Scope of Agreement. This agreement shall govern the work to be performed by the Vendor for each service set out in the Work Order to be issued by Emcon at its sole discretion.
Worker's compensation and employer's liability as required by applicable laws and not less than $100,000 per claim (employer's liability); Comprehensive General Liability coverage of $1,000,000 per occurrence and $2,000,000 in the aggregate, including products completed operations in a limit of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate (on a per project basis). This insurance shall be Primary and Non-Contributory, and not contain any deductibles or Self Insured Retentions
The policies shall name Emcon as certificate holder and additional insured plus include a waiver of subrogation in favor of Emcon. Vendor will provide Emcon with certificates of insurance evidencing that the above-noted insurance requirements have been satisfied and specifying that Emcon will receive thirty (30) days advance notice from the applicable insurance companies of any cancellation or reduction in coverage. Vendor will obtain the insurance coverage set forth in this Section from an insurance carrier with a minimum A.M. Best's rating of A-. Business Automobile Liability Insurance covering all vehicles used in connection with the work and covering Bodily Injury and Property Damage with a minimum limit equal to $1,000,000 per accident. Vendor represents and warrants that it has in effect and shall maintain, at its own expense, all licenses, permits and bonds required by applicable laws and regulations to provide the Services at the locations set forth in Exhibit A. Vendor represents and warrants that all of the information set forth in Exhibit B is accurate and correct.
(a) any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to the injury to or destruction of tangible property and/or environmental damage and including the loss of use resulting therefrom, to the extent caused or alleged to be caused in whole or in any part by any negligent act or omission of the Vendor or anyone directly or indirectly employed by the Vendor including its agents, employees, affiliates, subsidiaries and parents, franchisees, sub-vendors, subcontractors, independent vendors and suppliers or anyone whose acts and/or omissions the Vendor may be liable, regardless of whether it is or alleged to be caused in part by a party indemnified hereunder;
(b) such obligation shall not be construed to negate, or abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Agreement.
The Vendor further agrees to reimburse Emcon for all sums which Emcon may pay or be compelled to pay by judgment or in settlement of any claim hereunder, including any claim under the provisions of any workers' compensation law or any plan for employees' benefits which Emcon may adopt. Emcon shall be entitled to withhold from any payment otherwise due the Vendor pursuant to this Agreement such an amount as may be reasonably necessary to protect it against liability for any personal injury, death, property damage or environmental injury or damage in any manner resulting from the performance of the Vendor's or its agents' work hereunder.
Warranty Vendor warrants all workmanship for one year from date of acceptance of service performed, unless otherwise noted (as in the case of a temporary repair). All materials will adhere to the manufacture's warranty period from date of acceptance of service performed. Vendor will perform warranty work within seven (7) days of receipt of notice of any defect or error.
Vendor's Employees For the purposes of this document, an "undocumented worker" is a person who (1) illegally resides in the United States and is (ii) unwilling or unable to provide documents required by the U.S. government validating that such person is legally eligible to reside and be employed in the United States. Vendor shall not employ or contract with an undocumented worker to perform Services under this Agreement. To the full extent possible, Vendor represents, warrants and agrees that it has verified that it does not employ any undocumented worker by participation in any applicable verification program administered by the Social Security Administration or the Department of Homeland Security such as the "eVerify Program", which is now free of charge. Vendor shall comply with all requests made by Emcon or any state or federal government authority related to the possible employment of undocumented workers. In addition, Vendor shall make all reasonable efforts to check the background and verify the personal information of Vendor employees such that no employee who will work under the terms of this agreement has been convicted of a criminal felony or a misdemeanor involving violence, sexually related criminal conduct, theft or computer crimes, fraud or financial crimes, or crimes involving unlawful possession or use of a dangerous weapon, or is identified on a governmental registry as a sex offender. Furthermore, Vendor's on-site personnel must project a neat, clean, professional and positive image and wear appropriate and/or required safety equipment and clothing.
Sub-contracting Vendor shall not subcontract any of the Services without the written consent of Emcon. Vendor shall ensure and be responsible for all subcontractors' compliance with this Agreement, including, without limitation, the insurance requirements. With respect to each subcontractor, Vendor shall provide copies of insurance certificates with appropriate minimum levels of coverage as required by this Agreement.
Non-Solicitation of Clients and Employees During the term of this Agreement and for a period of twelve (12) months after the completion of the Services, Vendor shall not (i) solicit or provide directly or indirectly, or take any service calls from any client of Emcon with respect to which Vendor provided any Services, or (ii) attempt to or influence any client of Emcon to cease or decrease use of Emcon's services. In addition, Vendor shall not disclose or publicize in any manner, except to the specific client, that Vendor has provided Services to Emcon or any of Emcon's clients. During such twelve (12) month period, Vendor shall not, directly or indirectly, solicit or hire, for employment or use the services of any employee of Emcon. In the event of a violation or threatened violation of any provision of this Section, Vendor acknowledges that Emcon will incur substantial damages and irreparable harm (including, without limitation, lost business and loss of goodwill) and legal remedies are inadequate and in addition to its other legal remedies, Emcon shall be entitled to injunctive (including, temporary) or declaratory relief without the posting of any bond. In addition, Vendor shall be liable for all attorneys' fees incurred by Emcon in connection with any claims and actions brought by Emcon with respect to this Section, including any action for injunctive relief and damages. This Section shall survive the expiration or earlier termination of this Agreement.
Term; Termination The term of this Agreement shall commence on the date first set forth in this Agreement and shall continue in full force and effect indefinitely unless sooner terminated as provided for herein. Notwithstanding anything herein to the contrary, Emcon or the Vendor may at any time during the term hereof terminate this Agreement without cause upon thirty days' prior written notice to the other party. Emcon may also terminate this Agreement for cause as discussed herein.
If the Vendor (a) fails to perform in strict accordance with a Work Order or this Agreement, (b) becomes insolvent, unable to or fails to pay its obligations as they mature, (c) fails, in the opinion of Emcon, in any other respect, to properly prosecute and perform any part of its work, (d) fails to exert its best performance efforts, (e) fails to remedy a warranty claim, (f) be involved in labor disputes, or (g) be terminated under any other contract with Emcon, the Vendor may be deemed by Emcon to have materially breached this Agreement. In case of a breach, as indicated herein or as might otherwise be determined by law, Emcon may, at its discretion, terminate this Agreement, or any part thereof, by giving written notice thereof to the Vendor. In case of such termination, Emcon may use any and all materials, equipment, tools or other chattels furnished by or belonging to the Vendor either at the Work Site or for the Work Order. After giving notice of termination to the Vendor, Emcon may, at its discretion contract another vendor to complete the terminated work. Emcon may withhold from the Vendor, as applicable, any monies due or to become due under this Agreement or any other contract to offset the damages incurred or possibly incurred as a result of the breach. In case of a breach, the Vendor shall be liable for any and all additional costs, expenses, attorney's fees and other damages, both liquidated and unliquidated, which directly or indirectly result from the Vendor's breach or threatened breach.
Independent Vendor Vendor is acting in performance of this Agreement as an independent Vendor. Emcon shall not be responsible for payment of workers' compensation, disability benefits, unemployment insurance or any employee benefits, nor shall Emcon be responsible for withholding or paying employment related taxes for Vendor and Vendor shall indemnify Emcon for all liabilities, penalties and fines incurred by Emcon in the event that Emcon has responsibility for payment of any of the foregoing.
Authorization To Work; Compliance with Laws Vendor represents and warrants that each of its employees and, independent Vendors providing any of the Services hereunder are eligible to legally work in the United States and that each of such personnel are free from any legal or contractual restraints prohibiting working or the exercise of skills, including employment agreements or non-competition agreements with other or former employers. Vendor represents and warrants that it maintains current, complete and accurate Forms I-9 for all its employees and independent Vendors and upon request will provide Emcon with copies of all such forms for its employees and independent Vendors providing services to Emcon or Emcon's clients. Vendor represents and warrants that each of its employees and independent Vendors have presented documents to Vendor that established both identity and authorization to work in accordance with all applicable immigration laws and regulations and that Vendor has engaged in reasonable efforts to verify that such documents are accurate and genuine. In addition, Vendor represents and warrants that at all times Vendor shall comply with all federal, state and local labor and employment laws and regulations and wage and hour laws as these laws may relate to Vendor's employees and independent Vendors providing the Services. Vendor agrees at all times in performing the Services to observe and comply, at its own expense, with all applicable laws, regulations, ordinances, codes and other rules.
No LiensThe Vendor shall execute and submit the Final Release of Liens and Waiver upon submission of its request for payment from Emcon. Delivery of an executed Final Release of Liens and Waiver shall be a condition precedent to Emcon's obligation to make payment to the Vendor if the Vendor's fee stated in a Work Order exceeds $10,000. The Vendor shall not cause, suffer or permit any mechanic's liens or material supplier's liens arising out of the Services to be filed against the Service Location(s) or any buildings or improvements thereon or the real estate upon which it is located, and Vendor shall indemnify and hold Emcon and the real estate, buildings, and improvements harmless from any such liens for labor and materials. In addition to any other remedies available to Emcon, which are hereby expressly reserved, in the event any lien or claim is filed by anyone claiming by, through or under Vendor, Vendor shall remove and discharge such lien within ten (10) days of the filing thereof, and Emcon may deduct from, and offset against, any sums owing to The Vendor or its franchisee an amount sufficient to satisfy any such claims. If Vendor fails to settle such lien or claim to Emcon's satisfaction (including the recording of a full release if a lien has been recorded) within ten (10) days after written notice from Emcon then Emcon may, at its option, settle such lien or claim directly with the holder thereof and deduct all costs and expenses associated with such settlement from amounts due to Vendor hereunder.
Fees and Expenses Emcon receives a marketing fee of four percent (4%) of all amounts billed by Vendor for the Services. For example, if Vendor bills $100 for Services, then Vendor shall receive $96.00 and Emcon retains $4.00. Emcon shall pay the Vendor within forty-five (45) days from receipt of the complete and accurate invoice and sign off from Vendor, including any other supporting documentation outlined per individual work order, provided that the Client has accepted the services as having been completed satisfactorily.
MiscellaneousThis Agreement and all claims arising out of or related to this Agreement, including tort claims, shall be governed by and construed and enforced in accordance with the substantive laws of the State of New Jersey, except for its conflicts of laws principles. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the State of New Jersey, County of Ocean, in connection with any claim, action, suit or proceeding arising out of or relating to this Agreement or the Services. Each of the parties waives any and all rights to any claim of inconvenient forum. EACH PARTY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE FOR A JURY TRIAL. This Agreement may be modified or extended and the terms or covenants hereof may be waived only by a written instrument executed by both parties hereto, or in the case of a waiver, by the party waiving compliance. This Agreement constitutes the entire understanding between Emcon and Vendor with respect to the subject matter, merging and superseding all prior agreements, understandings and representations. If Vendor issues a purchase order or other document regarding the Services, such instrument will be deemed for internal use only, and any provisions contained therein shall have no effect whatsoever upon this Agreement. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and either delivered personally, telegraphed, faxed, sent by recognized national overnight courier service, or mailed by certified mail only to the address indicated at the top of this Agreement or to such other address as one party may in the future specify in writing to the other. Notice under this Agreement shall be deemed given when delivered, unless notice is mailed, in which case notice shall be deemed given three days after the date of the postmark in the U.S. Mail. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall not be affected or impaired thereby. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason, the parties shall be deemed to have substituted and added as part of this Agreement in lieu of any such provision or provisions, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision but which shall be legal, valid and enforceable. Without limited the foregoing, a court of competent jurisdiction shall have the right to limit the scope of Section 7, as necessary, or revise Section 7, as necessary, if the court determines that the scope of Section 7 or the restrictions set forth in Section 7 are required to be modified for Section 7 to be enforceable. This Agreement may be signed in counterparts, each of which taken together shall constitute one Agreement. Vendor hereby acknowledges and confirms that Vendor had an opportunity to review this Agreement in its entirety and consult with counsel and fully understands its provisions.
Service Level Agreement & IVR Compliance Vendor must use the Client's IVR or Emcon's check in process, whichever is requested, to check in utilizing client's phone when arriving on site in response to a service call or when performing preventive maintenance services. Technician is to check out through the Client's IVR or Emcon's check out process, whichever is requested, when service is complete. Failure to comply may result in nonpayment and/or up to Agreement termination. In addition, failure to comply with Service Levels and/or IVR expectations may affect the standing of the Vendor relative to the performance of competitors.
Timely Performance Emcon uses Three (3) levels of response requirements for various types of repair and maintenance service calls. Call Priority (CP) is defined in the following descriptions below. If Vendor cannot provide service within these time frames, the work should not be accepted.
Work Sign-Off The Technician must obtain a valid Work Sign-Off Document complete with Store/location Stamp (or bank deposit/check cashing stamp), time-in / time-out, number of technicians on site, and signature by the Client's authorized employee. If technician does not obtain work sign-off or required photos, Vendor will send technician back to site within 24 hours to obtain sign off, and/or photos, at no additional cost to Emcon, or invoice from vendor will not be paid.
Invoicing Each WO completed is to be invoiced separately with a detailed description of work performed and must be transmitted with the valid Work SignOff and any other substantiating documentation such as a bill of lading, or photograph, as agreed to by you and an Emcon CSR prior to commencement of work. Only one Invoice will be paid for each Emcon P.O. number. The Invoice must contain the following:
Emcon must receive the Invoice, valid Work Sign-Off and supporting documentation no later than Seven (7) days from date of completion of WO. Emcon will follow up with an automatic weekly email describing any deficient paperwork as long as you provide us with your email address. Email or Fax Invoices with the completed Work Sign-Off document
Emcon will only pay for actual labor performed for T & M work – you may only round-up time worked to the nearest half hour with a one-hour minimum. The labor time on the Invoice MUST match the labor reflected in the time-in / time-out portion of the completed Sign-Off document that accompanies all WO'S. If there is material acquisition time or shop time included in the time-in / time-out you must note that on the Work Sign-Off before the Client's authorized employee signs the document. Emcon does not pay for travel or travel-related charges (truck or tool charges, mileage, time to get to or leave a job site) unless authorized by Emcon at the time the WO is processed. For quoted work the Invoice amount for the completed work must not exceed your proposed amount. All invoices presented to Emcon must be in U.S. Dollars and must include all taxes and/or fees. Emcon's payment terms are Net 45 from date of receipt of a), the complete and accurate Invoice AND b), the valid Work Sign-Off, as long as all other invoice requirements have been met, as well as receipt of any required supporting documentation. Incomplete Invoice or Work Sign-Off and missing documentation will delay payment. No payment will be made if work is incomplete or the Invoice and Sign-Off are not received within TWENTY-ONE (21) days of job completion.