TERMS AND CONDITIONS
Exhibit
10.18
1.) Agreement
& Services
a) These
Terms and Conditions apply to and govern the Agreement entered into between
Accountabilities and TSE-PEO ("Tri-State"). This Agreement between
Accountabilities and TSE-PEO shall be effective as of the date specified below
and executed by Accountabilities and TSE-PEO.
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2.)
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Definition
of Services
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TSE-PEO
and Accountabilities agree to jointly employ certain employees ("Assigned
Employees"). Accountabilities and TSE-PEO agree to undertake employer
responsibilities as allocated by this Agreement. TSE-PEO agrees to provide
Accountabilities with related services identified in this Agreement. TSE-PEO
may, but is not required to, provide additional consulting services to
Accountabilities. Such services will be provided only if the parties agree
separately in writing.
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3.
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Term
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This
Agreement shall remain in force for the Initial Term specified in the Client
Service Agreement. Following the Initial Term, this Agreement shall
automatically renew for successive one-year terms. Following the
Initial Term, either party may terminate this Agreement at any time for any
reason by giving thirty (30) days written notice to the other
party. Either party may terminate this Agreement immediately on
giving written notice to the other upon any material breach by the other
party.
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4.
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Assigned
Employees
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a) The
initial group of Assigned Employees is detailed on the attached Schedule A.
By
separate written agreement and with the specific consent of TSE-PEO, the parties
may add additional Assigned Employees, reassign or remove Assigned Employees,
or
modify positions, benefits and pay rates for Assigned
Employees. TSE-PEO does not guarantee or represent that it will be
able to fill all employee needs of Accountabilities.
b) Accountabilities
shall not request the removal; discipline or other treatment of an Assigned
Employee based on any grounds, which are unlawful under local, state or federal
law. In dealing with the Assigned Employees, Accountabilities shall
fully comply with all local, state or federal law relating to equal employment
opportunity and nondiscrimination in employment. TSE-PEO shall not be
responsible for any action taken by Accountabilities with respect to the
Assigned Employees, unless Accountabilities secures prior written authorization
from TSE-PEO’s corporate office for such action.
c) Accountabilities
shall, on TSE-PEO’s request: make available same or fully equivalent employment
opportunities to any Assigned Employee eligible for reinstatement following
leave under the Family & Medical Leave Act or any comparable law; provide
reasonable accommodation under the ADA or any comparable
law. Accountabilities shall bear the sole cost of providing leave,
job reinstatement or a reasonable accommodation.
d) Accountabilities
shall give TSE-PEO not less than seventy-(70) days advance written notice of-
(a) any temporary or permanent shutdown of any facility, site of employment
or
employment unit; or (b) any reduction in force resulting in the
layoff of one-third or more of the persons (counting Accountabilities employees,
Assigned Employees or both) working at any single facility, site of employment
or employment unit of Accountabilities.
e) Accountabilities
shall comply with all provisions of this Article 4 without regard to whether
Accountabilities or the Assigned Employees would be subject to the indicated
laws in the absence of this Agreement.
Accountabilities
Inc. Initial
Here: ___________
1
5.) Payroll
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During
the term of this Agreement, TSE-PEO shall be responsible for payment
of
wages or other compensation to the Assigned Employees while assigned
to
Accountabilities.
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6.) Worker’s
Compensation
TSE-PEO
shall maintain a policy of workers’ compensation insurance intended to cover the
Assigned Employees. Such insurance shall meet the minimum
requirements applicable in the State in which the Assigned Employees will be
working, as well as a minimum of $1MM per occurrence of Employer’s Liability
Coverage.
a) TSE-PEO
shall, at Accountabilities request, provide evidence of the existence of such
coverage (i.e., Certificate of Insurance), within 24 hours under most
circumstances. In addition, should Accountabilities require an
endorsement to the policy to comply with the stipulations of a contract
agreement, TSE-PEO will endeavor to obtain this endorsement in a timely
manner.
b) TSE-PEO
is responsible for the processing of all workers’ compensation claims submitted
by Accountabilities personnel, including prompt payment of medical bills, drug
testing invoices and any other job-related injury or illness invoices, as well
as authorization for physical therapy and other physician-requested procedures
or programs.
c) TSE-PEO
will, upon receipt of payroll and other documentation from Accountabilities,
promptly arrange to extend workers’ compensation insurance coverage to any State
not currently listed on the policy in which Accountabilities intends to provide
staffing or conduct business; with the exception of monopolistic
states.
d) Upon
request of Accountabilities, TSE-PEO will provide current workers’ compensation
loss runs, detailing but not limited to, incurred losses and open/closed
claims. In addition, when feasible, but at least annually, TSE-PEO
will coordinate a claims review meeting with Accountabilities, and if possible,
WAUSAU Insurance Company.
e) Upon
request of Accountabilities, TSE-PEO will attempt to provide workers’
compensation coding and rates within 24 hours.
7.) Employee
Notification
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On
the termination of this Agreement by any party for any reason: (a)
TSE-PEO
shall have the right to notify the Assigned Employees that their
employment relationship with TSE-PEO has been terminated; and (b)
Accountabilities shall immediately notify their Branch Management
that
this Agreement has been terminated and that the employment Agreement
between Accountabilities and TSE-PEO has been
terminated
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8.)
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Supervision
of Assigned Employee
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a) TSE-PEO
shall not make, and the on-site supervisors are not authorized to make on behalf
of TSE-PEO, any business related decisions on behalf of Accountabilities. All
business decisions are the sole responsibility of
Accountabilities. Any action taken by an on-site supervisor or by an
Assigned Employee that is not taken at the express direction and authorization
of TSE-PEO’s corporate office shall be the sole responsibility of
Accountabilities.
b) Accountabilities
retains the exclusive right to direct and control the production of all goods
or
products and the performance of all services produced by Accountabilities
business. Accountabilities is solely responsible for the quality,
adequacy and safety of all goods produced or services performed by the Assigned
Employees on Accountabilities behalf.
Accountabilities
shall provide all facilities, equipment, training and any other items that
may
be needed by the Assigned Employees in the performance of
work on behalf of Accountabilities.
Accountabilities
Inc. Initial
Here: _______________
2
9.) Insurance
a) Accountabilities
shall maintain commercial general liability insurance coverage, including
without limitation, products and completed operations coverage, independent
contractors protective coverage, contractual liability coverage for this
agreement, and broad form property damage, and including coverage for explosion,
collapse, and underground property damage hazards applicable to all of
Accountabilities operations and job sites. Such insurance shall provide limits
not less than one million dollars ($1,000,000.00) per occurrence for injury,
including contractual liability and advertising injury and two million dollars
($2,000,000.00) general aggregate for bodily injury, including death resulting
there from, personal injury and property damage. Such policy shall
provide coverage for the acts or omissions of the Assigned
Employees.
10.) Employee
Hours
Accountabilities
shall maintain, and
shall provide to TSE-PEO at the end of each pay period, accurate records of
actual time worked by each Assigned Employee. Accountabilities assumes full
and
unconditional responsibility for the accuracy and completeness of the payroll
records submitted to TSE-PEO. Accountabilities warrants that all time
cards or other payroll records submitted to TSE-PEO shall be complete and
accurate. Accountabilities shall not direct, request or permit the Assigned
Employees to work any unreported hours.
11.) Licenses
Accountabilities
bears sole responsibility to ensure compliance with any law or regulation
requiring an Assigned Employee to hold a license, to work only under the
supervision of a licensed person, or to work only in the employment of an entity
holding a license. Accountabilities shall be solely responsible for
verifying that Assigned Employees have any necessary licenses or permits, and
for providing any required licensed supervision.
12.) Independent
Contractors, Direct Employees of Client.
a) If
Accountabilities utilizes any independent contractors during the term of this
Agreement, Accountabilities shall require each such independent contractor
to
maintain workers' compensation insurance and general liability
insurance. Accountabilities shall require such independent contractor
to provide evidence of insurance.
b) If
Accountabilities employs persons other than Assigned Employees, Accountabilities
shall be solely responsible for such employees and shall give written notice
to
such employees that they are not employees of
TSE-PEO. Accountabilities shall provide TSE-PEO with a copy of such
written notices.
13.) Client
Representations.
Accountabilities
warrants that all
representations made to TSE-PEO in connection with securing TSE-PEO's proposal
for service are true and correct to the best of their
knowledge. Accountabilities warrants and represents that it will
comply with all local, state and federal laws related to the rights of
employees, including laws relating to employment discrimination, workplace
safety and wage and hour laws. Accountabilities shall immediately
notify TSE-PEO of any investigation, charge, fine, proceeding or other action
by
any local, state or federal agency that affects or relates to the Assigned
Employees.
14.) Indemnification
a) TSE-PEO
indemnifies and holds harmless Accountabilities from and against any and all
losses, liabilities, claims, suits, demands, damages, injuries, costs, and
expenses arising solely out of the negligent or willful failure of any TSE-PEO
employee (employed by TSE-PEO at its corporate office) to comply with applicable
worker's compensation, payroll tax or withholding tax laws, rules, and
regulations. This indemnity expressly excludes and does not cover
claims based on, related to or arising out of any acts, omissions or conduct
of
any Assigned Employee.
Accountabilities
agrees to indemnify,
defend and hold harmless TSE-PEO, its affiliates and
subsidiaries, their shareholders, employees, officers,
directors, agents, and representatives, from and against all claims, demands,
causes of action, suits, liabilities and expenses (including court costs and
attorneys fees) of every kind or character. TSE-PEO shall have the
right to select the attorneys by which it will be defended. All
indemnity obligations and liabilities assumed by Accountabilities under this
Agreement are without monetary limit and without regard to the cause or causes
thereof or the negligence of any party or parties, whether the negligence is
sole, joint, comparative, concurrent, active or passive, ordinary or
gross.
Accountabilities
Inc. Initial
Here: _______________
3
15.) Fees.
a) TSE-PEO
will provide Accountabilities with a detailed invoice for all compensation
paid
to or on behalf of Assigned Employees ("gross wages") at pay rates as listed
on
the attached Schedule A or as may be mutually agreed upon from time to time
by
TSE-PEO and Accountabilities. Gross wages shall include all agreed on
wages and compensation for the Assigned Employees, including overtime, vacation,
sick leave and holiday pay.
b) Accountabilities
shall pay a service fee expressed as a percentage applied to the sum total
of
the Gross Wages defined above. The initial service fee is set forth
on Schedule A. The applicable service fee is applied to the gross wages of
each
Assigned Employee. Out of the service fees paid by Accountabilities,
TSE-PEO shall pay from its own account all payroll taxes attributable to the
Assigned Employees.
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16.)
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General
Terms.
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a) This
Agreement (including the Client Service Agreement, these Terms and Conditions,
and any attached or related schedules) is the entire agreement and supersedes
any previous agreement, understanding or representations between
Accountabilities and TSE-PEO with respect to the subject matter. This Agreement
may not be modified in any way except by a single written agreement signed
by
both parties.
b) The
provisions of this Agreement shall be binding upon the parties and their
respective agents, employees, directors, officers, shareholders, heirs,
executors, administrators, legal representatives, successors and
assigns. There are no intended third party beneficiaries of this
Agreement. Assigned Employees are not third party beneficiaries of
this Agreement and shall have no right to enforce this Agreement.
c) In the
event that this Agreement, or any portion thereof, is held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remainder of this Agreement shall not in any way be affected or impaired
thereby.
d) The
headings in this Agreement are intended for convenience or reference and shall
not affect its interpretation.
e) The
failure of either party to insist upon strict performance of any of the
provisions of this Agreement shall in no way constitute a waiver of any of
its
rights as set forth herein, at law or equity, or a waiver by either party of
any
other provision or subsequent default by the other in the performance of or
compliance with any of the terms and conditions set forth herein.
f) This
Agreement shall not be transferred or assigned without the written consent
of
both parties, except that TSE-PEO may transfer this Agreement to a TSE-PEO
affiliate or subsidiary with prior written notice to
Accountabilities.
g) If
legal actions or other proceedings, including arbitration proceedings, are
brought for the enforcement of this Agreement or because of an alleged breach,
default or misrepresentation in connection with the provisions hereof, the
prevailing party shall be entitled to recover its reasonable and necessary
attorney's fees and other costs incurred in such action or proceeding from
the
unsuccessful party, in addition to any other relief to which it may be
entitled.
h) Accountabilities
warrants that it is presently not in bankruptcy and neither has any intention
of
filing for bankruptcy protection nor any reason to believe that it will need
to
seek bankruptcy protection. This agreement shall be interpreted so as
to comply with all applicable laws and shall be amended, if necessary as
required by any such governmental agency or bankruptcy court.
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17.)
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Governing
Law; Notices; Limitations; Waiver of
Jury
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a) This
Agreement shall be binding, governed by, and construed and enforced under the
Federal Arbitration Act and the laws of _______ and of the United States,
excluding those laws of _______ related to conflict of laws.
b) To
be effective, any notice given under this Agreement must be in writing and
shall
be effective when received. Notice shall be given to the address
given in this Agreement.
Accountabilities
Inc. Initial
Here: ___________
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18.)
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Arbitration
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a) All
disputes arising between TSE-PEO and Accountabilities, or their respective
agents, employees, directors, officers, shareholders, heirs, executors,
administrators, legal representatives, successors and assigns, shall be resolved
exclusively through final and binding arbitration pursuant to the Federal
Arbitration Act and administered by the American Arbitration Association under
its Commercial Arbitration Rules. A demand for arbitration shall be
filed with the American Arbitration Association within the applicable statute
of
limitations. A copy of the demand for arbitration shall be
simultaneously served on the respondent. Judgment on the award may be
entered in any court with jurisdiction. The arbitrator shall be bound
by the substantive law of the State of ________ and of the United
States, other than conflicts of law rules, which shall not apply.
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b)
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The
parties waive trial by jury
in any action, claim, and counter claim or
proceeding.
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| TSE-PEO | ACCOUNTABILITIES, INC. | |||
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/s/
Xxxx X.
Xxxxxxx
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/s/
Xxxxx
Xxxxxxx
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Name:
Xxxx X.
Xxxxxxx
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Name:
Xxxxx
Xxxxxxx
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Title:
E.V.P.
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Title:
President
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| Date: 8/1/06 | Date: 7/14/06 |
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