This Head of Security Agent Agreement (“Agreement”) is entered into by and between Head of Security, LLC, including its officers, directors, agents and employees (“HS”) and You (“You” or “Agent”) (collectively, “The Parties”) the “Agent” signs up as a new Agent or the date you first begin to render services to HS “Clients”, “Customers”, End Users or all similar references (the “Effective Date”).
WHEREAS, HS will provide certain professional referral services to Agent, which will include connecting Agent with HS clients who are in need of security services;
WHEREAS, Agent desires to receive referrals from HS for the provision of security services, and agrees to compensate HS for such referrals in accordance with the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and agreements of the parties contained in this Agreement, the parties agree as follows:
Services. HS will refer those seeking to purchase security services to Agent pursuant to the terms and conditions set forth in this Agreement.
Term. Unless earlier terminated as provided in Paragraph 10 (“Termination”) below, the initial term of this Agreement (“Initial Term”) will commence upon the date you sign up as a new Agent or the date you first begin to render services to HS “Clients”, “Customer”, “End User” or all similar references (“Commencement Date”) and remain in effect for one (1) year, until Renewal. After that date, this Agreement will renew for consecutive terms of one (1) year (each, a “Renewal Term”). For convenience, the Initial Term and a Renewal Term are referred to in this Agreement as the “Term.”
Fees. As consideration for the Services set forth above, for each individual or business (“End User”) referred to Agent in accordance with the terms and conditions of this Agreement, Agent and/or their respective Partner(s) shall pay HS an amount representing the difference between Agent’s base pricing (as defined herein in Appendix A) and the gross revenue received from the End User as a result of services rendered by Agent to End User for a period of no more than two (2) years following the first date on which Agent provides services to the End User. Such payment obligations shall survive termination of this Agreement. That is, the Parties understand and agree that even in the event of termination of this Agreement, for any reason, Agent and/or their respective Partner(s) shall remain obligated to pay HS the difference between its base pricing and the gross revenue received from End User for up to two years after Agent begins to render services to End User.
Agent hereby represents and warrants that Agent has the qualifications, training and ability to perform security services in a professional manner, without any direction, control, or supervision of HS. Performance of Agent’s services in a professional manner includes meeting the security-related requirements of the End User in a professional and timely manner, and failure to do so shall constitute a material breach of this Agreement. Agent shall be solely responsible for the professional performance of its services, and Agent shall solely determine the means and methods it uses to provide those services. Therefore, HS will not provide, and is not responsible for providing, any assistance or direction to Agent with respect to the provision of Agent’s security services, nor shall HS control any aspect of the provision of Agent’s security services to any End User.
Agent shall have sole discretion and control over the manner in which its services are performed, subject to the specifications, parameters, timelines, and overall objectives set forth by the End User.
Agent shall be solely responsible for providing, at Agent’s expense, and in Agent’s name, all insurance necessary for the provision of security services to any End User (as set forth below), as well as all required licenses and permits necessary for performing the Services. Agent shall have HS named as an additional insured on Agent’s insurance policies, which policy shall include primary and non-contributory language.
Insurance. During the period commencing on the date the Agent first renders any services to End User and continuing during the term of that Engagement, Agent and/or their respective Partner(s) will keep in full force an effect, at its sole expense, the following insurance coverages:
Worker’s compensation coverage for its employees with statutory limits, including an alternative employer endorsement, and employer’s liability coverage with limits not less than five hundred thousand ($500,000.00) dollars.
Commercial general liability coverage in an amount not less than one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate. This policy will be an occurrence-base policy, not a claim–made policy, and will not include a deductible or self-insured retention. HS will be name as an additional insured and the additional insured endorsement will extend coverage to contractual liability and completed operations coverage.
Umbrella/Excess Liability Insurance with a limit of at least $5,000,000 for each occurrence and in the aggregate, or the policy limits, whichever is greater, on the same basis as the primary Commercial General Liability and Automobile Liability policies above. Such policy shall specifically schedule and be in excess of those policies. Such policy shall provide additional insured coverage to the Additional Insureds at least as broad as the coverage as provided to the Named Insured under such policy.
Automobile liability, including contractual liability coverage for all owned, hired and non-owned vehicles with a combined single limit not less than one million dollars ($1,000,000.00).
Coverage to protect against HS’s losses and damages arising from dishonest acts, theft or destruction of tangible property, by any employee of Agent, and any other of Agent’s agents or subcontractors) having access to an End User’s property, systems, facilities, and other assets, with limits no less than one million dollars ($1,000,000.00).
Prior to the commencement of any Engagement with any End User, Agent shall provide HS with proof that it and/or its respective Partner(s) has obtained the requisite insurance coverage for the Engagement by providing HS with a certificate of insurance acceptable to HS. Such certificate will be issued by an insurance carrier with A.M. Best rating of ‘-A’ or better. The insurance certificate will provide (i) that the coverages thereon will not be substantially modified, terminated, or cancel without thirty (30) days prior email notice to HS; and (ii) that HS be notified via email of Agent’s failure to renew any policy on the certificate by each policy anniversary date during the term.
The foregoing insurance shall be primary and non-contributory. If Agent fails to maintain the require insurance as described above, HS reserves the right to procure such coverage and deduct the cost of premiums from any monies owed to Agent.
Agent’s indemnity obligations specified in paragraph 5 (Indemnification) will not be reduced by Agent’s insurance carrier’s denial of insurance coverage for the occurrence or events, which is the subject matter of the claim or refusal to defend HS.
Agent’s compliance with the requirements of this article as to carrying insurance and furnishing proof of insurance to HS will not relieve Agent of its indemnity liability under paragraph 6 below, or Agent’s liability to HS specified in any other provision of this Agreement.
HS will not be liable and will provide no insurance for any loss or damage uncovered by Agent or any of Agent’s employees, agents or subcontractors to equipment and other property owned by them, regardless of whether such losses are insured by them. Notwithstanding any other provision of this Agreement, Agent releases and discharges HS of and from any and all liability to Agent and to anyone claiming by, through or under Agent by subrogation or otherwise, on account of any loss or damage to such equipment or other property, unless caused by the sole negligent act, sole omission or sole willful misconduct of HS related to this Agreement.
Agent Indemnification. To the fullest extent permitted by law, Agent will defend, protect, hold harmless and indemnify HS, and HS’s respective officers, directors, Agents, employees and Agents, from and against any and all liability, loss, claims, demands, suits, costs, penalties, fines, fees and expenses (including actual fees and expenses of attorneys, expert witnesses, and other consultants) by whomsoever brought or alleged, and regardless of the legal theories upon which premised, including, but not limited to those actually or allegedly arising of bodily injury to, or sickness or death of, any person or property damage or destruction (including loss of use), which may be imposed upon or asserted against HS, allegedly or actually arising out of or resulting from the services provided by Agent to any End User, including, without limitation any breach of contract or negligent act or omission by Agent or any of its employees, agents, or subcontractors. Agent’s indemnity will include indemnity with respect to claims alleging or involving joint or comparative negligence but will not extend to liability resulting from the sole negligent act, sole omission, or sole misconduct of HS.
Non-Solicitation of End Users. Agent agrees that HS has expended, and continues to expend, significant time, money, effort and resources to develop and maintain valuable relationships with End Users. Agent further agrees that through its contractual relationship with HS, Agent will be placed in contact with End Users who were introduced to Agent by HS. Therefore, in consideration for the referrals HS will provide to said End Users and in acknowledgment of the receipt and adequacy of this consideration, Agent hereby agrees that during the Term of this Agreement, and for a period of two
(2) years after the termination of this Agreement for any reason, Agent shall not, directly or indirectly, on its own account or on behalf of any person, firm, partnership, corporation, company, or other entity, solicit, approach, interfere with or encourage any End User introduced to Agent by HS to (i) cease doing business in whole or in part with HS; (ii) breach any existing or contemplated agreement between the End User and HS; (iii) obtain services substantially similar to the services provided or offered by HS from any person or entity other than HS or (iv) contract directly with Agent for security services, in an attempt to circumvent the payment of service fees owed by Agent to HS in accordance with the terms of this Agreement.
Injunctive Relief. Agent hereby acknowledges that HS has expended, and continues to expend, significant time, money, effort and resources to develop and maintain valuable customer relationships, Accordingly, Agent agrees that its disclosure or use of this information in violation of this Agreement will significantly deprive HS of the business advantage it created, and that HS would be unfairly disadvantaged if Agent were to breach this Agreement during or for a certain period of time after the termination of the Agreement. HS will suffer immediate and irreparable harm that cannot be resolved by remedy at law (for example, money damages will not be able to repair the client relationships damaged as a result of such breach). As a result, in the event that Agent violates, or HS reasonably believes that Agent has or is about to violate this Agreement, Agent agrees that HS shall be entitled to injunctive relief to prevent such violation(s) and/or preserve the status quo, and Agent further agrees to be permanently enjoined from using such information up to and including the time provision set forth herein.
Relationship of Parties. Agent and HS are considered independent contractors, and nothing contained in this Agreement shall be deemed to make one company an Agent of the other, and nothing contained in this Agreement shall be deemed to make an employee or Agent of one company an employee or Agent of the other. Neither Party may bind the other to any contracts within the prior express written consent of the other Party. Nothing in this Agreement is intended to afford Agent any of the
rights, duties, or obligations of an employee of HS. Under no circumstances shall Agent look to HS, or any of HS’s principals, agents, clients, associates, supervisors, employees, directors, shareholders or assigns as Agent’s employer, or principal.
Termination. Either party may terminate this Agreement by either party at any time with thirty
(30) days written notice, subject to survival of those provisions reflected in Paragraphs 3 and 7, above.
Entire Agreement. This Agreement is the entire agreement between Agent and HS regarding these matters and supersedes any verbal and written agreements on such matters. This Agreement may be modified only by written agreement signed by Agent and HS or its designees.
Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the invalidity shall not nullify the validity of the remaining provisions of this Agreement. If any provision of this Agreement is determined by a court or arbitration panel to be overly broad in duration, geographical coverage or scope, or unenforceable for any other reason, such provision will be narrowed or shortened so that it will be enforced to the fullest extent of the law.
Governing Law; Jurisdiction and Venue. All questions concerning the construction, validity, interpretation, enforcement, or performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to any principles of conflicts of law. With respect to all disputes between the parties hereto, any dispute related to this Agreement or the performance thereof shall be exclusively litigated in the Circuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois. HS and Agent freely consent to the personal jurisdiction and venue of these courts, each waive any right to argue that personal jurisdiction or venue in these venues is improper, inappropriate or inconvenient, and each party waives any right to assist, participate in, or consent to any such suit, action or proceeding being transferred to or litigated in any other court.
Recovery of Costs and Fees. The parties agree that if Agent or HS brings an action to enforce any provision of this Agreement, including any suit by HS seeking injunctive relief to enforce the restrictive covenants set forth herein, the prevailing party shall be entitled to recover from the non- prevailing party any and all reasonable costs, expenses and attorneys’ fees incurred to enforce such claim. To be clear, HS shall be considered the prevailing party in any claim seeking injunctive relief if it is determined by a trier of fact that Agent violated any part of the restrictive covenants set forth above, even if such violation constitutes less than 100% of the claims alleged against Agent in any pleading filed by HS.
Assignment. This Agreement only benefits and is binding on the parties and their respective subsidiaries, successors and permitted assigns provided that you may not assign your rights or duties under this Agreement without the express prior written consent with the other parties. HS may assign any rights or duties that it has, in whole or in part, to its affiliates and subsidiaries without your consent.
No Third–Party Beneficiaries. The Services provided by HS and described herein are being provided only to Agent. No other person or entity is, nor is intended to be, a third-party beneficiary under this Agreement. HS is assuming no duty to protect any other persons or entities or their property. HS shall not be liable to any persons not a party to this Agreement for any bodily injuries, including death, or property damage or loss, unless solely caused by HS, nor shall it be liable for indemnity or contribution in favor of any person or entity against whom such a claim is brought.
Waiver. The failure by any party to insist upon strict adherence to any provision of this Agreement on any occasion shall not be considered a waiver of any right hereunder nor shall it deprive that party of the right thereafter to insist upon strict adherence to that provision or any other provisions of this Agreement.
Survival. Agent’s obligations, covenants and duties under Paragraphs 3, 4, 5, 6, 7, 8, 13, 14 and 15 of this Agreement shall survive and continue in full force and effect after expiration or termination of this Agreement, whether such termination is by Agent or HS, and whether for cause or not for cause.
The parties state that they have read, understood and have had sufficient time to carefully read and consider the provisions of this Agreement, and having done so, agree that the restrictions set forth in this Agreement are fair and reasonable and are reasonably required for the protection of the interests of Agent and HS. The parties further acknowledge that HS has advised Agent to consult with an attorney concerning this Agreement, and that Agent has had a full opportunity to review this Agreement with an attorney.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the new “Agent”, or You, selecting “Yes” upon signing up as a Head of Security “Agent” or the date you first begin to render services to HS “Clients”, “Customers”, “End Users” or all similar references. As the Agent you are agreeing to the Agent Agreement between you, your company and Head of Security LLC.