SUBCONTRACTOR MASTER AGREEMENT FOR
SECURITY SERVICES
THIS SUBCONTRACTOR MASTER AGREEMENT
FOR SECURITY SERVICES (“Agreement”) is made by and between NATIONWIDE SECURITY
SERVICE, Inc., a Massachusetts corporation with its principal offices at 208
Broadway, Malden, MA 02148 (hereinafter “General Contractor” or “NATIONWIDE
SECURITY SERVICE”), and_____________________________________________________________________________(hereinafter
“Subcontractor”) with its principal location
at_______________________________________________________.
WHEREAS General Contractor is a
Massachusetts based firm, providing uniformed security guard and related
services (individually or collectively “Security Services”) to Clients,
directly and through third-party subcontractors, to reduce the risk of loss and
promote a safe environment for invitees at General Contractor’s Clients’
stores, restaurants, hotels, construction sites, corporate offices,
distribution centers, and/or other residential or commercial locations
(individually or collectively “Premises”); and
WHEREAS Subcontractor is a direct
provider of private, uniformed, security guard or investigative services in an
area or areas where General Contractor now has, or may have, a need to
subcontract Security Services; and
WHEREAS General Contractor and Subcontractor
desire to enter into an agreement whereby Subcontractor shall provide Security
Services to General Contractor at Premises as may be mutually agreed upon from time to time hereafter;
NOW THEREFORE, for good and valuable
consideration, the receipt of which is hereby mutually acknowledged, the
parties do hereby agree as follows:
1. Purchase Order/Work Order. In the
event General Contractor elects to have Subcontractor perform Security Services
pursuant to this Agreement, the parties will utilize a purchase order or work
order to initiate and document any and all such Security Services requested by General
Contractor. The understanding and agreement of the parties shall be governed by
this Agreement and any subsequent Purchase Order(s) that may be agreed upon by
the parties, which shall be incorporated herein by reference. In the event of
any conflict or inconsistency between this Agreement and any Purchase Order,
this Agreement shall govern.
2. Responsibilities of Subcontractor.
Subcontractor shall have the following responsibilities:
a) Adhere to, and provide Security
Services in compliance with, all the terms and conditions of this Agreement,
and any Purchase Order(s) that may be
mutually agreed upon from time to time hereafter; and
b) Manage the performance of
Security Services hereunder, including but not limited to (i) ensuring
qualified personnel are ready, willing and able to work Posts as agreed upon,
and (ii) supervising Security Services to ensure guards are on site, on time,
adhere to Post Orders, Work Orders, Written Instructions, Clock In/Out
Protocol, Maintenance of Timecards or Logs, Report Writing, and any other
specific instructions outlined in the Post Order.
c) Have each and every person who is
or will be working a post on behalf of General Contractor receive and acknowledge
site- specific Post Orders and Call-in Protocol, and maintain such proof of
acknowledgement as part of the employee’s personal file.
d) Ensure that every site where
Security Services are to be provided has sufficient Sign-in Sheets available
(where applicable) and that they (i) reflect actual hours worked on site, (ii)
are signed by a manager on duty (where applicable), and (iii) are sent to General
Contractor on a weekly basis on Mondays, but in no event more than ten (10)
business days after the date service.
e) Immediately notify NATIONWIDE
SECURITY SERVICE verbally or via email of any incident or accident at any
Premises where Security Services are being provided providing a full
description of the incident and individuals involved, and providing General
Contractor with a written report of the same within 24 hours via email.
Incidents should be reported in real-time to NATIONWIDE SECURITY SERVICE’s
on-duty Dispatcher as well as documenting such incident by filing a report
using the Remote Monitoring Device/Protocol furnished by NATIONWIDE SECURITY
SERVICE (where applicable).
f) Communicate directly and solely
with NATIONWIDE SECURITY SERVICE regarding any and all issues pertaining to
Security Services being provided pursuant to this Agreement; and not
communicate with any of NATIONWIDE SECURITY SERVICE’s Clients regarding rates,
payment terms or issues, scheduling or personnel.
3. Responsibilities of General
Contractor. General Contractor shall have the following responsibilities:
a) Make payment to Subcontractor for
Security Services performed in accordance with the terms and conditions this
Agreement and any Purchase Order(s) that may be mutually agreed upon in writing
from time to time hereafter. Payment shall be made by
check payable to Subcontractor on a net thirty (30) days from the receipt of
the Invoice (unless specifically agreed upon otherwise in writing by an
authorized representative of both parties); and
b) Adhere to and comply with all the
terms and conditions of this Agreement, and any Purchase Orders that may be
mutually agreed upon from time to time hereafter.
4. Pricing & Payment Terms. The
cost of Security Services, and terms of payment therefore, shall be as
described in any Purchase Order(s) or Post Order which the parties may mutually
agree to hereafter. Any and all such Purchase Order(s) or Post Orders are
hereby incorporated herein by reference, and are subject to the terms and
conditions stated herein, including that:
a) Subcontractor must submit
accurate, completed Sign-in Sheets, signed by a Site Manager, to General
Contractor (NATIONWIDE SECURITY SERVICE) as soon as possible, but not later than ten
(10) business days, from each date of service; and
b) Services rendered pursuant to
this Agreement are not considered complete, nor are they due and payable,
unless and until the
Sign-in Sheets and/or Site Specific Reports are
received by General Contractor, which must be within the time period indicated
above.
c) All billable hourly rates agreed
to by the parties; paid to the Subcontractor; and listed on the purchase orders
or post orders will be “all inclusive.” All inclusive
meaning that the hourly rate includes overtime costs; holiday costs; state
service sales taxes; state/local taxes of any kind or description; and any
other cost particular to the work site, city, town or state where services are
being provided. Nationwide Security Service agrees to pay Subcontractor’s
premium rate of 1.5 times the regular scheduled rate for services provided on
the following holidays only: New Year’s Day, Independence Day, Labor Day,
Thanksgiving Day, and Christmas Day.
5. Term. The term of this Agreement
shall be for one (1) year commencing on the date first written above (the
“Initial Term”). At the end of the Initial term, this Agreement shall
automatically renew and continue on a month-to-month basis (the “Renewal Term”)
unless and until terminated by either party in accordance with the termination
provisions set forth below.
6. Events of Default; Termination.
Notwithstanding the term of this Agreement as provided above, either party may
terminate this Agreement without cause on thirty (30) days prior written
notice.
The foregoing notwithstanding,
either party may terminate this Agreement for cause on not less than fifteen
(15) days prior written notice to the other if:
a) The other party fails to perform
any material obligation hereunder, and such failure to perform is not remedied
(or diligent efforts to remedy this have not commenced), within a reasonable
time following notice thereof to the party in default; or
b) If a preceding concerning
bankruptcy, insolvency, dissolution, cessation of operations, reorganization of
indebtedness or the like is filed by the other party, or such a proceeding is
filed against the other party and such proceedings are not dissolved within
(30) days of the date such proceedings are initiated.
A material obligation shall include,
but is not limited to, nonpayment of invoices by General Contractor, and
nonperformance of any responsibilities, warranties or obligations by Subcontractor,
including but not limited to failure of Subcontractor to provide Security
Services in full compliance with this Agreement and any applicable Post Orders.
Subcontractor understands and agrees that time is of the essence as to security
guards arrival at posts, communication of any incident(s) and submission of
sign-in sheets, and failure to arrive on time or communicate incidents or
submit sign-in sheets or failure to adhere to NATIONWIDE SECURITY SERVICE’s
Remote Monitoring protocol including but not limited to report writing and
general on-site activity shall be considered a material breach of this
Agreement.
The foregoing notwithstanding, General
Contractor may require, at its sole discretion, that Subcontractor cease
performance of Security Services at any Premises, or remove or replace any
security officer(s), immediately upon receipt of such request by General
Contractor, subject to payment for Security Services rendered in accordance
with Post Orders prior to such notice. General Contractor requires this
flexibility as a condition of entering into this Agreement with Subcontractor
due to the nature of security work, and without which General Contractor would
not hire Subcontractor to provide Security Services hereunder. In addition, General
Contractor may remove Subcontractor from a site immediately if Subcontractor
fails to maintain its business and/or security license or registration in good
standing with the appropriate government agency in the state in which it is
operating.
7. Force Majeure. Neither party
shall be in default of its obligations hereunder to the extent that its
performance is delayed or prevented by causes beyond its reasonable control,
including but not limited to, acts of God, natural disasters, acts of terrorism, and strikes or other
labor disturbances, provided prompt notice is provided to the other party as to
the reason for non-performance.
8. Warranties. The parties hereto
mutually warrant and represent as follows:
a) That each is duly organized,
validly existing and in good standing under the laws of the state of its
formation and is qualified
to conduct its business therein;
b) The persons signing this
Agreement on behalf of each party are duly and lawfully authorized to enter
into agreements of
this kind and nature;
In addition, Subcontractor warrants
and represents as follows:
c) That Subcontractor, and any and
all employees assigned to any Premises, meet all the business and security
training, certification, registration and/or licensing requirements for the
state, county and city in which Security Services are being provided, and shall
maintain the same throughout the term of this Agreement.
d) That Subcontractor has conducted
all reasonable and necessary background and security checks, including but not
limited to criminal background check in all states where a person has resided
and been employed, at least three year work history, and drug testing in
compliance with any applicable state law, in connection with any and all
person(s) who will be performing Security Services at any Premises; and further
that based upon such information, Subcontractor has determined that such
persons are qualified to perform any such Security Services.
e) That Subcontractor has read,
understands and agrees to comply with the NATIONWIDE SECURITY SERVICE Subcontractor
Disclosure Package, incorporated
herein by reference.
f) That Subcontractor understands
and agrees that the hourly wage paid to the Security Officer working General
Contractor sites will be truthfully
disclosed to the General Contractor and will be subject to audit provision in
(h) below.
g) Subcontractor understands and
agrees that where General Contractor does not provide services of any kind or
description in Subcontractor’ state or municipality of service. General
Contractor is not subject to licensing, organization, registration of any kind
or description in Subcontractors state or municipality. Accordingly
Subcontractor is responsible for any and all taxes, fees or dues of any kind or
description that are the result of security services for General Contractor at
the location of service named on the purchase order.
h) In the event General Contractor
deems necessary and where General Contractor provides written notice of a need
to audit Subcontractor for any issue regarding General Contractor sites that
are serviced--Subcontractor will submit complete and authentic copies of
documents that General Contractor requests pursuant to such audit.
9. Insurance. Upon the execution of
this Agreement, Subcontractor shall provide General Contractor with a
Certificate of Insurance evidencing the existence of a valid and enforceable
policy of insurance with at least the following coverage to fund its indemnity obligations
herein, and naming Nationwide Security Service as an Additional Insured
certificate holder with a blanket waiver of subrogation; and the coverage
afforded under Subcontractor’s insurance policies shall be primary to any
insurance carried by General Contractor or General Contractor’s Clients, whose
insurance, shall be excess and non-contributory for claims and losses arising
out of Subcontractor’s performance hereunder.
a) Commercial General Liability,
written on an occurrence basis, with limits of not less than ONE MILLION
DOLLARS ($1,000,000) per occurrence and
covering all operations for injury to or death of persons and damage to or loss
of property, including Fire Legal Liability, Completed Operations and
Contractual Liability coverage; and
b) Workers Compensation in limits
not less than ONE MILLION DOLLARS ($1,000,000) per accident, per employee and
per policy limit ($1,000,000/ $1,000,000/ $1,000,000).
c) Automobile/Vehicle Liability
Coverage containing limits for bodily injury of not less than a Combined Single
Limit of ONE MILLION DOLLARS ($1,000,000)
per person/ONE MILLION DOLLARS ($1,000,000) per occurrence, if applicable to
the Security Services being provided.
d) Umbrella / Excess Liability: Subcontractor
is encouraged to maintain an Umbrella/Excess Liability policy, with coverage extending over
General Liability, Commercial Auto, and Workers Compensation. While there is no minimum
required amount, a policy limit of at least FIVE MILLION DOLLARS ($5,000,000) is preferred.
All insurance required to be carried
by the Subcontractor pursuant to this section shall be issued by insurers of
recognized responsibility whose “Best” rating is “A”
or better. Subcontractor shall keep the aforementioned policies in force
throughout the term of this Agreement. As an Additional Insured, General
Contractor and General Contractor’s Clients will be covered for Subcontractor’s
& Subcontractor’s employee’s acts or omissions.
In the event of cancellation of any
insurance required to be carried by Subcontractor under this Agreement, Subcontractor
shall notify General Contractor at least thirty (30) days prior to cancellation
of same. Additionally in the event Subcontractor’s insurance is canceled, General
Contractor shall have the immediate right to terminate this Agreement.
10. Limitation of Liability;
Indemnification. It is understood and agreed by the parties that in the event
of a failure in the Security Services, it is impractical and extremely
difficult to affix actual damages due to (i) the uncertain value of General
Contractor’s Client(s) assets, or the person or property of others on any
Premises which may be lost, stolen, injured or otherwise damaged by occurrences
which the Security Services are designed to deter, and (ii) the difficulty in
establishing a causal connection between the failure of the Security Services
and General Contractor’s and General Contractor’s Client(s) possible loss.
Therefore, absent negligence or willful misconduct, if any liability is imposed
on Subcontractor such liability shall be limited to an amount equal to the
charge for the Security Services delivered hereunder, as provided in any
applicable Purchase Orders. This sum shall be paid and received as liquidated
damages and not as a penalty. The payment of this amount shall be Subcontractor’s
sole and exclusive liability unless the loss or damage is caused by the
negligence or willful misconduct of Subcontractor, or Subcontractor’s
employees, agents or representatives.
The foregoing notwithstanding, Subcontractor
agrees to indemnify, defend, and hold harmless General Contractor and any and
all of General Contractor’s Client(s), their parent, affiliate and/or
subsidiary companies and respective officers, directors, employees, agents
and/or representatives (collectively referred to as “General Contractor
Entities”) from and against any and all claims, actions, demands, liabilities,
losses, costs and expenses, including without limitation reasonable attorneys’
fees, asserted against or incurred by any of the General Contractor Entities or
all of them to the extent any of these result from or are caused by the alleged
or actual negligence or willful misconduct of Subcontractor, its officers,
directors, employees, agents and/or representatives.
The Subcontractor shall name NATIONWIDE
SECURITY SERVICE, INC., and its officers and directors, as well as all related
subsidiaries, entities, and operations on the Subcontractor’s General Liability
and Automobile Liability and excess/ umbrella policies. Said policies shall be
endorsed to be primary and non-contributory as to the additional insureds over
any other insurance carried by the additional insured. As respects the
additional insureds, there shall be a severability of interest for all coverage
provided under said policies. The additional insured endorsement shall cover
all liability, indemnifications and hold harmless agreements arising out of the
Subcontractor’s work and shall be on ISO Form CG 20 10 1185 or its equivalent.
Subcontractor waives all subgrogation rights against
General Contractor. If such waiver is not blanket on the Subcontractor’s
policies, the Subcontractor must provide to General Contractor a copy of the
waiver endorsement scheduling NATIONWIDE SECURITY SERVICE on the policy.
11. Confidentiality. The parties
understand and agree to treat as confidential and proprietary, any and all
information they receive from the other party in connection with this
Agreement. The parties further agree that they shall not reproduce, copy, disclose
or disseminate in any manner whatsoever, to any other individual, organization,
entity or agency, whether public, private or governmental, any information,
whether in written, verbal, electronic or other format, and whether labeled or
otherwise treated as confidential or proprietary or not, contained in or
derived from information collected, received, or transferred between the
parties, including but not limited to this Agreement, and any Purchase Order(s)
/ Post Orders. The parties may disclose confidential information pursuant to a
valid and enforceable judicial or administrative order or other requirement of
law, provided that the party subject to such order or law provides prompt prior
notice to the party whose information may be disclosed to provide the party the
opportunity to contest such disclosure. Subcontractor further agrees that any
and all information obtained in connection with the performance of Security
Services at any Premises that has the potential to cause, or has caused, loss,
harm or damage to General Contractor, General Contractor’s Clients, or any
Premises, merchandise, employees, invitees or other assets, shall be reported
to General Contractor within twenty-four (24) hours in writing. The foregoing
notwithstanding, General Contractor may disclose basic operational or personnel
information to its Clients as needed to comply with Client
requests for Security Services.
12. Independent Contractor. The
Security Services performed by Subcontractor hereunder shall be performed as an
independent contractor, and no person employed by Subcontractor shall be deemed
to be an employee or agent of General Contractor. The parties intend that no
agency, partnership, joint venture or other joint relationship be created
hereby, and that neither party shall have any authority to bind the other in
any respect or direct the actions of the other’s employees except as specifically
provided herein.
13. Subcontractors. Subcontractor
understands and agrees that only Subcontractor and Subcontractor’s employees
are authorized to provide services hereunder, and that subcontracting of
Security Services by Subcontractor is strictly prohibited. No other individual,
group, entity, organization or association whatsoever shall provide Security
Services or undertake any work in connection with this Agreement or any
Purchase Order(s) that may be agreed upon hereafter. Neither the General Contractor nor the Subcontractor may
assign this Agreement without prior written consent from the non-assigning
party. This restriction is extended to the non-exclusive use of non-employee
contractors. Subcontractor may only assign the duties described in the Task
Order to actual employees of Subcontractor and may not contract these duties to
non-employees or agents that may not be covered under the Subcontractor’s
relevant insurance policies in place or non-employees where such verification
of certified payroll records cannot be obtained. All workers, employees,
officers, guards, and agents of Subcontractor, must in-fact, be lawfully
employed by Subcontractor and covered under relevant insurance policies
including but not limited to Workers Compensation Insurance, if applicable in
Subcontractor’s jurisdiction and prescribed by law.
14. Subcontractor Responsible for
Employee Conduct. General Contractor is acting as a free source of sales
revenue to Subcontractor, in return for which Subcontractor agrees to be
responsible for and provide high quality, dependable, licensed and trained
security officers who strictly adhere to Post Orders, policies and procedures
and all call-in and sign-in protocols, all of which are material to the performance of Security Services
hereunder. Subcontractor agrees to manage and supervise Subcontractor’s own
workforce to ensure employees are on site, on time as scheduled in any assigned
job sites, and adhere to the applicable instructions outlined in the Post
Orders. Subcontractor shall make regular site visits to inspect the overall
compliance and quality of work of its employees, herein referred to as a
Compliance Inspection or Quality Assurance Check, both of which the results
shall be shared directly with the General Contractor.
Further, Subcontractor understands
and agrees that upon being notified of any employee involvement in criminal
activity (e.g. theft, property damage, etc.) at any Premises, Subcontractor
shall provide General Contractor with the full name, address and phone number
of such employee(s) and obtain and provide General Contractor with a statement
from said employee and/or any witnesses within forty- eight (48) hours of
notification, and provide General Contractor with a copy of any police report
as soon as it becomes available.
15. Employment of Authorized
Workers. Subcontractor shall only allow persons who are lawfully permitted to
work in the United States in compliance with all immigration and labor laws,
including without limitation the Immigration and Nationality Act as amended
(“INA”), to perform services on behalf of General Contractor at any Premises. Subcontractor
shall perform any and all pre- and post-employment inquiry and investigations
necessary to ensure compliance with this section, and shall immediately notify General
Contractor of any noncompliance with this section, even if Subcontractor
discovers it after the subject person has begun performing services on behalf
of General Contractor. In addition, Subcontractor shall indemnify, defend and
hold harmless, General Contractor, and General Contractor’s Clients, from and
against any and all loss, claim, damage, liability, costs and expenses
(including reasonable attorneys’ fees, costs and expenses) that may arise from
a) any breach of the terms and conditions set forth in this section, or b) the
performance of services by any person Subcontractor knew, or reasonably should
have known, was in violation of the INA.
16. Non-Solicitation.
Subcontractor hereby understands, agrees, warrants and represents that Subcontractor,
and Subcontractor’s employees, agents and representatives, shall not contact
any General Contractor Clients (whether at the site/store level, district,
regional or corporate level) for any reason and shall direct all questions,
concerns and issues whatsoever to NATIONWIDE SECURITY SERVICE, and further that
Subcontractor shall not solicit business from any of General Contractor’s Clients,
or provide services on a direct basis for or to any such Clients, for the
duration of this Agreement, and a period of at least one (1) year after
termination of this Agreement. Any communication or solicitation shall
constitute a breach of this Agreement, gives General Contractor the right to
terminate Subcontractor’s services immediately, and any and all monies obtained
by Subcontractor in contravention of this section shall be deemed to be
compensable lost profits of General Contractor in any action for damages.
17. Assignment. This Agreement, and
the rights and obligations hereunder, may not be assigned or transferred by
either party without the prior written consent of the other, provided that such
consent shall not be unreasonably withheld.
18. Notice. All notices required or
permitted to be made under this Agreement shall be in writing and shall be
deemed delivered upon the first to occur of (i) actual delivery by mail,
facsimile or email to the person to whom it is addressed, with confirmation of
receipt, or (ii) the third (3rd) business day after deposit with the United
States Postal Service, is sent via certified mail, return receipt requested and
addressed to the party at the address listed first above, or to such other
address as either party may designate in writing to the other party for this
purpose.
19. Dispute Resolution/Negotiation.
The parties shall first attempt to resolve any dispute relating to this
Agreement promptly through good faith negotiations between executives with the
authority to resolve such dispute. If the matter has not been resolved, or
reasonable steps taken to resolve it, within fifteen (15) days of a party's
request for negotiation, either party may pursue their claim(s) through
mediation, arbitration or as otherwise permitted by law. The foregoing
notwithstanding, if either party shall bring an action against the other by
reason of breach of contract, or alleged violation of any covenant, term or
obligation hereof, or for the enforcement of any provision hereof, the parties
hereby understand and agree that the prevailing party in any such mediation,
arbitration or litigation shall be entitled to full reimbursement of all costs
and expenses, including reasonable attorneys’ fees, which shall be payable
whether such action is arbitrated or litigated to a final judgment or not.
20. Governing Law. This Agreement,
all issues related to or arising from this Agreement, and the rights and
obligations of the parties, shall be governed by, and interpreted, construed,
and determined in accordance with the laws of the Commonwealth of Massachusetts.
Jurisdiction and venue for any suit or proceeding related to or arising out of
this Agreement shall be in the state or federal district courts of Massachusetts,
and Subcontractor hereby consents to such jurisdiction, venue and choice of
law. Any award or judgment may be entered and enforced in any other domestic or
foreign court, and shall be awarded full faith and credit.
21. Compliance With
Laws. Subcontractor shall comply with all federal, state and local laws
applicable to the provision of Security Services hereunder, and Subcontractor
shall procure at Subcontractor’s own expense, all licenses, permits, and/or
certifications required by law that are necessary for the fulfillment of its
obligations pursuant to this Agreement. Subcontractor shall also be responsible
for payment of any/all applicable state taxes.
22. Waiver. Actual or adjudicated
waiver of a breach of any term or provision of this Agreement shall not be
deemed a waiver of any other breach of the same or different term or provision.
The failure to exercise any right or remedy hereunder shall not operate as a
waiver of such right or remedy, and shall be without prejudice to the exercise
by the party of that or any other right or remedy under this Agreement.
23. Severability. If any term or
provision of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, that provision will be enforced to the maximum extent
possible and the remaining provisions of this Agreement shall remain in full
force and effect. The invalidity of any provision of this Agreement shall not
affect the validity of any other.
24. Facsimile Signature &
Counterparts. This Agreement may be signed and then transmitted by facsimile
and a facsimile copy shall have the same force and effect as an original.
Further, this Agreement may be executed in counterparts, which when taken
together have the same force and effect as if one Agreement were signed.
25. Recitals. The recitals on page
one hereof are incorporated herein at length as if
more fully set forth herein.
26. Entire Agreement. This
Agreement, and any schedules attached hereto, constitutes the entire
understanding and agreement of the parties. This Agreement supersedes any and
all prior agreements or understandings of the parties regarding the subject
matter herein and is intended to cover the provision of all present and future
Security Services by Subcontractor. General Contractor reserves the right to
make changes or amendments to this Agreement at any time as required to meet
the safety and business needs of its Clients, provided
any such changes or amendments will be provided in writing to Subcontractor and
must be approved by Subcontractor either in writing or by conduct indicating
acceptance of the same.
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the day and year below:
(Subcontractor) (General
Contractor)
_________________________ ________________________
Signed Signed
_______________________ ______________________
Printed Printed
_______________________ ______________________
Title Title
_______________________ ______________________
Date Date v.5252021
