Exhibit 10.72
CLIENT SERVICES AGREEMENT
This Client Services Agreement (Agreement) is entered into by and between ADP
TotalSource, Inc. and any of its subsidiaries or affiliates to which it may
assign this Agreement or a portion thereof (TotalSource), and
__________________________ (Client). This Agreement is effective as of 12:01
a.m. of the first day of the first payroll period for which TotalSource
processes the payroll (the Effective Date). Before entering into this Agreement,
Client provided TotalSource with information to assess whether Client was an
appropriate candidate for TotalSource's services. Client represents that the
information provided was and continues to be accurate and complete as of the
Effective Date.
Because this Agreement begins with the Effective Date, Client acknowledges that
it is solely responsible for any employment-related investigation, demand,
claim, and/or litigation that existed, accrued, or relates to facts or
circumstances which occurred before the Effective Date. Client acknowledges that
such responsibility includes, but is not limited to, payment of attorney's fees,
investigation costs, damages, liability, or similar charges, costs, or expenses,
and that the LEGAL DEFENSE BENEFIT, SECTION (11), is not available under these
circumstances.
(1) THE PARTIES' RELATIONSHIP WITH EACH OTHER AND WITH THE WORKSITE EMPLOYEES.
The parties intend to create an arrangement so that TotalSource, as the
Professional Employer Organization (PEO), can provide human resources Services
(defined in SECTION (5)) to Client (the PEO Relationship). In the PEO
Relationship the parties share in certain responsibilities and allocate such
responsibilities among each other as described in this Agreement. With respect
to the allocation of responsibilities regarding the Worksite Employees (Worksite
Employees is defined in SECTION (2)), TotalSource will have sufficient authority
so as to maintain a right of direction and control over Worksite Employees
assigned to Client's location, and will retain the authority to hire, terminate,
discipline, and reassign Worksite Employees. Client will, however, retain
sufficient direction and control over the Worksite Employees as is necessary to
conduct Client's business and without which Client would be unable to conduct
its business, discharge any fiduciary responsibility that it may have, or comply
with any applicable licensure, regulatory, or statutory requirement of Client.
Client's authority includes the right to accept or cancel the assignment of any
Worksite Employee. Additionally, Client will have sole and exclusive control
over the day-to-day job duties of Worksite Employees and over the job site at
which, or from which, Worksite Employees perform their services. Client
expressly absolves TotalSource of liability which results from control over the
Worksite Employee's day-to-day job duties and the job site at which, or from
which, Worksite Employees perform their services. Further, Client retains full
responsibility for its business, products, and services, worksite premises,
property, and any actions by any third party, contractor, independent contractor
or non-Worksite Employee. Client acknowledges that TotalSource has the right to
retain and reassign a Worksite Employee who has been terminated by Client.
(2) EMPLOYMENT OF THE WORKSITE EMPLOYEES; NON-SOLICITATION OF EMPLOYEES. The
term "Worksite Employees" means individuals hired by TotalSource and assigned to
Client's worksite, after the individuals have satisfactorily completed
TotalSource pre-employment paperwork; and background screen(s), as necessary.
Client agrees to submit to TotalSource the completed TotalSource pre-employment
paperwork no later than two (2) business days after the date Client selects the
person for employment as a Worksite Employee. The term excludes 1) those
employees hired by TotalSource to perform services for TotalSource and not
assigned to any Client's worksite (i.e., TotalSource Corporate Employees), and
2) independent contractors or individuals who may be providing services to
Client through any other arrangement entered into solely by Client. TotalSource
will notify all Worksite Employees in writing about the PEO arrangement at the
beginning and end of this Agreement. During this Agreement, both Client and
TotalSource will employ each Worksite Employee. This Agreement does not change
the underlying employment relationship between any Worksite Employee and Client
that existed prior to or may be created after the Effective Date. Further, this
Agreement does not create any rights for any Worksite Employee that did not
previously exist (e.g., creating an employment contract with the Worksite
Employee). Any responsibility and/or liability with regard to any employment
contracts, including agreements for severance, commissions, vacation, paid time
off accruals, and bonus payments (Employment Agreements) between Client and any
Worksite Employee remains the exclusive responsibility and liability of Client
(such as the negotiation, performance, compliance, interpretation, renewal,
enforcement, and termination of such Employment Agreements). TotalSource's
involvement with respect to any Employment Agreement is limited to processing
Worksite Employee payroll in conformity with information provided by Client.
Client agrees not to solicit for employment, directly or indirectly, TotalSource
Corporate Employees during this Agreement and for a period of one year
subsequent to the termination of this Agreement. TotalSource agrees not to
solicit Client's Worksite Employees to become TotalSource Corporate Employees,
directly or indirectly, during this Agreement and for a period of one year
subsequent to the termination of this Agreement.
(3) RESPONSIBILITIES OF THE PARTIES; MUTUAL DUTY TO COOPERATE. (3)(A) GENERAL
PROVISIONS. In recognition of the effort necessary to provide the services
described in this Agreement, both parties agree to cooperate with each other.
The parties acknowledge that the duty to cooperate is a material term of this
Agreement. TotalSource agrees to inform Client about potential and actual
employee issues as they arise to the extent TotalSource knows about the issues.
The duty to cooperate survives the termination or expiration of this Agreement
if there is an employment-related claim, demand, or litigation based on a cause
of action that arose during this Agreement. The duty to cooperate does not apply
to any claim in which the parties are litigating against each other.
(3)(B) SPECIFIC DUTIES: Client agrees that it will cooperate with TotalSource as
reasonably necessary, including but not limited to the specific duties described
below.
(3)(B)(1) REPORTING TO TOTALSOURCE. Promptly upon the occurrence or discovery of
the information, Client agrees to accurately inform TotalSource about issues
relating to the Worksite Employees, including hours worked; complaints,
allegations, threats, or incidents of tortious misconduct, or workplace safety
violations; work-related injuries or accidents; change in job functions and
duties; any misclassifications regarding workers' compensation; change in
worksite safety exposure; union organizational activities; claims of harassment
or unfair treatment; or any employment-related claims (whether oral or written),
charges, lawsuits, governmental investigations or audits, etc., involving the
Worksite Employee(s) whether threatened or filed against TotalSource, Client, or
both parties. Client also agrees to timely and accurately inform TotalSource
about Worksite Employee changes in status such as leaves of absences, reduction
in hours from full time to part time, new hires, and terminations.
(3)(B)(2) COOPERATION WITH TOTALSOURCE. Client agrees to cooperate with
TotalSource in addressing employee issues, including but not limited to,
implementing policies and procedures recommended by TotalSource, participating
in employment-related investigations, providing training to Worksite Employees
regarding employment issues (e.g., anti-harassment, diversity, etc.), assisting
in resolving employee complaints and/or in the defense of employment-related
claims, and taking the steps required for workplace safety, etc.
(3)(B)(3) ACCESS TO THE WORKSITE(S) AND INFORMATION. Client agrees to give
TotalSource (or its designated agents) reasonable access to the worksite(s), and
to Worksite Employees information, data, files, etc. Client agrees that
TotalSource has the right to audit such information and to periodically examine
the premises.
(3)(B)(4) CONSULTING WITH TOTALSOURCE. Client agrees to consult with TotalSource
before taking any employment action, including but not limited to, hiring,
firing, promoting, etc. (whether oral or written) regarding any Worksite
Employee.
(3)(B)(5) PROVIDING NOTICE TO TOTALSOURCE. Client agrees to give TotalSource ten
(10) days' written notice before (a) making an assignment for the benefit of
creditors, (b) filing for relief under the U.S. Bankruptcy Code, or (c) seeking
the appointment of a receiver. Client agrees that it will give TotalSource at
least ten (10) days' written notice before a notification under the federal
Worker Adjustment and Retraining Notification Act (WARN) or comparable state
laws (e.g., plant closing or massive layoff) is required to be given by Client
to the Worksite Employees. Client acknowledges that it assumes all liability and
costs associated with the failure to provide TotalSource with sufficient notice
so that TotalSource may give the Worksite Employees any required notices.
(4) CONFIDENTIALITY; PROPRIETARY INFORMATION; INTELLECTUAL PROPERTY, AND
PRIVACY. (4)(A) GENERAL PROVISIONS. The parties agree to the mutual duty to
maintain the confidentiality of the information of the other. The parties agree
that each will treat confidentially any information identified by the other as
being confidential, proprietary, and/or trade secrets (Confidential Information)
and to maintain the confidentiality of the Confidential Information with the
same degree of care that each party treats its own Confidential Information,
which will be no less than commercially reasonable care. The parties will also
cause their employees, officers, directors, owners, and affiliates that receive
Confidential Information to comply with this confidentiality provision. The
parties agree not to disclose Confidential Information to any third party
(except for those attorneys, accountants, and other representatives with a
need-to-know, provided that the disclosing party will cause the third party to
comply with the confidentiality obligations contained in this Agreement to the
same extent as applicable to the disclosing party) unless a more stringent
standard is required by law, in which case the more stringent standard will
apply. The parties agree that this Agreement and all TotalSource materials used
to perform the duties of this Agreement are Confidential Information. Each party
agrees to implement and maintain commercially reasonable measures to physically
and electronically protect Confidential Information, as applicable. Upon
termination of this Agreement, Client agrees to promptly return to TotalSource
all of TotalSource's Confidential Information and intellectual property
described in SUBSECTION (4)(B)(2) below. If this Agreement is terminated or
expires, this provision survives for five (5) years after such event or until
the Confidential Information becomes known to the general public. Confidential
Information does not include information already in the public domain. It will
not be a breach of this Agreement to provide Confidential Information pursuant
to a court order, government investigation, or subpoena provided only the
specifically required Confidential Information is disclosed. The parties
specifically acknowledge that money damages alone may not be an adequate remedy
for any damage suffered as a result of a breach of this provision and,
therefore, an injunction or similar relief may be appropriate to enforce this
provision.
(4)(B)(1) CLIENT'S INTELLECTUAL PROPERTY. The parties acknowledge that Client is
the owner of any intellectual property rights existing before or created by the
Worksite Employee(s} during this Agreement relating to Client's business,
including inventions, patents, copyrights, and trade secrets. Client, as owner
of the intellectual property, is responsible for ensuring such property is
protected and is responsible for the payment of any associated costs.
(4)(B)(2) TOTALSOURCE'S INTELLECTUAL PROPERTY. Client acknowledges that all
computer programs, hardware, including time clocks, P.C. entry systems, and
related documentation TotalSource makes available to Client (TotalSource
Products) are Confidential Information and are the exclusive property of
TotalSource or any third party from which TotalSource has secured the right to
use such products. TotalSource and/or such third parties own all right and title
to all copyrights, trademarks, service marks, trade secrets, and other
proprietary rights in their applicable logos, product names, and TotalSource
Products. TotalSource grants Client a personal, non-exclusive, non-transferable
license for the term of this Agreement to any application program included in
the TotalSource Products (the Application Programs) provided that it is only
used for Client's business and only for the term of this Agreement. Client
acknowledges that it has no interest in the Application Programs except the
license granted under this Agreement. At no additional cost unless otherwise
indicated in this Agreement or any attachments, TotalSource will provide,
subject to the license described in this Section, Client with all improvements,
enhancements, modifications, and updates to the Application Programs if and as
they are made generally available by TotalSource. Client agrees to use the
current release of the TotalSource Products on the hardware indicated by
TotalSource. Client agrees not to make any alteration, change, or modification
to any of the TotalSource Products or Application programs. Client agrees not to
recompile, decompile, disassemble, reverse engineer, or make or distribute any
other form of, or any derivative work from the TotalSource Products or
Application Programs. Client may Copy the TotalSource Products for back-up
purposes only.
(4)(B)(3) PRIVACY. TotalSource and Client agree to abide by all applicable
privacy laws with respect to information regarding the Worksite Employees and
information of each other, which is subject to such privacy laws, including
information not deemed to be Confidential Information pursuant to SECTION (4)(A)
above.
(5) TOTALSOURCE'S SERVICES AND RESPONSIBILITIES. TotalSource will provide Client
and the Worksite Employees with human resources Services, maintenance of
Worksite Employee records, and related administrative Services described in this
SECTION (5) SERVICES. To provide the Services and fulfill the responsibilities
described in this Section, Client agrees that it must provide TotalSource with
the necessary information and ability to furnish such Services or fulfill such
responsibilities as required in SECTIONS (3), MUTUAL DUTY TO COOPERATE AND (6),
CLIENT'S RESPONSIBILITIES. Client acknowledges that TotalSource's provision of
its Services is dependent upon the completeness, accuracy, and timeliness of the
information that Client provides to TotalSource.
(5)(A) TOTALSOURCE'S RESPONSIBILITY REGARDING THE PAYMENT OF WAGES. As the PEO,
TotalSource assumes responsibility for paying wages to Worksite Employees
without regard to payment by Client to TotalSource. TotalSource also assumes
full responsibility for the collection and payment of payroll taxes on the
Worksite Employees' compensation. Notwithstanding anything in this Agreement to
the contrary, TotalSource will not be responsible for paying wages to Worksite
Employees that relate to severance, bonuses, commissions, vacation time off
accrual programs, incentives, or other comparable forms of compensation
(Nonstandard Wages) in the event Client fails to make payment to TotalSource for
the appropriate amounts of the Nonstandard Wages.
(5)(B) TOTALSOURCE'S GUIDANCE REGARDING EMPLOYMENT PRACTICES. TotalSource will
provide Client guidance regarding commercially accepted human resource practices
and compliance with the various federal, state, or local employment laws, such
as anti-discrimination laws (e.g., Title VII, the Americans with Disabilities
Act (ADA), the Pregnancy Discrimination Act, the Equal Pay Act, the Age
Discrimination in Employment Act, etc.); the Fair Labor Standards Act. (FLSA);
the Immigration and Nationality Act and the Immigration Reform and Control Act
as it applies to completion of the 1-9 forms and employer sanctions, the
Consumer Credit Protection Act; and the Family and Medical Leave Act (FMLA).
Client acknowledges that TotalSource does not provide such guidance with respect
to international laws. Client understands and acknowledges that any guidance is
not intended to be and does not constitute legal advice.
(5)(C) WORKERS' COMPENSATION COVERAGE. During this Agreement, TotalSource will
maintain workers' compensation coverage for each Worksite Employee in accordance
with the laws of the states in which TotalSource provides services under this
Agreement. TotalSource is also responsible for the management of workers'
compensation claims, claims filings, and related procedures.
(5)(D) EMPLOYEE BENEFITS. (5)(D)(1) GROUP HEALTH AND OTHER RELATED BENEFITS. Any
group health and other related benefits (e.g., dental, vision) the parties
decide to offer the Worksite Employees through a TotalSource sponsored plan are
described on the Employee Benefit Addendum. Worksite Employees offered such
benefits must meet the eligibility requirements under the applicable plan and
governing laws. TotalSource will provide COBRA benefits to those eligible
Worksite Employees after the Effective Date and will include Client's
pre-Effective Date COBRA participants with COBRA benefits provided the following
conditions are met: a) the participants were eligible and covered under Client's
plan on the day before the Effective Date, b) all of Client's employees become
Worksite Employees, c) Client terminates the group health plan covering these
employees, and d) the Worksite Employees immediately thereafter become covered
under a TotalSource-sponsored group health plan. Such coverage will be in
accordance with the COBRA rules. If these conditions are not met, Client
continues to be responsible for providing COBRA coverage to these individuals.
Client agrees that, if a Worksite Employee is on a leave of absence or not
earning sufficient wages to cover the benefits deductions. Client agrees to pay
the costs associated for those benefits and any additional benefits not
otherwise paid through wages. Upon termination of the Agreement and after Client
has obtained comparable replacement coverage for the Worksite Employees, which
Client Agrees to provide under SECTION(10)(A), TotalSource will cease providing
COBRA coverage.
(5)(D)(2) QUALIFIED PLANS (401(K) PLAN). Any 401(k) plan the parties decide to
offer to the Worksite Employees is described on the 401(k) Adoption Agreement.
If Client offers equity-based compensation plans (e.g., stock option or employee
stock purchase plan) to the Worksite Employees, the responsibilities associated
with those plans will be described in the Equity-Based Compensation Plan
Addendum.
(5)(E) WORKSITE SAFETY. TotalSource agrees to provide Client with guidance
regarding the Occupational Safety and Health Act (OSHA) and comparable state or
local laws, regulations, or ordinances with respect to the Worksite Employees.
TotalSource retains a right of direction and control over the management of
safety, risk, and hazard control at the worksite affecting the Worksite
Employees, including responsibililty for performing safety inspections of Client
equipment and premises, and promulgating employment and safety policies. Client
acknowledges that TotalSource is not responsible for providing such Services as
it relates to Client's guests, invitees, independent contractors, or other third
parties.
(5)(F) THE NATIONAL LABOR RELATIONS ACT. TotalSource agrees to provide human
resource guidance regarding the National Labor Relations Act except as it
relates to organizational efforts by a union, negotiating a collective
bargaining agreement (CBA), the processing of grievances or arbitrations under a
CBA, and handling unfair labor practice charges. The parties acknowledge that
Client exercises control over the primary terms and conditions of employment
and, therefore, would be the sole party to any CBA in the event one is
negotiated. TotalSource acknowledges that any union certified as the Worksite
Employees' representative is the exclusive bargaining representative for that
particular group of Worksite Employees, and TotalSource will not interfere with
the bargaining relationship. Although TotalSource is not and will not be a party
to any CBA between Client and a union, during this Agreement, TotalSource will
not interfere with the terms and conditions of any valid CBA whether in
existence before or after the Effective Date.
(5)(G) EMPLOYMENT PRACTICES LIABILITY INSURANCE. TotalSource agrees to provide
an Employment Practices Liability (EPL) insurance policy with an endorsement
that extends coverage to Client for claims brought by a Worksite Employee
against Client alleging wrongful employment practices, as defined in the policy.
Client's coverage is subject to annual aggregate limits (including limits
applicable to claims in the aggregate made by all TotalSource clients and
against TotalSource) and deductibles, among other terms and conditions contained
in the policy. The terms of the EPL insurance policy govern the rights of the
parties in the event there is a conflict between this Agreement and the policy.
TotalSource reserves the right to change the EPL policy terms, cancel, and/or to
decide to self-insure any EPL coverage after notifying Client.
(6) CLIENT'S RESPONSIBILITIES. Client agrees that it is responsible for
complying with the laws affecting or regulating its business, Worksite
Employees, independent contractors, etc. Client recognizes that TotalSource's
provision of Services does not relieve Client of responsibility and liability
for those matters over which it has control. Client also understands that there
may be laws that apply because of the PEO arrangement with which Client must now
comply (e.g., FMLA). Given that possibility, Client agrees to comply with those
laws.
(6)(A) FOLLOWING TOTALSOURCE'S POLICIES AND PROCEDURES. Client agrees to (i)
follow TotalSource's policies and procedures pertaining to the Worksite
Employees, such as those relating to worksite safety, requests for leave,
workers' compensation injuries, terminations, etc.; (ii) pay for the expense
associated with background checks as set forth in the Pricing Addendum; and
(iii) use TotalSource-provided employment forms.
(6)(B) WAGE AND HOUR LAWS. Client is responsible for setting the level of wages
to be paid at or above the applicable minimum wage and/or salary requirements.
Client agrees to (i) provide TotalSource with complete and correct information
regarding hours worked, job classifications, exempt and non-exempt status, and
other data needed to compute accurately wages, taxes, etc.; (ii) collect,
verify, and transmit to TotalSource's administrative office not less than three
(3) business days before each payroll date any information required to determine
accurately the amount due to the Worksite Employees and TotalSource; and (iii)
promptly make any necessary corrections to correct a violation of the FLSA or
comparable state laws. Client acknowledges that it remains responsible for
compliance with the FLSA.
(6)(C) COMPLIANCE WITH THE ADA AND OTHER COMPARABLE LAWS. Because the ADA and
comparable laws impose affirmative obligations on employers to provide a
reasonable accommodation to a qualified individual with a disability and to make
a public facility reasonably accessible, Client is responsible for complying
with these laws and associated costs. Client acknowledges that it, and not
TotalSource, is responsible for complying with Title III of the ADA (i.e.,
public access to facilities).
(6)(D) WORKERS' COMPENSATION. Client agrees to immediately inform TotalSource of
all workplace accidents, injuries, and workers' compensation code
misclassifications. To contain the cost of workers' compensation insurance,
Client agrees to participate in a modified duty program. Modified duty, light
duty, or transitional work are terms used to describe the type of work an
injured employee is able to perform within the physical limitations set by an
authorized treating physician. Client agrees that, during this Agreement, it
will not employ anyone not covered by this Agreement (e.g., non-Worksite
Employees) without TotalSource's knowledge. Client agrees that, if it hires
non-Worksite Employees, it will obtain full workers' compensation coverage (or
in the case of contracting with independent contractors. Client will require its
independent contractors to enter into independent contractor agreements with
Client and to maintain workers' compensation coverage). Under these
circumstances, Client also agrees to provide TotalSource with a certificate
naming it as a certificate holder, obtain a labor contractor endorsement (or the
equivalent) in favor of TotalSource, and require that Client's insurer notify
TotalSource in advance of any termination of coverage.
(6)(E) WORKSITE SAFETY. If Client is mandated by law, is required by
TotalSource, or elects to participate in TotalSource's drug-free workplace
program, then Client agrees to comply with the TotalSource Drug-Free Workplace
Policy. Because Client controls the worksite, Client agrees to pay for, provide,
and ensure the Worksite Employee's use of any equipment required by law or
reasonably required by TotalSource or its insurers for worksite safety. Client
acknowledges that although TotalSource provides Services to Client regarding
worksite safety as indicated in SECTION (5)(E), Client, as the worksite
employer, remains responsible for the safety of the Worksite Employees at the
worksite(s) from which work is performed. Client agrees to immediately notify
TotalSource of any unsafe working conditions. If TotalSource informs Client of
an unsafe working condition or a violation of any applicable law or if Client
becomes aware of such an event. Client agrees to take the necessary steps to
rectify the unsafe condition or correct the violation. If the unsafe condition
or violation of law presents an imminent danger of death or serious physical
injury, Client agrees to immediately cease such activity or rectify such
condition. Client's failure to take such action constitutes Cause as defined in
Term; Termination, SECTION(10). Client agrees that it will maintain commercially
reasonable security measures to protect the Worksite Employees. Client
acknowledges that it is solely responsible for Workplace Safety as it relates to
Clients' invitees, guests, independent contractors, or other third parties.
(6)(F) THE NATIONAL LABOR RELATIONS ACT. Client acknowledges that it is solely
responsible for deciding whether to operate as a union or a non-union business
as well as being involved with a union organizing campaign and/or election,
negotiating a CBA, and the processing of grievances and arbitrations under a
CBA, as applicable. If Client is a signatory to a CBA or becomes a signatory
during this Agreement, Client acknowledges that it and the applicable union(s)
will be required to enter into a Memorandum of Understanding with TotalSource.
Client agrees that it has the sole responsibility for making or paying
contributions to any multiemployer pension and/or welfare plan to which it may
have agreed or will agree to make pursuant to a CBA. The parties agree that
TotalSource is not and will not become a paying entity or contributing employer
within the meaning of the Multiemployer Pension Plan Amendment Act (the Act) and
does not and will not have any withdrawal liability under the Act or comparable
law.
(6)(G) WORKSITE EMPLOYEES' PERFORMANCE. Client acknowledges that TotalSource
does not direct, supervise, or control the day-to-day operations of Client's
business and, therefore, cannot guarantee the performance of the Worksite
Employees. Client is responsible for ensuring that a Worksite Employee is
licensed of supervised by a licensed individual as required by law. Client will
pay for the costs associated with obtaining such license and assumes
responsibility if the Worksite Employee is not properly licensed. Further,
because Client controls its business affairs, it acknowledges that TotalSource
is not responsible for any loss of revenue, product, or business; any loss due
to the misuse, destruction, misappropriation, theft, conversion, or embezzlement
of personal, real, or intellectual property of Client or its customers; or any
injury to Client or a third party due to any act or omission of a Worksite
Employee.
(6)(H) INSURANCE. During this Agreement, Client agrees to maintain (i)
commercial general liability Insurance coverage for all premises, completed
operations, and products which relate to the Worksite Employees, including
blanket contractual liability coverage or contractual liability coverage
specifically covering this Agreement; (ii) comprehensive automobile liability
insurance (including any personal injury protection required by any applicable
state's "no-fault" laws) covering bodily injury and property damage resulting
from a Worksite Employee's use of Client-owned, non-owned, or hired vehicle;
(iii) any specialized liability insurance pertaining to the nature of Client's
business (e.g., marine liabilitiy insurance) as is customary for Client's
industry or as required by law; and (iv) employee dishonesty (fidelity) and
computer crime coverage (for losses arising out of or in connection with any
fraudulent or dishonest acts committed by Worksite Employees, acting alone or in
collusion with others). Client agrees that it will obtain the above insurance
policies with a minimum limit of $500,000 per occurrence (or such other amounts
as TotalSource reasonably requires), which names TotalSource as an additional
insured, and gives TotalSource thirty (30) days' written notice before
cancellation. All such insurance coverage will
be primary in the event of an occurrence for which both Client and TotalSource
have insurance coverage, and any TotalSource insurance will be excess and
non-contributory. Client agrees to give TotalSource a certificate of insurance
indicating the above coverage when TotalSource reasonably requests. Client also
agrees that it will not permit any of its insurers to materially modify the
terms of any insurance discussed above without TotalSource's prior written
consent.
(6)(I) IMMIGRATION LAWS. Client acknowledges that it will be the sponsoring
employer for purposes of petitioning or applying for immigration visas for the
employment of an alien selected for hire as a Worksite Employee. Client further
acknowledges that it is responsible for appropriately completing and retaining
Form I-9 from each Worksite Employee in accordance with TotalSource policies and
procedures. Because of the legal complexities, Client understands that it is
responsible for obtaining or maintaining any necessary visas and associated
costs. In the event of a government I-9 investigation, Client agrees to
immediately provide TotalSource with original I-9 Forms so that TotalSource may
respond to such government investigation on a timely basis.
(6)(J) WORKSITE EMPLOYEES WORKING IN OTHER STATES; WORKSITE EMPLOYEES WORKING IN
OTHER COUNTRIES. Client agrees to inform TotalSource of the states in which
Client has worksites and in which Worksite Employees will be based to perform
work. Client agrees to abide by applicable state laws in which Worksite
Employees perform work, including but not limited to the specific state laws
indicated in the Multi-State Addendum. Client agrees that it will not assign any
Worksite Employees to work outside of the United States in excess of a
three-month period, in the aggregate, in any year. Client acknowledges that
Worksite Employees working in other countries for periods greater than three
months, in the aggregate, in any given year, cannot participate in the PEO
Relationship and will not be covered by this Agreement. Because the laws of
other countries are so varied and so unique, Client acknowledges that
TotalSource will not provide its employment practices guidance Services to
Worksite Employees while the Worksite Employees are working in other countries.
(6)(K) WORKSITE EMPLOYEES WORKING AT LOCATIONS NOT OWNED BY CLIENT; OTHER
EMPLOYERS. Client agrees that regardless of where the Worksite Employees are
assigned to perform work, Client continues to be responsible for the safety of
the Worksite Employees in accordance with this Agreement. Client agrees that it
will not assign or permit any Worksite Employee to work at any unsafe worksite
at any time. Client further agrees that it will not assign any Worksite
Employees to work as an employee for any other company, even if such company is
within the same control group of Client, unless TotalSource consents to such
assignment in writing.
(6)(L) EMPLOYMENT TAXES. Client agrees not to make any taxable payment of any
kind, except profit sharing or pension plan distributions pursuant to the terms
of a qualified plan, to any Worksite Employee without TotalSource's consent.
Notwithstanding the above, Client agrees that it is solely responsible for
reporting compensation and taxes associated with any equity-based compensation
plans, including stock options or employee stock purchase plans.
(6)(M) INTERNET USAGE OF TOTALSOURCE WEBSITE; ACCESS; SECURITY; ELECTRONIC
TRANSMISSION OF INFORMATION. TotalSource makes available to Client and Worksite
Employees various internet products (e.g. electronic payroll reporting and
production of payroll reports) to enable Client and Worksite Employees to more
efficiently access desired human resources related information and provide
applicable information to TotalSource as part of the PEO Relationship. With
respect to Client's use of TotalSource's suite of internet products, Client
agrees that it is responsible for (i) the accuracy and completeness of the
information it provides to TotalSource; (ii) designating which Worksite
Employees will have the authority and ability to access and change information
regarding Client and the Worksite Employees; (iii) providing virus free
transmission of information; (iv) maintaining the privacy of the content
accessed by Client; (v) maintaining the privacy of user I.D.s, passwords, and
security keys, as applicable; (vi) informing TotalSource immediately of any
security breaches in the transmission or accessing of information; and (vii) the
proper usage of the TotalSource software applications. Client acknowledges that
TotalSource is not responsible for any breaches of security or interceptions of
information occurring by third parties or Worksite Employees.
(6)(N) SELF EMPLOYED INDIVIDUALS; CLIENT NON-EMPLOYEE OWNERS. Client agrees to
identify all Self Employed Individuals (SEIs) to TotalSource, which include but
are not limited to, partners, Limited Liability Company members, and 2% or more
owners of 5-Corporations, and acknowledges that all such SEIs will be required
to sign SEI forms providing TotalSource with the information necessary to
process payroll and acknowledging the respective individual tax responsibility
of such SEIs. Client acknowledges that any individual owners of Client who do
not work on behalf of Client as full time employees of Client (Non-Employee
Owners), may not participate in the PEO Relationship with TotalSource, may not
receive any of TotalSource's Services, and will not be considered Worksite
Employees covered by this Agreement.
(7) PAYMENT. (7)(A) PAYMENT AMOUNT. Client agrees to pay TotalSource the
amount(s) specified in the Pricing Addendum. TotalSource agrees that it will not
adjust the pricing for the first year of this Agreement, except for the portion
of the fee relating to employee benefits and the portion of the fee relating to
state and federal taxes. With respect to the benefits portion of the fee,
benefits will always adjust in accordance with the benefit plan or insurance
policy renewal or anniversary date. With respect to the state and federal tax
portion of the fee, (e.g. state unemployment insurance), the fee may be adjusted
in accordance with state and federal increases, as applicable. Thereafter, the
pricing may be adjusted with thirty (30) days' written notice. Client
acknowledges that TotalSource retains any Section 125 savings as part of its
service fee. Client acknowledges that, if TotalSource consents to the hiring of
new individuals who should be classified in workers' compensation codes not
previously listed, the pricing will be adjusted accordingly. TotalSource retains
the discretion to adjust the price if the information Client gave before
executing this Agreement (e.g., gross payroll, workers' compensation
classification codes, etc.) changed from the time TotalSource gave Client a
quote. In the event a Worksite Employee is discovered to be misclassified by
either TotalSource or Client, TotalSource will adjust the price in accordance
with the appropriate class code change on a prospective basis only. If a
misclassification is due to the gross negligence or willful misconduct of either
party, TotalSource will adjust the price in accordance with the appropriate
class code change retroactive to the beginning of the policy year in effect at
the time of the misclassification correction.
(7)(B) PAYMENT TERMS. Client agrees to pay TotalSource's invoice no later than
forty-eight (48) hours before Client's regularly scheduled payroll. Client
agrees to pay by Automatic Clearing House (ACH) debit transfer and agrees to
complete the necessary forms so that payment may be processed in this fashion.
TotalSource, in its sole discretion, may require Client to pay the invoice
through certified or cashier's check, or cash on delivery (COD) or other means.
Client agrees to have sufficient funds in its designated bank account to satisfy
any amounts then due to TotalSource and hereby provides TotalSource with a
security interest in such funds. Client also agrees that any deposit provided to
TotalSource with respect to this Agreement is provided with a security interest
to TotalSource in such deposit. Client acknowledges that any amounts earned on
such funds held by TotalSource belong to TotalSource. Client acknowledges that
it is responsible for all taxes, if any, arising out of the execution and
performance of this Agreement. Any amount not paid when due accrues interest
from the date due at a rate of 1 1/2% per month (but not to exceed the maximum
allowable by law). Client agrees that, if it fails to pay an invoice when due,
TotalSource has the discretion to pay Client's owners and/or officers the FLSA
or state minimum wage or salary instead of the regular wage or salary.
(8) MISCELLANEOUS PROVISIONS. (8)(A) THE PARTIES' AUTHORITY TO EXECUTE THIS
AGREEMENT. The parties represent that each is a legal entity authorized to
conduct business in the state where the services of this Agreement will be
performed and that the officers who sign on behalf of the party are duly
authorized to enter into this Agreement.
(8)(B) THE SCOPE OF CLIENT'S AUTHORITY. The parties acknowledge that neither is
an agent of the other. Each agree that it will not hold itself out as an agent
of the other, directly or indirectly. Neither party is authorized to bind the
other in any fashion (either through representations or actions) unless such act
is specifically authorized and ratified by the other in writing. However, Client
acknowledges and agrees TotalSource may act on the behalf of Client as
contemplated by this Agreement.
(8)(C) ASSIGNMENT; ACQUISITIONS BY CLIENT; THIRD PARTY RIGHTS. This Agreement is
a personal services contract and is not transferable or assignable by Client
without TotalSource's written consent. Client cannot assign the services of a
Worksite Employee to anyone without TotalSource's prior written consent. For
purposes of this Agreement, a merger or acquisition of Client will constitute a
transfer. If Client merges with another entity, is acquired by another company,
or undergoes a change of control, TotalSource may immediately terminate this
Agreement or may continue providing Services pursuant to this Agreement. In its
determination of whether to
continue providing Services, TotalSource may require the new entity(ies), as
applicable, to undergo an evaluation process, including but not limited to
creditworthiness. If TotalSource decides to continue to provide its Services to
Client under the new corporate structure of Client, TotalSource may require the
new entity(ies), as applicable, to sign a new Client Services Agreement and/or
guarantee payment to TotalSource. In the event Client determines not to continue
its relationship with TotalSource, notwithstanding anything in this Agreement to
the contrary, Client will continue to be obligated under SECTION (10) to provide
TotalSource with the proper notice of its intent to terminate. The parties
acknowledge that the performance of the Services contemplated by this Agreement
may be done by any of TotalSource's subsidiaries or affiliates as TotalSource
deems appropriate. In the event that any law or regulation requires an
assignment of this Agreement or a portion thereof, Client consents to such
assignment to the applicable TotalSource subsidiary or affiliate performing the
Services contemplated by this Agreement or a portion thereof. This Agreement is
for the mutual benefit of the parties and does not create rights of any kind in
any third party.
(8)(D) INTEGRATION; MODIFICATION; WAIVER. This Agreement constitutes the entire
agreement between the parties regarding the subject matter contained in this
Agreement and supersedes any other agreement between them, whether oral or
written. Any modification to this Agreement must be in writing and signed by the
party against which enforcement is to be sought. Failure by either party to act
when required or to claim a breach of any provision of this Agreement will not
be construed as a waiver of any subsequent breach.
(8)(E) REMEDIES NOT EXCLUSIVE; SEVERABILITY. The rights and remedies provided by
this Agreement are not exclusive. Either party is entitled to any rights or
remedies created by law (whether currently existing or created in the future) as
well as those contained in this Agreement. Institution of an action to collect
payment of an amount in default at law or the obtaining of a judgment in such
action shall not be deemed to be an election of remedies by TotalSource. Such
action will not prevent TotalSource from pursuing other remedies available to it
at law or in equity. Should any part of this Agreement be held to be invalid or
unenforceable, the balance of this Agreement remains in force and stands as if
the unenforceable part did not exist.
(8)(F) GOVERNING LAW. This Agreement is governed by, and shall be construed in
accordance with, the laws of Florida, both substantive and remedial, without
reference to the choice of law principles. All suits and special proceedings
arising out of this Agreement must be brought in the courts in and for
Miami-Dade County, Florida. Each party agrees to the exercise of personal
jurisdiction by any court of competent jurisdiction described above.
(8)(G) ATTORNEY'S FEES AND COSTS. In the event of any litigation arising out of
or related to this Agreement, the prevailing party shall be entitled to an award
of reasonable attorneys' fees and costs incurred at all trial and appellate
levels.
(8)(H) ATTACHMENT; COUNTERPARTS; NOTICE; CAPTIONS. Any Addendum described in
this Agreement is specifically incorporated into and made a part of this
Agreement. This Agreement may be executed in two or more counterparts, each of
which will constitute an original but taken together constitute an entire
agreement. Any notice by this Agreement shall be delivered to TotalSource and to
Client at the respective address and person designated below. The captions in
this Agreement are provided for convenience only and are not part of the terms
and conditions of this Agreement.
(8)(I) SURVIVAL. No termination or expiration of this Agreement affects or
impairs any obligations, duties, indemnities, and liabilities of either party
that, by their nature continue beyond termination, or the rights of TotalSource
relating to any unpaid obligations. Such obligations, duties, indemnities, and
liabilities shall not terminate or expire, but rather survive such termination
or expiration and continue in full force and effect until the longer of (i) such
time as all the obligations have been paid in full, or (ii) such time as is
expressly provided in this Agreement.
(8)(J) FORCE MAJEURE. Except for the payment of fees responsibilities under
SECTION (7), neither party will be liable for its failure to perform under this
Agreement due to: fire, war, acts of God, civil disturbances, terrorism, acts of
civil or military authorities, fuel or energy shortages or power failures.
(9) INDEMNIFICATION. (9)(A) GENERAL PROVISIONS. The parties agree that the
indemnification provisions contained in this Section apply to claims, expenses,
or liabilities for which one of the parties is solely liable and/or for which
the parties are jointly liable. In the event of joint liability, if either party
pays funds in connection with a claim, expense, or liability which is subject to
the indemnification provision in excess of its pro-rata share, the other party
will indemnify and promptly pay the other party for the excess amount. Each
party agrees to notify promptly the other of any claim or judgment to which the
indemnification provision may apply. Further, the parties agree not to settle
any claim to which the indemnity provision may apply or in which the parties are
both named without the prior written consent of the other party, which consent
will not be unreasonably withheld. Neither party will be liable to the other
party for special, incidental, consequential, or punitive damages. Each party's
indemnification provision survives the termination or expiration of this
Agreement.
(9)(B) TOTALSOURCE'S INDEMNIFICATION. TotalSource agrees to indemnify, protect,
defend, release, and hold harmless Client, its parent(s), subsidiaries,
affiliates, directors, officers, and agents from and against any and all
liability, expenses, losses, and claims for damages arising from or in
connection with (i) any actions or inactions of the Worksite Employees,
TotalSource's Corporate Employees, officers, directors, agents or independent
contractors while under TotalSource's direction, supervision, or control; (ii)
TotalSource's breach of this Agreement; or (iii) TotalSource's negligent,
fraudulent, willful, or reckless performance or non-performance of any of its
responsibilities described in this Agreement.
(9)(C) CLIENT'S INDEMNIFICATION. Client agrees to indemnify, protect, defend,
release, and hold harmless TotalSource, its parents, subsidiaries, affiliates,
directors, officers, and agents from and against any and all liability,
expenses, losses, and claims for damages arising from or in connection with (i)
actions or inactions of the Worksite Employees, Client's officers, directors,
agents, or independent contractors while under Client's direction, supervision,
or control; (ii) Client's breach of this Agreement; or (iii) Client's negligent,
fraudulent, willful, or reckless performance or non-performance of any of the
responsibilities described in this Agreement.
(10) TERM; TERMINATION. This Agreement has an initial one (1) year term starting
on the Effective Date. After the first year, this Agreement renews automatically
on its anniversary date for successive one year terms. Either party may
terminate this Agreement by giving the other party thirty (30) days' written
notice or may terminate it immediately and without prior notice for Cause, as
defined below. Cause includes non-payment of any amount when due; a material
violation of law; a breach of a material term of this Agreement; a material
adverse change in Client's financial position or operations; Client's inability
to pay its debts as they become due in the ordinary course of business; Client's
assigning Worksite Employees to operations which contain a workers' compensation
code different from that disclosed prior to executing this Agreement without
TotalSource's prior consent; filing for relief under the Bankruptcy Code;
seeking the appointment of a receiver or trustee; or dissolving the entity. Upon
termination, TotalSource has all rights and remedies available under law,
whether in law or in equity, including, but not limited to, and without further
notice or demand to Client: (i) acceleration of all obligations, together with
all accrued, unpaid charges, so that they are immediately due and payable and
may be collected immediately regardless of the due date; and (ii) to set off and
deduct any amount due from any account or deposit that Client may have with
TotalSource or other monies to which TotalSource may be entitled from Client
(including a letter of credit). Any termination shall not relieve Client of any
obligation, including but not limited to, its payment obligation to TotalSource.
(10)(A) THE PARTIES' OBLIGATIONS UPON TERMINATION. Upon termination of this
Agreement, the PEO arrangement ends. If the termination is because of breach of
Agreement for non-payment, TotalSource has the first right to offer continued
employment to the former Worksite Employees and to reassign the individuals to
another worksite. Under all other circumstances, Client has the right to offer
continued employment to the former Worksite Employees. If Client fails to
continue employment of any person, TotalSource has the right to offer continued
employment. Client agrees to immediately notify the former Worksite Employees in
writing about the termination of this Agreement and its effect, including the
change in employment status and the fact that they are no longer covered by
TotalSource's workers' compensation policy. TotalSource will cause the
termination of all insurance policies and/or endorsements covering Client and
the Worksite Employees (e.g., workers' compensation, health coverage, EPLI,
etc.). At the termination, as the sole employer, Client becomes immediately
responsible for payroll, workers' compensation,
vacation, sick leave, employee benefits, etc., for the employees. TotalSource
will provide Client with the necessary information so that it may resume full
employer responsibilities. TotalSource is not obligated to provide this
information if the termination of this Agreement is because of non-payment. As a
result of the termination, TotalSource is responsible for offering COBRA
coverage. Upon termination of this Agreement, Client agrees that it is
responsible for obtaining comparable replacement health care coverage for the
Worksite Employees and is responsible for promptly advising TotalSource when
such coverage is obtained.
(11) THE LEGAL DEFENSE BENEFIT. Because of TotalSource's belief in its services,
TotalSource provides Client with a Legal Defense Benefit whereby TotalSource
will pay for a specified amount of Client's attorney's fees exclusive of costs
(e.g., including but not limited to travel costs, mediation expenses, deposition
transcripts, filing fees, copying fees, etc.) and disbursements subject to
conditions described in this Section. The amount of the Legal Defense Benefit is
set forth in the Pricing Addendum. This benefit is NOT insurance; it is NOT
indemnification; and it is NOT to be used as a fund to settle disputes between
Client, TotalSource, and/or a Worksite Employee (former or current).
(11)(A) CONDITIONS REQUIRED TO OBTAIN THE LEGAL DEFENSE BENEFIT. To obtain the
Legal Defense Benefit, Client must meet all of the following requirements for
each claim: 1) follow TotalSource's procedures for employment practices (both in
general and for that worksite), 2) contact TotalSource before taking an
employment-related action and follow TotalSource's recommendation(s) regarding
the incident from which the claim arose, 3) comply with this Agreement in all
material respects, 4) accept TotalSource's choice of counsel, and 5) cooperate
with chosen legal counsel. If Client prefers to select its own counsel, it is
free to do so, but in that event, the Legal Defense Benefit will not be
available to cover the legal fees associated with that selection. If there is a
conflict of interest between Client and TotalSource, this benefit is not
available. Further, the Legal Defense Benefit will no longer be available if
TotalSource, in its sole discretion, determines that a reasonable settlement is
possible and Client refuses to settle. Under those circumstances, Client becomes
responsible for any attorney's fees incurred thereafter.
(11)(B) SCOPE OF THE LEGAL DEFENSE BENEFIT. If Client fulfills the above
requirements and, provided TotalSource was involved in addressing the particular
incident from which the claim arose by providing a recommendation regarding such
incident, TotalSource will pay attorney's fees up to the amount set forth in the
Pricing Addendum while this Agreement is in effect to cover an employment
practices claim filed by a current or former Worksite Employee under one of the
laws referred to in TOTALSOURCE'S GUIDANCE OF EMPLOYMENT PRACTICES, SECTION
(5)(B) based on facts or circumstances which arose during the Agreement. The
Legal Defense Benefit excludes all matters not covered by SECTION (5)(B),
including but not limited to breaches of express or implied contracts, unfair
labor practice charges, ERISA claims, etc. The Legal Defense Benefit is only
available while this Agreement is in effect and will terminate upon termination
of the Agreement. Specifically excluded from any Legal Defense Benefit are class
actions of any kind (including class actions involving matters indicated in
SECTION (5)(B)), and third party liability claims of any kind, including but not
limited to, those arising from automobile accidents and/or personal injury
litigation. The legal fees for the Legal Defense Benefit will be based on the
hourly rate that the law firm selected by TotalSource charges TotalSource.
(12) TOTALSOURCE'S SERVICE GUARANTEE. TotalSource is confident about the quality
of its Services. As a result, we make the following guarantee: if Client is not
satisfied with TotalSource's Services and Client wishes to terminate this
Agreement within the first six months of the initial Effective Date, TotalSource
will refund the fees Client paid TotalSource, excluding wages, direct expenses,
payroll taxes, employee benefits, workers' compensation costs, and other
mandatory insurance (the Refund Amount). At no cost to Client, TotalSource will
provide Client with the necessary information so that it may resume sole
employer responsibilities. This benefit is not available if Client materially
breaches this Agreement, including failure to pay. In order for Client to
receive the Refund Amount under this Service Guarantee, Client must first notify
TotalSource of the material Service failure(s) within five business days in
which Client experiences such failure(s).
(13) NOTICE PROVISION. All notices must be in writing and will be deemed to have
been duly given and received 1) on the day delivered if delivered by hand to the
addresses indicated below, 2) on the day delivered if delivered by overnight
mail, or 3) on the day of transmission to the facsimile number provided by each
party to the other or to such changed facsimile number as either party may have
fixed by notice, provided the receipt of such facsimile is confirmed by
telephone by a representative of the receiving party, if delivered by facsimile.
TotalSource and Client execute this Agreement, in their respective corporate
names by their duly authorized officers, on the __________ day of
________________________________,200________.
___________________________________ ADP TOTALSOURCE, INC.
Client Company Name
By:________________________________ By:______________________________________
Name:______________________________ Name:____________________________________
Title:_____________________________ Title:___________________________________
Address:___________________________ Address:_________________________________
City/State/Zip Code:_______________ City/State/Zip Code:_____________________
Federal I.D. Number________________
