The Right Staff Right Now
GENERAL TERMS AND CONDITIONS FOR AGREEMENTS BETWEEN GO-STAFF AND CUSTOMERS PURSUANT TO WHICH GO-STAFF PROVIDES STAFFING SERVICES
I. Application. These General Terms and Conditions apply to and govern the staffing agreements between Go-Staff, Inc. and its customers (each hereinafter referred to as “Company”) for the provision of Go-Staff’s employees (“Employees”) to Company for staffing services. These General Terms and Conditions are incorporated into each such staffing agreement with Company by reference and are part of such agreement, collectively, the “Agreement.” To the extent there is any specific inconsistency between the terms of the staffing agreement and these General Terms and Conditions, the specific term of the staffing agreement applies and governs under the Agreement.
II. Termination of Agreement. In addition to the expiration of the Agreement as provided in the staffing agreement, GO-STAFF may terminate the Agreement upon the breach or default of Company, provided that GO-STAFF shall have first given Company written notice of the default or breach and ten days’ opportunity for Company to cure such breach (provided, however, that if immediate termination is necessary, in GO-STAFF’s sole discretion, then notice of such termination shall so state and termination shall be immediate without any right or opportunity to cure). If the breach or default is not timely cured (or if the Agreement is immediately terminated), GO-STAFF shall be entitled to pursue all of its rights and remedies without further notice.
III. Rates. GO-STAFF reserves the right, in its sole and absolute discretion, to establish the hourly wage rates and fringe benefits, if any, of Employees. (The preceding sentence does not apply to hourly wage rates of payroll employees.) GO-STAFF shall charge, and Company shall timely pay, the rates and other charges specified in the Agreement for the Employees staffed with Company.
IV. Background Checks. GO-STAFF is not responsible for any Company action based on information that is reported in any background report, whether one is requested or not. GO-STAFF and Company will each comply with applicable law as related to background checks, reports, and any action taken.
V. Rules Applicable to Rates. Overtime rates at 1-1/2 times the regular Rate of Pay will be charged to Company for any work over 8-hours per day, work over 40-hours per week, and the first 8 hours on the seventh consecutive workday. Double time will be billed for any work over 12-hours per day, over 60-hours per week, and in excess of 8 hours on the seventh consecutive workday. For work beginning after GO-STAFF’s normal business hours (after 7 p.m. Monday-Friday, Saturday after 4 p.m. and Sunday after 1 p.m.), the following will be enforced: (i) an 8-hour cancellation fee will be charged if job is not canceled at least 6-hours prior to job start time, and (ii) an 8-hour minimum for all work performed. A 2-hour dispatch fee will be charged to Company for canceling an Employee without 2 hours’ prior notice. GO-STAFF has a 4-hour minimum on each Employee provided and an 8-hour minimum on all skilled Employees provided.
VI. Rules Applicable to Payroll Employees. The parties agree that Employees who are provided to Company under a Staffing Services Agreement (Payroll) (aka “payroll employees”) work 8 hours/day and 5 days/week. Should there be any deviation from this schedule, GO-STAFF must be notified prior to or on the day of the deviation. If not, Company will be billed for the full 8-hour day, 40-hour week. If any such payroll employee covered by this paragraph works less than 16 hours in a pay period, a $25 administrative fee, not to exceed $100 per week, will be charged to Company per such Employee. (This paragraph applies only to payroll employees.)
VII. Billing and Payment. GO-STAFF’s workweek runs Monday through Sunday. Company will report hours worked by each Employee on forms provided by GO-STAFF no later than Friday for Employees released before the end of the workweek and, for other Employees, no later than 12 noon on the Monday following the end of the workweek. If any failure by the Company to accurately and timely report such hours, or any failure by Company to respond to a written inquiry from GO-STAFF regarding Employee hours, results in increased costs to GO-STAFF (including without limitation increased wages, overpayment of wages, penalties, interest, or attorneys’ fees), Company shall indemnify GO-STAFF within 10-days of written demand therefore for such increased costs, provided that in the event of wage overpayment, GO-STAFF must first reasonably attempt to recoup such overpayment from subject Employee. Further, and regardless of whether Company’s failure to timely submit Employee time records results in increased costs to GO-STAFF, Company agrees to pay a service fee of $20 per employee per week for any time records that are not submitted to GO-STAFF by 10:00 a.m. on Tuesday following the workweek for which the hours were worked. Invoices are sent out every week. If Company believes there is any error or discrepancy in an invoice, Company has seven days from the invoice date to notify GO-STAFF by phone; otherwise such invoice shall be deemed binding and Company shall be responsible for payment of the total amount billed. Company payment terms are specified in the staffing agreement. Invoices that are not paid by the due date will incur a finance charge of 1.5% per month on unpaid balances (ANNUAL PERCENTAGE RATE OF 18%) or the maximum legal interest rate, whichever is lower. (The previous sentence does not apply if the applicable staffing agreement specifies the differing/increased terms/charges if Company does not make payment within 7 days from the date of GO-STAFF’s invoice.) NSF returned checks will impose an NSF fee to the full maximum extent of the Law or $20.00, whichever is greater. If Company requires GO-STAFF to obtain a purchase order or its equivalent thereof from Company, a charge of 5% of the invoice amount will be added to the invoice amount due if GO-STAFF has not received said purchase order within 15 days of invoice date. An additional 5% will be added to the invoice amount due if the purchase order/equivalent is not received within 30 days. Company agrees that it shall be responsible for GO-STAFF’s reasonable attorneys’ fees incurred as a result of Company’s delinquent payments. Company shall reimburse GO-STAFF within fifteen (15) days of each of GO-STAFF’s written requests for such a payment.
VIII. Employee Time Card Approval. Go-Staff pays employees assigned to Company on a weekly basis. Time Card approval is due from Company no later than 12:00pm on the Tuesday following the prior workweek. In the event that approval is not received prior to that time and the employee has otherwise submitted their timecard on time, the time submitted by the employee will be deemed correct and processed. In the event that an error is discovered by Company for a timecard processed under this provision, Company must notify Go-Staff immediately, but no later than 1:00pm Wednesday following the prior workweek. Should an error be discovered after this time, such errors may only be corrected should the employee both agree that the time record was in error, and once Go-Staff has recovered the erroneously paid funds. Company acknowledges that this is the sole and exclusive remedy for collecting erroneously paid funds after the previously disclosed deadlines. Our work week is defined as Monday through Sunday.
IX. Employee Supervision and Safety. Employees are not supervised by GO-STAFF; they are subject at all times to Company’s direct and indirect supervision. All Employees must be supervised by Company, unless Company has prior written permission from the President of GO-STAFF. Because GO-STAFF is neither a contractor nor a subcontractor and GO-STAFF is not on Company’s jobsite and does not supervise, GO-STAFF offers no guarantee for the results of any job. Company agrees to provide Employees with a safe and healthy work environment and in particular to provide any and all safety training, equipment (including personal protective equipment), clothing, or devices necessary or required by all applicable Laws for any work to be performed by GO-STAFF’s employees or any such items that are used by Company’s own employees or other contractors in the performance of similar work. Company agrees that it shall not, without the express prior written authorization of GO-STAFF, use GO-STAFF employees to operate machinery, equipment, or vehicles that are not covered by the Company’s liability and property damage insurance, to perform any work or function not covered by such insurance, to operate dangerous or unprotected machinery, to excavate where proper shoring and protecting are not provided, to work on any ladders or scaffolding, or to work as a member of the crew of any vessel or in maritime work upon navigable waters of the United States that might be subject to the U.S. Longshore and Harbor Workers’ Compensation Act or the Jones Act. Company agrees that it shall have in place at all times policies and protocols in compliance with all Laws related to Employee health, safety and well-being. Company agrees it is responsible for reporting any work-related injuries and illnesses involving GO-STAFF employees as required by applicable law.
X. Loss of Valuables. Unless Company has prior express written authorization from GO-STAFF, Company agrees that it shall not entrust any GO-STAFF employee with any unattended worksite, cash, checks, negotiables, or other valuables. GO-STAFF shall not be responsible for claims made pursuant to its Fidelity Bond unless the Company reports such claims in writing to GO-STAFF and the local police within seven (7) days after notice of the less, unless otherwise prohibited by applicable law.
XI. Compliance with Laws. Company agrees to comply with all applicable Laws, including but not limited to employment-related Laws and all Laws relating to worker Employee health, safety and well-being. GO-STAFF shall incur no liability with regard to any violation of applicable Laws by Company.
XII. Hiring GO-STAFF Employees. Company acknowledges that it has engaged GO-STAFF to provide Employees under the Agreement. To the extent enforceable by applicable law, Company further agrees not to solicit or hire any Employee that GO-STAFF has introduced to the Company and/or any of the Company’s affiliates until the earlier of (i) the expiration of the one year period following the last date such Employee has worked for GO-STAFF or (ii) such Employee has worked more than 520 hours for the Company under the Agreement with GO-STAFF as the employer of such Employee, except as otherwise permitted in writing by Scott or Stacey Crumrine. Company further agrees not to cooperate in or allow any subcontractor, contractor, search firm, staffing company and/or other party utilized or contracted by or otherwise affiliated with Company to solicit or hire any Employee regardless of the hours passed. To the extent enforceable by applicable law, should Company, its affiliates, subcontractors, contractors, search firms, staffing companies and/or other parties utilized or contracted by, or otherwise affiliated with Company (on the same jobsite that Employee works or was introduced) hire an Employee in violation of this paragraph, or otherwise circumvent the Agreement, (i) Company acknowledges and agrees that it would be difficult to ascertain the loss that would be suffered by GO-STAFF, and (ii) for that reason, Company agrees to pay GO-STAFF a placement fee equal to the greater of (a) $4,500.00 or (b) 20% of the annual wage of the Employee, whichever is greater, which amount is intended to constitute liquidated damages and not a penalty. Company agrees the provisions of this paragraph are reasonable terms to compensate GO-STAFF for its recruitment, training and placement of its Employees.
XIII. Paid Sick Leave. GO-STAFF agrees to comply with the California Healthy Workplaces, Healthy Families Act with respect to its eligible employees, including, but not limited to, those who are performing services for Company. GO-STAFF agrees that this obligation includes providing Paid Sick Leave (“PSL”) to its eligible employees and posting and providing the applicable notices regarding PSL rights, and maintaining adequate records regarding use of PSL. However, the parties agree that Company will be responsible for reimbursing GO-STAFF for the cost of providing PSL to its employees performing services for Company, as set forth in the Agreement.
XIV. Affordable Care Act (“ACA”). Pursuant to 26 C.F.R. § 31.3401, the parties intend and agree that GO-STAFF (and not Company) is the “common law” employer of GO-STAFF’s employees who are performing services for Company, only for purposes of ACA coverage. However, the parties also intend to satisfy the requirements of 26 C.F.R. § 54-4980H-4 and 26 U.S.C. § 4980H. These provisions provide requirements under which an offer of health coverage made by GO-STAFF can be treated as an offer of health coverage on behalf of Company with respect to GO-STAFF’s employees who are performing services for Company. As such, Company agrees to pay GO-STAFF a higher rate for all employees who are enrolled in health coverage under GO-STAFF’s plans that meet the requirements of the ACA. The “higher rate” is a combination of a flat fee of 2% of aggregate total of all hours billed per invoice, as set forth in the Agreement, as well as a flat fee of $5.00 per GO-STAFF employee enrolled in an ACA-compliant plan per month, regardless of how many hours the employee worked for the Company.
XV. End of Employee Assignment.
(a) Company may terminate a work assignment of an Employee at any time for any lawful reason. However, Company agrees not to end the assignment of any GO-STAFF Employee without first notifying GO-STAFF, to the extent practicable. Regardless, Company agrees to notify GO-STAFF as soon as possible of the end of any Employee’s assignment. When Company ends the assignment of a GO-STAFF Employee, Company will instruct Employee to report back to GO-STAFF. If Company is not satisfied with the services provided by an individual Employee, for any reason, Company may request GO-STAFF to re-assign Employee so long as such action does not violate applicable law. While GO-STAFF offers no guarantee as to the results of any job, GO-STAFF represents that each Employee provided under this Agreement shall be of the quality and have the knowledge required by the applicable job classification. Therefore, as its exclusive remedy, if the notification of re-assignment by the Company occurs within the first two (2) hours of the first day of the assignment, Company will not be charged for the services of the Employee. However, if Company retains an Employee for more than two (2) hours worked, Company is responsible for the entire invoice for all hours worked.
(b) Company agrees that it will not terminate the employment of any GO-STAFF Employee. In the event that Company terminates the employment (as opposed to a re-assignment) of a GO-STAFF Employee, or purports to do so, Company shall indemnify GO-STAFF for any increased costs and liability thereby incurred.
XVI. Indemnification.
(a) Company agrees to defend, indemnify, and hold GO-STAFF harmless from any claims arising out of Company’s direction, and its supervision, both direct and indirect, of GO-STAFF Employees. To the fullest extent permitted by law, and in addition to the specific indemnification required elsewhere in the Agreement, Company agrees to defend, indemnify, and hold GO-STAFF harmless for any and all claims, demands, causes of action, damages, costs, expenses, attorneys’ fees, property damage, bodily injury, contract disputes, penalties, losses or liability, in law or equity, of every kind and nature whatsoever, arising out of or in any manner directly or indirectly connected with the obligations or work to be performed under the Agreement by Employees provided to Company by GO-STAFF, regardless of any negligence by GO-STAFF, its Employees, agents, officers, consultants, or employees, be said negligence passive or active in nature, except where GO-STAFF’s negligence or willful misconduct is the sole and exclusive cause of the claim, demand, cause of action, damage, cost, expense, property damage, bodily injury, contract dispute, penalty, loss, or liability. Company’s duty to defend GO-STAFF is entirely separate and independent from Company’s duty to indemnify and hold GO-STAFF harmless. Such defense obligation shall arise immediately upon written notice of a claim to Company, and shall apply without regard to Company’s liability or whether said liability has been determined. The obligations to defend, indemnify, and hold GO-STAFF harmless agreed to above in this paragraph includes without limitation any claims arising out of Company’s use of Employees, as well as any claims for bodily injury, which include death or loss of and loss of use of or damage to property and any arising out of the use or operation of Company’s owned, non-owned, or leased vehicles (including contents and cargo), machinery or equipment by Employees. The obligations to defend, indemnify, and hold GO-STAFF harmless also includes without limitation any and all claims, demands, causes of action, damages, costs, expenses, attorneys’ fees, penalties, losses, or liability of every kind and nature whatsoever, arising out of (i) any breach of the Agreement by Company; (ii) application of the Jones Act or any claims of GO-STAFF employees brought under or by virtue of their employment as seamen or as members of the crew of any vessel while under the supervision of the Company; (iii) any violations of the Occupational Safety and Health Act of 1970 (or its California counterpart) by the Company; (iv) any violations of wage and hour laws due to the Company’s failure to provide rest, meal and/or recovery periods while under the Company’ supervision; and (v) violations of any law by the Company, including Employee health, safety and well-being laws (whether with respect to workplaces owned, leased, or supervised by Company or its affiliates to which Employees are assigned), wage and hour laws (including those requiring rest, meal, and recovery periods and those prohibiting “off the clock” work), employment torts (such as discrimination, harassment, retaliation, and wrongful termination), the California Healthy Workplaces, Healthy Families Act, and the Affordable Care Act. In the event any Employee makes a claim for wage and hour violation, Company shall immediately notify GO-STAFF. If, in the sole and absolute discretion of GO-STAFF, it is determined that paying a premium to those Employees who have missed any rest, meal, and/or recovery period(s) is advisable, then GO-STAFF retains the right to bill Company for said premium payment and Company hereby agrees to be responsible and indemnify GO-STAFF for and to make such payment. In the event of any claim for which indemnification is required under the Agreement, GO-STAFF reserves the right to select counsel of its own choosing, for which Company shall have the responsibility to pay all fees and costs (including settlement amounts) of such counsel. Company shall reimburse GO-STAFF for all of its fees and costs (including settlement amounts) as a result of such indemnification within fifteen (15) days of each of GO-STAFF’s written requests for such payment. Company acknowledges that GO-STAFF’s insurance does not cover claims by GO-STAFF pursuant to the Jones Act (including, but not limited to, damage to, loss of, or loss of use of Company’s owned, non-owned, or leased vehicles, including contents and cargo, machinery, equipment, or material while being used by or in the care, custody, or control of GO-STAFF employees pursuant to the Jones Act). Nothing in the Agreement (including the indemnification provisions in this paragraph) shall be construed to require the Company to reimburse GO-STAFF or its workers’ compensation carriers for compensation or medical and related costs incurred by reason of work-related injuries suffered by GO-STAFF Employees and covered by GO-STAFF’s applicable workers’ compensation policies.
(b) Coronavirus/COVID-19: Notwithstanding any other provision of these General Terms and Conditions, as well as the Agreement and the staffing agreement between the parties, neither GO-STAFF nor any of its employees, personnel, agents, or insurers may be held liable for any illness, injury, property damage, or loss resulting from novel coronavirus and/or COVID-19.
XVII. No Waiver. The failure by GO-STAFF to require performance by Company of any provision shall not affect GO-STAFF’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Agreement by Company constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
XVIII. Severability. If any provision of the Agreement is held to be invalid, void or unenforceable, all other provisions shall remain valid and be enforced and construed as if such invalid provision were never a part of the Agreement.
XIX. Governing Law. The parties hereto agree that the Agreement will be governed by and construed in accordance with the laws of the State of California without reference to its choice of law rules and as if wholly performed within the State of California. The parties further agree that any proceeding or litigation arising out of or in any way related to the Agreement shall be filed in and heard only by the state or federal courts with jurisdiction to hear such disputes in San Diego, California, and the parties hereby expressly submit to the exclusive jurisdiction and venue of such courts.
XX. Disputes; Attorneys’ Fees. If either party brings any proceeding or litigation arising out of or in any way related to the Agreement, the prevailing party shall be entitled to reasonable costs and attorneys’ fees incurred in the action.
DOCS 3796598.7
