Exhibit 10.28
MASTER AGREEMENT
XXXXXX FOUNDATION HEALTH PLAN, INC.
THIS MASTER AGREEMENT is made this 30th day of July, 1997, by and between Xxxxxx
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Foundation Health Plan, Inc. ("Kaiser"), and Tier Technologies, Inc. ("Contract
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Vendor").
RECITALS
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X. Xxxxxx operates information technology systems as part of its general
business operations.
B. Contract Vendor is in the business of providing computer programming,
consulting, technical documentation, and/or telecommunications services using
highly skilled information technology professionals.
X. Xxxxxx and Contract Vendor anticipate entering into contracts whereby
Contract Vendor employee(s) would perform computer programming, consulting
and technical documentation services for Kaiser. Each such contract would be
made an Addendum A or B (Contractor Assignment Form, as defined below)
subject to and incorporating by reference all of the terms and conditions of
this Master Agreement.
KAISER AND CONTRACT VENDOR AGREE AS FOLLOWS:
TERMS AND CONDITIONS
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1 . Nature of Service. Contract Vendor agrees to provide consulting services
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and computer programming services involving analysis, development, design,
testing and modification of information systems and computer application
programs for Kaiser. Such services shall be provided pursuant to the
Contractor Assignment Form attached as Addendum A hereto (or Addendum B for
long-term assignments). Each such Contractor Assignment Form is subject to
and subordinate to each and every term and condition of this Master
Agreement and shall set forth the project in connection with which the
services are to be performed, the tasks or services to be performed by
Contractor, the employee(s) assigned by the Contract Vendor to perform such
tasks or services, a schedule for completion of specified increments of such
tasks or services and for progress reports, and the terms of payment for
such tasks or services. Each such Contractor Assignment Form shall only be
valid if signed by one officer of each of the parties hereto or by a person
designated in writing by such an officer as authorized to execute Contractor
Assignment under this Master Agreement on behalf of the party.
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 2
2. Compensation. Kaiser shall pay Contract Vendor for actual services rendered
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at the rate specified in the Contract Assignment. Kaiser shall reimburse
Contract Vendor for out-of-pocket expenses only if such reimbursement is
provided for in the specific Contract Assignment in connection with which
such expenses were incurred and only on the basis specifically provided
therein.
Contract Vendor shall invoice Kaiser not more than twice per month and not
less than once every month for services performed and authorized expenses
incurred, if any, during that time period. Contract Vendor expressly waives
any and all claim for compensation for any services or expenses which are
not invoiced within one hundred twenty (120) days of rendering such services
or incurring such expenses. Kaiser shall pay Contract Vendor within thirty
(30) days of receipt of invoices in form acceptable to Kaiser. If the rate
shown on the contract Assignment is based on a per hour charge, then such
invoice shall include the identity of the employee who rendered the
services, the dates on which such employee performed such services and the
number of hours worked in connection with that specific Contract Assignment.
Services rendered by a single employee of Contract Vendor on different
Contract Assignments shall be segregated.
Weekly time sheets covering all hours spent by employees of Contract Vendor
performing services on an hourly basis and receipts for all reimbursable
expenses shall be kept by Contract Vendor for not less than twelve (12)
months from the date such services or expenses are invoiced or until one
hundred twenty (120) days after completion or termination of the relevant
Contract Assignment, whichever is later, unless Kaiser requests in writing
that such documentation be preserved for a longer period of time. Such
supporting documentation for any invoice shall be provided to Kaiser or its
representative at any time upon request. In the event that any audit of
Contract Vendor's invoices reveals any variance in excess of five percent
(5%) of the amount shown on the invoice, Contract Vendor shall reimburse
Kaiser for any amounts overcharged and for all costs and expenses incurred
in conducting such audit. The obligation to preserve and provide time
sheets, receipts and invoice documentation shall survive the termination of
the Master Agreement or any Contract Assignment, notwithstanding any
provision to the contrary contained herein.
All terms of this Master Agreement shall apply regardless of the identity of
the payor of the monies referred to herein (e.g., Xxxxxx Foundation Health
Plan, Inc., KFHP, The Permanente Medical Group, TPMG, Xxxxxx Foundation
Hospitals, KFH, or Kaiser Foundation Research Institute, KFRI).
3. Term. This Master Agreement shall commence upon the date first written
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above. Each Contractor Assignment shall commence upon its execution or such
other date as may be stated therein.
If in Xxxxxx'x sole opinion the services provided under any Contract
Assignment are unsatisfactory, Kaiser may terminate that Contract Assignment
at any time
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 3
with seven (7) days notice. Either party hereto may terminate any Contract
Assignment or all of them and this Master Agreement with or without cause
upon thirty (30) days prior written notice. If not sooner terminated
pursuant to the provisions hereof, each Contract Assignment shall terminate
upon completion of the project, tasks or services described in the Contract
Assignment, the expiration of the term stated in the Contract Assignment, or
in the case of an hourly basis Contract Assignment stating a maximum number
of hours to be expended thereunder, upon completion of that number of hours
of service, whichever occurs earliest. Upon termination of any Contract
Assignment Xxxxxx'x sole obligation shall be to pay such progress payments
for completed incremental stages of progress on the project as may be called
for by the Contract Assignment, or, in the case of an hourly basis Contract
Assignment, to pay for such hours as have been completed prior to
termination of the Contract Assignment. Contract Vendor's obligations
regarding preservation of billing records, confidentiality and
indemnification to Kaiser shall survive the expiration or termination of any
Contract Assignment or this Master Agreement.
4. Personnel. All candidates and workers represented to Kaiser, shall be W-2
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employees of Contract Vendor and assigned by Contract Vendor to perform the
tasks or services to be rendered under any specific Contract Assignment and
shall be identified by name in such Contract Assignment. Contract Vendor
shall provide to Kaiser a copy of the W-2 Wage and Tax Statement for each
contract employee performing services for Kaiser, no later than February 7
of the calendar year following any year in which employee performed such
services.
Kaiser may reject or demand the removal/termination of assignment of any
employee assigned by Contract Vendor at any time for any reason at Xxxxxx'x
sole discretion. In the event of any such rejection, Contract Vendor shall
provide suitable skilled replacement personnel within five (5) business days
of such rejection. Should Contract Vendor be unable to provide suitably
skilled replacement personnel within such period, Contract Vendor will
permit Kaiser to obtain such replacement personnel from other business
enterprises (including those in competition with Contract Vendor) deducting
the cost of such replacement personnel from the compensation or total
contract price stated in such Contract Assignment.
5. Long-Term Assignment Option. Kaiser and Contract Vendor may agree to a
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long-term assignment, subject to the following provisions, by executing
Addendum B, Long-Term Contractor Assignment Form.
Expected length of assignment is 2,080 hours (roughly one year). Kaiser will
pay Contract Vendor, billable bi-weekly or monthly, an amount equal to 2,080
hours for 2,000 hours of work provided by contract employee. In addition,
contract employee will be given credit for working eight (8) hours each on
Christmas Day, New Year's Day, Washington's Birthday, Memorial Day,
Independence Day, Labor Day, and Thanksgiving Day, but will not be expected
to work.
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 4
The hourly rate billed to Kaiser is reduced by 25% of the regular rate for a
similar assignment. Kaiser will allow contract employee to take personal
leave given reasonable notice and within project schedules. If at any point
cumulative hours worked by contract employee are less than an amount equal
to 38.5 hours per week since the beginning of long-term assignment, Kaiser
will deduct a comparable amount from that owed to vendor for that billing
period.
If contract employee elects to leave Kaiser prior to the end of the
assignment, Contract Vendor will credit Kaiser an amount equal to 80
billable hours to assist in the training and orientation costs of a
replacement contractor. After one year, Kaiser may offer employment to and
hire contract employee at no charge by Contract Vendor.
All other terms of this Master Agreement shall apply to the long-term
option.
6. Confidentiality/Solicitation. Contract Vendor and its employees shall not
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disclose or make use of any financial, marketing, personnel or other
confidential or proprietary information or knowledge including without
limitation trade secrets and software programs and systems which may be
disclosed to any of them, directly or indirectly, in the course of any
performance hereunder. All programs, processes and systems developed
hereunder shall become the sole and exclusive property of Kaiser and all
written and recorded documentation and all copies of such programs,
processes and systems (both visually readable and machine readable) shall be
delivered to and retained solely by Kaiser. Contract Vendor shall be
responsible for and shall assume liability for any improper disclosure,
dissemination or use by any of its employees of any of the information,
programs, processes or systems listed in this Section 6. Contract Vendor
shall obtain written agreement from each of its employees performing
services under any Contract Assignment, in form acceptable to Kaiser, that
each such employee will comply with and be obligated as provided in this
Section 6. There shall be no solicitation by Contract Vendor or its
employees or agents of Kaiser employees. This Section 6 will survive
termination of the Master Agreement or any Contract Assignment,
notwithstanding any provision to the contrary contained herein. A breach of
this Section 6 may, at Xxxxxx'x option, result in immediate termination of
this agreement.
7. Independent Contractor. Contract Vendor agrees that all of its services
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rendered pursuant hereto are those of an independent contractor, and neither
it nor any of its employees are employees or agents of Kaiser nor joint
ventures with Kaiser. Contract Vendor expressly disclaims and waives, for
itself and its employees any right or claim to workers' compensation,
welfare, pension or retirement benefits arising out of the services
performed hereunder. Contract Vendor agrees to be fully responsible for and
to pay when due all federal, state and local taxes or contributions required
under Unemployment Insurance, Social Security, income tax and other laws by
virtue of the performance of services hereunder, and further
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 5
agrees to fully comply with all applicable statutes, rules, regulations, and
orders of any competent governmental authority, including without limitation
workers compensation laws and occupational safety and health laws,
immigration laws, and anti-discrimination laws. Contract Vendor agrees to
indemnify, assume legal responsibility for, hold harmless and, at Xxxxxx'x
option, defend Kaiser (and its agents, servants, employees, officers, and
directors) against any and all losses, damages, fines, penalties, costs
incurred by Kaiser, due to any demand, claim allegation or assertion of
liability alleged to arise from a failure to fulfill any of the statutory
responsibilities set forth in this Section 7, or any charges or suits filed
by or on behalf of any Employees or Contract Vendor against Kaiser which
relate to any alleged wrong by Kaiser against the Employee, or the Exercise
by Kaiser of the rights in Section 4. This Section 7 will survive
termination of the Master Agreement or any Contract Assignment,
notwithstanding any provision to the contrary contained herein.
8. Indemnification. Kaiser shall not, under any circumstances, be liable or
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otherwise accountable to Contract Vendor for any damage or injury to
Contract Vendor or to any employee of Contact Vendor or to any property of
Contact Vendor, or employees however caused. Contract Vendor shall assume
legal responsibility for, indemnify, hold harmless, and, at Xxxxxx'x option,
defend Kaiser (and its agents, servant, employees and directors and any
third party to whom Kaiser may owe a similar obligation by contract or
operation of law) against each and every demand, claim, assertion of
liability or action arising or alleged to arise, directly or indirectly, out
of (i) Contract Vendors use of Kaiser premises, (ii) the conduct and
operation of Contract Vendor's business, (iii) the performance of the
services hereunder by Contract Vendor, or (iv) any passive or active act,
omission or failure to perform the obligations or requirements of Contract
Vendor hereunder or imposed by law, made or instituted by any person, group
or organization including employees of Contract Vendor or Kaiser. Contract
Vendor shall assume liability for any dishonest acts committed or alleged to
have been committed against Kaiser by Contract Vendor's past or present
agents, servants, employees, officers and directors. Kaiser agrees to
notify Contract Vendor promptly in writing in the event of any such claim,
demand, assertion of liability or action which is brought to Xxxxxx'x
attention. This Section 8 will survive termination of the Master Agreement
or any Contract Assignment, notwithstanding any provision to the contrary
contained herein.
9. Insurance. Contract Vendor shall maintain, at its sole cost and expense,
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all workers' compensation insurance required under any applicable workers'
compensation insurance act. Contract Vendor or employees of Contract Vendor
shall maintain, at its sole cost and expense, a policy or policies of
comprehensive automobile liability insurance on any and all vehicles which
may be operated in connection with any services to be performed hereunder.
Contract Vendor shall maintain, at its sole cost and expense, a policy or
policies of general public liability insurance covering Contract Vendor's
operations and any contingent exposure Kaiser may deem appropriate or
necessary to insure with policy limits of not less
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 6
than $1,000,000.00 Combined Single Limits for injury to or death of any
number of persons or for damage to property of others arising out of any one
occurrence. Said policy or policies shall provide among other things,
Contractual Liability Insurance recognizing and insuring the assumption of
liability undertaken by Contract Vendor under the provision of Sections 7
and 8 above. Contract Vendor shall maintain, at its sole cost and expense,
a policy or policies of Fidelity Insurance, but Contract Vendor's
obligations under Section 7 above will not be limited to the coverage
afforded by any policy or policies of insurance.
The insurance required hereunder shall be issued by one or more responsible
insurance carriers acceptable to Kaiser and licensed to do business in the
state where the services under the Contract Assignment are to be performed.
Within thirty (30) days after the execution of each Contract Assignment,
Contract Vendor shall cause to be delivered to Kaiser one or more duly
executed certificates of insurance, in form and content satisfactory to
Kaiser, evidencing all insurance coverage required hereunder and providing
that the policy or policies which they evidence shall be neither canceled
nor materially changed until ten (10) days after receipt by Kaiser of
written notice of such cancellation or material changes. In the event
Contract Vendor fails to provide and maintain any insurance required under
this Section 9, or to provide evidence of such insurance as required under
this Section 9, Kaiser may, at its sole option, obtain such insurance up to
the limits provided herein and may deduct the premiums for such insurance
from any amounts which are or become payable to Contract Vendor hereunder.
Contract Vendor shall reimburse Kaiser for such premiums within ten (10)
days of written demand therefor.
10. Notices. Any notice required or permitted hereunder shall be effective upon
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receipt in writing either by personal service upon a representative of
Xxxxxx Foundation Health Plan, Inc., or upon an officer of Contract Vendor,
respectively, or by mailing the notice by United States mail, registered or
certified, return receipt requested, postage prepaid addressed to Kaiser at:
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and to Contract Vendor at:
Xxxxxx Xxxxxx
Tier Technologies, Inc.
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxxx, XX 00000
or to such other address as the respective parties may from time to time
designate by notice given in the manner herein provided.
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 7
11. Attorneys Fees. In the event of judicial action or arbitration to enforce
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any of the terms and conditions hereof, the prevailing party shall receive
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reasonable attorneys' fees, courts costs and reasonable discovery and
investigative costs and expenses and as determined by the court or
arbitrator.
12. Modification And Assignment. This Master Agreement supersedes all prior
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written or oral communications, representations and understandings and may
be modified or supplemented only be a written amendment or contract
Assignment executed by duly authorized representatives of both Kaiser and
Contract Vendor. Due to the special character of the services to be
provided hereunder, neither party may assign this Master Agreement or any
Contractor Assignment or rights thereunder, except that Kaiser may assign
this Master Agreement and/or Contract Assignment to be issued hereunder to
any of Xxxxxx'x subsidiaries.
13. General Conditions. No waiver of any breach of any term or condition of
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this Master Agreement or any Contract Assignment by Kaiser or Contract
Vendor shall be construed as a waiver of any subsequent breach of the same
or any other term or condition thereof. This Master Agreement shall be
governed by and construed in accordance with the laws of the State of
California. The titles and subtitles used herein are not part of this
Agreement and are included solely for convenient reference to the paragraphs
hereof. Such titles shall have no bearing upon the various terms and
conditions hereof.
14. Equal Employment Opportunity. Contract Vendor recognizes that as a
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Government contractor or subcontractor, Xxxxxx Permanente is obligated to
comply with certain laws and regulations of the Federal Government regarding
Equal Employment
Opportunity and Affirmative Action. Contract Vendor, as a Government
subcontractor, agrees that when applicable, the following are incorporated
by reference into this agreement:
A. The nondiscrimination and affirmation action clauses contained in Executive
Order 11246, as amended by Executive Order 11375, relative to equal
employment for all persons without regard to race, color, religion, sex, or
national origin, and the implementing rules and regulations contained in
Title 41, Part 60 of the Code of Federal Regulations, as amended; the
nondiscrimination and affirmative action clauses contained in the
Rehabilitation Act of 1973, as amended, relative to the employment of
qualified disabled individuals without discrimination, and the implementing
rules and regulations in Title 41, Part 60-741.4 of native action and
nondiscrimination provisions of the Vietnam Era Veterans Readjustment
Assistance Act of 1974 and the provisions, rules and regulations of the
Title 42, Part 60-250.4 of the Code of Federal Regulations; the utilization
of small business concerns including Small Disadvantaged Business Concerns,
provisions of Title 48 of the code of Federal Regulations, Chapter 1, Parts
19-708, 52-219.8 and 52-219.9, and the requirements of Title 42, Part 60-1.8
of the Code of Federal
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 8
Regulations that provide the certification of non-segregated facilities
required by Title 41, Part 60-1.8 of the Code of Federal Regulations.
B. Omnibus Reconciliation Act - Section 952 of the Omnibus Reconciliation Act
of 1980 (PL96-499) providing for access by the Secretary of Health and Human
Services (HHS) and the Comptroller General to the books and records of
Contract Vendor to the extent it provides services are incorporated in the
Agreement.
MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC. Page 9
IN WITNESS WHEREOF, upon the day and year first herein above written, the
respective parties hereto have executed this Master Agreement personally or by
duly authorized officers thereof.
XXXXXX FOUNDATION HEALTH PLAN, INC.
Signature: /s/ Xxxxxxx XxXxxxxx
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Title: Manager, National IT Staffing
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Date: 9/2/97
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Contract Vendor: Tier Technologies Inc.
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Signature: /s/ Xxxxxx X. Xxxx
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Title: Sr VP & CFO
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Date: Aug 26, 1997
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MASTER AGREEMENT - XXXXXX FOUNDATION HEALTH PLAN, INC.
Tier Technologies
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn.: Xxxxxx Xxxxxx
re: Letter of Agreement
Dear Xxxxxx:
Pursuant to Section 5 of the Independent Contractor Services Agreement
dated March 25, 1995, between Tier Technologies ("Contractor") and Xxxxxx
Foundation Health Plan, Inc. ("Health Plan"), this letter serves to outline the
compensation arrangements between the parties.
Contractor shall provide Xxxx Xxxxx to provide contract programming,
design, support and implementation services to Health Plan at the rate of Ninety
Three Dollars and fifty cents per hour ($93.50). Xxxx Xxxxx'x services shall
commence on January 13, 1997 and terminate on December 31, 1997 or as Health
Plan business matters dictate.
Please secure the signature of an authorized officer on behalf of
Contractor at the end of this letter to signify the formal agreement between the
parties to these terms. All other terms and conditions of the Independent
Contractor Services Agreement remain in full force and effect. I have enclosed
a self-addressed envelope for your use in returning the executed letter to me.
If you have any additional questions or comments, please do not hesitate to
telephone Xxx Xxxxx at (000) 000-0000.
Sincerely,
/s/ C. Xxx Xxxxx
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C. Xxx Xxxxx
Group Lead, NCSD
THE ABOVE TERMS ARE HEREBY
AGREED AND UNDERSTOOD
(This section is filled out by Vendor)
By /s/ Xxxxxx X. Xxxx
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Name Xxxxxx X. Xxxx
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Title CFO and SVP
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Date 8-25-97
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