WEST TELEMARKETING INSURANCE AGENCY
PERSONNEL COMPANY SUBSCRIBER
SERVICE AGREEMENT
THIS AGREEMENT, made this 20th day of November, 1996, between WEST
TELEMARKETING INSURANCE AGENCY, INC. ("WTIA"), a Texas corporation and WEST
TELEMARKETING CORPORATION OUTBOUND ("Subscriber"), a Delaware corporation.
1. Contract Staffing
WTIA hereby agrees to furnish to Subscriber, and Subscriber agrees to
engage from WTIA contract staffing for all the Job Function Positions listed on
Exhibit "A", attached hereto and incorporated herein by reference, upon the
following terms and conditions. Subscriber is advised that WTIA is a contract
staffing organization which falls under Internal Revenue Code 414(n) and that
certain benefit regulations may affect the Subscriber's own benefit plan(s).
Subscriber agrees to provide continuation of health insurance coverage required
by the Consolidated Omnibus Budget Reconciliation Act ("COBRA") to any and all
participants in Subscriber's current plan and will indemnify WTIA from any
claims thereof.
2. Term of Agreement
This Agreement shall remain in force for the term of one (1) year from
the date first above written (the "Initial Term"). Following the Initial Term,
this Agreement shall remain in force from month to month (the "Extended Term").
Subscriber may terminate this Agreement by giving thirty (30) days written
notice to WTIA at any time during the term of this Agreement. During the Initial
Term, WTIA may terminate this Agreement should Subscriber materially breach any
of the provisions of this Agreement or by written agreement of both parties.
During the Extended Term, WTIA may terminate this Agreement by giving thirty
(30) days written notice.
3. Service Fees
(a) Subscriber shall pay WTIA the hourly fee rate, fees and overhead
(the "Fees") specified in Exhibit "A", attached hereto and incorporated herein
by reference, for the work performed by each WTIA employee filling Job Function
Positions for the Subscriber.
(b) From time to time and without notice, WTIA may adjust the Fees for
any statutory increases in employment taxes, insurance, any change in the Job
Function Positions required by Subscriber, or any other change in the hourly
rate, fees or overhead incurred by WTIA.
(c) Any increase in the Fees for statutory increases in employment
taxes, insurance, any change in the Job Function Positions or any other change
in the hourly rate, fees or overhead incurred by WTIA shall be effective on the
date of such increase or change.
(d) Subscriber shall pay WTIA all Fees or other amounts due hereunder
within thirty (30) days of receipt of WTIA's written invoice.
(e) Subscriber shall have the right to, but not the obligation to
verify all time submissions of WTIA employees.
(f) If Subscriber believes that any billing or other communication
between the parties is in error, Subscriber shall immediately notify WTIA.
4. Rate Adjustments
Subscriber agrees to participate in the periodic evaluation of WTIA
employees. WTIA will use these evaluations to determine any adjustment to the
Fees.
5. Insurance
(a) WTIA shall furnish and keep in full force and effect at all times
during the term of this Agreement workers' compensation insurance coverage for
all WTIA employees filling Job Function Positions under the terms of this
Agreement. WTIA shall cause a Certificate of Insurance to be issued naming
Subscriber as an additional insured.
(b) Subscriber agrees to keep in full force and effect at all times
during the term of this Agreement all other insurance required under this
Agreement.
(c) Each party hereby waives any claim in its favor against the other
party by way of subrogation or otherwise, which arises during the Initial or
Extended Term of this Agreement for any and all loss of or damage to any of its
property which loss or damage is covered by policies of insurance to the extent
that such loss or damage is recovered under such policies of insurance.
6. Administration
(a) It is understood and agreed that WTIA is an independent contractor
and all individuals assigned to Subscriber to fill the Job Function Positions
are employees of WTIA. WTIA is thereby responsible for such administrative
employment matters as payment of all federal, state and local employment taxes,
providing workers' compensation coverage, as well as non-obligatory fringe
benefit programs for its employees, provided, however, WTIA reserves the right
to enter into any agreements, whether written or otherwise, wherein a third
party administers to its employees. WTIA agrees to hold Subscriber harmless from
direct out-of-pocket expenses of Subscriber which may result from WTIA's failure
to withhold these taxes or failure to conduct itself in accordance with
applicable state and federal law. However, WTIA
shall not be liable in any event for Subscriber's loss of profits, business
goodwill or other consequential, special or incidental damages.
(b) WTIA shall have the sole responsibility for recruiting, hiring,
training, evaluating, replacing, supervising, disciplining and firing of
individuals assigned to fill Subscriber's Job Function Positions.
(c) When required, Subscriber shall coordinate all insurance agent
licensing requirements for each state that a WTIA employee may be required to
solicit insurance and where such state law requires such licensure. Such
licensing requirements may include the coordination of the initial training or
education, testing (as required by such state), and application for such state
license by the WTIA employee, as well as any continuing training or education of
the WTIA employee to maintain a current insurance agent license in the states so
required. The coordination of such activities may be done by the Subscriber or
by any third party chosen by the Subscriber. The Subscriber, at its sole
discretion, has the right to determine for which WTIA employees it will
coordinate such licensure.
7. Supervision
(a) WTIA may designate on-site supervisors from among its employees
assigned to fill Job Function Positions for Subscriber. These on-site
supervisors shall direct operational and administrative matters relating to
service provided by WTIA employees and shall be under the direct supervision of
WTIA's manager. If WTIA does not designate an on-site supervisor, WTIA's
employees assigned to Subscriber shall be responsible to the WTIA manager.
(b) The WTIA on-site supervisor, or if none, the WTIA manager shall
determine the procedures to be followed by WTIA employees regarding the time and
performance of their duties. Subscriber agrees to cooperate with WTIA in the
formation of such policies and procedures and permit WTIA to implement its
policies and procedures relating to WTIA's employees.
(c) Subscriber shall make all non-routine directives through the
assigned WTIA on-site supervisor or manager.
8. Approval of Supplied Staff
WTIA shall provide employees which are duly qualified and skilled in
the area in which their services are to be utilized. WTIA shall not be obligated
to hire or retain former staff members. WTIA will consult with Subscriber in
filling its Job Function Positions, but WTIA has the right to determine which of
WTIA's employees shall be designated to fill Subscriber's Job Function
Positions, provided that such WTIA employees are licensed in ever state in which
they will be selling or marketing insurance. Subscriber has no right to approve
such determination, but nonetheless possesses the right to reject any employee
so furnished, if dissatisfied with such employee's performance or if the
employee is not properly licensed. If any
WTIA employee is rejected, WTIA agrees to furnish a suitable replacement within
a reasonable time.
9. Holiday, Vacation Pay and Other Benefits
(a) Each WTIA employee receives paid holidays. Subscriber agrees to
pay the cost of WTIA employee holidays.
(b) Each WTIA employee receives paid vacation. Subscriber agrees to
pay the cost of WTIA employee vacation and any accrued or deferred vacation
where state law requires payment for accumulation.
(c) WTIA reserves the right to provide such other benefits to its
employees and Subscriber agrees to pay the cost of such other benefits pursuant
to paragraph 4.
10. Safe Work Environment
(a) Subscriber agrees that it will comply with all health and safety
laws, regulations, ordinances, directives, and rules imposed by controlling
federal, state and local government, and that it will immediately report all
accidents and injuries to WTIA.
(b) Subscriber agrees to comply, at its expense, with any specific
directives from WTIA. WTIA workers' compensation carrier, or any government
agency having jurisdiction over the work place, health and safety.
(c) Subscriber shall provide or ensure use of all personal
protective equipment, as required by federal, state, or local law, regulations,
ordinance, directive, or rule or as deemed necessary by WTIA or WTIA's workers'
compensation carrier.
(d) WTIA and WTIA's workers' compensation carrier shall have the
right to inspect Subscriber's premises if WTIA believes its employees are
exposed to an unsafe work place. To the extent possible such inspection shall be
scheduled at a mutually convenient time.
11. Hold Harmless
Subscriber hereby agrees to indemnify, defend, and hold WTIA harmless
from and against any and all liability, expense (including court costs and
attorney fees) and claims for damage of any nature whatsoever, whether known or
unknown as though expressly set forth and described herein, which WTIA may
incur, suffer, become liable for, or which may be asserted or claimed against
WTIA as a result of the acts, errors or omissions of Subscriber including
without limitation any violation or breach of paragraph 10 above by Subscriber.
12. Service Charge
Should payments of any amounts due WTIA not be made when due,
Subscriber shall pay a monthly service charge of one percent (1%) per month on
the unpaid balance, but in no event shall the amount exceed the lawful rate of
interest.
13. Definitions
For purposes of paragraph 2 above, the following, without limitations,
shall constitute material breaches of this Agreement by Subscriber: (1)
failure to pay any amounts due hereunder when due: (2) failure to comply with
any directive regarding health and safety from WTIA, WTIA's workers'
compensation carrier or any government agency, (3) committing any act which
usurps WTIA's rights as the employer of WTIA's employees provided under this
Agreement, or (4) failure to provide any insurance required under this
Agreement.
14. Assignment
Neither WTIA nor Subscriber shall assign this Agreement or its rights
and duties hereunder, or any interest herein, without the prior written consent
of the other party.
15. Integration
This Agreement constitutes the entire agreement between the parties
with regard to this subject matter and no other agreement, statement, promise or
practice between the parties relating to the subject matter shall be binding on
the parties. This Agreement may be changed only by a written amendment signed by
both parties.
16. Waiver
Failure by either party at any time to require performance by the
other party or to claim a breach of any provision of this Agreement will not be
construed as a waiver of any subsequent breach nor affect the effectiveness of
this Agreement, nor any part thereof, nor prejudice either party as regards to
any subsequent action.
17. Notices
Any notices or demand to be given hereunder by either party shall be
effected by personal delivery in writing or by registered mail, postage prepaid,
return receipt requested, and shall be deemed communicated forty-eight (48)
hours after mailing. Mailed notices shall be addressed to the party's principal
place of business. Each party may change the address by written notice in
accordance with this paragraph.
18. Attorney Fees
In the event that any action is brought by either party hereto as a
result of a breach or default in any provision of this Agreement, the prevailing
party in such action shall be awarded reasonable attorney fees and costs in
addition to any other relief to which the party may be entitled.
19. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas.
20. Partial Invalidity
Should any term, warrant, covenant, condition, or provision of this
Agreement be held to be invalid or unenforceable, the balance of this Agreement
shall remain in full force and shall stand as if the unenforceable part did not
exist.
21. Paragraph Headings
The paragraph headings of this Agreement are for reference only and
shall not be considered in the interpretation of this Agreement.
IN WITNESS THEREOF, the parties have executed this Agreement on the
date first above written.
WEST TELEMARKETING INSURANCE AGENCY
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, Vice President
WEST TELEMARKETING CORPORATION OUTBOUND
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Executive Vice-President
EXHIBIT "A"
WEST TELEMARKETING INSURANCE AGENCY
PERSONNEL COMPANY SUBSCRIBER
SERVICE AGREEMENT
Job Function Positions
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Generally: Employees who may represent major insurance companies selling a
variety of insurance products, services and coverages to the insurance company's
client base through telemarketing means.
Classes of Employees:
1. Group 01-01 Agents:
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a. Requirements. Must hold and maintain an Active, Non-expired
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Texas Permanent Group 01-01 Agent License. Temporary Licenses are not
acceptable. Must have excellent selling skills.
b. Hours. Evening schedules only: 3:00 p.m. to 9:00 p.m. or 4:00
------
p.m. to 10:30 p.m.
c. Compensation. Hourly Rate Range. $8.00 to $12.00.
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2. Group 05-01 Agents:
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a. Requirements. Must hold and maintain an Active, Non-expired
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Texas Permanent Group 05-01 Local Recording Agent License and an
Active, Non-expired Texas Permanent Group 01-01 Agent License.
Temporary Licenses are not acceptable. Must have excellent selling
skills.
b. Hours. Day and Evening Schedules: 8:00 a.m. to 2:45 p.m., or
------
3:00 p.m. to 9:00 p.m. or 4:30 p.m. to 10:30 p.m.
c. Compensation. Hourly Rate Range. $8.00 to $12.00.
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Other fees, costs and expenses payable by Subscriber.
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The Subscriber shall reimburse WTIA for all fringe benefits, whether statutory
or otherwise, provided to its employees, all payroll costs, and all of WTIA's
operating costs associated with this Agreement, including licensing fees,
payroll processing fees, legal fees, general supplies and insurance, as well as
all other costs incurred by WTIA pursuant to this Agreement.
