OCCUPATIONAL SCREENING SERVICES AGREEMENT
OCCUPATIONAL
SCREENING SERVICES
AGREEMENT
_____________________________________________________
Prepared
For:
Connex/ATC
_____________________________________________________
Prepared
By:
Labwire,
Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Suite
1
Houston,
TX 77079
Labwire, Inc.
Partners
for a safe, healthy and effective workforce
Services
Agreement
This
agreement (the “Agreement”) is made as of March 22, 2006 by and between
Labwire, Inc. (hereinafter called “Administrator”) and Connex North America, Inc.
(hereinafter called “Client”), and defines the
services that the Administrator will provide the Client at Client’s Mesa Arizona
Location required as part of Clients company-sponsored substance abuse
examination of applicants and employee.
I. Description
of Protocol
Administrator
will provide laboratory-testing services in accordance with the specifications
described in Attachment I to this Agreement, incorporated herein by reference
which shall, at all times and in all cases be in accordance with all applicable
United States Department of Transportation and Department of Health and Human
Services requirements.
II. Specimen
Collection
Administrator
will coordinate specimen collection services in accordance with the
specifications described in Attachment II to this Agreement, incorporated herein
by reference.
III. Specimen
Transportation
Administrator
will assume responsibility for overnight transportation of all specimens to the
appropriate testing site.
IV. Compensation
Compensation
applicable to the substance abuse protocol covered in this Agreement is set
forth in Attachment II to this Agreement, incorporated herein by
reference.
V. Results
(Availability)
|
|
A. Negative
test results will usually be released within twenty–four hours (24) after
receipt of the specimen at the testing
site.
|
|
|
B. Positive
or irregular results (those requiring recheck) will usually be released
within 48–72 hours after receipt of the specimen at the testing
site.
|
|
|
C. Holidays
and weekend work schedules may alter the schedule of results availability
as described above.
|
VI. Results
(Delivery)
Via Labwire, electronic reporting
of results in a manner designed to protect confidentiality may be available
subject to minimum volume guidelines and any applicable federal or state
regulations.
Partners
for a healthy and effective workforce
Labwire, Inc.
Partners
for a safe, healthy and effective workforce
VII. Supplies
All
supplies essential to the collection, identification and transportation of
specimens to the testing site will be provided by testing laboratory,
coordinated by Administrator.
VIII. Chain
of Custody
Administrator
will provide Client with chain of custody documentation and procedures to
account for the integrity of each urine specimen by tracking its handling and
storage from point of collection to final disposition. Such
procedures are designed to disclose evidence of specimen
tampering. Specimens arriving at the testing site showing signs of
tampering will be considered void and unqualified for testing.
IX. Medical
Review Officer (MRO) Services
MRO
services will be performed on all specified drug
screens. Administrator’s recommendation regarding Medical Review
Officer services are described in Attachment III to this Agreement, incorporated
herein by reference. In the case that client chooses a program
without MRO services, then client assumes all liability and responsibility for
communications with donor regarding results.
X. Random
Program
The
Administrator will provide and conduct the random selection
program. The Client will provide the Administrator with a list of
employees, job location numbers and social security numbers, in a predetermined
format, prior to initiation of the program. The Client will provide
updated employee lists, job location numbers and social security numbers seven
(7) days prior to each random selection. Random selection services
will be provided by Administrator in accordance with the specifications
described in Attachment II to this Agreement, incorporated herein by
reference.
XI Coordination
of Activities
All
activities described in Sections II–XI, above, will be coordinated by
Administrator’s personnel; who will assume responsibility for setting up each
site to ensure proper implementation, supply distribution, specimen
transportation, results delivery, invoicing, and collection
orientation.
XII Agreement
Implementation
This
agreement will require 30–45 days to fully implement following Administrator’s
receipt of rosters denoting the name, delivery address, telephone number, and
contact person at each of Client’s sites. Client roster should be
affixed to this Agreement when Client signs it. To ensure prompt
attention to any additions/deletions to this roster, changes must be
communicated in writing to the following:
Labwire,
Inc.
ATTN: Client
Services
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇
Houston,
TX 77079
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
XIII. Litigation
Assistance
Administrator
is available to provide litigation assistance.
XIV. Payment
Terms
Services
provided under this Agreement will be billed to Client
bi-monthly. Payment for the net billed amount is due upon
receipt. Balances unpaid after 30 days following billing are subject
to a finance charge of 1½ percent per month, and interest shall accrue from the
first date of billing on all such unpaid balances.
XV. Term
and Termination
|
A.
|
The
contents of this Agreement constitute a bona fide offer and will remain
firm if accepted by April
1, 2006.
|
|
B.
|
This
Agreement shall exist for an initial period of one (1) year from the
effective date first above written, and shall automatically renew for
successive periods of one (1) year, with the understanding that the fees
set forth in Section IV above are subject to negotiation between Client
and Labwire, Inc. on the anniversary date of the Agreement for each
succeeding term.
|
|
C.
|
Either
party may cancel this Agreement at the end of the initial term or any
renewal term upon giving the other party written notice of its intent not
to renew at least thirty (30) days prior to the expiration of the then
current term.
|
|
D.
|
Upon
termination of this agreement, all monies owed to client are due and
payable within 15 days upon receipt of full payment all client records
will be delivered to client.
|
|
E.
|
This
Agreement shall automatically terminate on and as of the date any of the
following occur: The filing of a petition in bankruptcy by either party:
or the making by either party of an assignment for the benefit of
creditors: or if any involuntary petition in bankruptcy or petition for an
arrangement pursuant to the Bankruptcy Code is filed against either of the
parties: or if a receiver is appointed for the business of either party,
or any part thereof: or if either party should by law or otherwise
discontinue its operations for any reason
whatsoever.
|
|
F.
|
If
either party should fail to comply with any material term of this
Agreement, the other party may, at its discretion, declare a default and
terminate this Agreement for cause with a thirty (30) day written notice
of its intent to so terminate, only if issue(s) remain unresolved for more
than thirty (30) days. Notification in writing must be made to
either party at the address below.
|
XVI Compliance
with Laws
|
A.
|
Client
is responsible for compliance with any and all state or federal laws and
regulations, which may be applicable to Client’s Substance Abuse Program
policies. It is the Clients’ sole responsibility to review the
protocols contained in this Agreement to insure that the protocols and
Client’s Substance Abuse Program and policies satisfy all laws and
regulations.
|
XVII Miscellaneous
A. Entire
Agreements; Amendments
This
Agreement contains the entire understanding of the parties with respect to the
subject matter hereof, supersedes any and all prior agreements, understandings
and arrangements between the parties hereto regarding the subject matter hereof,
and is intended as a final expression of their agreement and a complete
statement of the terms thereof, and shall not be modified except in writing
signed by both parties.
B. Notices
All
notices required under this Agreement shall be in writing, personally delivered
or sent by certified mail, return receipt requested, addressed to the other
party as follows:
|
Administrator:
|
Labwire,
Inc.
|
|
|
14133
Memorial Dr
|
||
|
Suite
1
|
||
|
Houston,
TX 77079
|
||
|
Client:
|
Connex/ATC
|
|
|
Attn:
▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
|
||
|
Mesa,
AZ 85215
|
Either
party may change its address to which notice shall be sent by a notice similarly
sent.
C. Force
Majeure
Neither
party shall be liable for failure to perform any duty or obligation that either
may have under this Agreement where such failure has been occasioned by an act
of God, fire, strike, inevitable accident, war or any cause outside the
reasonable control of the party who had the duty to perform.
▇. ▇▇▇▇▇▇
The
failure of either party to exercise or enforce any right conferred upon it
hereunder shall not be deemed to be a waiver of any such right nor operate to
bar the exercise or performance thereof at any time or times thereafter; nor
shall its waiver of any right hereunder at any given time; including rights to
any payment, be deemed a waiver thereof for any other time.
E. Assignment
Neither
party may assign its respective rights and obligations arising out of this
Agreement, without prior consent in writing of the other party except that
Administrator may assign and any right hereunder to its parent, a subsidiary or
an affiliate corporation without the consent of the Client. Subject
to the foregoing, this Agreement inures to the benefit of, and is binding upon,
the successors and assigns of the parties hereto.
Labwire, Inc.
Partners
for a safe, healthy and effective workforce
F. Travel
The
Client will reimburse the Administrator for all travel expenses, including but
not limited to lodging, transportation and meals if circumstances require
services which necessitate an overnight stay.
G. Indemnification
Administrator
is an independent contractor providing the Client with Services as specified in
this Agreement, as may be amended, and shall not be deemed to be an employee,
agent or representative of the Client, except to the extent necessary to comply
with applicable U.S. Department of Transportation, DHHS, or state and local laws
and regulations. THE ADMINISTRATOR AGREES TO INDEMNIFY AND HOLD
HARMLESS THE CLIENT AGAINST ANY CLAIMS ARISING OUT OF THE ADMINISTRATOR’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT IN REPORTING FALSE DATA OR RESULTS TO CLIENT.
THE ADMINISTRATOR SHALL NOT BE LIABLE FOR THIRD PARTY’S SERVICES, FOR ANY
ACTIVITIES RESULTING FROM THE ENFORCEMENT OF THE CLIENT’S POLICIES OR FOR THE
ACTIONS OF THE CLIENT’S APPLICANTS OR EMPLOYEES RELATING TO THE SERVICES. CLIENT
AGREES TO INDEMNIFY AND HOLD ADMINISTRATOR HARMLESS FROM ANY CLAIM, LIABILITY,
LOSS OR DAMAGE BROUGHT BY THIRD PARTIES OR COMPANY APPLICANTS OR EMPLOYEES, OF
WHATEVER NATURE, ARISING OUG OF THE SERVICES, EXCEPT TO THE EXTENT CAUSED BY THE
GROSS NEGLIGENCY OR WILLFUL MISCONDUCT OF ADMINISTRATOR. IN NO EVENT SHALL THE
ADMINISTRATOR’S LIABILITY EXCEED, IN THE AGGREGATE, THE SERVICES FEE PAID TO THE
ADMINISTRATION DUGING WHICH ANY OF SUCH EVENTS OCCURRED. IN NO EVENT SHALL
EAITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT FO THIS AGREEMENT OR ANY
BREACH THEREOF. THIS LIMITATION OF LIABILITY, ▇▇▇▇▇▇, SHALL NOT APPLY TO ACTIONS
WITH RESPECT TO INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHRS OF EITHER
PARTY OR TO ACTIONS FOR INDEMNITY.
H. Severability
If any
provision of this Agreement is held to be, invalid or unenforceable by a court
of competent jurisdiction, the parties shall, if possible, agree on a legal,
valid and enforceable substitute provision which is similar in effect to the
deleted provision as possible. The remaining portion of the Agreement
not declared illegal, invalid or unenforceable shall, in any event, remain valid
and effective for the term remaining unless the provision found illegal, invalid
or unenforceable goes to the essence of this Agreement.
I. Governing
Law
The
provisions of this Agreement shall be constructed, interpreted and governed by
the substantive laws of the State of Texas, including all matters of
construction, validity, and performance.
Labwire, Inc.
Partners
for a safe, healthy and effective workforce
J. Legislative
Modification
Not withstanding any other provision to
the contrary, in the event that any federal, state or local law, rule,
regulation or interpretation thereof at any time during the term of this
Agreement prohibits, restricts, or in any way materially changes the method or
amount of reimbursement or payment or services under this Agreement, then this
Agreement shall, in good faith, be amended by the parties to provide for payment
of compensation in any manner consistent with any such prohibition, restriction
or limitation. With respect to any law, rule, laboratory service,
regulation or interpretation thereof which results in an increase in the cost of
services provided by the Administrator hereunder, Administrator shall have the
right to increase fees to reach that level of prices with which it is willing to
provide services hereunder. In such event, Administrator shall have
the option of terminating this Agreement; otherwise, this Agreement shall remain
in full force and effect.
K. Section
Headings
Section
headings contained in this Agreement are for reference purpose only and shall
not affect, in any way, the meaning and interpretation of this
Agreement.
IN
WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Agreement in duplicate effective as of the date first above
written.
|
Connex/ATC
(Client)
|
Labwire,
Inc.
(Administrator)
|
|
BY://s//
▇▇▇ ▇▇▇▇▇
|
BY:
//s// ▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
PRINT
NAME: ▇▇▇ ▇▇▇▇▇
|
PRINT
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
TITLE: Regional Director of
Safety
|
TITLE:
VP - Sales
|
|
DATE:
3-29-06
|
DATE:
3-31-06
|
This
Agreement Is made by and between Veolia Transportation, Inc. (“CUSTOMER”) a
subsidiary of Veolia Environment and Labwire Inc., with offices located at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“SELLER”). Seller agrees that Veolia
Environmental Services, Veolia Water and Veolia Energy (Dalkia) and their
respective direct and indirect subsidiaries may also purchase goods and services
in accordance with this Agreement, however, said entities shall not be subject
to any exclusive arrangement or minimum purchase requirements associated
herewith, said subsidiaries shall be included within the term CUSTOMER when
purchasing said goods and services. This Agreement, together with the
Attachments which are incorporated herein by reference, constitutes the complete
and entire understanding between the parties on this subject matter and
supersedes all prior agreements, discussions, proposals, representations,
statements, or understandings whether written or oral.
|
1)
|
DEFINITIONS
|
|
a)
|
The
Terms and Conditions of this Agreement govern the purchase and Sale of
Goods and/or Services. “Goods” means the materials set forth in
Attachments I, II, IV, V and VI and, unless the context otherwise
requires, includes installation and other services related to the Goods,
‘Services” means services, advice, reports and instructions set Forth in
Attachments I, II, IV, V and VI. “Products” means Goods
and/or Services.
|
|
b)
|
Unless
the context otherwise indicates, any reference to “parties” means CUSTOMER
and SELLER.
|
|
c)
|
The
term “Order” means a written purchase order that may be mated, hand
delivered or transmitted by facsimile from CUSTOMER to SELLER, and/or a
purchase order transmitted electronically by CUSTOMER to
SELLER.
|
|
d)
|
“Ordering
Customer” shall mean the specific customer entity placing an order under
this Agreement.
|
|
2)
|
ORDERS
|
CUSTOMER
will order Products by issuing Orders. CUSTOMER may order by phone but will
issue confirming Orders within five (5) days. SELLER will notify CUSTOMER within
one (1) day of receipt of an electronic Order that SELLER has received such
Order; Written Orders will not be issued for Orders transmitted electronically.
Each Order will specify the following: Products, quantity, delivery or
performance schedule, destination and total price. Price shall be set forth in
the Order, Prices include all charges, such as, packaging, packing, customs,
duties imposed before passage of title and all applicable taxes except sales,
use, and other such taxes imposed upon the sale or transfer of Products, All
prices referenced in this Agreement are In U.S. dollars unless otherwise
expressly stated. Except In the case of pricing, if any term of this Agreement
conflicts with any term of art issued Order, this Agreement will supersede the
Order.
|
3)
|
DELIVERY
& PERFORMANCE
|
Orders
will state the dates for SELLER’S committed delivery of Goods and/or performance
of Services. If at any ▇▇▇▇ ▇▇▇▇▇▇ has reason to believe that delivery of Goods
or performance or Services may not be completed by the date specified, SELLER
will immediately notify CUSTOMER of the cause and duration of the anticipated
delay. If SELLER does not comply with CUSTOMER’S delivery schedule, CUSTOMER may
either approve a revised delivery schedule or may terminate the Order. All
purchases will be delivered as described in Attachments I, II, IV, V and VI,
unless stated otherwise in the Order routing instructions. Unless otherwise
agreed, SELLER shall select the carrier.
Page 1 of
8
|
4)
|
QUALITY
|
Services
performed by SELLER shall conform to the quality standards set forth in
Attachments 1, II, IV, V and VI.
Goods
furnished by SELLER pursuant to any and all Orders will be deemed non conforming
if they are defective or fail to comply In any way with any term of this
Agreement or any Order, including, but not limited to, any warranty, subject to
the conditions set forth in Attachments I, II, IV, V and VI, CUSTOMER may
return, at SELLER’S cost and risk, any such non conforming Goods or any delivery
containing any such nonconforming Goods to SELLER for credit, refund of purchase
price, repair, or replacement, at CUSTOMER’S option. SELLER will replace all
Goods returned for replacement within 5 calendar days following receipt at
SELLER’S shipping location. Amounts owed to CUSTOMER due to rejections or
returns of non conforming Goods or rejections of non conforming Services, will
be at CUSTOMER’S option, either credited against current or future Invoices, or
paid by SELLER to CUSTOMER within thirty (30) days from CUSTOMER’S demand
therefore. In the event of default by the SELLER, CUSTOMER reserves the right to
sell any or all nonconforming items in the open market, charging the SELLER with
any additional costs.
|
5)
|
PAYMENT
|
|
a)
|
CUSTOMER
will compensate SELLER at the payment rate(s) and terms quoted by the
SELLER in Attachments I,
II, IV, V and VI. The acceptance by SELLER of payment with respect
to Services ordered hereunder shall constitute and operate as a release by
SELLER in favor of CUSTOMER for any and all claims against CUSTOMER that
SELLER might otherwise have or assert for Services, materials or equipment
furnished by SELLER and for services rendered by SELLER pursuant to or in
connection with the Services for which such payment is
made.
|
|
b)
|
Payment
terms shall be set forth in Attachments I, II, IV, V and
VI. Amounts owed to CUSTOMER due to rejections or returns of non
conforming Goods or rejections of non conforming Services, will be,
subject to Attachments I, II, IV, V and VI, at CUSTOMER’S option, either
credited against current or future invoices or paid by SELLER within
thirty (30) days from SELLER’S receipt of both a request for payment and
return of non-conforming Goods.
|
|
6)
|
WARRANTY
|
|
a)
|
SELLER
warrants that all Products will be as represented by SELLER, free from
defects in materials, workmanship, and design, in conformance with all
applicable specifications, descriptions, samples, and drawings referred to
in this Agreement and in Orders, merchantable and fit for their Intended
purposes.
|
|
b)
|
SELLER
warrants that the production, packaging, labeling and transportation of
all Goods will comply with all applicable national, regional, state and
local laws, rules, regulations, ordinances and
orders.
|
|
c)
|
SELLER
warrants that it has the authority to enter into and perform this
Agreement, that it has the right, title, and interest to convey all Goods
to CUSTOMER, that all Goods are free of all lens and encumbrances, and
that no Goods or Services or their provision, use or sale; nor any design,
manufacture and function of any Goods, will in any way Infringe upon or
violate any patent, trademark, trade secret, copyright or other right(s)
of any entity or person. If at any ▇▇▇▇ ▇▇▇▇▇▇ incurs any
indebtedness that becomes a lien upon any Goods, in whole or in part, or
that may become a claim against CUSTOMER, SELLER will immediately pay such
claim or indebtedness or cause such lien to be released and discharged by
giving bond or otherwise at SELLER’S
expense.
|
Page 2 of
8
|
d)
|
SELLER
warrants that It has the experience and ability as may be necessary to
perform all Services with a high standard of quality and that all Services
will be performed in a workmanlike, professional manner and in accordance
with the highest standards in the
industry.
|
|
e)
|
SELLER
warrants that it will make all appropriate tax payments and tax
withholdings for all individuals it provides to perform Services and, in
the case of Services performed in the United States of America, will
verify such individuals as being legally able to work in the United
States. SELLER will perform or arrange for the performance of appropriate
background checks and drug testing on all On-Site
Individuals.
|
|
f)
|
All
warranties will survive inspection, testing and acceptance of the Goods or
Services and expiration or termination of this
Agreement.
|
|
7)
|
PERMITS
|
It is the
responsibility of the SELLER to acquire and maintain, at its own cost, any and
alt permits, licenses, easements, waivers and permissions of every nature
necessary to perform the Services.
|
8)
|
RECORDS
RETENTION & RIGHT TO AUDIT
|
|
a)
|
The
SELLER must maintain complete and accurate records of all orders placed
under this contract; such data should include ordering entity, order date,
items, volumes item and ordering entity, and furnish such data to CUSTOMER
upon request at no additional cost. SELLER shall at a minimum provide such
data to CUSTOMER on a quarterly
basis.
|
|
b)
|
CUSTOMER
reserves the right to make investigations and/or audits of the inventoried
materials, equipment, supplies, qualifications, or facilities bought by
the SELLER in performance of the Services
herein.
|
|
c)
|
CUSTOMER
shall have the right to audit the books and records of the SELLER as they
pertain to this agreement. Such books and records shall be maintained for
a period of three (3) years from the date of final payment under the
agreement. CUSTOMER may conduct, or have conducted, performance audits of
the SELLER; CUSTOMER may conduct, or have conducted, audits of specific
requirements of this agreement as determined necessary by CUSTOMER.
Pertaining to all audits, SELLER shall make available to CUSTOMER access
to its computer files containing the history of contract performance and
all other documents related to the audit. Additionally, any software used
by the SELLER shall be made available for auditing purposes at no cost to
CUSTOMER.
|
|
9)
|
NON-DISCLOSURE
& CONFIDENTIAL INFORMATION
|
|
a)
|
All
reports, records, documents, and other papers and materials prepared in
connection with this Agreement, and all Services, and the product of all
Services performed hereunder, shall be the property of CUSTOMER, and the
SELLER shall not use or disclose same except upon the prior written
approval of CUSTOMER.
|
|
b)
|
“Confidential
Information” shall mean any information, whether or not owned or developed
by CUSTOMER, which is disclosed, furnished, made available, or otherwise
comes into the SELLER’S possession through or as a result of the
relationship with CUSTOMER established hereunder SELLER agrees at all
times during the term of this Agreement, and at all times after
termination of this Agreement, not to disclose for any purpose and to keep
in strict confidence and trust all of such Confidential Information.
SELLER acknowledges that any disclosure or unauthorized use of
Confidential Information will constitute a material breach of this
Agreement and cause substantial harm to CUSTOMER for which damages would
not be a fully adequate remedy, and, therefore, in the event of any such
breach, In addition to other available remedies, CUSTOMER shall have the
right to obtain injunctive
relief.
|
Page 3 of
8
|
10)
|
PUBLICITY
|
Under no
circumstances shall the SELLER issue, or permit to be issued, any press release,
advertisement or literature of any kind, or conduct or permit to be conducted
any interview or news conference referring to the Services, except upon prior
written approval of CUSTOMER
|
11)
|
QUANTITY
and EXCLUSIVITY
|
|
a)
|
This
Agreement does not commit CUSTOMER to procure or contract for any minimum
quantity of services or supplies.
|
|
b)
|
This
Agreement shall not be construed as to form an exclusive relationship
between CUSTOMER and SELLER. CUSTOMER may at any time, at its sole
discretion, enter into contemporaneous agreements with other vendors for
some or all of the services described
herein.
|
|
12)
|
INDEPENDENT
CONTRACTOR
|
The
status of the SELLER under this Agreement shall be that of an Independent
contractor and not that of an agent, and in accordance with such status, the
SELLER and their respective officers, agents, employees, representatives and
servants shall at all times during the term of this Agreement conduct themselves
in a manner consistent with such status and by reason of this Agreement shall
neither hold themselves out as, nor claim to be acting in the capacity of,
officers, employees, agents, representatives or servants of CUSTOMER nor make
any claim, demand or application for any right or privilege applicable to
CUSTOMER, including, without limitation, rights or privileges derived from
workers’ compensation coverage, unemployment insurance benefits, social security
coverage and retirement membership or credit.
|
13)
|
INDEMNIFICATION
|
|
a)
|
SELLER
and Its parents), subsidiaries and/or affiliates (Indemnifying Parties)
will defend, indemnify and hold harmless CUSTOMER and its parents,
subsidiaries and affiliates and their respective officers, employees,
agents, subcontractors and customers against all damages, claims,
liabilities, fines, assessments and expenses (including costs associated
with recalling any Goods, reasonable attorneys’ fees and costs) arising
cut of or resulting in any way from (i) any defect in the Products, (ii)
from any breach of any warranty or other term of this Agreement or any
Order, (iii) the presence of Indemnifying Parties’ agents,
representatives. Employees or subcontractors on CUSTOMER’S premises or
(iv) any tortuous or negligent act or omission of Indemnifying Parties,
Its agents, representatives, employees or subcontractors in the provision
of services under this Agreement.
|
|
b)
|
Indemnifying
Parties will conduct the defense of a third party claim diligently and
with counsel reasonably satisfactory to CUSTOMER, and will not consent to
the entry of a judgment or enter into any settlement with respect to the
claim without the prior written consent of CUSTOMER (not to be withheld
unreasonably). The indemnity provisions of this section 13 survive
termination or expiration of this
Agreement.
|
Page 4 of
8
|
14)
|
INSURANCE
FOR SERVICE PROVIDER
|
|
a)
|
This
section shall apply when SELLER or its affiliates, subcontractor, agent,
successor, or assign is engaged in the provision of Services to CUSTOMER.
SELLER shall obtain and maintain at its own expense the following minimum
limits of insurance, with insurance companies acceptable to CUSTOMER those
rated A-10 or higher by A.M. Best’s, to cover the risk of tosses
associated with this Agreement
|
|
Coverage
|
Limits
|
|
(a)
Worker’s Compensation
|
Statutory
|
|
(b)
Employer’s Liability
|
$500,000
each accident; $500,000 each employee; $500,000 policy
limit
|
|
(c)
Commercial General Liability including products and completed
operations
liability and contractual liability
|
$1
million each occurrence for property damage and bodily injury (PD/BI); 35
million general aggregate;
$5
million products/completed operations aggregate
|
|
(d)
Automobile Liability - Owned, hired and non-owned autos
|
$1
million Combined Single Limits - each accident
|
|
(e)
Excess Liability
|
May
be utilized to meet limits outlined above
|
|
(f)
Property
|
SELLER
shall be solely responsible for protecting and insuring all property owned
or leased by SELLER
during
the Term of this Agreement
|
|
(g)
Professional Liability
|
$1
million each claim/policy
limit
|
|
b)
|
Upon
request, SELLER will provide CUSTOMER with a certificate evidencing that
the above described coverages are in full force and effect. IF requested,
and in all cases where SELLER provides services under this Agreement,
SELLER will name CUSTOMER as additional insured with respect to coverages
(c), (d) and (a) above and provide evidence thereof to CUSTOMER In the
form of an acceptable Certificate of Insurance naming CUSTOMER as an
additional insured thereunder. All policies will be primary and
non-contributory, provide a full waiver of the insurer’s right of
subrogation in favor of CUSTOMER and/or any Subcontractor with respect to
claims that are covered or should have been covered by valid and
collectible insurance provided hereunder. SELLER will not voluntarily
permit any cancellation, non-renewal or material change in the insurance
coverage to be provided hereunder without thirty (30) days’ written notice
to CUSTOMER. If coverage (f) is written on a “claims made basis,” coverage
must be purchased for a minimum of three years following completion of
SELLER’S services pursuant to this
Agreement.
|
|
c)
|
Upon
request, SELLER will obtain and deliver to CUSTOMER, at SELLER’S own
expense, a performance bond, in an amount and with a surety satisfactory
to CUSTOMER, to secure SELLER’S performance under this
Agreement.
|
|
15)
|
FORCE
MAJEURE
|
|
a)
|
Neither
party will be liable to the other for any delay or failure to perform
where such delay or failure is caused by events beyond the control of the
affected party that render performance or the manufacture, shipment,
acceptance, use or resale of any Products commercially impracticable. The
foregoing will be subject to the affected party giving reasonable notice
to the other party. Both parties will use best efforts to mitigate the
effects of such events.
|
Page 5 of
8
|
16)
|
TERM
AND TERMINATION
|
Term and
Termination are as set forth In Attachments I, II, IV, V and VI,
|
17)
|
NOTIFICATION
|
|
a)
|
Any
notice given under this Agreement will be in writing and sent (i) by
registered or certified mail, postage prepaid, return receipt requested,
or (ii) by any other commercial delivery service which delivers to the
noticed destination and provides proof of delivery to the sender or (iii)
by facsimile with acknowledgment received. Notice may also be sent by
e-mail provided that confirming notice according to one of the methods of
the preceding sentence is sent within three (3) days after the e-mail
transmission. All notices will be effective when first received at the
following addresses:
|
|
If
to SELLER:
|
If
to CUSTOMER;
|
|
Labwire,
Inc.
|
Veolia
Transportation
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
|
|
Houston,
TX 77079
|
Oak
Brook, IL 60523
|
|
ATTN:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
ATTN:
▇▇▇ ▇▇▇▇▇ Wood
|
|
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
Either
party may change its address to which notice shall be sent by a notice similarly
sent.
|
18)
|
DRAWINGS/TOOLING/EQUIPMENT
|
All
engineering and manufacturing drawings, schematics, tooling, dies, patterns,
layouts, artwork and similar custom items supplied by or on behalf “of CUSTOMER
or prepared by SELLER for CUSTOMER or at CUSTOMER’S request will be and remain
the sole and exclusive property of CUSTOMER and shall constitute confidential
Information.
|
19)
|
ON-SITE
SERVICES
|
SELLER
will comply with all requirements and policies of the CUSTOMER concerning
security, safety and other business operations, SELLER shall comply with all
applicable provisions of federal, state and local laws and regulations including
rules, safety requirements and regulations established for such premises. SELLER
shall take all necessary precautions to prevent the occurrence of any injury to
persons or property during the progress of such performance. The Indemnifying
Parties shall indemnify CUSTOMER and its customers against all loss, which may
result from any act or omission of SELLER, its agents, or its
employees.
|
20)
|
DISPUTE
RESOLUTION
|
The
parties will attempt in good faith to resolve through negotiation any dispute,
claim or controversy rising out of or relating to this Agreement. If the
dispute, claim, or controversy is not resolved by negotiation within a
reasonably short time period, the matter will be submitted to a licensed
mediation company chosen by CUSTOMER- The parties covenant that they will
participate in the mediation in good faith, and that they will share equally in
its costs. CUSTOMER shall have the right to choose the location and venue of the
mediation. If the matter is not resolved through mediation, the parties agree
that it shall be submitted to binding arbitration under the rules of the
American Arbitration Association, for final and binding arbitration. The party
who does not prevail shall pay all costs of arbitration and the costs and
attorney’s fees of the prevailing party.
Page 6 of
8
|
21)
|
NON-ASSIGNMENT
|
SELLER
may not assign or transfer this Agreement or any interest therein (the sale of
50% or more of SELLER’S stock or assets shall constitute an assignment under
this paragraph) or undertake any transaction or series of transactions which
would result in an effective transfer of this Agreement or any interest therein,
or to sublicense or assign any rights or obligations hereundsr, or delegate or
sub-contract performance hereof, in whole or in part, to any third party or
parties without the prior, express, written consent of CUSTOMER. Because this
clause is considered a material part of the bargain between the parties, any
attempt by SELLER to assign or transfer this Agreement will be void and, at
CUSTOMER’S sole option, CUSTOMER may immediately terminate this
Agreement.
|
22)
|
COMMITMENT
TO SUSTAINABILITY
|
CUSTOMER
favors sustainable development practices within the communities in which it does
business. As a condition of receiving CUSTOMER’S business hereunder, SELLER
hereby commits to fostering sustainable business practices within its
organization and to taking steps to encourage the same with its contractors and
affiliates. SELLER represents and covenants not to perform any services
hereunder using undocumented workers or child labor in violation of any federal
or state law or European Economic Community or United Nations
standard.
|
23)
|
EMPLOYEE
DISCOUNT PROGRAM
|
SELLER
may offer CUSTOMER’S employees discounts for SELLER’S goods and/or services.
However, such offerings are made at the discretion of SELLER, CUSTOMER makes no
express or implied warranty or representation regarding employees, except
verification whether individuals are employed by Veolia. The SELLER-Employee
relationship will be considered completely separate from the contractual
relationship between CUSTOMER and SELLER. SELLER shall not seek or have a remedy
against CUSTOMER regarding SELLER’S relationship with Employee.
|
24)
|
BEST
PRICE
|
CUSTOMER
understands that SELLER may from to time offer special discounts or promotional
rates. SELLER agrees to always provide CUSTOMER with its lowest available price
at all tings. In the event that SELLER offers a lower price for goods and
services purchased under this Agreement SELLER shall provide CUSTOMER with the
same lower price. Moreover, the SELLER will provide CUSTOMER notice of the lower
price within seven days of the lower prices being offered and that price shall
become the new price for the goods or services offer under this Agreement. The
new price term will become valid from the date which SELLER first offered the
lower price. In the event that CUSTOMER overpays for goods and services for
which it is entitled to receive a price adjustment, based upon the lower price,
SELLER will credit CUSTOMER’S account within thirty days of the overpayment or
CUSTOMER may chose to deduct the amount overpaid from future payments due to the
SELLER.
|
25)
|
ENTIRE
AGREEMENT
|
This
Agreement (including any Attachments hereto) constitutes the entire
understanding and agreement between the parties hereto and supersedes all prior
or contemporaneous representations, understandings and agreements between the
parties with respect to the subject matter hereof.
Page 7 of
8
|
26)
|
SEVERABIUTY
|
If any
provision of this Agreement is held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability will not affect the legality, validity, or enforceability of
the remaining provisions of this Agreement. In such case the Parties will
negotiate, in good faith and without delay, an appropriate amendment consistent
with the purposes of this Agreement in order to carry out their
intent.
|
27)
|
WAIVER
|
No waiver
of any provision of this Agreement or any rights or obligations of either party
hereunder shall be effective, except pursuant to a written instrument signed by
the party or parties waiving compliance, and any such waiver shall be effective
only in the specific Instance and for the specific purpose stated in such
writing.
|
28)
|
GOVERNING
LAWS
|
This
Agreement shall be governed by the laws of the State of Maryland except where
the Federal supremacy clause requires otherwise in the performance of the
Services hereunder, the SELLER shall comply with all applicable Federal, State
and local laws and regulations.
|
29)
|
HEADINGS
|
Headings
or titles to paragraphs in this agreement are for reference only and shall have
no meaning or significance.
|
30)
|
JOINTLY
DRAFTED AGREEMENT
|
This
Agreement shall be construed without regard to any presumption or any other rule
requiring construction against tie party causing this Agreement or any part
thereof to be drafted.
This
agreement is executed and made effective on June 1,
2006
|
Veolia
Transportation
|
Labwire,
Inc.
|
|
▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇., #▇
|
|
Oak
Brook, IL 60523
|
Houston,
TX 77079
|
|
Authorized
Representative:
|
Authorized
Representative:
|
|
▇▇▇▇▇
▇▇▇ ▇▇▇ Ag
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
President
|
CEO
|
|
Signature: //s//
T Van Der
|
Signature: //s//
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Date:
06/01/06
|
Date:
06/01/06
|