CODE 4 SECURITY SERVICES LLC CLIENT AGREEMENT
This Client Agreement (“Agreement”) is made effective upon the date of Client’s acceptance (the “Effective Date”). Client is referred to herein as “Client” and Code 4 Security Services LLC is referred to as “Contractor”. Client and Contractor may each be referred to herein as a “Party” and collectively as the “Parties.”
1. Services. Contractor shall provide security services to Client as outlined in Contractor’s quote, which is attached and incorporated herein (the “Services”). Services shall be performed in a reasonable and customary manner in accordance with security services industry standards.
In addition, Contractor shall perform such other duties and tasks, or changes to Services, as may be agreed upon by the Parties in a subsequent signed writing or Change Order. Any such writing shall detail any equitable adjustment made to the compensation due hereunder as a result of changes in the Services.
The Contractor shall determine the method, details, and means of performing Services for which Contractor is responsible under this Agreement and Client will have no right to, and shall not, control the manner or determine the method of Contractor accomplishing or supplying Services.
2. Compensation; Invoicing. As full compensation for Services rendered pursuant to this Agreement, the Client shall pay the Contractor as set forth in the fee schedule in Contractor’s quote. Client agrees that all Payments shall be made to Contractor immediately upon receipt of Contractor’s invoice or as otherwise addressed in Contractor’s quote. If payment is not made within fourteen (14) days from the date of Contractor’s invoice, Contractor shall be entitled to a late fee in the amount of 10% of the invoiced amount plus interest at the rate of 1.5% per month until paid in full.
Client acknowledges that the Company’s billing cycle is Monday through Sunday. If, for instance, a contracted event is scheduled for a Saturday, Sunday, and Monday, Client may receive two invoices for the event: one for Saturday and Sunday, and a separate invoice for Monday.
Client acknowledges and agrees that if disputing the accuracy of a particular invoice, such dispute must be brought to Contractor’s attention within sixty (60) days from the date of the invoice. Contractor shall take prompt action to address any such dispute. Invoices which have not been disputed within sixty (60) days shall be deemed accurate.
3. Expenses. All costs and expenses incurred by Contractor which are within the ordinary course of business for Contractor in connection with the performance of Services which are not specified in Contractor’s quote shall be the sole responsibility of and paid by Contractor.
4. Term and Termination.
a. Ongoing Services. In the event that Client requests ongoing Services from Contractor, engagement with Client under this Agreement shall commence on the Effective Date and continue for a term of one (1) year from the Effective Date. Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless terminated by the parties as provided for herein.
Client agrees that fees outlined in Exhibit A shall increase by 5% upon renewal for each successive one (1) year term unless otherwise agreed upon in writing.
Contractor acknowledges and agrees that the engagement with Client is at will, subject to being terminated at the discretion of Client at any time, upon thirty (30) days prior written notice to Contractor. Client shall have the right to terminate this Agreement with less than thirty (30) days prior written notice, provided that Client pays a termination fee of $1,000.00 plus 25% of estimated monthly fees as addressed in the fee schedule.
This Agreement may be terminated by Contractor upon thirty (30) days prior written notice to Client. At the time of termination, Contractor agrees to return all Client property used in performance of Services, including but not limited to computers, cell phones, keys, reports and other equipment and documents.
Notwithstanding the foregoing, and except as otherwise provided for below, Contractor shall have the right to terminate this Agreement if payment on any invoice is not made, upon providing Client with five (5) days written notice of non-payment and opportunity to cure. Contractor shall be entitled to cease the performance of Services immediately upon termination of the Agreement and shall have no liability to Client for any damages caused by the cessation of Contractor’s Services. Upon termination of this Agreement, all amounts owed to Contractor for Services provided through the date of termination shall be immediately due and payable.
b. On-Premises Guard Services; “As Needed” Guard Services”; Event Security/Staffing. In the event that client requests On-Premises Guard Services, “As Needed” Guard Services” or Event Security/Staffing, Client agrees that any cancellation of regular scheduled services must be made with at least twenty-four (24) hours’ advance notice. Cancellations of regular scheduled services made with less than twenty-four (24) hours’ advance notice will be subject to a four (4) hour billable minimum compensation for each scheduled Staff member.
5. Duties; Changes in Services; Minimum Compensation; Holidays.
a. Emergencies. Client agrees and understands that if a threatening or emergency situation should arise, officers may have to abandon assigned duties to properly respond to and address any situation within the scope of Services as defined under this Agreement.
b. “As Needed Guard Services”. Client agrees that any request for additional “as needed” security guard services must be made with at least forty-eight (48) hours’ advance notice. Contractor cannot guarantee additional “as needed” guard service requests, but will make every effort to provide the additional services. If accommodated, Services may be provided at time-and-one-half rate for each scheduled staff member.
c. Multiple Officers. Client agrees that any request for more than 3 officers at a single location will require at least one of the officers to be a Lead employee. The Lead employee is able to function as a line officer however they must also be able to check on the other officers, respond to situations, and issue breaks as necessary.
d. Minimum Compensation.
i. On-Premises Guard Services; “As Needed” Guard Services”; Event Security/Staffing. Client acknowledges and agrees that for any day or partial day on which Contractor performs Services under this Agreement, Contractor shall be compensated and Client shall be invoiced for a minimum of four (4) hours per scheduled staff member.
Client acknowledges that Contractor billing is in fifteen-minute increments and Contractor rounds up to the nearest fifteen (15) minute interval. By way of example, if a guard clocks out at 9:07 a.m., Client will be billed through 9:15 a.m.
Client acknowledges that when transitioning from Daylight Saving Time Client will be invoiced for the full number of hours in which Services are provided.
Client acknowledges that Contractor bills for all rest and meal periods as provided for under applicable laws as may be amended from time to time.
e. Holidays. Client acknowledges that for all Services the following holidays will be billed at time and a half rate: New Years Eve, New Years Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Eve, Christmas Day.
6. Contractor. The Parties agree and acknowledge that Contractor is not, for any purpose, an employee of Client. Contractor does not have any authority to enter into agreements or contracts on behalf of Client and shall not represent that it possesses any such authority. Client remains responsible for all general policies and for all decisions made by Client, and releases Contractor from any liability or responsibility for such decisions, or for the information or lack thereof used by Client in making such decisions. Contractor shall not be entitled to any of Client’s benefits, including, but not limited to, coverage under medical, dental, retirement or other plans. Client shall not be obligated to pay worker’s compensation insurance, unemployment compensation, social security tax, withholding tax or other taxes or withholdings for or on behalf of the Contractor in connection with the performance of Services under this Agreement. Nothing contained in this Agreement shall be deemed or construed by the Parties to create the relationship of a partnership, a joint venture or any other agency or fiduciary relationship.
7. Ownership of Work Product; Contractor Property. The Parties agree that all work product, information or other materials created and developed by Contractor at the request of Client in connection with the performance of Services under this Agreement and any resulting intellectual property rights (collectively, the “Work Product”) are the sole and exclusive property of Client. The Parties acknowledge that such Work Product shall, to the extent permitted by law, be considered a “work made for hire” within the definition of Section 101 of the Copyright Act, as amended, (the “Copyright Act”) and that Client is deemed to be the author and is the owner of all copyright and all other rights therein. If the work product is not deemed to be a “work made for hire” under the Copyright Act, then Contractor hereby assigns to Client all of Contractor’s rights, title and interest in and to the Work Product, including but not limited to all copyrights, publishing rights and rights to use, reproduce and otherwise exploit the Work Product in any and all formats, media, or all channels, whether now known or hereafter created.
Notwithstanding the foregoing, Contractor is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, property, supplies, equipment, and other materials utilized in providing Services, including any property, supplies, equipment installed by Contractor at Client locations.
8. Insurance. For the term of this Agreement, Contractor shall obtain and maintain insurance, with appropriate and adequate coverage and limits, relative to Services that Contractor performs for the Client.
9. Mutual Representations and Warranties. Both Client and Contractor represent and warrant that each Party has full power, authority, and right to execute and deliver this Agreement, has full power and authority to perform its obligations under this Agreement, and has taken all necessary action to authorize the execution and delivery of this Agreement. No other consents are necessary to enter into or perform this Agreement.
10. Representations and Warranties.
a. Contractor Representations and Warranties. Contractor represents and warrants that it has all the necessary licenses, permits and registrations, if any, required to perform Services under this Agreement in accordance with applicable federal, state and local laws, rules and regulations and that it will perform Services according to the Client’s guidelines and specifications and with the standard of care prevailing in the industry. Contractor complies with all applicable federal, state, and local laws pertaining to labor in performance of Services, including but not limited to regulations relating to rest and meal periods for employees under applicable laws as may be amended from time to time.
b. Client Representations and Warranties. Client represents and warrants that it has disclosed all material facts and circumstances reasonably necessary for Contractor to adequately assess and determine the means for performing Services under this Agreement. Such material facts and circumstances include but are not limited to hazards, risks, conditions, and perils which are known to Client but not reasonably within Contractor’s knowledge. Client represents and warrants that complies with all applicable federal, state, and local laws pertaining health and safety in the workplace at its offices and/or locations, including but not limited to the Occupational Safety and Health Act (OSH Act), state and local government regulations, rules, and orders, and industry specific rules and regulations. Client acknowledges that breach of these representations and warranties constitutes a breach of this Agreement. In the event of such a breach Contractor shall notify Client of the breach and shall have the right to immediately terminate services at its discretion based upon the nature of the breach, communication with Client, and applicable remedial action.
11. Limitation of Liability; Indemnification. Contractor shall not be liable for any loss, cost, expense, or damage to Client in an amount exceeding fees actually paid by Client under this Agreement. Client waives any right to, and Contractor shall not be liable for, any direct, indirect, incidental, consequential, punitive, exemplary, or special damages sustained for any reason by Client pursuant to Contractor’s provision of Services under this Agreement. Client hereby releases Contractor and its directors, officers, shareholders, employees, and agents from any liability for injury or damage suffered by the Client in connection with the provision of Services, unless such injury or damage results directly from the negligent act of Contractor. Client agrees to indemnify and hold harmless Contractor and its members, principals, employees, contractors, and agents from any liabilities, costs, or damages including reasonable costs and attorney fees resulting in whole or in part from any act or failure to act of the Client or any breach of this Agreement by the Client.
12. Governing Law. The terms of this Agreement and the rights of the Parties hereto shall be governed exclusively by the laws of the State of Colorado without regard to its conflicts of law provisions.
13. Disputes. Except as provided for in Section 22 of this Agreement, the parties agree to resolve disputes arising from this Agreement through mediation. The Parties agree to participate in a good faith effort to negotiate a resolution of any dispute before a mutually agreed upon mediator. If the parties are unable to agree upon a mediator within twenty-one (21) days after service of a notice initiating mediation, the parties shall utilize mediation services through the Judicial Arbiter Group (“JAG”) in Denver, Colorado, any successor of the Judicial Arbiter Group, or any similar mediation provider. If the dispute cannot be resolved through mediation, a Party or the Parties may proceed to litigation.
14. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
15. Assignment. The duties and obligations of Contractor under this Agreement may not be assigned, transferred or sold without the prior written consent of Client, which shall not be unreasonably withheld.
16. Entire Agreement. This Agreement, any exhibits, quotes, and other documents executed by the parties attached hereto constitute the entire agreement between the Parties hereto with respect the subject matter hereof, and supersede all prior negotiations, understandings, and agreements of the Parties.
17. Amendments. No supplement, modification or amendment of this Agreement will be binding unless executed in writing by both of the Parties. In the event of a change in Services, the Parties shall execute a Change Order for additional or modified Services and any changes in Compensation.
18. Notices. Any notice or other communication given or made to either Party under this Agreement shall be in writing and delivered via email, by hand, sent by overnight courier service or sent by certified or registered mail, return receipt requested, to the address provided herein or to another address as that Party may subsequently designate by notice, and shall be deemed given on the date of delivery.
19. Waiver. Neither Party shall be deemed to have waived any provision of this Agreement nor the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver by either Party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any subsequent or other breach or violation.
20. Further Assurances. At the request of one Party, the other Party shall execute and deliver such other documents and take such other actions as may be reasonably necessary to affect the terms of this Agreement.
21. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal, and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement.
22. Non-Solicitation/Non-Disparagement. Client agrees that during the term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement for any reason, Client shall not: (a) directly or indirectly through any third party request or advise any customer or client of Contractor to withdraw, limit, or cancel such customer’s or client’s business with Contractor; (b) directly or indirectly through any third party induce or attempt to induce any employee or agent of Contractor to leave the employ of Contractor, or hire any such employee or agent in any business or capacity; or (c) make any statement disparaging to Contractor or any member, principal, officer, director, shareholder, employee or agent thereof, to any person, firm, corporation or other business organization whatsoever. Collectively, (a), (b), and (c) above are referred to as “Prohibited Acts.” The parties agree that in the event of any breach of this Section 22, Contractor shall be entitled to an Order for injunctive relief and/or for specific performance, or their equivalent, from a court, including requirements that Client take action or refrain from action to avoid additional damage to Contractor as a result of Client’s engagement in Prohibited Acts. Client agrees the Contractor does not need to post a bond to obtain an injunction and waives the right to require such a bond. The Parties further agree that in the event of Client engagement in Prohibited Acts monetary damages to Contractor may be difficult to determine. Accordingly, in addition to any ordered injunctive relief resulting from Client engagement in Prohibited Acts, the parties agree that in addition to any award of Attorney Fees and costs Contractor shall be entitled to liquidated damages in the amount of $5,000.00 per instance.
23. Force Majeure. No Party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, other potential disasters or catastrophes, such as epidemics or pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) other events beyond the reasonable control of the Impacted Party.
24. Attorneys’ Fees. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party, in addition to any other relief to which that party may be entitled, shall be entitled to an award of its reasonable attorneys’ fees and costs incurred.
25. Joint Authorship. The parties acknowledge and agree that this Agreement shall not be construed or interpreted against any party on the grounds of sole or primary authorship. The parties acknowledge that they have had the opportunity to consult with and receive legal, accounting, and other advice by attorneys, accountants, and other professionals of their choosing prior to entering into this Agreement.
26. USE OF WEAPONS IN PERFORMANCE OF SERVICES. As a preliminary matter, Contractor’s staff shall not be armed with firearms or other weapons while performing the Services except when requested by Client or when performing patrol security services. Patrol security staff shall only be armed with less than lethal weapons. Contractor and Contractor’s staff shall only utilize firearms or other weapons in accordance with applicable laws, rules, and regulations; in accordance with Contractor policy; and upon proper training in accordance with industry standards.
27. Less Than Lethal Weapons. If Client allows the use of less than lethal weapons, Client acknowledges and agrees that Contractor’s staff may utilize less than lethal weapons in providing Services. Less than lethal weapons may include weapons such as batons, expandable batons, and pepper spray (“Weapons”). Client has the right to request a prohibition against the use of certain Weapons by Contractor and any such prohibition shall be noted in the Scope of Services and shall not preclude the use by Contractor of other Weapons. Contractor’s staff shall only utilize Weapons for the purpose of providing Services which, as applicable, may include protecting Client and Client’s property, and protecting the health and safety of Client, customers, invitees, and licensees at locations where Services are performed. Client acknowledges certain inherent risks involved with the use of Weapons which may include injury, disability, death, or property damage.
Specific to the use of pepper spray, Client acknowledges that indoor environments provide challenges, as ventilation is usually less than in outdoor environments. Therefore, dissipation of pepper spray can take much longer. Once discharged, pepper spray may spread throughout an indoor environment. Individuals who are in the environment at the time of discharge might be affected, as might others who enter the environment. As a result, after discharge an indoor environment should be evacuated. Generally, indoor area decontamination consists of opening doors and windows in order to ventilate the enclosed area. Numerous variables will influence the time that ventilation is required, including the amount of ventilation to the area and the degree of contamination. The area affected by the residue of pepper spray should be cleaned using contamination guidelines and Personal Protective Equipment (“PPE”).
28. Firearms. If Client requests the use of armed security, Client acknowledges and agrees that Contractor’s staff may utilize firearms in providing Services. Any armed guard must be authorized to carry weapons in accordance with applicable law in the jurisdiction including maintaining current state and local licenses. Contractor’s staff shall only utilize firearms for the purpose of providing Services which, as applicable, may include protecting Client and Client’s property, and protecting the health and safety of Client, customers, invitees, and licensees at locations where Services are performed. Client acknowledges certain inherent risks involved with the use of Weapons which may include injury, disability, death, or property damage. Client acknowledges and agrees that when consenting to the use of armed security, Client also consents to Contractor’s staff utilizing less than lethal weapons as described above.
29. USE OF BODY CAMERAS & RECORDING DEVICES. Contractor retains the right to electronically record with tape recorders, video cameras, cameras, or other similar devices, during any event, in a limited degree, as deemed necessary to substantiate incidents or happenings, for which such recordings would be of material assistance to Contractor in training or in defending any actions or activity performed by its personnel. Recordings shall not be utilized for marketing purposes or for public use unless disclosure of such recordings is requested or required in legal proceedings, interrogatories, subpoena, civil investigation demand, or similar process.