EXHIBIT 10.38
SERVICES AGREEMENT
This Services Agreement ("Agreement") is entered into this 10th day of
July, 1997, by and between Synadyne (referred to in this Agreement as "Temporary
Service Firm" or "TSF") and Allstate Insurance Company (referred to in this
Agreement as "Allstate").
Temporary Service Firm and Allstate agree as follows:
1. SERVICES
TSF agrees to furnish services to be performed for Allstate agents and
Retail Resident Managers from time to time during the term of this
Agreement as requested by such agents or Retail Resident Managers. The
services shall be performed by persons in the employ of TSF. As the
employer of such persons, TSF will (i) be responsible for hiring, firing,
and disciplining its employees; (ii) maintain all necessary personnel and
payroll records for its employees; (iii) compute the wages payable to its
employees and withhold applicable federal, state, and local taxes and FICA
payments; (iv) remit employee withholdings to proper governmental
authorities and make employer contributions for FICA and federal and state
unemployment insurance payments; (v) pay net wages and fringe benefits, if
any, directly to its employees, and (vi) pay any workers' compensation or
unemployment compensation benefits that may become due to any of its
employees and to defend any action brought by an employee to recover such
benefits.
2. INDEPENDENT CONTRACTOR
With respect to its performance of services under this Agreement, TSF is,
and shall at all times operate as, an independent contractor, and nothing
in this Agreement shall be construed to constitute TSF, or any of its
employees, as agent, partner, employee or joint venturer of or with
Allstate or any of its agents or Retail Resident Managers.
3. INDEMNITY BY TSF
a. TSF agrees to comply with all applicable federal, state, and local
laws regarding its employees, including laws relating to minimum
compensation, overtime, and equal opportunities for employment. In
particular, TSF agrees to comply with the federal and state Civil
Rights Acts, the Age Discrimination in Employment Act, the Fair Labor
Standards Act, and the Immigration Control and Reform Act. TSF will
indemnify, defend, and hold Allstate, its agents, and Retail Resident
Managers harmless from and against any claims, demands, suits, losses,
damages, costs, and expenses arising out of any violation or alleged
violation by TSF of any such laws.
b. TSF will indemnify, defend and hold Allstate, its agents, and Retail
Resident Managers harmless from and against any and all liabilities,
claims, demands, suits, losses, damages, costs, and expenses for
personal injury to or death of any person, or for damage to or
destruction of any property, caused or alleged to be caused by any act
or omission of TSF or its employees. "Personal injury," as used
herein, includes, but is not limited to: bodily injury; libel;
slander; defamation of character; invasion of rights of privacy;
malicious prosecution; infliction of emotional distress; harassment or
discrimination on the basis of sex, age, religion, race, or national
origin; wrongful detention; violation of civil rights, and any other
injury excluding only those for which Allstate is required to
indemnify TSF and its employees under paragraph 4.a. below.
c. TSF will indemnify, defend, and hold Allstate, its agents, and Retail
Resident Managers harmless against any claims, demands, suits, losses,
damages, costs, and expenses for TSF's failure or alleged failure, to
perform its obligations as set forth in paragraph 1. above.
d. TSF' obligations as set forth in this paragraph 3. will survive the
termination of this Agreement.
4. INDEMNITY BY ALLSTATE
a. Allstate will indemnify, defend, and hold TSF and its employees
harmless from and against any and all liabilities, claims, demands,
suits, losses, damages, costs, and expenses caused or alleged to be
caused by the negligent acts, errors, or omissions of TSF employees
acting within the scope of their duties as assigned by an Allstate
agent or Retail Resident Manager and relating to the sale or servicing
of insurance or other products offered by Allstate or its affiliates,
including any and all shortages of money collected from insureds or
prospective insureds. The right to indemnity under this paragraph does
not extend to liabilities, claims, demands, suits, losses, damages,
costs, and expenses caused or alleged to be caused by (i) the
dishonest, fraudulent, intentional, willful, malicious, or reckless
acts of TSF employees; or (ii) any acts or omissions for which TSF is
required to indemnify Allstate, its agents and Retail Resident
Managers under paragraph 3.b. above; or (iii) any negligent acts,
errors or omissions of TSF employees while performing services for any
agent who has an independent contractor rather than an
employer/employee relationship with Allstate, including R2501 Retail
Exclusive Agents, R3001 Neighborhood Exclusive Agents, R3001A
Neighborhood Exclusive Agencies, and Independent Agents or Agencies
representing Allstate on a nonexclusive basis.
b. Allstate's obligations as set forth in this paragraph 4. will survive
the termination of this Agreement.
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5. INSURANCE
TSF agrees to obtain and maintain during the term of this Agreement the
following types of insurance with the stated minimum limits of liability:
/bullet/ Workers' Compensation Insurance - statutory limits
/bullet/ Employers' Liability Insurance
$100,000 bodily injury per accident
$100,000 disease per employee
$500,000 policy aggregate
/bullet/ Commercial General Liability Insurance
$500,000 combined single limit per occurrence
/bullet/ Commercial Auto Liability Insurance with coverage for owned
and non owned autos
$500,000 combined single limit per occurrence
/bullet/ Blanket Crime Bond
$100,000
/bullet/ Excess Liability Insurance
$1,000,000 excess over the primary limit
TSF agrees to furnish to Allstate proof of insurance on an annual basis.
6. COMPENSATION
a. TSF agrees to bill Allstate agents and Retail Resident Managers
directly for services performed for them by TSF employees. The amount
of compensation for the services rendered and the payment terms will
be determined by separate agreement between TSF and each agent or
Retail Resident Manager. To the extent that any of the terms of such
agreement conflict with any of the terms of this Agreement, this
Agreement will govern.
b. TSF acknowledges and agrees that all compensation for services
performed by TSF employees for Allstate agents will be solely the
responsibility of such agents. Allstate shall have no liability
whatsoever for any amount due TSF from any agent, and TSF expressly
waives any and all rights it may have to recover such amounts from
Allstate.
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7. CONFIDENTIALITY
a. TSF agrees that it will not, at any time or in any manner, directly or
indirectly, disclose to any third party or permit any third party to
access any confidential information concerning any matters affecting
or relating to the business of Allstate, except upon direct written
authority of Allstate. Furthermore, upon termination of this
Agreement, TSF agrees to continue to treat as confidential any
information concerning any matters affecting or relating to the
business of Allstate that is not otherwise lawfully available to the
public and that has been obtained by TSF during the term of this
Agreement.
b. Confidential information includes, but is not limited to, business
plans of Allstate; information regarding the names, addresses, and
ages of policyholders or prospective policyholders; types of policies;
amounts of insurance; premium amounts; the description and location of
insured property; the expiration or renewal dates of policies;
policyholder listings and any policyholder information subject to any
privacy law; claim information; and certain information and material
identified by Allstate as confidential or information considered a
trade secret within the meaning of the Illinois Trade Secrets Act.
Confidential information may be oral or recorded on paper, electronic
data file, or any other medium.
c. Any and all confidential information furnished to TSF during the term
of this Agreement shall, at all times, remain the sole property of
Allstate and shall be returned to Allstate upon demand of Allstate, or
at such time as TSF no longer provides services for Allstate agents or
Retail Resident Managers.
d. TSF agrees that each of its employees assigned to an Allstate agent or
Retail Resident Manager will uphold the confidentiality of Allstate
confidential information and will sign the Confidentiality and
Non-Competition Agreement, a copy of which is attached as Appendix A,
prior to beginning the assignment. TSF will forward each signed copy
of the Confidentiality and Non-Competition Agreement to Allstate at
the address indicated under paragraph ll.a. within five (5) business
days.
8. TERM
This Agreement shall commence on the date first written above and will
continue until it is terminated. Either party may terminate this Agreement
at any time by giving the other party at least ten (10) days prior written
notice.
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9. REPORTING
a. At the end of each calendar quarter, TSF agrees to provide Allstate a
report listing its employees who have been assigned to Allstate agents
or Retail Resident Managers during the quarter as well as those
employees whose assignments have been terminated during the quarter.
The report shall be forwarded to Allstate by the 15th day of the month
following each calendar quarter.
b. TSF agrees to promptly notify Allstate if any amount owed to TSF by an
Allstate agent for services rendered by a TSF employee is past due for
more than sixty (60) days.
10. FINANCIAL STATEMENT
TSF agrees to provide Allstate a current financial statement each year this
Agreement is in effect.
11. GENERAL PROVISIONS
a. All notices will be deemed to have been given if personally delivered
or mailed as follows:
if to Allstate: Allstate Insurance Company
Kansas City Regional Office
Bldg. 32 Corporate Woods
9225 Indian Creek Pky., Suite 600
Overland Park, KS 66210
Attention: Jan Sandoval
if to Temporary Service Firm: Synadyne
1144 E. Newport Center Drive
Deerfield Beach, FL 33442
Attention: Paul M. Burrell
b. The descriptive headings of this Agreement are intended for reference
only and will not affect the construction or interpretation of this
Agreement.
c. The failure of either party to insist upon the performance of any of
the terms of this Agreement in any one or more instances will not be
construed as a waiver or relinquishment of the future performance of
any such term, and the obligation of the parties with respect to any
such future performance will continue in full force and effect.
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d. TSF agrees that it will not use the name, service marks, or trademarks
of Allstate, or of any affiliated company, or reveal the existence of
this Agreement or the terms and conditions thereof in any advertising,
publicity release, or sales presentation, without Allstate's prior
written consent.
e. This Agreement may be executed in several counterparts, each of which
shall be deemed an original.
f. Neither party may transfer this Agreement, and no rights or interests
arising from it may be assigned by either party without the written
consent of the other party.
g. This Agreement contains the complete understanding between the parties
with respect to the subject matter hereof and supersedes all prior
agreements, whether oral or written, between the parties. No waiver or
amendment of the Agreement is valid unless in writing and signed by
both parties.
h. This Agreement will be binding upon, and will inure to the benefit of,
the parties and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement by their authorized
representatives.
Accepted by:
Synadyne Allstate Insurance Company
(Temporary Service Firm)
By: /s/ PAUL M. BURRELL By: /s/ JAN SANDOVAL
------------------------- -------------------------
Paul M. Burrell Jan Sandoval
Title: Vice President Title: HR Representative
Date: July 10, 1997 Date: 7-23-97
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