Employee Lease Agreement - eDiets.com Inc. and Professional Employee Management Inc.
AGREEMENT FOR SERVICES
This is an Employee Lease Agreement (hereinafter referred to as the
"Agreement"), dated 02/16/00 between eDiets.com, Inc. (hereinafter referred to
as "Client"), located at 3467 W. Hillsboro Boulevard, Suite 2, Deerfield Beach,
Florida 33442, and Professional Employee Management, Inc., its successors and
assigns (hereinafter referred to as "PEM.") of Sarasota, Florida.
BACKGROUND
Client desires to lease employees from PEM. Such employees shall remain
employees of PEM, unless this Agreement is terminated, in which case the
employees will automatically become employees of Client. Client recognizes that
it will receive significant advantages from such an arrangement. Accordingly, in
consideration of the mutual covenants and agreements contained in this
Agreement, the parties agree as follows:
1. Term.
A. This Agreement shall remain in force for the term of thirty (30) days
(the "Initial Term"). Following the Initial Term, this Agreement shall remain in
force from month to month until one party gives written notice to the other
party as specified in Paragraph 18 below, at least seven (7) days prior to the
expiration of any monthly extension of the Initial Term. PEM may terminate this
Agreement upon seven (7) days written notice should Client breach any of the
provisions of this Agreement.
B. PEM shall have the right to terminate this Agreement immediately in the
event of non-payment or late payment by the Client occurring at any time after
the date of this Agreement. The failure by Client to call in a payroll shall
work an immediate revocation of this Agreement.
2. Effective Date.
This Agreement shall become effective only when both parties have
signed this document; the initial payroll has been processed, paid for and
received by Client.
MARKETING REPRESENTATIVES OF PEM ARE NOT AUTHORIZED TO BIND PEM WITHOUT THE
SIGNATURES OF A LICENCED CONTROLLING PERSON, IN ACCORDANCE WITH FLORIDA
STATUTES, AND A CORPORATE OFFICER.
3. The Employees.
PEM will lease the employees listed on Exhibit B to Client. Client
shall fill out Exhibit B, either in type or print. PEM shall be fully
responsible for notifying all leased employees of their leased employee status.
Each employee shall be identified according to workers' compensation
classification by proper code and according to pay status under the Fair Labor
Standards Act or any other rule or regulation that may apply. Should Client
require PEM's guidance in determining the pay status of its leased employees,
PEM will provide information to Client to aid Client with this determination.
Client's signature shall be affixed to Exhibit B to indicate proper
classification of workers' compensation code and pay status. Client will
immediately notify PEM of any change in pay status for any leased employee. No
other employees shall become leased to Client unless specifically agreed by PEM.
Client is obligated to notify PEM immediately of any new applicants to ensure
that all new hires- receive the appropriate benefits and that all customary
payroll obligations are met. Client must transmit to PEM a workers' compensation
classification, in type or print, for each and every new hire. Client's
signature must be affixed to this transmission which should become a permanent
addendum to Exhibit B when processed and signed for by PEM. PEM shall not be
considered an employer for any employee who does not complete a PEM employment
application and who is not accepted by PEM as a leased employee. Failure by
Client to timely notify PEM of new hires shall constitute grounds for immediate
termination of this Agreement. Client agrees to notify PEM immediately upon the
release, termination or cessation of employment of any employee. Client agrees
to cooperate with PEM in all employment and unemployment matters. Client
recognizes that these are essential conditions of this agreement. PEM will
provide workers' compensation insurance for leased employees when they are
performing work in accordance with this Agreement. Should any individual perform
services for Client and should Client not report those hours to PEM, PEM shall
not be obligated to said individual in any way either with regard to paying such
individual for such hours or with regard to providing any benefit including
workers' compensation, or in any other manner be obligated to said individual.
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4. Services Provided To Client.
PEM shall be fully responsible for payment of all payroll, payroll
taxes, collection of taxes, unemployment insurance, and other administrative
functions customarily performed by an Employer for its employees with regard to
leased employees while they are performing work for PEM. PEM shall, without
regard to payments by Client, assume such responsibilities as are required by
applicable federal Wage and Hour law for payment of wages to leased employees'
until such employees are terminated from employment with PEM. PEM shall properly
secure coverage for workers' compensation for employees covered under this
Agreement and shall offer an optional Employee benefit package to II qualifying
employees on an equal basis. Client shall be responsible for ensuring that all
applications and insurance enrollment forms are fully completed and returned to
PEM. PEM shall cooperate with and assist Client in this important endeavor.
5. Reservation of Rights.
In compliance with State law and Federal guidelines, PEM shall, after
consultation with Client, through Client's Corporate Personnel Department or its
on-site Supervisor;
A. Have a right to recruit, hire, direct and control employees,
B. Have a right to discipline, replace, and terminate the employment of
such employees and designate the date of separation from employment,
C. Have a right to reward, promote, reassign, evaluate and determine
the wages, hours, terms and conditions of employment,
D. Have the right to resolve and decide employee grievances and
disputes,
E. Supervise and direct such employees in a reasonable manner
consistent with the practices of similar businesses and enterprises.
Client's on-site supervisor is Christine Brown.
F. Client may retain such sufficient direction and control over the
leased employees as is necessary to conduct the client's business and
without which the client would be unable to conduct its business,
discharge any fiduciary responsibility that it may have, or comply with
any applicable licensure, regulatory, or statutory requirement of
Client.
6. Safety and Training.
It shall be the responsibility of Client to implement a safety and
training programme which meets the standards of regulations issued by the
Florida Division of Safety, including the responsibility to implement a safety
committee. PEM shall provide Client assistance in fulfilling these obligations.
A Workplace Safety Committee fact sheet will be made available to Client upon
request. Client is responsible for recording the safety committee meeting
minutes and for maintaining these records for three years. Client shall submit
quarterly to PEM written verification that the required meetings have been
conducted and that the required documentation has been maintained. PEM shall
retain such responsibilities as are required by Chapter 468, Florida Statutes.
Client agrees that it shall be responsible for any Florida Division of Safety
citations and fines.
7. Safe Work Environment.
A. Client agrees that it will comply with all health and safety laws,
right-to-know laws, regulations, ordinances, directives and rules imposed by
controlling federal, state, and local government, and that it will immediately
report all accidents and injuries to PEM. Client agrees to make "light -duty
work" available in the event of light duty release, PEM reserves the right to
locate a light duty release employee at another location within a 100-mile
radius of the employee's residence. Failure by Client to adhere to this
provision of the Florida Workers' Compensation Act could cause a fine to be
assessed against Client in an amount not to exceed $2,000.00 per violation.
B. PEM retains a right of direction and control over management of
safety, risk and hazard control at the work-site or sites affecting its leased
employees. Environmental factors, equipment, machinery and all other matters
which affect employee health and safety shall be maintained in compliance with
OSHA standards. Client represents that its working environment, equipment and
machinery currently meet all OSHA standards and that they will be maintained in
compliance with such standards for the duration of this Agreement. Client agrees
that it shall be responsible for any OSHA violations.
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C. Client shall provide or ensure use of all personal protection gear
and/or equipment, as required by federal, state, or local law, regulation,
ordinance, directive, or rule as deemed necessary by PEM or PEM's workers'
compensation carrier. PEM will perform safety inspections of Client's equipment
and premises to insure safe working conditions.
D. PEM and PEM's workers' compensation carrier shall have the right to
inspect Client's premises during normal business hours and to make
recommendations pertaining to job safety. It is agreed that PEM, by inspecting
said premises or by not inspecting said premises, assumes neither liability nor
responsibility for any unsafe working condition which may exist. Failure by
Client to comply with its obligations pertaining to job safety shall constitute
grounds for immediate termination of this Agreement. PEM is responsible for the
promulgation and administration of employment and safety policies, managing
workers' compensation claims, claims filing and related procedures.
8. Employee Benefits.
The Client shall select the Group Benefit Plan options desired under this
Agreement. Client shall sign in all appropriate places. By its signature Client
acknowledges that it has delivered all required data to the Marketing
Representative of PEM.
Benefit Options and Elections.
1. In an effort to furnish the best possible service, PEM offers
a Group Benefit Plan. The coverage is funded through a Group Insurance
Policy issued to the Sponsor by Blue Cross Blue Shield.
2. Client must select one of the following options:
a. Client chooses not to participate in the Group
Benefit Plan sponsored by PEM.
___________________________________ (Signature of Client); or,
b. Client chooses to participate in the Group Benefit
Plan sponsored by PEM.
_______________________________________ (Signature of Client).
c. If Client chooses not to participate in the Group
Benefit Plan sponsored by PEM, Client hereby certifies that it
has its own Health Benefit Programme which covers its
employees.
d. If Client chooses to participate in the Group Benefit
Plan sponsored by PEM, Client selects the following coverage:
(1.) Client elects to participate in the Group
Benefit fan which includes a transitional period of
coverage based upon written acceptance by Blue Cross
Blue Shield.
___________________________________ (Signature of Client); or,
(a.) Client must deliver to PEM's service representative
the following:
(a.1) A complete copy of Client's Health Benefit
Insurance Policy;
(a.2) A copy of the last statement from the
Client's Health Benefit Carrier marked paid in full and a copy
of the canceled check, front and back;
(a.3) A copy from the health Benefit carrier
showing each employee's effective date of coverage for the
current policy;
(2.) Client elects to participate in the Group Benefit
Plan as a new Regular Enrollment, subject to all written terms and
conditions of the Group Insurance Policy.
______________________________________ (Signature of Client).
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Indemnification and Attorney's Fees.
A. Client agrees to indemnify, defend and hold harmless PEM, its
officers shareholders, non-leased employees, directors and agents from and
against any and all losses, liabilities, expenses (including court costs and
attorneys' fees) and claims for damage of any nature whatsoever, whether known
or unknown as though expressly t forth and described herein, which PEM may
incur, suffer, become liable for, or which may be asserted or claimed against
PEM as a result of the actual or alleged acts, errors or omissions of Client or
any leased employee, including without limitation any violation or breach of
paragraph 5 above by Client, or any claims whatsoever arising out of actual or
alleged violations of Wage and Hour laws, EEOC laws, tort law, The Family and
Medical Leave Act, The American's with Disabilities Act, Title VII of the Civil
Rights Act or the National Labor Relations Act by the Client or any leased
employee.
B. Client agrees to indemnify, defend and hold harmless PEM from real or
asserted liability, including the cost of defense, connected with or resulting
from the ownership custody, maintenance, use or operation of any of client's
machinery, facilities, equipment and/or automobiles whether leased, rented,
borrowed or owned, which abilities are not covered by the insurance provided by
Client, or if covered, are in excess of the policy limits required pursuant to
INSURANCE hereinafter expressed.
C. Client agrees to indemnify, defend and hold PEM harmless for any and
all liabilities whatsoever arising out of Client's hiring of Independent
Contractors and/or Employees outside of this Agreement.
D. In the event that PEM is required to defend against any claim to
which PEM reasonably believes it is untitled to indemnification under this
Section, Client shall advance to PEM any attorneys' fees and litigation expenses
related to the defense of such action that have not yet been previously
reimbursed by Client.
E. In the event that PEM is required to defend against any claim or
prosecute any claim occasioned by the breach or default in any provision of this
Agreement to enforce the terms of this Agreement, PEM shall be awarded all
reasonable cost pertaining thereto, including reasonable attorneys' fees and
costs in addition to any other relief to which PEM may be entitled.
F. Client agrees that, notwithstanding any other provision of this
Agreement, that access to any property, whether real, appurtenant, or personal,
as well as the accommodation of said property to any person who may be
handicapped or disabled, or perceived as being handicapped or disabled, over
which real or personal property the Client has ownership, administration,
maintenance or some other control, shall be the sole and exclusive
responsibility of the Client. Client agrees to indemnify, hold harmless and
defend PEM, its officers, shareholders, non-leased employees, directors and
agents, from any and all losses, liabilities, expenses (including court costs
and attorneys' fees), and claims for damage of any nature, or other consequences
of any sort out of the client's obligations set forth herein.
10. Fees.
A. For services under this Agreement, PEM shall be entitled to a fee as
specified on Exhibit A attached to this Agreement. Exhibit A shall be signed by
Client after it is filled in by PEM's Representative. The signature by Client
shall indicate Client's acceptance for the rates and classifications thereon.
Upon acceptance by PEM of the Agreement, a duly authorized representative (i.e.
a corporate officer) shall sign Exhibit A indicating acceptance by PEM of the
rates and classifications. Both parties shall retain a copy of Exhibit A. A
portion of said fee shall be applied by PEM toward the Workers' Compensation
Policy covering employees working pursuant to this Agreement. The fee is payable
when PEM issues checks each pay period. Should Client require additional
services not included in this Agreement, the fee for any such additional
services shall be negotiated. separately. While the preparation fee charged by
PEM is guaranteed for the Initial Term of this Agreement, the fee set forth on
Exhibit A is subject to adjustment by A based upon changes in local State and/or
Federal employment law or changes in insurance requirements or costs.
B. If, for any reason whatsoever, payment is not timely submitted to
PEM for its services in accordance with this Agreement, or the payment received
is unable to be immediately negotiated, it will be considered a breach contract
and PEM shall have the sole right to immediately terminate this Agreement and/or
charge Client a special vice fee of up to $100 per day. This special service fee
shall be imposed to reimburse PEM for all expenses, including additional labor
costs, incurred as a result of any Client's failure to timely meet financial
obligations under s Agreement.
C. Should payment of any amounts due PEM not be made when due, and
should PEM agree to continue to provide services to the Client, the Client shall
pay a monthly service charge of one and one-half percent (1 1/2%) per month on
the unpaid balance, however, in no event shall this amount exceed the lawful
rate of interest.
D. PEM shall have the right to adjust the negotiated fee should it be
determined that Client has represented or understated the amount of its payroll.
Likewise PEM shall have the right to adjust the negotiated price should Client
fail to cooperate
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in unemployment matters resulting in additional costs to PEM. The adjustment
shall in compliance with PEM's Administrative Cost Guidelines. A copy of the
Administrative Cost Guideline is available upon request.
E. The owner or owners of the Client business must make an
election to become a payroll employee of PEM at the time of the initial
enrollment. If any owner (be that an owner, self-proprietor, partner, or
stockholder) declines to be an employee of PEM at the time of the initial
enrollment, then that owner must wait until the one-year anniversary date to
become enrolled as a salaried employee. No benefits shall be available to any
owner not properly enrolled as an employee of PEM. This provision may be amended
only upon written agreement by PEM and Client.
11. Insurance.
A. PEM shall furnish and keep in full force and effect at all
times during the term of this Agreement, workers' compensation insurance
covering all PEM employees under the terms of this Agreement. Upon request, PEM
shall produce a Certificate of Insurance to be issued naming Client the
certificate holder.
B. If Client transfers professionals engaged to act in their
professional capacity, Client shall furnish malpractice insurance which shall
cover any and all acts, errors and/or omissions, including but not limited to
negligence of PEM transferrers and/or employees. Client shall cause its
insurance carrier to name PEM as an additional named insured and issue a
certificate of insurance to PEM, allowing not less than thirty (30) days advance
notice of `cancellation or material changes. This insurance coverage shall have
limits of liability of no less than $1,000,000.00.
C. Client shall secure and maintain General Liability Insurance
coverage with Limits of Liability no less than $1,000,000.00 combined single
limit. The policy shall also provide for the coverage of auto and non-owned
auto. PEM shall be provided with a certificate of such insurance.
D. Client and PEM agree to keep in full force and effect at all
times during the term of this Agreement all insurance required under this
Agreement.
E. Misrepresentation of workers' compensation classification or
inaccurate reporting of employee payroll hours is cause for immediate
termination of this contract. Client is obligated to pay to PEM any additional
monies due as a result of workers' compensation audits, only as it applies to a
client location, for the duration of this Agreement, or up to the statutory
limit of 2 years after termination of services.
12. Representation of Client.
Before the commencement of the Initial Term, Client shall warrant and
represent to PEM as follows:
A. That Client's Federal Employer Identification Number is
65-0687110 and Client's State Unemployment Tax number is ______________________.
B. That all wages and compensation due prior to the date of this
Agreement have been paid to Client's employees.
C. That no separate agreements or arrangements exist that' would
obligate PEM except as set forth herein.
D. That in the opinion of counsel for Client all existing pension
and profit sharing plans are current and in `compliance with applicable law and
this Agreement shall not be deemed a breach under the terms of such plans.
E. That no Client shut-down, lay-offs, or cessation of business
is contemplated by Client. That Client recognizes that Federal and State
regulations govern employers with great numbers of employees. That potential
liabilities in the event of "plant closings", "shut-downs", or "lay-offs" could
have a disastrous impact on PEM as well as the Client. That Client will notify
PEM at least sixty (60) days in advance of any "plant closings", "shut-downs",
or "mass lay-offs", as set forth in 29 U.S.C. ss. 2101(a)(1) Worker Adjustment
and Retraining Notification Act, or other cessation of business.
F. That Client will cooperate and work with PEM with a stated
goal of seeking adequate job placement or relocation for any displaced employee.
G. Knowing that State Law requires that any checks which remain
unclaimed after a period of one year be remitted to the State's unclaimed
property fund. Client agrees to assist PEM in the compliance with this statute
by submitting any such checks
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back to PEM on a periodic basis. Client will indemnify and hold harmless PEM
from any and all liabilities whatsoever arising out of Client's failure to
comply and PEM has the right to inform the State's unclaimed property fund of
such failure so that they can initiate collection procedures from the Client.
13. Invalidity of a Provision.
If any provision of this Agreement (or any portion thereof) shall be
held to be invalid, illegal, or unenforceable, the validity, legality or
enforceability of the remainder of this Agreement shall not in any way be
affected or impaired thereby.
14. No Waiver.
The failure by either PEM or Client to insist upon strict performance
of any of the provisions contained in this Agreement shall in no way constitute
a waiver of any of its rights as set forth herein, at law or equity.
15. Termination.
This Agreement may be terminated by PEM if, at any time, Client
breaches any material term of this Agreement. PEM may also terminate this
Agreement if, at any time, PEM, in its sole discretion, determines that a
material adverse change has occurred in the financial condition, the business,
or the business prospects of Client, or that Client is unable to pay its debts
as they become due in the ordinary course of business. This Agreement may also
be terminated, upon five days notice by PEM, in the event of any federal or
state legislation, regulatory action, or judicial decision which, in the sole
discretion of PEM, materially adversely affects its ability to perform under
this Agreement. This section is cumulative to all other incidents of termination
recited in this Agreement. Upon termination by either party of this Agreement
only standard information in standard form and format will be supplied to Client
by PEM. Client agrees that PEM has no obligation to supply information outside
of its standard services as set forth in this Agreement. Should Client desire
such information as an additional service, fees for these services must be
negotiated outside of this Agreement as set forth in Paragraph 10A. of this
Agreement.
16. Credit Information.
Client agrees that PEM may obtain and use consumer credit reports and
exchange credit information in connection with the approval of this contact,
and/or the collection of any debt created by this contract.
If Client requests, PEM will inform Client whether any credit report
was requested and, if so, the name and address of the consumer reporting agency
which furnished the report.
17. Venue and Jurisdiction.
Any action or counterclaim arising out of or related to this Agreement
must be brought by Client only in Sarasota County, Florida. Any action may be
brought by PEM in any jurisdiction where venue is proper. Client hereby
irrevocably consents to be subject to the jurisdiction of the courts of Florida
concerning any case or controversy arising out of or related to the Agreement.
18. Notices.
To be effective, any notice given under this Agreement must be in writing, shall
be effective when received, and shall be delivered, by hand or by overnight
delivery service, to the following addresses:
IF TO PROFESSIONAL EMPLOYEE MANAGEMENT, INC.:
Professional Employee Management, Inc.
1819 Main Street, 8th Floor
Sarasota, Florida 34236
Attn: Corporate Officer
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IF TO CLIENT:
eDiets.com, Inc.
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Business Name (Print or Type)
Christine Brown
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Officer (Owner) (Print or Type)
3467 W. Hillsboro Boulevard, Suite 2
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Mailing Address (Print or Type)
Deerfield Beach, Florida 33442
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City, State & Zip Code (Print or Type)
or to such other address as either party may, in writing, from time to time,
give notice to the other party.
19. Limitation of Damages.
In no event will PEM be liable for any direct or consequential damages
to Client as a result of a breach of this Agreement, nor for any loss of
profits, business, or goodwill.
20. Waiver of Jury Trial.
Client hereby waives any right to a jury trial in any action against
PEM arising out of, or related to this Agreement.
21. Headings.
The headings in the Agreement are intended for convenience or reference
and shall not affect its interpretation.
22. Amendments.
This Agreement constitutes the entire Agreement between the parties
with regard to the subject matter and no other agreement, statement, promise or
practice between the parties relating to the subject matter shall be binding on
the parties. This Agreement may be changed pursuant to the terms hereof or by
written amendment signed by both parties.
23. No Third Party Beneficiaries.
No rights of any third party are created by this Agreement and no
person not a party to this Agreement may rely on any aspect of this Agreement
notwithstanding any representation, written or oral, to the contrary.
24. Governing Law.
This Agreement shall be governed by and construed under the laws of
Florida, regardless of any choice of law provisions of any jurisdiction to the
contrary.
25. Oral Representations.
Oral amendments to this Agreement are not allowed. No oral promise
shall be enforceable. Agents and Sales Representatives of PEM have no authority
to alter or amend any provision of this Agreement. No promise by any Agent or
Sales Representative of PEM is enforceable unless in writing, attached to this
Agreement and approved by a LICENCED CONTROLLING PERSON, IN ACCORDANCE WITH
FLORIDA STATUTES, AND A CORPORATE OFFICER.
26. Prior Premiums and Fee Obligations
Client understands that pursuant to Florida law, Client may not enter
into an employee leasing arrangement with PEM if Client owes a prior employee
leasing company any money pursuant to any service agreement which existed
between that prior
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employee leasing company and Client, or if Client owes a prior insurer any
premium for workers' compensation insurance. Client has met any and all prior
premium and fee obligations with regard to workers' compensation premiums and
employee leasing payments.
AGREED TO:
Professional Employee Management, Inc. Witness
By:
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Date:
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1819 Main Street, 8th Floor, Sarasota, Florida 34236
Under penalties of perjury, I declare that I have read the foregoing document
and that the facts stated in it are true. In addition, the foregoing Agreement
is agreed to.
Client: eDiets.com, Inc. Witness
By:
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Title:
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Date:
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Address:
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GUARANTOR AGREEMENT
Agreement made this ___________ day of _________________________, 2000 between
the undersigned ("Guarantor(s)"), whose home address(es) is listed below and
Professional Employee Management, Inc. ("PEM").
For and in consideration of PEM s continuation of services under its
agreement for services with ___________________ and other good and valuable
consideration, the receipt and sufficiency of which i acknowledged, Guarantor(s)
agrees (and if more than one Guarantor, each of them jointly and severally) to
unconditionally and irrevocably guarantee the full payment and performance of
all obligations stated by the agreement for services identified above, including
all extensions or renewals thereof and all sums payable under or by virtue
thereof, including, without limitation, reimbursement of all wages, payroll
taxes, insurance, and/or indemnity obligations and all expenses (including
attorneys fees, fees of paralegals, and investigation expenses) and all other
costs, attorneys fees, fees of paralegals, and investigation expenses incurred
in the collection of the obligations due hereunder.
Guarantor(s) agrees that no notice or demand shall be required of PEM
in connection with this unconditional guaranty.
Any or all guarantors executing this agreement may be sued by PEM
without joining any other parties, whether primarily or secondarily liable, and
without first suing or enforcing the specified agreement for services against
the client company executing the agreement.
Guarantor(s) agrees that PEM may obtain and use consumer credit reports
and exchange credit information in connection with the approval of this contact,
and/or the collection of any debt created by this contract. If Guarantor(s)
requests, PEM will inform Guarantor(s) whether any credit report was requested
and, if so, the name and address of the consumer reporting agency which
furnished the report.
The undersigned recognize the continuing nature of this guaranty and
its binding effect upon the undersigned, the undersigned s heirs, executors,
administrators, successors, or assigns.
Guarantor(s) hereby waives any right to a trial by jury in any action
to enforce or defend any rights under this unconditional guaranty. Guarantor(s)
agrees that any action relating to this unconditional guaranty shall be brought
in the court of appropriate jurisdiction in and for Sarasota County, Florida.
Guarantor(s) hereby stipulates to the personal jurisdiction of the state courts
of Sarasota County, Florida.
This unconditional guaranty shall be governed by and construed under
the laws of the State of Florida.
IN WITNESS WHEREOF, PEM and Guarantor(s) have executed this agreement
on the date above written.
By:
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Witness Signature Guarantor's Signature
By:
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