless otherwise specified, such minimum coverage amounts may not be less than $2,000,000 for general liability coverage. Such insurance shall be written through companies reasonably acceptable to OWS, shall include a contractual liability endorsement, and shall name OWS as an additional insured. Upon request by OWS, Customer shall provide evidence of all such insurance.
7. ACKNOWLEDGMENT BY CUSTOMER. Customer acknowledges that Customer determined the scope, nature, and extent of the Services and/or Equipment to be provided by OWS, and that OWS does not represent or warrant that the Services or Equipment are suitable, appropriate or comply with any legal, contractual, or other requirements of the Customer or of applicable law.
8. DISCLAIMER OF WARRANTIES BY OWS. EXCEPT FOR ANY LIMITED WARRANTY SET FORTH IN ANY SCHEDULE, OWS MAKES NO WARRANTY AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, ARISING BY APPLICABLE LAW OR OTHERWISE, OF ANY KIND OR NATURE WITH RESPECT TO ALL EQUIPMENT AND ALL SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIEDWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THAT ANY EQUIPMENT OR SERVICE WILL ACHIEVE SPECIFIC RESULTS OR WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, AND ALL WARRANTIES OF RESULTS OR PERFORMANCE.
9. LIMITATION OF LIABILITY. OWS SHALL NOT BE LIABLE TO CUSTOMER FOR PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND/OR ANY OTHER DAMAGE ARISING FROM OR RELATING TO ANY SERVICES OR EQUIPMENT OR ARISING FROM OR RELATED TO CUSTOMER’S USE OF THE EQUIPMENT. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL OWS'S TOTAL LIABILITY TO CUSTOMER FOR ANY CAUSE OR CLAIM WHATSOEVER EXCEED THE FEE FOR ALLEGEDLY NON CONFORMING OR UNDELIVERED SERVICES OR EQUIPMENT AS SET FORTH IN THE APPLICABLE SCHEDULE AND/OR INVOICE. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION, NEGLIGENCE ACTIONS. CUSTOMER AGREES AND ACKNOWLEDGES THAT THIS IS AN ADEQUATE REMEDY.
10. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE EQUIPMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE AND THE PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERMINATION; DEFAULT. Either party may terminate any applicable Schedule immediately without prior notice or opportunity of the other party to cure if either party suspends business operations or makes an assignment for the benefit of creditors, files for protection under the U.S. bankruptcy code or similar law or has a bankruptcy petition filed against it which is not discharged within thirty (30) days of filing. OWS may, in addition to all other remedies available to it at law, equity or by this Agreement and/or any Schedule, terminate any Schedule upon any material breach by Customer of these Terms or any Schedule which, if curable, is not cured by Customer within fifteen (15) days of written notice by OWS (a “Default”). OWS may also terminate any Schedule upon thirty (30) days prior written notice to Customer.
12. ENTIRE AGREEMENT. These Terms, together with any Schedule(s), reflect the entire agreement between the parties with respect to the Services and Equipment. This Agreement supersedes all prior negotiations, agreements, representations, and understandings between the parties, whether oral or written, including but not limited to any quotes, proposals, estimates or any other similar document. One Way hereby rejects any additional or conflicting terms and conditions proposed by Customer. These Terms and Conditions and any Schedule may not be amended unless by a writing signed by the parties specifically referencing them.
13. EXCLUSIVE JURISDICTION. Exclusive jurisdiction and venue for any litigation at all related to this Agreement, directly or indirectly, based upon contract, tort, or other theory of law, shall lie in the Cook County Circuit Court, Chicago, Illinois, or, in the event federal court jurisdiction is exclusively proper, in the U.S. District Court for the Northern District of Illinois, Eastern Division, Chicago, Illinois.
14. MISCELLANEOUS. These Terms and Schedules may be executed in counterparts, all of which together with these Terms shall constitute the same document. The parties agree that a facsimile or other copy containing the signatures of both parties shall be as enforceable as the original.