ACRO SERVICE CORPORATION
ASSOCIATE VENDOR AGREEMENT
THIS AGREEMENT is made and entered into this ___ day of______, 2012 between<Associate Vendor Name>, a <AV Entity State> <AV Entity Type>, with its principal place of business located at <AV Address>("Associate Vendor"), and Acro Service Corporation, a Michigan corporation, with its principal place of business located at 39209 West Six Mile Road, Suite 250, Livonia, Michigan48152 (“Acro” or"Contractor").
Recitals
The following recitals form the underlying basis of this Agreement, and will be construed as an integral part of this Agreement:
Acro is engaged in the business of supplying personnel on a temporary, contract or permanent basis. Kellogg Company (“Client” or “Kellogg”) completed a selection process to meet their contract labor sourcing requirementsand entered into a MSP Services And Payroll Services Agreement (“Client Contract”) withAcro for the provision of Managed Service Provider (MSP) program staffing services and related services. Under the terms of the Client Contract, effective October5, 2012, Acro is required to provide the services of temporary workers to perform services on behalf of the Client at Client-specified sites. The temporary workers to be provided by Acro may be supplied by Acro or Acro-approved subcontractor(s) and are hereafter referred to as “Contingent Workers”. In order to facilitate the procurement and management of temporary and contract labor, Acromay use its proprietary web-enabled eXternal Resource Management system (the XRMSM System).
Acro desires to utilize the services of the Associate Vendor to provide certain services, including the provision of its temporary employees that are to be provided to Client under the Client Contract. Associate Vendor desires to provide these services on behalf of and as a subcontractor of Acro.
NOW, THEREFORE, Associate Vendor and Contractor, in consideration of the mutual promises herein and other good and valuable consideration, agree as follows:
1.Service and Compensation
1.1.Associate Vendor shall provide the services to Contractor in accordance with the terms of this Agreement and Client’s requirements for temporary workers as communicated to Associate Vendorfrom time to time by Contractor, along with requirements, if any, for Associate Vendor to provide on-site representatives at specified Client sites to manage Associate Vendor’s Contingent Workers and perform other related duties as Client or Contractor may specify from time to time. Associate Vendor agrees that such services shall be provided in strict accordance withthe Annotated Client Contractattached hereto as Attachment C(representing the Associate Vendor’s obligations to Contractor and/or Client pursuant to the Client Contract). Communication of Client’s Contingent Workers requirements shall typically be made through Contractor’s vendor management system, XRMSM System or by e-mail from Contractor’s Kellogg Program Manager.
1.2.Associate Vendor shall be compensated in accordance with the fee basis specified in this Agreement and in the Rate Schedule, attached hereto as Attachment A, which provides for the approved bill rates payable to Associate Vendor.
1.3.Contractor agrees to pay Associate Vendor, as specified herein, for all Straight Time and Overtime hours worked by the Contingent Workers on behalf of and approved by Kellogg. For Straight Time work of a Contingent Worker placed through this program, Contractor agrees to pay Associate Vendor the hourly bill rate as specified in Attachment A and consisting of the Contingent Worker’s Straight Time hourly wage rate plus a not-to-exceedpercentage markup over such wage rate; provided, however, such bill rate shall notexceed thehourly bill rate indicated in the applicable service requisitionmade available to Associate Vendor by Contractor via the XRMSM System or otherwise. Where applicable (e.g., possibly for manufacturing positions), service requisitions shall specify the wage rate the Associate Vendor is required to pay the Contingent Worker. The bill rates indicated in the XRMSM System shall be net of Acro’s MSP fees. Associate Vendor shall pay Contractor’s MSP Fee as specified in Attachment A for services provided by Associate Vendor’s Contingent Workers.
1.4.Associate Vendor’s bill rate to Contractor for Overtime work shall be 1.5 times the Straight Time bill rate. Straight Time means work of less than or equal to 40 hours worked per week. Overtime means work of more than 40 hours per week (unless defined differently in the U.S. state where the work is performed, in which case Overtime work shall be as defined by such state) authorized in advance in writing by Client. Payment of Overtime to the Contingent Workers shall be in accordance with this Agreement and applicable federal, state and local laws, rules and regulations.
1.5.Contractor willestablish staff, operate and manage aProgram Management Office ("PMO")to provide consolidated administrative services that are required by the Client Contract. Based on the diverse ways Client business units handle procurement processes, for a given business unit these services may include receipt/distribution of requests for temporary workers, receipt/distribution of subcontractor submittals, facilitation of Client candidate evaluation and interviewing processes, facilitation of candidate on-boarding processes, time and expense administration, invoicing, communications, payment distribution, etc. Contractor will apply Acro’s web-based vendor management system, the XRMSM System,as appropriate to optimize these administrative services; however, Associate Vendor shall use a manual system or other semi-automated (email, fax, etc.) process, as directed by Contractor or Clientuntil the XRMSM System is implemented. Contractor shall publish and update from time to time the Managed Service Program (MSP) operations manuals and guides, as appropriate, regarding all MSP requirements and processes.
1.6.Commencing with the effective date of this Agreement, the PMO shall provide Associate Vendor access to Client’s requests for temporary workers for such Client business units, labor categories and geographies for which Associate Vendoris an approved supplier, and in keeping with Client’s direction with regard to Associate Vendor tiers and preferences.Associate Vendor agrees to immediately communicate to the PMOall requests for temporary workers it may directly receive from Client personnel.
1.7.Notwithstanding the foregoing statements in section 1.6 above, Associate Vendor acknowledges that Contractoris responsible for compliance with Client’sMSP performance level expectations for metrics including cost savings (as measured from “Baseline” MSP pricing established by Contractor and as may be communicated to Associate Vendorsby Contractor from time to time), retention of Contingent Workers, response rate (percentage of requests responded to)response time (acknowledgement of request), response time (forwarding of submittals to Client managers by the PMO), fill ratio, manager satisfaction and other such measures as may be determined by Contractor or Client from time to time.Associate Vendor acknowledges its obligation to diligently provide services for each business unit, labor category and geography in which it participates and to work to achieve metrics-based performance goals established by Contractor.Associate Vendor agrees that PMO shall have the authority to take such actions reasonably necessary to assure compliance with Client’s MSP program performance level expectations, which may include but are not limited to corrective action requests, changes in the scope of Associate Vendor’s access to requests for temporary workers for certain Client business units and/or labor categories and/or geographies based on Associate Vendor’s failure to respond to corrective action requests, suspension of Associate Vendor’s access to Client requests for temporary workers, and termination of this Agreement. Barring unforeseen circumstances, Contractor contemplates providing quarterly reports showing Associate Vendor’s performance in all metrics relevant to Client’s expectations, and how such performance compares with the highest and lowest scoring suppliers.
1.8.Client’s payments to Contractor for Client-approved time and expenses of Associate Vendor’s Contingent Workers shall be passed through to Associate Vendor by Contractor after deducting Contractor’s MSP Fee as specified in Attachment A. The Parties acknowledge and agree that, with regard to Associate Vendor’s revenues under the Client Contract, Acro shall act as a conduit with respect to the funds it receives as Associate Vendor’s limited agent, and that Acro shall have no right or interest in the funds it collects from Client on Associate Vendor’s behalf.
2.Term; Right to Hire
This Agreement shall take effect on the date executed, and either party may terminate this Agreement at any time by giving a 30-day prior written notice to the other party. In addition, Contractor shall have the right to terminate this Agreement at any time, if (i) Client requests such termination; (ii) the Client Contract is terminated by the Client; or (iii) Associate Vendor is in breach or violation of this Agreement.
Associate Vendor acknowledges and understands that if this Agreement is terminated in whole or in part or is not renewed or extended (and Associate Vendor has Contingent Workers performing services for Client at that time), such Contingent Workers may wish to continue performing services for Client by seeking employment with another supplier that has a contract with Contractor or Client. Associate Vendor agrees in such instances that Contractor or Client may take such steps deemed necessary or appropriate to affect the transfer of such Associate Vendor Contingent Workers to employment with another supplier, if such Contingent Workers wish to remain on assignment at or on behalf of Client. Associate Vendor further acknowledges and understands that Client may hire Associate Vendor Contingent Workers at any time in accordance with Section 13(c) of the Annotated Client Contract (Attachment C hereto). Associate Vendor releases Contractor and Client from any liability or damages whatsoever arising from or relating to any conduct by Contractor or Client that results in Associate Vendor Contingent Workers being hired by Client or remaining on assignment to or on behalf of Client by accepting employment with another supplier, and shall release such Contingent Workers from any applicable restrictive covenants and liability or damages.
3.Confidentiality; Intellectual Property
Associate Vendor warrants that during the term of this Agreement or anytime thereafter, it will not divulge to any other person, firm or corporation either directly or indirectly, whether obtained before, during or after its engagement with Acro, the following: (i) the names and/or addresses of Acro or Acro’s clients and business contacts; (ii) the names and/or addresses of Acroor Acro’s employees, agents or personnel resources; (iii) information relating to Acro or Acro’s services, marketing and promotion methods, service pricing, or business methods; and (iv) any other information which Acro communicates to Associate Vendor and identifies as being confidential.
In addition, during the term of this Agreement and any time thereafter, all information listed above shall be considered a trade secret and the property of Contractor and any and all records, papers, documents and/or copies thereof pertaining to such information shall be returned immediately upon the termination of Associate Vendor’s engagement.Associate Vendor’s confidential information, including Associate Vendor’s pricing and information relating to Associate Vendor’s employees, shall be held in confidence by Acro, and the use of such confidential information shall be limited to Acro’s fulfillment of its obligations to Kellogg under the Client Contract, and access to such confidential information shall be limited to PMO personnel and Client personnel with a need to access such information. Further, Associate Vendor agrees that it and its Contingent Workers shall fully comply with all Intellectual Property covenants specified in Attachment C.
4.Good Faith
It is understood that both parties will operate in good faith. It is further understood by the Associate Vendor that all correspondence, communication, transmittals and communiqués, both verbal and nonverbal, will take place between the Associate Vendor and the Contractor’s PMO, and that the Associate Vendor is not permitted to contact theClienton any matter (including direct or indirect solicitation of business), except as expressly authorized or directed by Contractor’s PMO.
5.Entirety
This document and all exhibits, attachments, and modifications incorporated herein shall be the entire understanding and agreement between the parties with respect to the subject matter set forth herein, and all prior agreements, understandings, covenants, promises, warranties, and representations, oral or written, express or implied, not incorporated herein are superseded hereby. This Agreement may not be amended, modified, altered, supplemented, or changed in any way except in writing, signed by the parties and attached hereto as an amendment.
6.MichiganLaw; Severability
This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State ofMichigan, USA, including its choice of law rule. The invalidity or unenforceability of a particular paragraph or sub-paragraph of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable paragraph or sub-paragraph was omitted.
7.Payment to Contingent Workers
Associate Vendoragrees that failure to pay its Contingent Workers in a timely manner (weekly or biweekly or monthly; and in compliance with Federal, State and Local laws) will result in inconvenience to Contingent Workers, disruption of service to Client and adversely affect Contractor's relationship and goodwill with the Client. If Contractor is informed (by Contingent Workers, Client or any other party) that Associate Vendor is unable or unwilling to pay Contingent Workers, or otherwise does not pay Contingent Workers in a timely manner, Contractor shall inform Associate Vendor of such occurrence in writing, and require the Associate Vendor to take immediate remedial action to ensure that Contingent Workersare immediately paid any and all arrears due. Failure of Associate Vendor to resolve such an issue on a timely basis or to prevent recurrences shall result in disciplinary actions and will be considered a breach of this Agreement.
- Non-Solicitation/Non-Competition
Associate Vendor agrees that (i) during the term of this Agreement, or (ii) during the period the Associate Vendor is receiving any fees from the Contractor pursuant to this Agreement or (iii) for a period of one year following either the termination of this Agreement or cessation of above fees from the Contractor, whichever is later, it will not for any reason whatsoever, directly or indirectly (whether as an employee, agent, consultant, joint venture, partner, lender or investor, owner, shareholder, director or officer): (i) induce or solicit or attempt to induce or solicit Client (includes all Client business units) or provide to Client services provided by Contractor under this Agreement from any business or organization other than that of the Contractor (provided, however, that this prohibition shall not apply if Contractor consents to such solicitation or provision of services or if the Client Contract has been terminated);(ii) induce, solicit, divert, take away or attempt to induce, solicit, divert or take away any employee of the Contractor or of any other subcontractor of Contractor serving the Client, including, but not limited to, leased or retained employees, agents and contractors, at the date hereof or in the future (collectively referred to as “Employees” for the purpose of this Section) to become an employee of, be the agent for, or be a consultant or contractor to, any other business or organization; (iii) request or advise the Client to withdraw, curtail or cancel business with the Contractor or request or advise any Employees to withdraw, curtail, terminate or cancel their employment or association with the Contractor or any other subcontractor of Contractor serving the Client; and, (iv) disclose to any person, firm, corporation or any other business entity the names or addresses of any of the Employees of the Contractor or of any other subcontractor of Contractor serving the Client.
9. Indemnification
To the fullest extent permitted by law, Associated Vendor shall defend, indemnify, and hold harmless Client, Contractor, its agents, representatives, officers, directors, officials, and employees from and against all claims, damages, losses and expenses, including, but not limited to, attorney fees, court costs, expert witness fees, and the cost of appellate proceedings, relating to, arising out of, or alleged to have resulted from (i) the negligent acts, errors, omissions, mistakes or malfeasance relating to the performance of this Agreement, or (ii) any claim against Client or Contractor by or on behalf of any Contingent Worker. Associate Vendor’s duty to defend, indemnify and hold harmless Client, Contractor, its agents, representatives, officers, directors, officials, and employees shall arise in connection with any claim, damage, loss or expense that is caused by (i) any negligent acts, errors, omissions or mistakes in the performance of this Contract by the Associated Vendor, as well as any person or entity for whose acts, errors, omissions, mistakes or malfeasance Associated Vendor may be legally liable, or (ii) any claim against Client or Contractor by or on behalf of Contingent Worker.
10.Billing and Payment of Fees
Unless otherwise requested by Client, Contractor’s PMO shall be responsible for the collection and consolidation of billable time and billable expense information for Associate Vendor’s Contingent Workers, and the production of consolidated invoices to Client. Contractor shall pay to Associate Vendorfor each hour worked by each Associate VendorContingent Worker, which hour worked is approved by Client,extended by the Contractor-approved billing rate. Contractor shall also pass through any expense reimbursements it receives from the Client with respect to expenses approved by the Client and incurred by the Associate Vendorand/or its Contingent Workers in the performance of services on behalf of the Client.
If the Contractor is utilizing its XRMSM System for the collection and approval of billable time and expenses, the Associate Vendor shall not be required to submit an invoice to the Contractor pertaining to Client-approved time and expenses incurred by the Associate Vendor. However, during periods when the XRMSM System is not being utilized, the Associate Vendor shall invoice Contractor for Client-approved billable time and expenses on a weekly basis following the completion of each calendar week (Sunday through Saturday).
Contractor’s payments to the Associate Vendorshall be made by electronic wire transfer, to an account designated by Associate Vendor,following receipt of corresponding payment from Client, in no event later than 10 business days following Acro’s receipt of corresponding payment from Client. Client’s payment terms to Contractor are 60 days from Client’s approval of invoice. Acro’s payments to Associate Vendor as described above in this section shall be in full payment and satisfaction for all services performed by Associate Vendor under this Agreement.