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Exhibit 10(q)
CLIENT SERVICE AGREEMENT
This Client Service Agreement (the "Agreement") is made as of the 1st
day of July, 1999 (the "Effective Date") by and between Hanger Orthopedic Group,
Inc., a Delaware corporation with its principal place of business at 0000 Xxx
Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 and its subsidiaries ("Client"), and
NovaCare Employee Services, Inc. ("NCES"), a Delaware corporation with its
principal place of business at the Valley Forge Corporate Center, 0000 Xxx Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Client is acquiring all the issued and outstanding shares
of NovaCare Orthotics and Prosthetics, Inc., a Delaware corporation ("NovaCare
O&P ");
WHEREAS, NCES has expertise in providing comprehensive outsourced human
resource solutions, including payroll, benefits procurement and management,
human resource guidance, workers' compensation insurance management (including
risk assessment, injury prevention and claims management);
WHEREAS, NovaCare O&P has previously outsourced to NCES certain
services functions, and co-employed the employees of NovaCare O&P (the "Worksite
Employees"); and
WHEREAS, the Client is desirous of contracting with NCES in order to
enable the Client to access certain services as hereinafter described from NCES
for the benefit of the Worksite Employees.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises herein contained, and intending legally to be bound, the
parties hereby agree as follows:
1. Parties' Intent
Client and NCES understand and intend that, under this Agreement, NCES
will assume certain rights and duties of a co-employer to assist the Client in
the provision of certain services to Worksite Employees located at NovaCare O&P
Client worksites.
2. Term and Termination.
2.1 Initial Term. The initial term (the "Initial Term") of this
Agreement shall be from July 1, 1999 through December 31, 1999.
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2.1.2 Renewal Term. This Agreement may be renewed by Client at its
option upon the same terms and conditions for two additional six-month terms
(each a "Renewal Term") upon the delivery of written notice by the Client to
NCES at least thirty (30) sixty (60) days prior to the expiration of the Initial
Term and any subsequent Renewal Term.
2.1.3 Termination.
2.1.3.1 By NCES. NCES may terminate this Agreement
upon delivery of written notice to Client in the event that:
(a) Client fails to pay any sums due hereunder, and
such failure continues for three (3) business days after written notice thereof
is received by Client via either national overnight delivery service (e.g.,
Federal Express) or certified or registered mail, return receipt requested,
postage prepaid. NCES agrees that Client's payment of such sum in no way affects
Client's right to challenge NCES thereafter and pursue its rights pursuant to
the dispute resolution provision contained in this Agreement.
(b) Client fails at any time after the receipt of
written notice thereof from NCES to promptly procure or maintain any insurance
coverage required to be procured and/or maintained by the Client under this
Agreement;
(c) Client fails to perform or observe any duty,
obligation or covenant contained in this Agreement other than those set forth in
subparagraph (a) or subparagraph (b) above, and such failure continues for ten
(10) calendar days after written notice thereof is received by Client via either
national overnight delivery service (e.g., Federal Express) or certified or
registered mail, return receipt requested, postage prepaid; provided, however,
in the event Client promptly commences efforts to cure such matter within such
10-day period and thereafter Client continues to diligently pursue such cure
efforts, then such claimed failure by Client to perform under this Agreement
shall not be a basis for which NCES may attempt to terminate this Agreement;
(d) Client becomes insolvent (that is, unable to pay
its debts as they mature or in accordance with customary business practice) or
commits an act of bankruptcy, or applies for, consents to, or acquiesces in the
appointment of a trustee or a receiver for it or any of its property, or, in the
absence of such application, consent or acquiescence, a trustee or receiver is
appointed for Client or for a substantial part of its property and is not
discharged within thirty (30) days thereof, or if any bankruptcy, insolvency,
dissolution or liquidation proceeding is instituted by or against Client and is
consented to or acquiesced in by Client or is not dismissed within thirty (30)
days;
(e) there occurs the termination, cessation or
liquidation of the Client's business;
(f) any representation, warranty or statement of
material fact made in this Agreement by Client is false or misleading in any
material respect;
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(g) changes in federal, state or local law,
regulation or controlling legal interpretation occur that make it legally
impossible or economically impractical for NCES to carry out its obligations
hereunder in the jurisdiction(s) as to which it exercises its right to
terminate; provided, however, that in the case of a claim by NCES that it is
economically impractical for NCES to carry out its obligations hereunder, then
in such event the termination of this Agreement by NCES shall not be effective
until sixty (60) days after NCES has delivered written notice of such desired
termination by NCES to the Client provided Client reaffirms that it shall pay
NCES all sums due under this Agreement during the sixty (60) day period;
(h) Client fails to comply within a reasonable
period of time, as dictated by the circumstances, after receipt by the Client of
written notice from NCES with any reasonable written directive from (i) NCES
regarding health and safety, which NCES directive is required by law to be
complied with by the Client, (ii) NCES' workers' compensation carrier with
respect to Worksite Employees, or (iii) any government agency with jurisdiction
over the subject health or safety matter applicable to Worksite Employees; or
(i) Client willfully or materially misrepresents
workers' compensation or Fair Labor Standards Act classification or willfully or
materially inaccurately reports employee payroll hours, pay rate or salary.
2.1.3.2 By Client. Client may terminate this Agreement upon
delivery of written notice to NCES in the event that:
(a) NCES fails to pay any sums required to be paid
hereunder by NCES as co-employer of the Worksite Employees (i) to or on behalf
of any Worksite Employee or (ii) to a governmental agency, insurance carrier,
third party administrator or other third party;
(b) NCES fails at any time to procure or maintain
insurance coverage required to be procured and/or maintained by NCES under this
Agreement;
(c) NCES becomes insolvent (that is, unable to pay
its debts as they mature or in accordance with customary business practice) or
commits an act of bankruptcy, or applies for, consents to, or acquiesces in the
appointment of a trustee or a receiver for it or any of its property, or, in the
absence of such application, consent or acquiescence, a trustee or receiver is
appointed for NCES or for a substantial part of its property and is not
discharged within thirty days thereof, or if any bankruptcy or insolvency
proceeding, or any dissolution or liquidation proceeding, is instituted by or
against NCES and is consented to or acquiesced in by NCES or is not dismissed
within thirty (30) days;
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(d) there occurs the termination, cessation or
liquidation of NCES' business;
(e) any representation, warranty or statement of
material fact made or furnished to Client or Client's representatives by or on
behalf of NCES, or any document, instrument or other paper submitted to Client
or Client's representatives by or on behalf of NCES, is false or misleading in
any material respect; or
(f) NCES fails to perform or observe any material
duty, obligation or covenant contained in this Agreement other than those set
forth in subparagraph (a), subparagraph (b) or subparagraph (c) above, and such
failure continues for ten (10) calendar days after written notice thereof is
sent to NCES by overnight delivery service (e.g., Federal Express) or by
certified or registered mail, return receipt requested, postage prepaid, unless
such cure cannot reasonable be achieved within such timeframe, using
commercially reasonable efforts, in which case the applicable cure period shall
be as is reasonable under the circumstances;
3. Fees.
3.1 Calculation of Fees
For the Initial Term and the Renewal Terms under this Agreement,
commencing July 1, 1999, the fees shall be determined in accordance with this
Section 3.1.
3.1.1 Payroll Fees. The following Client payments will be
processed by NCES and billed to Client:
(a) gross earnings, including salary, wages, bonus, vacation
time, paid time off, sick time, commissions and severance pay (before
deductions, whether before tax or after tax, all of which deductions, including
but not limited to deductions for employee contributions to retirement or 401(k)
plans, and employee loan repayments, advances and garnishments, shall be made by
NCES and promptly remitted by NCES to the Client or such third-party as
designated by the Client, with the Client hereby designating INVESCO as the
third-party administrator of the 401(k) plan to cover the Worksite Employees to
whom NCES must promptly remit all employee contributions to the 401(k) plan)
paid to Worksite Employees;
(b) the employer's portion due under the Federal Insurance
Contributions Act (FICA), Federal Unemployment Tax Act (FUTA) and State
Unemployment Tax Act (SUTA) attributable to gross earnings in accordance with
regulations promulgated under each such Acts;
(c) the employer's portion of any employee benefit plan
contributions, which amount shall be promptly remitted by NCES to the
appropriate third-party designated by the Client which is administering each
particular employee benefit plan for
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the benefit of the Worksite Employees (with the Client hereby designating
INVESCO as the third-party administrator of the 401(k) plan to cover the
Worksite Employees to whom NCES must promptly remit all employer contributions
to the 401(k) plan) in accordance with applicable law; and
(d) the net amount of expense reimbursement and any other cash
payment to a Worksite Employee that is included in a paycheck at the request of
Client but is not includable in gross earnings for federal or state tax
purposes.
3.1.2 Benefits/Risk Management Fees. For Benefits/Risk Management
Responsibilities assumed hereunder, which are more specifically described in
Section 4.2 herein, Client shall pay NCES the fees identified in Schedule 3.1.2.
3.1.3 Administrative Fees. For Administrative Responsibilities
assumed hereunder, which are more specifically described in Section 4.3 herein,
Client shall pay NCES the fees identified in Schedule 3.1.3.
3.1.4 Additional Fees. Client may request NCES to assume
additional responsibilities pursuant to Section 4.4 below (hereinafter referred
to as "Additional Responsibilities"). The fee for such Additional
Responsibilities shall be set forth in a schedule to this Agreement (Schedule
3.1.4).
3.2 Payment of Fees.
3.2.1 Payroll and Benefits/Risk Management Fees. On or before
each payroll date, Client shall fund an account with the amount of the Payroll
Fees and Benefits/Risk Management Fees (the "Payroll Draw Account") in advance
of each payroll payment date applicable to Worksite Employees. NCES shall have
the right to draw against the Payroll Draw Account an amount equal to the
Payroll Fees and Benefits/Management Fees applicable to Worksite Employees for
the applicable payroll payment date. The Payroll Draw Account shall be the sole
property of the Client and NCES shall only have the right under this Agreement
to make appropriate withdrawals therefrom for the purposes herein described.
Client agrees to collect, verify and transmit to NCES' administrative office, no
less than seven (7) business days before each NCES payroll date applicable to
Worksite Employees, any information in the possession of the Client which is
required by NCES to determine correctly and accurately the amount of the payment
due to be paid by NCES to or on behalf of Worksite Employees. If Client defaults
in paying the amounts due to be paid by Client into the Payroll Draw Account and
NCES nevertheless continues to pay wages for Worksite Employees at the rates due
to such Worksite Employees, then the Client shall promptly reimburse NCES for
the shortfall amount due in the Payroll Draw Account. Additionally, Client
agrees to promptly inform NCES of any situation in which payment will not be
made by the Client into the Payroll Draw Account, in which case NCES shall not
be required to make payments from the Payroll Draw Account in excess of the
amount in the Payroll Draw
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Account. NCES shall be responsible for the creation and delivery to the Client
of all information relating to all NCES withdrawals from the Payroll Draw
Account.
3.2.2 Client is responsible for all sales, franchise and use
taxes applicable to the states in which business is being conducted. If NCES
pays such taxes on behalf of Client, NCES shall include such amounts in its
invoice for services.
4. NCES's Responsibilities.
4.1 Payroll Responsibilities. NCES shall be responsible for and shall
perform the following functions ("Payroll Responsibilities") on behalf of
NovaCare O&P Client with respect to all Worksite Employees in consideration of
the payment of Payroll Fees:
(i) Payment and distribution of wages based on hours, wage and
salary rates and other information supplied by Client, including application of
set-offs owed to Client and implementation of garnishment orders, together with
the withholding of all applicable wage deductions, including but not limited to
deductions for employee contributions to retirement or 401(k) plans, and
employee loan repayments, advances and garnishments, which deductions shall be
made by NCES and promptly remitted by NCES to the Client or such appropriate
third-party as designated by the Client, with the Client hereby designating
INVESCO as the third-party administrator of the 401(k) plan to cover the
Worksite Employees to whom NCES must promptly remit all employee contributions
to the 401(k) plan from the Worksite Employees;
(ii) Calculation of Paid Time Off (in accordance with Client's
policies);
(iii) Payment of sign-on, relocation and other bonuses;
responsibility for monitoring situations in which such payments are owed back to
Client and taking reasonable steps to collect or offset such amounts from
subsequent pay;
(iv) Collection, reporting and payment of applicable federal,
state and local payroll taxes (including state unemployment insurance as
provided under Section 4.2(iii) hereof);
(v) Calculation and payment of the employer's portion of any
employee welfare benefit plan contributions;
(vi) Payment of expense reimbursement and any other non-wage
payments to Worksite Employees, as requested by Client; and
(vii) Payment of any and all accrued paid time off earned by any
Worksite Employee who is covered under this Agreement.
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4.2 Benefits Administration Responsibilities. NCES shall be responsible
for and shall perform the following functions on behalf of NovaCare O&P Client
with respect to Worksite Employees in consideration of the payment of Benefits
Fees:
(i) Collection of employee contributions, payment of premiums and
administration under the Plans;
(ii) Funding of Plans that require funding within the time
required by law;
(iii) Reporting and payment of applicable state unemployment
insurance;
(iv) Administration of unemployment compensation claims; and
(v) Payment of workers' compensation insurance premiums and
administration and management of workers' compensation claims, including payment
of claims not paid by an insurance carrier or other third party and the payment
of all additional monies which may become due with respect to workers'
compensation insurance, whether due by audit or otherwise;
4.3 Human Resource Administrative Responsibilities. NCES shall be
responsible for and shall perform the following functions on behalf of NovaCare
O&P Client with respect to Worksite Employees in consideration of the payment of
Administrative Fees:
(i) Completion, reporting and maintenance of payroll and Plan
records, with the exception of records of hours worked, which shall be
collected, verified and maintained by Client, provided that Client shall make
available to NCES copies of such records of hours worked as NCES may require for
the purpose of maintaining the Plans;
(ii) Analysis, transfer and integration of payroll and benefits
for (a) all additional persons, if any, who are designated as new and additional
Worksite Employees in writing by the Client to NCES, and (b) Worksite Employees
whose employment is terminated;
(iii) Operation of an employee service center for Client
management and Worksite Employees with access for the purpose of making changes
and resolving questions relating to Plans and paychecks, including the
maintenance of a toll free "800" telephone number which may be utilized by
Worksite Employees and the Client for purposes of reporting and processing
claims and reports relating to Plans, benefits and paychecks, with NCES agreeing
to respond to the Client or the subject Worksite Employee no later than the next
business day following each inquiry, report and/or call made by the Client or
such Worksite Employee to this employee service center;
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(iv) Provision of standardized reports, on a mutually determined
basis, as reasonably requested by Client, reports regarding payroll, human
resources reports, turnover, employee rosters and workers' compensation claims
experience reports; and provision of specialized forms, in form and content
reasonably requested by Client, subject to the capacity of the mutually
determined systems to produce requested formats, prepared and delivered in a
reasonably prompt timeframe, with samples of such reports and their applicable
detail of information being attached as Schedule 4.3(iv) hereto.
(v) Record Maintenance - maintain accurate and complete personnel
files for active and terminated employees to the extent such information is
provided by Client or otherwise available to NCES, including all information
required by state and federal law and by the policies and procedures of Client,
including, but not limited to, information relating to performance appraisals,
I-9 forms, records of disciplinary action and staff certification and all
employee status changes, with all such records being maintained within the
timeframes and contents as required by federal law and the guidelines of the
Internal Revenue Service.
(vi) NCES shall make changes, which are reasonably requested by
the Client and acceptable to NCES, to the database of information relating to
the Worksite Employees which is maintained by NCES.
(vii) NCES represents to the Client that all systems and
information maintained by NCES which affect the Client, NovaCare O&P and/or the
Worksite Employees shall be Y2K compliant.
(viii) NCES shall provide the Client with complete electronic
tape back-up copies in the retrievable format in which such data is currently
stored by NCES (in a non-ASCII format) of the payroll, human resources and
benefits systems of NCES which relate to the Worksite Employees, with such
complete electronic tape back-up copies to be provided by NCES to the Client at
the following times: (i) within thirty (30) days of the commencement of this
Agreement; upon the commencement of the Initial Term, (ii) sixty (60) days prior
to the expiration of any term whether Initial or Renewal on March 31, June 30,
September 30 and December 31 of each calendar year during the Initial Term and
all Renewal Terms under this Agreement, and (iii) within five (5) ten (10)
business days of the termination of this Agreement.
(ix) NCES agrees that NCES shall not process under this
Agreement, and the Client shall not be liable in any manner for, any payroll,
medical, dental or other benefit costs or expenses relating to any matter
involving any Worksite Employees which occurs prior to July 1, 1999.
(x) NCES agrees to complete and provide to the Client an SAS
70 report upon each of (i) the commencement of the Initial Term, (ii) promptly
after December 31, 1999 for the period then ended on December 31, 1999, (iii)
for each annual calendar period thereafter during any Renewal Term, and (iv)
within five (5) business days of the termination of this Agreement.
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(xi) NCES agrees to be responsible to properly administer in a
timely manner all obligations of the Client with respect to the Worksite
Employees to issue certificate of creditable coverage on all group health plans
under the Health Insurance Portability and Accountability Act (HIPPA).
4.4 Additional Responsibilities. NCES may assume additional
responsibilities not covered by Sections 4.1-4.3 above if requested in writing
by the Client. Any such additional responsibilities shall be provided pursuant
to a written addendum to this Agreement, executed by both parties, setting forth
the services to be provided and the fee for such services.
5. Rights, Duties and Obligations of Client.
5.1 Supervision of Employees. Client and its subsidiaries, including
NovaCare O&P, will be solely responsible for the supervision, direction and
termination of Worksite Employees in carrying out the work of Client's business,
and shall provide all instrumentalities (including uniforms, tools, equipment
and other supplies) which in the sole opinion of Client are necessary to the
performance by the Worksite Employees of their job functions with Client and its
subsidiaries, including NovaCare O&P.
5.2 Reports of Hours Worked. In order for NCES to make accurate
payments to Worksite Employees on behalf of Client, Client shall (i) maintain
accurate records of actual time worked by Worksite Employees,(ii) make accurate
reports of time worked by Worksite Employees to NCES in accordance with the
requirements of the Fair Labor Standards Act and any applicable similar state
law, (iii) submit actual time worked in a mutually determined format and (iv)
verify the accuracy of such reports. Client shall maintain the records required
to be kept under this Section 5.2 for such period of time as Client deems
necessary or in accordance with Client's record retention policies, provided,
however, such policies are consistent with applicable law.
5.3 Employment Decisions. Any common-law employee or contractual
employee of NovaCare O&P Client shall be deemed a Worksite Employee hereunder.
Client shall determine employment eligibility of all Worksite Employees. If a
Worksite Employee is required to possess or maintain a license, or to be
supervised by a supervisor who is required to possess or maintain a license,
Client shall be responsible for verifying such licensure or providing such
required supervision. In taking any adverse action with respect to the pay,
conditions of employment or employment status of a Worksite Employee (an
"Adverse Action"), Client shall comply with applicable law governing employment.
Worksite Employees who are supervisory employees shall be required to comply
with applicable law.
5.4 Employee Benefit Plans. NCES and Client mutually agrees to adopt,
as its own, the Welfare Benefits and Flexible Benefits Programs identified in
Schedule 5.4 for the benefit of Worksite Employees. NCES and Client shall be
solely liable for the costs associated with the actual benefits provided by each
of them under such plans.
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5.5 Financial Controls. Client accepts sole responsibility for
accounting and other financial control policies (and fidelity bonding
requirements) applicable to the Worksite Employees or their conduct, other than
the duties that NCES has agreed to provide under the terms of this Agreement.
5.6 Compliance With Law. Client accepts sole responsibility for
compliance with all provisions of law applicable to Worksite Employees, other
than those laws relating to the duties that NCES has agreed to provide to Client
under the terms of this Agreement.
5.7 Safety. Client shall report to NCES all accidents in which a
Worksite Employee is injured promptly (by telephone to NCES's insurance
carrier's (Liberty Mutual) toll free "800" telephone number within one working
day of Client's knowledge of an injury, and report such injury in writing by fax
within forty-eight (48) hours) to NCES or NCES's designee. Client shall
cooperate in any safety inspection or investigation of a worksite injury
conducted by or on behalf of NCES. Client shall reasonably cooperate with NCES
in returning injured Worksite Employees to work in available modified duty
positions and in making reasonable accommodation under applicable disability
laws and the requirements thereunder. NCES retains a right of direction and
control regarding the management of safety as same affects any Worksite Employee
so long as the exercise of such right by NCES does not unreasonably interfere
with the business conducted by the Client and NovaCare O&P through the Worksite
Employees.
5.8 COBRA. NCES shall be responsible for all obligations to provide
continued health care coverage required under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA Coverage") to each current and
former Worksite Employee (and their dependents, if applicable) who is eligible
for such COBRA Coverage on the effective date hereof.
5.9. Provision of Information. Client shall provide to NCES such true
and accurate information as NCES may request as necessary to comply with
requirements of law with respect to Client's ownership and organizational
structure and compensation packages of its senior executives and structure and
operation of benefit plans offered to Worksite Employees by Client. NCES shall
provide to the Client such true and accurate information as the Client may
request as necessary to comply with requirements of law, rules or regulations to
which the Client is subject and with respect to Client's financial and legal
reporting requirements.
5.10. Changes in Policies and Procedures. Client shall notify NCES of
all changes by Client or NovaCare O&P to policies, processes and procedures
affecting all services provided by NCES under this Agreement. NCES shall not be
required to provide any greater services to the Worksite Employees for the
benefit of the Client or NovaCare O&P than the level and type of services
provided under the terms of this Agreement and
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the Schedules attached hereto, unless otherwise agreed to in writing and signed
by both the Client and NCES.
6. Rights, Duties and Obligations of NCES.
6.1 Compliance With Law. Provided that Client has given to NCES all
information required hereunder, NCES accepts sole responsibility for compliance
on behalf of the Client and NovaCare O&P with the following provisions of law
applicable to Worksite Employees:
(i) all rules and regulations governing the reporting, collecting
and payment of federal and state payroll taxes on wages paid under this
Agreement, including, but not limited to, a) federal income tax withholding
provisions of the Internal Revenue Code, b) state and/or local income tax
withholding provisions, if applicable, c) Federal Insurance Contributions Act
(FICA), d) Federal Unemployment Tax Act (FUTA), and e) applicable state
unemployment tax provisions;
(ii) applicable workers' compensation laws including, but not
limited to, a) procuring workers' compensation insurance and the payment of all
costs, premiums, charges and expenses relating thereto, including such insurance
required by monopolistic states (being states which require workers compensation
insurance to be obtained from such state itself), b) completing and filing all
required reports, and c) administering, managing, and otherwise processing
claims and related procedures, with NCES being solely liable for any and all
monies which are found or claimed as due with respect to Worksite Employees,
whether such additional money is found to be due by audit or otherwise;
(iii) Internal Revenue Code Section 4980B, subject to the
provisions of Section 5.8;
(iv) Section 1324A(b) of the Immigration Reform and Control Act
of 1986, assuming that Client has provided to NCES all necessary and accurate
documentation required by such law;
(v) the Consumer Credit Protection Act, Title III; and
(vi) the Fair Labor Standards Act, 29 U.S.C. Sections 201 et
seq., based solely on information provided by Client pursuant to Section 5.2
hereof.
7. Effect of Termination.
7.1 COBRA. In the event of termination of this Agreement, the
Client shall immediately provide coverage under a "group health plan" (as
defined in Section 4980B(g)(2) of the Code) to all applicable Worksite Employees
and their dependents who were eligible for coverage under any NCES group health
plan immediately before such
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event. The Client's group health plan provided under the preceding sentence
shall not contain any exclusion or limitation with respect to any pre-existing
condition applicable to any Worksite Employees or their dependents.
7.2 Accrued Pay. If this Agreement is terminated, the Client will be
liable for the provision to Worksite Employees of such services, including any
accrued pay whether for unused sick, vacation or other paid time off, as Client
is required to provides to its employees; provided, however, that nothing
hereunder shall excuse NCES from its obligation to either complete the
performance of any of its duties hereunder which NCES has commenced to perform
prior to such termination of this Agreement or provide all necessary assistance
to the Client to complete such duties formerly performed by NCES under this
Agreement, all so that neither the Worksite Employees norNCESare adversely
affected by the non-performance of such duties by Client.
7.3 Survival. The indemnification, contribution and duty to cooperate
provisions of this Agreement shall survive the expiration of this Agreement or
other termination of this Agreement indefinitely.
7.4 Duration of Obligations.
7.4.1 Upon the termination of this Agreement for any reason,
the parties shall continue to have the following obligations through and
including the termination date:
(i) NCES shall have the obligation to pay all wages and benefits
payable to the Worksite Employees from the amounts provided by NovaCare O&P
therefor through and including the termination date. If NCES makes any payment,
authorized by Client or otherwise required by law, to any of the Worksite
Employees after this Agreement has been terminated, NCES shall be entitled to
full reimbursement for such expenditures;
(ii) Except as otherwise provided herein, all obligations of NCES
under this Agreement to maintain any workers' compensation insurance or health
care coverages on behalf of the Worksite Employees shall cease, effective as of
the termination date, or as otherwise provided under the terms of the insurance
or health care coverages being provided by NCES to the Worksite Employees. If
applicable, all such Worksite Employees shall be immediately informed by Client
that they are no longer covered by any workers' compensation insurance or health
care policies of NCES. NCES shall immediately be released from such obligations
as are permitted by law, except that NCES shall remain responsible for the
management and cost of workers' compensation claims that have been incurred no
later than the effective date of the termination of this Agreement; and
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(iii) Client and NCES each shall have the obligation to pay all
fees payable by each of them in accordance with the provisions of this
Agreement, which are attributable to the period ending on the termination date.
8. Indemnification.
8.1 Indemnification. NCES and the Client (each an
"Indemnifying Party") each agree to indemnify, hold harmless, protect and defend
the other party (the "Indemnified Party"), and its respective subsidiaries,
affiliates, officers, directors, agents, attorneys and employees from any
claims, expenses (including court costs and attorneys' fees), damages and
liabilities (collectively hereinafter referred to as "Damages"), from claims,
actions, suits, judgments or settlements arising out of negligence, malpractice,
tortious conduct, violation of any statute, law, or regulation by the
Indemnifying Party, , the breach of any of obligations or warranties of the
Indemnifying Party under this Agreement, or any action by the Indemnifying Party
or its agents which may result in a violation of any law or regulation,
including, but not limited to, Damages allegedly arising out actions of any
kind. The Indemnified Party shall give the Indemnifying Party prompt written
notice of any claim for which indemnification will be sought hereunder, shall
cooperate in the investigation and defense of any such claim and shall not
settle or compromise any such claim without the approval of the Indemnifying
Party unless the Indemnifying Party fails to provide evidence of ability to pay
a judgment in excess of the proposed settlement amount. Notwithstanding anything
herein to the contrary, NCES agrees that NCES shall be solely liable for all
costs, expenses, charges, liabilities and Damages of any type which relate to
workers' compensation matters., including but not limited to losses of any type,
including loss adjustment expense, within any workers compensation deductible
amount.
8.2 Indemnification by NCES. NCES assumes responsibility for
the payment of wages to the Worksite Employees without regard to payments by
Client to NCES, although in doing so NCES does not waive or limit any claim
against Client. NCES agrees to indemnify, hold harmless, protect and defend
Client, its subsidiaries and affiliates and each of their officers, directors,
agents, attorneys and employees from and against any claims, expenses (including
attorneys' fees and court costs), damages and liabilities from claims, actions,
suits, judgments or settlements arising out of NCES's breach of its obligations
or warranties under this Agreement or any action by NCES or its agents or
employees (other than Worksite Employees) which may result in a violation of any
law or regulation, except violations resulting from conduct of Worksite
Employees or worksite conditions. Client shall give NCES prompt written notice
of any claim for which indemnification will be sought hereunder, and shall
cooperate in the investigation and defense of any such claim and shall not
settle or compromise any such claim without the approval of NCES. Where Client
has followed or complied with a request or recommendation of NCES or otherwise
properly relied on information supplied by NCES, it shall be relieved of any
responsibility and any damages for such actions (unless Client has failed to
comply with its obligations hereunder to provide accurate information to NCES)
and NCES shall indemnify and hold Client harmless from and against any and all
liabilities arising therefrom.
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9. Representations and Warranties.
9.1 Fair Labor Standards Act. NCES agrees not to withhold, except for
any withholding that are order pursuant to a garnishment, child or domestic
support order, or tax xxxxx, a payment to any Worksite Employee absent express
permission from the Client, or in any manner, or by any device, act in violation
of, cause, or seek to cause a violation of any applicable federal, state or
local law, ordinance, or regulation pertaining to the terms, conditions, and
services of this Agreement. Client further warrants that it shall not 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 covered by
this Agreement, and that any such payment shall be a breach of this Agreement,
and at the election of NCES, grounds for immediate termination of this
Agreement.
9.2 Employment Matters. NCES and Client warrant that there are no
collective bargaining agreements binding upon either party that affect the
Worksite Employees, and that there are no pending governmental investigations or
any lawsuit material in nature related to the Worksite Employees, the working
conditions of the Worksite Employees, the products or services produced or
provided by the Worksite Employees or any other matters affecting the
performance of either party under this Agreement except as otherwise disclosed
in writing to the affected party in a Schedule attached to this Agreement.
Client warrants that all hazardous materials, if any, on its premises are
maintained, stored and disposed of in accordance with applicable law. Client
agrees to provide any and all protective safety equipment required for safe
performance of job duties or required under local, state or federal law.
9.3 Primary Obligor for Worksite Employee Compensation. Accept as
otherwise provided in this Agreement, the parties agree that the Client, and not
NCES, shall have the primary responsibility for any and all compensation due to
Worksite Employees; provided, however, that such compensation shall, during the
term of this Agreement, be paid by NCES in a timely manner from the funds
provided to NCES by the Client for such purposes under the terms of this
Agreement.
9.4 APB Opinion No. 25. The parties agree, and each represent and
warrant to the other, that only Client may use the rules of APB Opinion No. 25
to account for the equity compensation paid to a Worksite Employee.
9.5 Confidentiality. NCES and Client each acknowledge and agree that it
may obtain knowledge of "confidential information" as hereinafter defined
concerning the other party. As used herein, "confidential information" means any
information, (including, without limitation, manuals, trade secrets, protocol,
methods, formula, pattern, device, plans, process, drawings, designs,
specifications, schematics, prototypes and other compilation of information or
technical know-how) which is, or is designed to be, used in the business of such
party, and is private or confidential and is not generally known or available to
the public. Client and NCES each agree that it will not, either during the term
of this Agreement or thereafter until the expiration of a period of ten (10)
years
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following the termination of this Agreement, use or disclose any such
confidential information except as otherwise specifically contemplated in this
Agreement.
10. Workers' Compensation. NCES shall provide all necessary workers'
compensation insurance for Worksite Employees in compliance with applicable law.
Workers performing services for the Client not covered by this Agreement and who
are not co-employees of NCES shall not be covered by NCES' workers' compensation
insurance.
11. Insurance. During the Initial Term of this Agreement and any Renewal Term,
NCES shall obtain and maintain the following types of insurance:
11.1 Automobile. Each party shall obtain and maintain automobile
liability insurance for all owned, non-owned, and hired vehicles used in
connection with the work performed on its premises or in connection with its
business, and will cause its insurance carrier to issue a Certificate of
Insurance evidencing same to the other party, naming the other party as a
certificate holder and allowing not less than thirty (30) days' notice of
cancellation or material change. The policy shall insure against liability for
bodily injury and property damage, with a minimum combined single limit of One
Million Dollars ($1,000,000) and Uninsured Motorist or PIP equivalent coverage
of at least the minimum limits required by the State where a "no fault" law
shall apply.
11.2 General Liability. Client and NCES shall each obtain and maintain
throughout the Initial Term and any applicable Renewal Term of this Agreement
general liability insurance and cause their respective insurance carriers to
name each other as certificate holders and which certificate shall provide for
not less than thirty (30) days' prior written notice to the affected party of
any cancellation or material change. The minimum requirement shall be One
Million Dollars ($1,000,000) combined single limit, and Three Million Dollars
($3,000,000) aggregate limit. If Client renders professional services, it shall
obtain and maintain throughout the term, and any succeeding terms of this
Agreement, professional liability coverage as applicable, and will cause its
insurance carrier to issue a Certificate of Insurance evidencing same to NCES
allowing not less than thirty (30) days' notice of cancellation or material
change. Unless otherwise agreed to, such policy shall have a combined single
limit of not less than One Million Dollars ($1,000,000), Three Million Dollars
($3,000,000) aggregate limit.
Client agrees that NCES shall not provide any general liability
insurance coverage for products liability, completed operations or professional
liability for any Worksite Employee or the Client. Client shall further agree
that NCES shall have no obligation to provide any form of automobile insurance
coverage on behalf of any Worksite Employee or for Client.
12. Miscellaneous.
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12.1 Third Party Rights. This Agreement is intended solely for the
mutual benefit of the parties hereto and does not create any rights of any kind
in a third party.
121.2 Integration. This Agreement and the Schedules attached hereto and
incorporated as if set forth in full herein constitutes the entire agreement
between the parties with regard to the subject matter hereof and supersedes any
and all agreements, whether oral or written, between the parties with respect to
its subject matter.
12.3 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.
121.4 Governing Law. This Agreement shall be subject to the laws of the
State of Delaware; provided, however, that the parties agree that subject matter
jurisdiction, personal jurisdiction and venue shall be in a Federal court of
competent jurisdiction which is located in or nearest to the city of
Philadelphia, Pennsylvania.
12.5 Dispute Resolution.
12.5.1 Arbitration. The parties shall attempt amicably to
resolve disagreements by negotiating with each other. In the event that the
matter is not amicably settled through negotiation, any controversy, dispute or
disagreement arising out of or relating to this Agreement (a "Controversy")
shall be resolved exclusively by binding arbitration, which shall be conducted
by a three-person panel of arbitrators in the Philadelphia, PA area, in
accordance with the J-A-M-S/ENDISPUTE Streamlined (in the case of a dispute
within the scope of the Streamlined Rules and Procedures) or Comprehensive
Arbitration Rules and Procedures (the "Rules"). The parties agree that
notwithstanding anything to the contrary contained in the Rules, the arbitrators
shall not award consequential, exemplary, incidental, punitive or special
damages unless the party found to be at fault has been negligent or willful in
its acts or omissions. The prevailing party shall further be entitled to payment
by the non-prevailing party of reasonable legal fees and all costs incurred by
the prevailing party in such arbitration proceedings.
12.5.2 Procedure. It is agreed that if any party shall desire
relief of any nature whatsoever from any other party as a result of any
Controversy, such party will initiate such arbitration proceedings within a
reasonable time, but in no event more than twelve (12) months after the facts
underlying said Controversy first become known to the party seeking relief. The
failure of such party to institute such proceedings within said period shall be
deemed a full waiver of any claim for such relief. The non-prevailing party
shall reimburse the prevailing party for reasonable costs of said arbitration.
The parties agree that the decision and award of the arbitrators shall be final
and conclusive upon the parties, in lieu of all other legal, equitable (except
as provided in 12.5.3. below) or judicial proceedings between them, and that no
appeal or judicial review of the award or decision of the arbitrators shall be
taken, but that such award or decision may be
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entered as a judgment and enforced in any court having jurisdiction over the
party against whom enforcement is sought.
12.5.3. Equitable Relief. The parties recognize that
irreparable injury may result from a breach of this Agreement and that money
damages may be inadequate to fully remedy the injury. Therefore, either party
may, in any such instance, seek and obtain from a court of competent
jurisdiction one or more preliminary or permanent orders designed to maintain
the status quo ante pending the results of the arbitration proceedings by (i)
restraining and enjoining any act that would constitute a breach or (ii)
compelling the performance of any obligation that, if not performed, would
constitute a breach. Any relief awarded under this paragraph shall be dissolved
upon issuance of the arbitrators' decision and order.
12.6 Client Intellectual Property Rights. The Client shall own any and
all intellectual property rights incident to any and all process, products,
inventions and discoveries that are created or invented by a Worksite Employee.
The Client shall bear any and all costs associated with any copyrights,
trademarks or patents that Client chooses to obtain to protect Client's
intellectual property rights.
12.7 Duty to Cooperate. In the event that a Worksite Employee or a
government agency or entity files any type of claim, lawsuit or charge against
NCES, Client or both, alleging a violation of any law or failure to do something
which was otherwise required by law, the Client and NCES mutually agree to
cooperate with each other in the defense of any such claim, lawsuit or charge.
NCES and the Client will make available to each other upon request any and all
documents that either party has in its possession which relate to any such
claim, lawsuit or charge, unless such document relates to a claim that wither
party may have against the other party. However, neither party shall have the
duty to cooperate with the other if the dispute is between the parties
themselves, nor shall this provision preclude the raising of cross claims or
third party claims between the Client and NCES.
12.8 Severability. Should any term, warranty, covenant, condition, or
provision of this Agreement be held to be invalid or unenforceable, the balance
of this Agreement shall remain in force and shall stand as if the unenforceable
part did not exist. The captions in this Agreement are provided for convenience
only and are not part of the terms and conditions of this Agreement.
12.9 Modification and Implementation. Any modifications to this
Agreement must be in writing and executed by NCES and the Client to be
enforceable.
12.10 No Partnership. Nothing set forth herein shall be deemed to
create a partnership or joint venture between the Client and NCES and no
fiduciary duty shall arise from the relationship created herein.
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12.11 Notification of Termination to Employees; Non-solicitation. If
for any reason this Agreement is terminated, NCES will notify all Worksite
Employees of whom it is aware of the termination of this Agreement and the
cessation of services by NCES. NCES agrees that during the term of this
Agreement and from and after its termination for any reason, NCES and any party
controlled by NCES shall not, without the prior written consent of the Client
and except as otherwise provided in this Agreement, knowingly solicit for hire
any of the Worksite Employees, nor interfere with the continued employment of
such persons solely by the Client. In the event of the termination of this
Agreement for any reason, NCES agrees that it shall thereafter refrain from
claiming or asserting any employment relationship with any Worksite Employee,
except only to the limited extent as may be necessary for NCES to complete the
provision of any services or benefits to any Worksite Employees.
12.12 Assignment. Neither party may assign this Agreement nor any
rights or duties hereunder without the prior written consent of the other party
and any attempted assignment without the prior written consent by the other
party shall be null and void and constitute a material breach of this Agreement;
provided, however, that a change in control or ownership of the stock of NCES
shall not be deemed to be an assignment of this Agreement for which consent by
the Client will be required.
12.13 Intention of the Parties. The intention of the parties with
respect to allocation between them of rights, duties and obligations is as set
forth in this Agreement. To the extent that the law of any state requires a
different form of agreement to effect the intention of the parties, the parties
agree to negotiate in good faith and to execute separate agreements applicable
to such state.
12.14 Counterparts. This Agreement may be signed in one or more
counterparts, each of which when executed shall be deemed an original and
together shall constitute one and the same instrument
12.15 Conflict. The parties agree that in the event of any conflict or
inconsistencies between the terms and provisions of this Agreement and the terms
and provisions of the Stock Purchase Agreement, dated April 2, 1999, as amended
on May 19, 1999 and June ___, 1999, then in such event the terms and provisions
of such Stock Purchase Agreement shall control.
(Signatures appear on the following page)
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Hanger Orthopedic Group, Inc. NovaCare Employee Services, Inc.
for itself and as Agent for its
Subsidiaries
By: ________________________________ By:______________________________
Xxxxxxx X. Xxxxx Xxxx X. Xxxx
Executive Vice President and Executive Vice President and
Chief Financial Officer Chief Operating Officer
____________________________________ __________________________________
Date Date
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[LIST AND ATTACH ALL EXHIBITS AND SCHEDULES]
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Hanger Orthopedic Group, Inc. NovaCare Employee Services, Inc.
for itself and as Agent for its
Subsidiaries
By: By: /s/ Xxxx X. Xxxx
--------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx Xxxx X. Xxxx
Executive Vice President and Executive Vice President and
Chief Financial Officer Chief Operating Officer
July 1, 1999
------------------------------------ ------------------------------------
Date Date
22
Hanger Orthopedic Group, Inc. NovaCare Employee Services, Inc.
for itself and as Agent for its
Subsidiaries
By: /s/ Xxxxxxx X. Xxxxx By:
--------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx Xxxx X. Xxxx
Executive Vice President and Executive Vice President and
Chief Financial Officer Chief Operating Officer
------------------------------------ ------------------------------------
Date Date
23
[LIST AND ATTACH ALL EXHIBITS AND SCHEDULES]
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Schedule 3.1.2
Schedule 3.1.3
NOVACARE EMPLOYEE SERVICES, INC.
SERVICE CONTRACT TERM SHEET
JULY 1, 1999 THROUGH DECEMBER 31, 1999
1. MONTHLY PAYROLL, BENEFIT AND HUMAN RESOURCE ADMINISTRATION FEE PER WORKSITE
EMPLOYEE - $55
1. Payroll Responsibilities. NovaCare Employee Services, Inc. (NCES) shall
be responsible for the following payroll functions with respect to Worksite
Employees:
(i) Payment of wages based on hours, wage and salary rates and other
information supplied by Hanger Orthopedic Group, Inc. ("Client").
(ii) Calculation of Paid Time Off (in accordance with Client's
policies);
(iv) Collection, reporting and payment of applicable federal, state and
local payroll taxes; and
(v) Implementation of all garnishment orders, coordination of proper
deductions of all monies owed under promissory notes from Worksite Employees,
processing of expense reports, and all other reporting required by state and
federal agencies, such as new hire reporting.
2. Benefits Administration Responsibilities. NCES shall be responsible for
the following benefit administration functions with respect to Worksite
Employees:
(i) Collection of employee contributions, payment of premiums and
administration under the benefit administration plans;
(ii) Reporting and payment of applicable state unemployment insurance;
(iii) Administration of unemployment compensation claims;
(iv) Payment of workers' compensation insurance premiums and
administration and management of workers' compensation claims, including
payment of claims not paid by an insurance carrier or other third party.
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Schedule 3.1.2
Schedule 3.1.3
(v) Coordination of all leave of absence programs, including but not
limited to family medical leave and disability leave; administration of all
state required benefit plans, such as short term disability plans; COBRA and
HIPPA administration; and processing all 5500 tax filings required for all
benefit plans; and
(vi) Providing the Client with a list of all the benefits and plans being
administered and/or provided by NCES to the Worksite Employees, and the delivery
within thirty (30) days of executing this agreement, by NCES to the Client, of
complete copies of all benefit contracts and plans covering the Worksite
Employees with proof that NCES is the contract holder thereof.
3. Human Resource Administrative Responsibilities. NCES shall be
responsible for the following administrative functions with respect to Worksite
Employees:
(i) Completion, reporting and maintenance of payroll and benefit plan
records, with the exception of records of hours worked, which shall be
collected, verified and maintained by Client, provided that Client shall make
available to Nova Care copies of such records of hours worked as NCES may
require for the purpose of maintaining the benefit plans:
(ii) Analysis, transfer and integration of payroll and benefits for (a)
Worksite Employees newly employed and the integration of all persons hired by
NovaCare O & P during the term of the Agreement between the Client and NCES,
and (b) Worksite Employees whose employment is terminated;
(iii) Operation of an employee service center providing Worksite Employees
with access for the purpose of making changes and resolving questions related
to benefit plans and paychecks;
(iv) Develop, maintain and implement a system designed to report (a)
service of payroll "On time" delivery and accuracy; and (b) responsiveness to
incoming 1-800 calls to service centers in each case in a report having a
format reasonably satisfactory to Client.
(v) Provision of reports within ten (10) days after the last day of each
calendar month showing its performance compared to the performance standards to
be established, in a form to be agreed upon;
(vi) Provision of reasonable standardized reports such as referenced in
Section 4.3(v) and illustrated in the samples attached as Schedule 4.3(iv);
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Schedule 3.1.2
Schedule 3.1.3
(vii) Record Maintenance - maintain accurate and complete personnel
files for active and terminated employees to the extent such information is
provided by Client, including all information required by state and federal
law and by the policies and procedures of Client, including, but not
limited to, information relating to performance appraisals, I-9 forms,
records of disciplinary action, staff certification and licensure; ensure
compliance with applicable records retention requirements; respond to
Client's requests for copies of such records in a reasonably prompt
timeframe and/or as reasonably requested by Client; and
(viii) Database Management - maintain accurate and complete employee
information and history on human resource information system, based on
information provided by Client.
II. MONTHLY BENEFIT/RISK MANAGEMENT CHARGE PER WSE - $92.50. Fee for
procurement and management of the benefit and risk management programs for
the Worksite Employees. Benefit management program will include health,
vision, dental, life insurance, workers' compensation and state
unemployment tax plans.
III. PASS THROUGH COSTS: Fees do not include or contemplate actual costs
incurred for remittance of premium payments or claims incurred in
association with the Insured (Life, LTD, Dental, HMO) or self-insured
(medical, dental) benefit plans. Payment for such premiums or claims shall
be the responsibility of the Client; NCES will xxxx the Client for such
costs in the second week of each month. Should this agreement terminate,
Client shall retain responsibility for payment of all claims properly
surfaced through a designated run-off period, in keeping with the
provisions of the applicable insurance contracts.
IV. WIND DOWN FEES: Should the parties terminate this agreement effective
12/31/99, Client agrees to reimburse NCES actual employer wind down costs
in an amount not to exceed $50,000, payable within 30 days of the
termination date of this agreement, unless such date is December 31, 2000
or later, in which case no wind down fees shall be applicable.
V. 401K PLAN SHUT DOWN FEES: In return for the administration of terminating
the 401K plan (which results from prior O & P acquisitions), Client agrees
to pay NCES $9,500 per month for a period of six months, commencing July 1,
1999 and ending December 31, 1999 for a total of $57,000.00. Payment shall
be rendered by Client effective the first of each month.
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Schedule 3.1.2
Schedule 3.1.3
VI. EXCLUDED SERVICES
1. Fees do not include recruiting or HR consulting services. Fees for
these services to be negotiated once scope of services is defined.
2. Fees do not include activities associated with requests for additional
hardware, networking or programming which fall outside the scope of
set-ups in place as of July 1, 1999. Fees for such services shall be
negotiated at the time of request on a time and materials project
basis.
3. Fees do not include costs of activities associated with the provision
of a Benefits Open Enrollment Process. Should the parties agree to
extend this agreement, for a minimum of an additional 6 months,
thereby necessitating NCES to engage in the procurement, plan design
and administration of a benefits open enrollment period, Client and
NCES shall negotiate and agree to fees for which Client shall be
responsible for such procurement, design and administration.
4. Fees do not include naming Client as an additional insured on any of
its commercial insurance policies or for the procurement of any
additional commercial insurance coverage. The term "commercial
insurance" does not include benefits or workers' compensation
insurance.
6. Fees do not include the cost of establishing an 800 number for
Worksite Employees calls, nor do they include any monthly service
charges associated therewith.
VII. TERM: To begin with Buyer's acquisition and last for a minimum of six
months.
VIII. GUARANTEED MINIMUM: Fees will be charged based upon a minimum number of
Worksite Employees not to be less than 2,000 during the agreement term.
XI. PAYMENT TERMS: Client will wire transfer to NCES, the day prior to
payroll distribution, all payroll, payroll related taxes, one-half of the
monthly benefit and payroll administrative fee prior to delivery of each
payroll.
X. TERMINATION PROVISIONS: In the event of termination of this agreement,
NCES will supply client with a copy of electronic files of current
legally pertinent employee data. Hard copies of existing employee files
may also be provided to Client, as long as Client and NCES can agree in
writing to the amount Client shall reimburse NCES for such provision
including but not limited to costs of copying, packaging, associated
labor, postage and delivery.
