GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“Terms and Conditions”) shall govern the business dealings of GroStaff and Client pursuant to the terms of a “Client Services Agreement” (“CSA”) executed by and between the Client and GroStaff. GroStaff and the Client may be referred to herein individually as ‘a Party’ or collectively as “the Parties”.
GroStaff’s agreement to provide services pursuant to a CSA is expressly conditioned upon the Client’s acceptance of these Terms and Conditions as these Terms and Conditions are incorporated in such CSA by reference. Any additional terms set forth in other documents or forms used by Client, as well as any other communications (whether written or verbal) from Client to GroStaff, that conflict with these Terms and Conditions shall be of no force or effect unless specifically accepted, in writing, by an authorized representative of GroStaff. Further, these Terms and Conditions supersede any and all verbal or written agreements or understandings between the Parties, as well as any preprinted provisions or terms set forth on any schedule, invoice, acknowledgment or similar document exchanged by the Parties. These Terms and Conditions shall not be supplemented or amended by any previous or future course of dealing, performance or trade practice of the Parties. If the Parties agree to different terms and conditions, such agreement shall be reduced to writing and executed by duly authorized representatives of the Parties.
A. Confidential Information. The Parties recognize that each Party has developed and owns certain non-public, proprietary confidential business information and trade secrets, including, but not limited to, prospective client names and other data names and data relating to affiliated companies, patterns, compilations of data, pricing information, Client information, Client preferences, Client contacts, marketing strategies, fees for services, expanded services, business of the Parties, manner of operative, formula, business methods and techniques, sources of supply for employees and the like, and other business information and trade secrets (“Confidential Information”). It is recognized by the Parties that the Confidential Information provides a competitive advantage over competitors. The Parties further recognize that the protection of Confidential Information against unauthorized disclosure and use is of critical importance in maintaining a competitive position. Except as required to perform the obligation under the CSA, the Parties agree that they will not (except as authorized in writing and required by a court of law), either directly or indirectly, divulge, disclose or communicate to any person, firm or corporation in any manner whatsoever information or matters relating to Confidential information. The Parties understand and agree that the Confidential Information of each Party is a material, important, unique, and valuable asset of each Party.
B. Complaints. Complaints, allegations or incidents of any tortious misconduct or workplace safety violations, regardless of the source, must be reported by Client to GroStaff promptly upon becoming known to Client.
C. Cooperation. In recognition of the effort that is necessary to provide the services described in the CSA, GroStaff and Client agree to cooperate with each other. This duty to cooperate shall encompass the obligation of the other Party to timely supply documents, witnesses and such other evidence as is necessary for a Party to properly fulfill its obligations under the CSA. In addition, Client shall permit GroStaff and/or its workers’ compensation carrier access during the Client’s normal business hours, upon reasonable notice to Client, at any Client work location at which, or from which, employees perform work. Such access shall include the ability of GroStaff and/or representatives of its workers’ compensation carrier to examine the books and records of Client, as deemed appropriate by GroStaff and/or its workers’ compensation carrier, in order to determine compliance with this Agreement and the accuracy of Client’s reporting.
D. Force Majeure. No Party shall be liable to the other Party, nor be deemed to have defaulted under or breached the CSA for any failure or delay in fulfilling or performing any term of the CSA due to any of the following causes beyond such Party’s reasonable control (such causes, “Force Majeure Events”): (i) acts of God, (ii) flood, fire or explosion, (iii) war, invasion, riot or other civil unrest, (iv) actions, embargoes or blockades in effect on or after the date of this Agreement, (v) national or regional emergency, (vi) strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate power or transportation facilities, or any other event that is beyond the reasonable control of such Party. The lack of funds shall not be deemed to be a Force Majeure Event. The Party suffering a Force Majeure Event shall give notice within five (5) days of the occurrence of a Force Majeure Event to the other Party to which performance is owed, stating the period of time the occurrence is expected to continue, and shall use diligent efforts to end the failure or delay and ensure that the effects of such Force Majeure Event are mitigated to a party’s best commercial ability.
E. Notices. Any notices, demands, consents, requests and other communications required or permitted to be given shall be in writing and shall be deemed conclusively to have been duly given (a) when hand delivered to the other Party; (b) three (3) business days after such notice has been sent by United States Postal Service, via certified mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below; or (c) the next business day after such notice has been deposited with a national overnight delivery service reasonably approved by the Parties (Federal Express and DHL are deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as set forth below with next-business-day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider; or (d) when received by the recipient Party when sent by electronic transmission at the fax or email address and number set forth below (provided, however, that notices given by facsimile shall not be effective unless either (i) a duplicate copy of such facsimile notice is promptly sent by United Stated Postal Service with first-class postage prepaid and addressed to the Parties as set forth below; or (ii) the receiving Party delivers a written confirmation of receipt for such notice either by facsimile or any other method permitted under this paragraph. Any notice given by facsimile transmission shall be deemed received on the next business day if such notice is received after 5:00 p.m. (recipient’s time) or on a Saturday, Sunday or national holiday. Any Party may by written notice to the other Party in the manner specified herein change the address to which notices to such Party shall be delivered. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows, notices directed to GroStaff shall be sent to 3631 S Harbor Blvd, Suite 130, Santa Ana, Calif. 92704. Notices directed to the Client shall be sent to the Client’s principal address indicated in the CSA executed by the Parties.
F. Compliance. The Client shall comply with all federal, state and local statutes, laws, ordinances, regulations, rules and orders enacted or adopted by governing bodies which pertain to the conduct of the Client’s business and obligations thereunder. The Client shall obtain and pay for all regulatory permits, fees and licenses required to operate the Client’s business affairs.
G. Indemnification. The Client agrees to indemnify, defend, and hold harmless, GroStaff and its officers, directors, shareholders, managers, employees, agents, successors and assigns (collectively “Affiliates”), from and against any and all losses costs, and expenses resulting from the sale of any product or article sold, manufactured or distributed by the Client in the course of the Client’s business, provided further that GroStaff shall be allowed to defend itself, and its Affiliates, and no such defense shall have any effect on the indemnification provisions of this paragraph. Client acknowledges that employees furnished by GroStaff will be under the direction, supervision and control of the Client during the term of any employee’s placement. Accordingly, the Client agrees that GroStaff shall not be liable for any loss, costs, damage, or injury caused by employee, to any agent or product of the Client or to any third person, while such personnel are under the direction, supervision and control of Client. The Client shall have no right of offset against amounts due to GroStaff as a result of any such incident or occurrence. The Client further agrees to indemnify, defend and hold harmless, GroStaff and Affiliates from and against any and all losses, costs and expenses resulting from any lawsuits, claims, or demands by its employees resulting from the placement of such temporary or direct personnel with the Client, including but not limited to any and all lawsuits, claims, or demands by temporary personnel for harassment, discrimination, or retaliation, failure to provide meal and or rest periods, off the clock work, other wage and hour violation, or any other statutory or common law claim relating to the placement of the personnel with the Client. Notwithstanding the foregoing, GroStaff will be solely responsible for paying wages and other compensation owed to the Client’s employees, whether or not GroStaff is the employer of record, for their reported hours worked pursuant to the terms of the CSA. In the event any such lawsuit, claim or demand, GroStaff shall be allowed to defend itself and agents, and no such defense shall have any effect on the indemnification provisions of this paragraph. GroStaff employees are not authorized to operate machinery, equipment, and/or vehicles, or to handle cash, negotiables, or other valuables unless specified in Client’s original work request and expressly authorized in GroStaff Services request confirmation. Any temporary GroStaff employee involved in injury or first aid incident will be a recordable or reportable act under Client’s OSHA 300 log. If GroStaff employees operate machinery or equipment, they must be trained on each piece of the Client’s equipment or machinery by the Client. Client agrees that all training shall be documented for each piece of machinery and equipment. GroStaff will maintain in full force and affect comprehensive Commercial General Liability insurance policies in an amount not less than $1,000,000 per occurrence and $2,000,000 general aggregate coverage for personnel employed by GroStaff. GroStaff represents that it is an equal opportunity employer and refers all employees regardless of their sex, race, color, religion, creed, ancestry, national origin, citizenship, metal, or physical disability, medical condition, pregnancy, age, sexual orientation, marital status, or any other characteristic. Client agrees that the Client’s business will be compliant in accordance with all U.S. federal, California and local laws, and orders or regulations issued pursuant thereto, in respect of the ownership and operation of businesses engaged in any aspect of cannabis cultivation, manufacturing, processing, distribution, transportation and sale of cannabis-derived products produced and/or sold by the Client.
H. Employment Practices Liability Insurance. There is no additional fee for Employment Practices Liability Insurance (EPLI) coverage. In the event an EPLI-covered claim is made against Client, Client is responsible for the retention/deductible amount (per claim) of $50,000 per occurrence as referenced in schedule A. Client will inform and consult with GroStraff regarding any employee relations matter (such as termination, discipline, harassment, discrimination, retaliation, whistleblowing, workplace violence, disability accommodation, and leaves) prior to taking any employment-related action. Grostaff will be responsible for the next portion of coverage for a Claim, and GroStaff EPLI carrier will be responsible for the remainder of the coverage for a Claim up to the maximum available under the EPLI policy. However, GroStaff will be discharged of any obligation to pay a portion of the coverage for a Claim in the event: the Claim is by a employee who has not signed GroStaff terms and conditions agreement; the Claim is based on events alleged to have occurred while the individual was not a GroStaff employee; Client brings or threatens any legal action against someone who has made a Claim, without Our consent; Client settles or offers to settle a Claim without GroStaff consent; or Client fails to cooperate fully with the investigation of the Claim or otherwise impede or jeopardize the defense of a Claim. You must notify GroStaff in writing within three (3) business days after Client learns of the Claim and Client must notify your Grostaff Representative as soon as reasonably possible after Client learns of a matter that has not become a Claim, but there is a reasonable possibility it could become a Claim. Subject to the rights of GroStaff insurers, GroStaff retains the right to control the conduct of Claims, including working with outside counsel and authorizing settlements. Grostaff insurers retains the right to appoint counsel to defend Claims. If Client chooses not to accept Grostaff’s insurer’s appointed counsel, or if Client otherwise conduct Client own defense with respect to a Claim, Client doing so constitutes Client agreement to pay for that defense. The EPLI policies GroStaff maintains are renewed periodically and the terms of the EPLI.
I. Employer Benefits and Insurance. GroStaff charges for workers’ compensation based on Client business operations, the state(s) in which Client is located and the applicable rates contained in Schedule A (CSA). The charge includes administrative charges necessary to manage GroStaff’s workers’ compensation services. The rates for workers’ compensation for employees are specified in the Workers’ Compensation Schedule (Schedule A) and corresponding rates will be applied for additional WC Codes arising from changes in Employees and their work. Workers’ compensation coverage for Client employees will be provided consistent with applicable law, the terms of GroStaff workers’ compensation insurance policy or policies, and GroStaff underwriting requirements. GroStaff and our workers’ compensation carrier have the right to inspect Client premises on reasonable notice and at a mutually convenient time. Client agrees that this section only applies if the Services Provided by GroStaff as reflected in the Terms, and Conditions, CSA and, Schedule A are PEO services and if Client remains in compliance with the terms of this Agreement. GroStaff will provide coverage for Employees and keep in full force and effect at all times during the term of this Agreement, workers’ compensation insurance, as well as coverage under any non-obligatory employee benefit programs elected by Client, provided Client submits all appropriate enrollment paperwork to GroStaff concerning each Employee filled out by the Client and returned to GroStaff in compliance with any time limits set forth in the applicable plan document. GroStaff agrees to provide workers’ compensation benefits and any other non-obligatory elective benefit coverage only for those Employees for whom GroStaff has received notice of enrollment in compliance with any time limits set forth in the applicable plan document. In the event the Schedule A requires GroStaff to administer benefits and insurance to Client, GroStaff will provide coverage for the Employees and keep in full force coverage under any non-obligatory employee benefit programs elected by Client, provided Client submits all appropriate enrollment paperwork to GroStaff concerning each Employee filled out by the Client and returned to GroStaff in compliance with any time limits set forth in the applicable plan document. GroStaff agrees to provide non-obligatory elective benefit coverage only for those Employees for whom GroStaff has received notice of enrollment in compliance with any time limits set forth in the applicable plan document. Client agrees that this section only applies if the Services Provided by GroStaff are PEO services as reflected on the Schedule A. Client expressly agrees and understands that no Employee shall be allowed to commence work, become co-employed by GroStaff, be covered by GroStaff’s workers’ compensation insurance, or be issued a payroll check until GroStaff has received the following from Client: a completed Data Input Sheet/Application, Form W-4 Employee’s Withholding Allowance Certificate and Form I-9 Employment Eligibility Verification, or until Client has obtained these completed documents and has input the Employee in GroStaff’s self-serve Client portal, or, in situations where Client provides new hire information to GroStaff in the form of an import file, until Client has obtained these completed documents and established the employee in Client’s employee management system. Client also expressly agrees that all compensation (including bonuses) paid to any employee shall be paid through GroStaff. Client agrees it will be solely responsible for damages of any nature arising out of Client’s failure to report to GroStaff the payment to an Employee of any remuneration for services rendered to Client. In addition, GroStaff shall not be considered to be the Employer of any individual for whom required payroll information is not supplied during any payroll period (except as may be required by law). Client assumes full responsibility for workers’ compensation claims, benefit claims (including but not limited to health insurance claims and pension claims), tax obligations, employment discrimination claims, general liability claims, third-party claims, and any and all other obligations or claims pertaining in any way to any individual for whom payroll information is not supplied during any payroll period (except as may be required by law), or who is paid in whole or in part by Client, as an employee, independent contractor, or in any other capacity. Client agrees that this section only applies if the Services Provided by GroStaff are PEO services. Motor vehicle liability insurance for all vehicles used in connection with Client business (“Client Vehicles”). The policy will insure against liability for bodily injury and property damage, with a minimum single limit of five hundred thousand dollars ($500,000) per incident (including uninsured motorist incidents) or the minimum limits required by applicable states. Client accepts full responsibility for all claims and damages arising from a employee use of Client Vehicles, including the defense of such claims, injury, or damage. In states where no-fault laws apply, Client will obtain personal injury protection or similar coverage.
J. Time. Time is of the essence of every term of these Terms and Conditions, and the performance by the Parties of their duties and obligations pursuant to the CSA and hereunder.
K. Hiring of a GroStaff Employee. Hiring of an individual employed by GroStaff (who is not a worksite employee of a GroStaff customer) during such employee’s employment at GroStaff or
within six (6) months after termination of the employee’s employment at GroStaff.
L. Waiver. No waiver of any provision or consent to any action under the CSA shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a Party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a Party shall be null and void if the Party requesting such waiver has not provided a full and complete disclosure of all material facts relevant to the waiver requested.
M. No Assignment; Successors and Assigns. The CSA may not be assigned by the Client without the prior written consent of GroStaff. Subject to the foregoing, all of the terms and provisions contained herein shall be binding upon and inure to the benefit of and be enforceable by the heirs, executors, legal representatives, successors and assigns of each Party.
N. Counterparts. The CSA may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument.
O. Exhibits and Schedules. Each fact or statement recited or contained in any exhibit, schedule, certificate or other instrument delivered by or on behalf of the Parties hereto, or in connection with the transactions contemplated hereby, shall be true and correct and shall be deemed a representation and a warranty hereunder by the Party executing such document.
P. Further Assurances. Each of the Parties hereto shall execute and deliver at their own cost and expense, any and all additional papers, documents, or instruments, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of their respective obligations hereunder in order to carry out the intent and purposes of the CSA and these Terms and Conditions.
Q. Severability. Any provision of the CSA, or these Terms and Conditions, that is deemed to be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from the CSA or these Terms and Conditions. Any stricken provision shall not affect the legality, enforceability or validity of the remainder of the CSA and these Terms and Conditions. If any provision or part thereof of the CSA or these Term are stricken in accordance with the provisions of this Paragraph, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
R. Applicable Law; Venue. The CSA and these Terms and Conditions shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California’s choice-of-law principles. The Parties each agree that the Superior Court in Orange County, California, shall be the sole and exclusive venue for adjudication of disputes between the Parties. This choice of venue is intended by the Parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between or among the Parties with respect to or arising out of the CSA in any jurisdiction other than that specified in this Paragraph. Each Party hereto waives any right that it may have to assert the doctrine forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Paragraph, and stipulates that the state and federal courts located in the County of Orange, State of California, shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy or proceeding arising out of the CSA. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Paragraph by means of registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in the CSA and these Terms and Conditions. Any final judgment rendered against the Party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.
S. Captions. All captions, titles or headings of the articles, Paragraphs, or subparagraphs of the CSA and these Terms and Conditions are inserted solely as a matter of convenience of the Parties hereto, and for reference, shall not be deemed to be a part of the CSA, and shall not define, limit, extend or describe the scope of the CSA or these Terms and Conditions, nor be used or construed in the interpretation or determination of the validity of the CSA, these Terms and Conditions, or any provision hereof.
T. No Obligations to Third Parties. The CSA has been made and entered into solely for the benefit of the Parties to the CSA and their respective successors and permitted assigns. Nothing in the CSA or these Terms and Conditions is intended to confer any rights or remedies under or by reason of the CSA and these Terms and Conditions on any persons other than the Parties to it and their respective successors and permitted assigns. Nothing contained in the CSA or these Terms and Conditions is intended to relieve or discharge the obligation or liability of any third persons to any Parties to the CSA.
U. Entire Agreement. All exhibits or schedules attached hereto are hereby incorporated herein by this reference for all purposes. The CSA, which incorporates these Terms and Conditions, including exhibits and schedules, together with any related documents referred to herein constitutes the entire agreement between or among the Parties with respect to the subject matter hereof. The CSA supersedes and replaces any and all prior agreements, proposed agreements, negotiations and communications, oral or written, and contains the entire agreement between the Parties as to the subject matter hereof and any and all prior agreements, understandings or representations are hereby terminated and canceled in their entirety. Each Party hereby acknowledges that no other Party hereto, nor its agents or attorneys, have made any promises, representations or warranties whatsoever, expressed or implied, not contained herein, to induce such Party to execute the CSA, and each Party acknowledges that it has not executed the CSA in reliance on any such promise, representation or warranty not contained herein.
V. Construction. The Parties hereto hereby acknowledge and agree that (a) each Party hereto is of equal bargaining strength, (b) each such Party has actively participated in the drafting, preparation and negotiation of the CSA, (c) each such Party has consulted with such Party’s own, independent legal counsel, and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under the CSA, (d) each such Party and such Party’s counsel and advisors have reviewed the CSA and these Terms and Conditions, (e) each such Party has agreed to enter into the CSA following such review and the rendering of such advice, and (f) any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of the CSA, or any portions thereof including these Terms and Conditions. If any term or provision of the CSA or any obligation arising thereunder is found to be vague or ambiguous, such term, provision, or obligation shall not be construed against any Party hereto. The provisions of California Civil Code Paragraph 1654 are specifically waived by each Party hereto.
W. Authority of Signatories to Agreement. Each person executing the CSA, and any Schedule A, and other documents submitted by the Client to GroStaff, represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver the same on behalf of the Party for which execution is made. Each Party represents and warrants to the other that the execution of the CSA and the performance of such Party’s obligations thereunder have been duly authorized and that the agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.
X. Attorney’s Fees and Costs. In the event of any controversy, claim or dispute (whether or not a lawsuit, arbitration or other proceeding is commenced) relating to or emanating from the CSA and/or these Terms and Conditions, and/or the validity, performance, interpretation or breach of any part thereof, including any lawsuit or other proceedings brought to interpret and/or enforce any of the provisions of the CSA and/or these Terms and Conditions, the prevailing Party shall be entitled to recover from each losing Party its reasonable attorneys’ fees, costs and necessary disbursements with respect thereto.