This Agreement is incorporated into each Proposal made by Foothold America Inc (COMPANY). In the event of any direct conflict between the Agreement on this webpage and the express written terms of any document signed by both Parties (e.g., a Proposal or Amendment); the signed written terms will control; provided that Section 17.2 (No Partnership or Joint Venture) may only be amended by a written amendment signed by both Parties directly referencing such Section.  Any terms used herein, but not defined herein, shall have the meaning ascribed to it in the Proposal.

The Parties agrees that they are bound by this Agreement; and Client agrees that Client’s use of any of the Services constitutes Client’s approval of this Agreement.

COMPANY is providing the Services to Client in exchange for the charges set forth on the applicable Proposal.

1.0 SCOPE OF AGREEMENT

The services provided pursuant to this Agreement shall apply only to the Covered Employees. No worker shall be a Covered Employee, nor should any person begin work at the job site, until COMPANY and third-party PEO have processed the new hire paperwork and enrolled such worker as a Covered Employee. COMPANY has no responsibility for Client employees who are not Covered Employees, or any other worker, laborer or contractor providing services to Client.

2.0 TERM.

The term of this Agreement shall commence on the Effective Date, as defined in Section 18, below, and continue for one (1) year (“Initial Term”). Upon completion of the Initial Term the Agreement shall renew and continue until terminated by either Party pursuant to Section 14.1 Notice.  

3.0 SCHEDULES, ADDENDA AND EXHIBITS.

This Agreement incorporates by reference the terms of any related Quotations, Proposals, Addenda or Exhibits. References to the Agreement refer to the aggregation of this document and any Quotations, Proposals, Exhibits and Addenda.

4.0 COMPANY RESPONSIBILITIES.

COMPANY shall provide the following services with respect to the Covered Employees:

4.1 COMPLIANCE WITH THE LAW.

COMPANY shall perform its obligations under this Agreement in compliance with all Federal and State laws and regulations governing Professional Employer Organizations.

4.2 EMPLOYEE BENEFITS.

Client will cooperate with COMPANY in all matters necessary for COMPANY to properly administer the Client Benefit Plans, including, without limitation, executing all necessary agreements or other documents. COMPANY hereby discloses to Client, and Client understands, that the broker of record for any private market Client plans, excluding any third-party PEO benefit plans, is Foothold Insurance Services, Inc (“FIS”). Client understands that it is not required to: (i) use FIS as its broker regarding any Client Benefit plans; or (ii) participate in a Client Benefit plan, or any other benefit plan as a condition of this Agreement. Client may choose its own benefit plans and/or broker. By executing this Agreement and agreeing to participate in a Client Benefit Plan, Client hereby waives any and all rights to seek relief against COMPANY and FIS, or their respective shareholders, owners, directors, officers, and employees, relating to the payment of fees by FIS to COMPANY.

4.3 EMPLOYMENT PRACTICES.

To the extent requested by Client, COMPANY will provide Human Resources consulting services to designated management employees of Client, including assisting in the preparation of an Employee Handbook and other personnel policies and procedures. Client expressly understands and agrees that in providing Human Resource Consulting services, COMPANY is not providing legal advice or otherwise acting as the common-law employer of Client’s Covered Employees.

4.4 PAYROLL OVERSIGHT.

COMPANY will oversee payroll processing by third-party PEO in accordance with the applicable laws and regulations conditioned upon Client timely and accurately supplying all payroll data for COMPANY to perform its payroll oversight services.

4.5 PAYROLL TAX REVIEW.

COMPANY will work with third-party PEO that will withhold, report and remit Federal, State, and local payroll taxes, including, without limitation, unemployment insurance contributions, for Covered Employees. Third-party PEO shall prepare and submit tax reporting forms required by law or regulation with respect to such compensation and benefits, including but not limited to Forms W-2 (Wage and Tax Statement); W-4 (Covered Employee’s Withholding Allowable Certificate) and comparable and/or counterpart forms prescribed by any state or local government and COMPANY will review periodically.

4.6 UNEMPLOYMENT COMPENSATION.

COMPANY shall work with third-party PEO to administer unemployment compensation filings and claims, including opposing unemployment claims when appropriate.

5.0 CLIENT RESPONSIBILITIES

 Client shall be responsible for the following obligations:

5.1 WORKSITE SAFETY.

Client is the sole Employer with respect to safety-related compliance. Client retains exclusive control over the safety of the workplace(s) where Covered Employees work, and thus retains sole responsibility for compliance with applicable federal, state and local health and safety laws, regulations, ordinances, directives and rules relating to the workplace (“Workplace Safety Laws”). Client is solely responsible to identify and eliminate all known workplace threats to Covered Employees’ health or safety. Client acknowledges and agrees that Client has not retained COMPANY to manage or control Client’s business or operations, and COMPANY has no duty or authority to inspect, install, modify, repair, or maintain any equipment, tools, vehicles, or machinery that Covered Employees may use. Client will at its sole cost and expense take all necessary steps to comply with Workplace Safety Laws.

5.2 CLIENT BENEFIT PLANS

Client will not provide employee benefits to Covered Employees or their dependents in addition to or in lieu of the benefits available under the third-party PEO Benefit Plans (“Client Plans”) without the express written notice to COMPANY. To the extent employee benefits are provided to Covered Employees or their dependents under a Client Plan and such Client Plan is not administered by third-party PEO, Client will: (i) ensure that the Client Plan is administered in compliance with applicable law and the terms and provisions of the applicable plan documents; and (ii) retain sole responsibility and liability for the Client Plan. Client understands, acknowledges and agrees that: (a) COMPANY is not a plan sponsor, plan administrator or fiduciary with respect to any Client Plan; (b) COMPANY shall have no other role, responsibility or liability with respect to any Client Plan, including, without limitation, that of a third-party administrator; and (c) to the extent that COMPANY provides any administrative or other services with respect to a Client Plan, (1) all such services are taken on behalf of Client and at Client’s specific direction, (2) COMPANY shall have no discretion with respect to such services, (3) COMPANY shall not take on any fiduciary or other obligations as a result of such services under the Employee Retirement Income Security Act of 1974, as amended (ERISA), or any other law and (4) Client shall remain solely responsible and liable for such services and any underlying Client obligations.

5.3 CONFIDENTIAL INFORMATION.

Client retains sole responsibility for the maintenance and protection of Client’s confidential information, trade secrets, and proprietary information. Except to the extent required by law and/or to perform its duties under this Agreement, COMPANY will not disclose payroll- and/or health-related data and/or other confidential information it receives from Client.

5.4 CONTROL OF CLIENT BUSINESS.

Client shall have exclusive responsibility for control of Client’s Business. For purposes of this Agreement, “Client’s Business” shall mean all aspects of Client’s business other than the services provided to Covered Employees by COMPANY during the term of the Agreement. Any action taken in connection with Client’s Business shall be deemed taken by or on behalf of the Client, and not by COMPANY. Neither this Agreement, nor the fact that one or more persons authorized to act on behalf of Client may be employees of COMPANY hereunder, shall be deemed to grant to COMPANY any right or authority, or place upon COMPANY any duty or responsibility, to make any decision regarding Client’s Business.

5.5 COOPERATION WITH COMPANY.

Client shall respond in a timely and accurate fashion to requests from COMPANY for records and data necessary for COMPANY to perform its services. Upon receipt Client shall immediately send COMPANY copies of demands, notices, claims, summons and other legal papers related to the Covered Employees. Client shall cooperate with COMPANY in the investigation, remediation, settlement, and defense of legal claims related to the Covered Employees.

5.6 EMPLOYEE SUPERVISION.

Client shall be responsible for sufficiently supervising, directing, and controlling the Covered Employees in order for Client to safely and lawfully conduct its business.

5.7 DOWNSIZING NOTICES.

Client shall provide all notices required by the Worker Adjustment and Retraining Notification Act (“WARN”), and similar state and local laws. Client will also provide COMPANY with no less than sixty-two (62) days’ notice of any layoff or plant closing that may immediately or in the future require the provision of notice under such laws.

5.8 EMPLOYEE DOCUMENTATION AND COMMUNICATION.

Client will comply with COMPANY’s directives regarding the requirements to onboard Covered Employees. Client shall cooperate with COMPANY to assure receipt by COMPANY of all properly completed new-hire onboarding documentation, including, but not limited to form W-4, form I-9, and such additional documentation as COMPANY may require, and Client shall not permit a newly-hired Covered Employee to commence work until COMPANY and third-party PEO have approved the new hire onboarding paperwork and accepted such worker as a Covered Employee. Once accepted as a Covered Employee, COMPANY may freely communicate with the Covered Employee through text message or other mediums of communication in an effort to provide the Covered Employees with ancillary services unless such Covered Employee chooses to opt-out of receiving the communications.

5.9 FIDUCIARY LIABILITY.

COMPANY does not provide Client with insurance for fiduciary liability covering loss that might result from a loss of Covered Employee funds held by COMPANY in a fiduciary capacity.

5.10 EMPLOYMENT LEGAL COMPLIANCE.

Client shall comply with Federal, State and local laws governing labor and employment, including but not limited to the Civil Rights Acts of 1866, 1964 (including Title VII), and 1991, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the Worker Adjustment and Retraining Notification Act (“WARN”), the National Labor Relations Act (“NLRA”), the Equal Pay Act (“EPA”), the Vietnam Era Veteran’s Readjustment Assistance Act (“VEVRAA”), the Fair Credit Reporting Act (“FCRA”), the Employee Polygraph Protection Act (“EPPA”), the Immigration Reform and Control Act (“IRCA”), the Older Workers Benefits Protection Act (“OWBPA”), the Occupational Health and Safety Act (“OSHA”), the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), the Genetic Information Non- Discrimination Act (“GINA”), and all other local, state (including any and all states within the United States), and federal laws governing the employment relationship, including but not limited to, such laws governing discrimination and harassment in the workplace and the regulation of wages and hours in the workplace (collectively, the “State and Federal Employment Laws”).

5.11 LEAVE LAWS COMPLIANCE.

Client is solely responsible for obligations and costs associated with compliance with the federal Family and Medical Leave Act (“FMLA”) and similar state and local laws (“Leave Laws”), including but not limited to the cost of reinstating or finding replacement employment and the cost of continuing benefits during FMLA or other similar leave. Client acknowledges that COMPANY is not providing legal advice.

5.12 GOVERNMENT CONTRACTS.

Client is solely responsible for complying with requirements pertaining to government contracts pursuant to federal, state, county or local laws, regulations, and ordinances, including but not limited to compliance with Executive Order 11246, the Walsh-Healey Public Contracts Act, the Davis Bacon Act, and the Service Contract Act of 1965.

5.13 EMPLOYEE SELECTION.

Client shall have sole responsibility for the pre-hiring evaluation of Covered Employees. No person shall be deemed a Covered Employee until accepted by third-party PEO as a Covered Employee. Client may conduct such testing, interviews, and background investigation and other review of the suitability of any Covered Employee as it may deem appropriate, prior to employment; provided, that any such testing, interviews, and investigations shall be conducted in compliance with all applicable laws, rules, and regulations. COMPANY shall have no obligation or liability to Client with respect to the suitability of any Covered Employee for his or her job responsibilities. Client expressly understands and agrees that in providing any consulting services or assistance to Client, COMPANY is not providing legal advice.

5.14 LEGAL COMPLIANCE.

Client shall have responsibility for complying with all laws governing the Client’s business, including but not limited to required filings, licensing, taxes, fidelity bonding, insurance, facilities/building codes and regulations, and environmental compliance. If any Covered Employee is required to be licensed, registered or certified under any federal, state, or municipal law or regulation, or to act under the supervision of such a licensed, registered or certified person or entity in performing the employee’s services, then any such person shall be deemed to be an employee of Client for such licensure purposes. Client shall be solely responsible for verifying such licensure and/or providing the required supervision.

5.15 NOTICE OF CLAIMS.

Client shall promptly advise COMPANY and third-party PEO of all Covered Employee complaints, claims, filings and requests related to the employment of Covered Employees and shall promptly provide to COMPANY and third-party PEO complete and accurate information regarding such matters. Client shall promptly advise COMPANY and third-party PEO of any claims of discrimination, sexual harassment, or other improper conduct of a Covered Employee or if a Covered Employee is alleged to be a victim of discrimination, sexual harassment, or other improper conduct no later than five (5) business days after Client learns of the claim or allegation.

5.16 TAXES AND FEES.

COMPANY shall have no responsibility for paying and reporting any taxes and governmental fees for Client.

5.17 PAID PERQUISITES.

Client is solely responsible for administering, funding, and accurately determining eligibility for paid perquisites, including but not limited to vacation, sick leave (including legally-mandated paid sick leave), other paid time off, profit sharing, deferred compensation, bonuses, severance payments, stock options/grants/warrants, commissions or other equity-based compensation, and other incentive compensation payments. All payments should be made through third-party PEO’s payroll in order to ensure proper reporting and remittance of taxes, COMPANY takes no responsibility for the administration or funding of said paid perquisites payments.

5.18 PAYROLL DATA.

Client will timely and accurately provide all data necessary for COMPANY to provide third-party PEO on behalf of Client to process payroll for the Covered Employees, including but not limited to hours worked, rates of pay, payments owed, and exempt/non-exempt status for every payroll period in accordance with the requirements of the Fair Labor Standards Act (“FLSA”), any applicable state or local law and any agreement between Client and the Covered Employee. Client assumes full responsibility for the accuracy of such reports and the amount of remuneration due to each employee. Although upon Client’s request COMPANY may provide Client with information regarding the principles concerning exempt and non- exempt status classifications, Client acknowledges COMPANY is not providing legal advice. Client shall maintain accurate records of hours worked to the extent required by law and will make such records available to COMPANY upon request. Client is solely responsible for creating and maintaining records of hours worked and attendance and will not violate any applicable law pertaining to the payment of wages. Client will not violate any applicable law pertaining to deductions from wages when instructing COMPANY to input or third-party PEO to make deductions. Client shall not make any taxable payment of any kind, except profit sharing or pension plan distributions pursuant to the terms of a qualified plan, directly to any Covered Employee. Client agrees to immediately forward to COMPANY and third-party PEO any order or notice of garnishment, involuntary deduction, IRS lien or other legal process received by Client affecting wages paid to Covered Employees and, if requested by COMPANY or third-party PEO, to sign such documents as are necessary to authorize COMPANY or third-party PEO to act on Client’s behalf in responding to such legal process. Client shall be solely responsible for all non-compliance penalties and liabilities resulting from Client’s failure to timely forward such legal process to COMPANY and third-party PEO or to sign required authorization documents.

5.19 PROMPT PAYMENT.

Client shall make timely payments due to COMPANY under this Agreement.

5.20 PROTECTION OF COVERED EMPLOYEE RIGHTS.

Client shall notify COMPANY and third-party PEO immediately of any action, event or circumstance which has resulted in or may result in a claim of employment discrimination or sexual harassment, improper denial of workers’ compensation or employee benefits, or other alleged violation of the rights of any Covered Employee under any law or regulation governing the relationship of employers and employees.

5.21 REASONABLE ACCOMMODATIONS.

To the extent applicable to Client and to the extent required by applicable law, Client shall at its sole expense accept obligations and costs associated with compliance with the ADA and similar state and local laws including but not limited to the cost of providing reasonable accommodation of disabilities and religious practices, reinstating employees returning from leave or finding replacement employment for them if required by law, and the cost of continuing benefits during leave if required by law.

5.22 ACA COMPLIANCE.

Client understands, acknowledges and agrees that Client is solely responsible and liable for all obligations with respect to Healthcare Reform’s Employer “Play or Pay” Mandate under Section 4980H of the Internal Revenue Code of 1986, as amended (IRC), and other applicable laws, including, without limitation, any tax reporting obligations under IRC Sections 6055 and 6056. To the extent that COMPANY agrees to assist Client with satisfying these obligations, Client understands, acknowledges and agrees that: (i) COMPANY is not providing legal or tax advice to Client and Client will seek appropriate legal and tax advice from its own legal and tax advisors; (ii) COMPANY will rely on the accuracy of all information and documents provided by Client with respect to such assistance; and (iii) Client will remain solely responsible and liable for such obligations. In the event Client elects to participate in any group benefit plan offered by COMPANY, COMPANY represents that its COMPANY Benefit Plan that is a health plan provides “minimum essential coverage” within the meaning of the Patient Protection and Affordable Care Act (ACA), and (ii) of “minimum value” within the meaning of Code Section 36B(c)(2)(C)(ii), Proposed Treasury Regulation Section 1.36B-6, and other applicable guidance, and that, commencing as of the Effective Date of the CSA, all Covered Employees who are eligible for such health plan will be made an “offer of coverage” which satisfies both Treasury Regulation Section 54.4890-4(b)(1) and (2), so long as the client has provided the COMPANY with accurate and complete information necessary to make an “offer of coverage” on a timely basis. Based on these representations, Client understands, acknowledges and agrees that Client is solely responsible and liable for all obligations with respect to Healthcare Reform’s Employer “Play or Pay” Mandate under Section 4980H of the Internal Revenue Code of 1986, as amended (IRC). COMPANY will not be responsible for Client’s ACA compliance.

5.23 IMMIGRATION. 

Client is solely responsible for all I-9 processes and procedures. Client will ensure that the I-9 is timely and properly completed for all newly hired Covered Employees; retain I-9 documents for the period required by law; and update I-9’s when required by law. To the extent requested by Client, COMPANY may provide information or assistance to Client regarding the proper procedures for completion of the I-9; however, Client retains sole responsibility for complying with all Form I-9 legal requirements. Any fines or other penalties resulting from Client failing to follow proper I-9 procedures and processes will be solely Client’s responsibility. Client shall not engage in any discriminatory or other unlawful acts with respect to the I-9 process.

6.0 FEES.

6.1 RATES.

Client shall pay COMPANY fees according to the rates set forth in the Fee Schedule in the Quotation and such fees and other amounts accruing and due from Client to COMPANY. Should Client require additional services not included in this Agreement, the fee for any such additional services shall be negotiated and paid separately.

6.2 FEE ADJUSTMENT.

The administrative fee reflected in the Quotation is based on conditions as of the Effective Date. The necessity of a revised administrative fee shall be determined from time to time as necessary. In the event of a change in Client’s business, or in current taxes, laws or relationships related to the employer/Covered Employee relationship which affect COMPANY ’s costs, the administrative fee shall be adjusted for any increase in such costs. Annually on Agreement Effective Date, COMPANY ’s administrative fee is subject to an automatic minimum adjustment as necessary to accommodate changes in the market.

6.3 RETROACTIVE FEES OR CHARGES.

To the extent that any tax, premium or other cost of COMPANY is unilaterally increased by a governmental body or other third party beyond the control of COMPANY, whether prospectively or retroactively, Client understands, acknowledges and agrees that COMPANY will invoice Client for such increases and that any fees or charges associated with such increases will be due and payable in the same manner as any other fees or charges invoiced pursuant to this Agreement, even if such fees or charges are invoiced after the termination of this Agreement.

6.4 INTEREST ON LATE PAYMENTS.

If Client fails to pay the fees required in the Quotation for any billing period, or any other amount payable by Client to COMPANY under this Agreement, on or before five (5) days following the applicable due date, COMPANY may, at its option, terminate this Agreement without notice, pursuant to Paragraph 18.2. Client shall pay any accrued interest within five (5) days following demand for payment. The imposition of interest on late payments shall not extend the due date of any such payment. The Late Payment Fee is calculated as one point five percent (1.5%) of the total amount invoiced, and becomes due upon any failed transfer of funds, regardless of payment method, so long as the failure is not a direct result of COMPANY ’s error or omission.

6.5 BANKRUPTCY.

Client will immediately notify COMPANY of the initiation of any bankruptcy or receivership or insolvency proceedings of whatever form (whether voluntary or involuntary). Client agrees that any wages or taxes or contributions paid or advanced by COMPANY prior to such bankruptcy that remain unpaid by Client shall be treated as services fees for the purposes of determining priority in the associated legal proceedings.

6.6 ANCILLARY FEES.

Client agrees that the fees outlined in the Quotation are not inclusive of other fees that may be assessed by COMPANY for failure to comply with the terms of this Agreement.

6.7 FEES AND CURRENCY.

All Fees are charged in United Sates Dollars (“USD”) and are to be paid by Client in USD into COMPANY’s US bank account unless otherwise directed.  It is the responsibility of the Client to manage currency fluctuations, as it deems appropriate.  The Client is responsible for bank and wire fees charged by their bank or intermediary banks when paying COMPANY invoices (e.g., for currency exchange if funds originated in a currency other than USD).

7.0 PAYMENT PROCEDURES.

7.1 PAYMENTS.

Client shall make payment upon receipt of the invoice. COMPANY does not accept checks as payment for services of any kind. COMPANY may, if COMPANY determines in its sole discretion that Client is a credit risk, require Client to tender payment for the charges set forth in the Quotation. Client understands and agrees that any overpayment can be used by COMPANY to offset the estimated amount due on the subsequent billing period. If the Client does not make the payment upon receipt as required by this paragraph, COMPANY may, at its option, declare the Client to be in default and immediately terminate this Agreement.

8.0 INDEMNITY.

8.1

Client hereby agrees to indemnify, defend, and hold COMPANY harmless from and against any and all claims, demands, damages (including liquidated, punitive and compensatory), injuries, deaths, actions and causes of actions, costs and expenses (including attorney’s fees and expenses at all levels of proceedings), losses and liabilities of whatever nature (including liability to third parties), and all other consequences of any sort, whether known or unknown, without limit and without regard to the cause or causes thereof or the negligence of COMPANY, arising from: (1) Client’s material breach of the Agreement or violation of any representation or warranty associated with the Agreement; (2) the products or services provided by Client; (3) the actions or inactions of any Covered Employee; (4) the supervision and employment of Covered Employees and termination thereof; (5) Client’s failure to comply with wage and hour laws, regulations, or rules in the workplace (including meal and rest breaks, minimum wage, and overtime); (6) the actions or inactions of any agent or Covered Employee employed by Client, or of any other individual, including without limitation, any violation of any local, state and/or federal law, regulation, ordinance, directive or rule whatsoever, and the State and Federal Employment Laws.

8.2

COMPANY, except to the extent Client assumes liability under the Agreement, hereby agrees to indemnify and hold Client harmless from and against any and all claims, demands, damages (including liquidated, punitive and compensatory), injuries, deaths, actions and causes of actions, costs and expenses (including attorney’s fees and expenses at all levels of proceedings), losses and liabilities arising from COMPANY’s gross negligence in the performance of duties expressly required by the terms of this Agreement.

9.0 REPRESENTATIONS AND WARRANTIES.

Client represents and warrants as follows:

9.1 CLIENT’S OBLIGATIONS TO COVERED EMPLOYEES.

• Neither Client, nor to the knowledge of Client, any third party who provides or has provided third-party PEO services or personnel staffing services to Client, has any employment contract, written or verbal, with any Covered Employee;
• Client shall notify COMPANY and third-party PEO of the principal location of the workplace of each Covered Employee and each location where such Covered Employee performs services for Client, and of any changes in such locations; and
• all pension, profit-sharing, or other employee benefit plans existing at the Effective Date are current and in compliance with applicable law, and execution of this Agreement shall not be deemed a breach under the terms of those plans.

9.2 INFORMATION.

As of the Effective Date, and throughout the term of this Agreement, all information provided by the Client in contemplation of this Agreement or pursuant hereto, including but not limited to financial statements, employee lists, job descriptions and classifications, compensation, benefits, historical and pending legal claims, and time reports is and shall be true and correct. No material adverse change has occurred in the financial condition of the Client or any guarantor of Client’s obligations under this Agreement since the date upon which any financial statements of Client or such guarantor were provided to COMPANY.

9.3 WORKSITE SAFETY.

Client is in compliance with all applicable Workplace Safety Laws, and Client has maintained, and will continue to maintain throughout the term of this Agreement, Client’s workplace(s), machinery, equipment, and environmental factors in compliance with applicable Workplace Safety Laws.

9.4 NO LITIGATION.

Except as previously disclosed to COMPANY in writing, there is no action, suit, proceeding or investigation pending, or, to the knowledge of Client, threatened against Client, related to the Covered Employees or the Client’s employer/employee relationship with the Covered Employees or which may result in a material adverse change in the financial condition of Client or of any guarantor of Client’s obligations under this Agreement. Client will advise COMPANY promptly upon the inception of any such action, suit, proceeding, investigation or threat thereof.

9.5 COMPLIANCE WITH APPLICABLE LAW.

Compliance with Applicable Law. Client has not violated any applicable statute or regulation in any respect, which would adversely affect the Covered Employees or Client’s employment relationship with the Covered Employees. Client is and shall remain in compliance with all statutes, regulations, and executive orders with respect to Covered Employees and employment practices. Client acknowledges that certain requirements applicable to employers under various federal and state statutes, rules, and regulations, including but not limited to the Family Medical Leave Act, Americans with Disabilities Act, Worker Adjustment and Retraining Notification Act, Title VII of the Civil Rights Act of 1964, and Age Discrimination Employment Act, are based on the size and identity of the employer, and that Client’s status under one or more of such statutes, rules, and regulations may change as a result of entering into this Agreement.

10. ACCESS TO WORKPLACE RECORDS.

COMPANY shall be entitled to review all Covered Employee records of Client to the extent necessary to assure compliance by Client with its obligations under this Agreement. Client shall provide COMPANY or its designees access at any reasonable time during customary business hours, to the business premises, books, and records of Client to the extent necessary to assure such compliance.

11.0 INSURANCE.

Client shall maintain, at all times, the following insurance coverages with an A.M. Best “A” rated or better carrier:

• comprehensive general liability (including, but not limited to bodily injury, premises, operations, contractual liability, product and completed operation liability, with broad form endorsements, personal injury and advertising liability);
• automobile liability, including non-owned and hired autos (to the extent any Covered Employees will be assigned to positions requiring them to drive for Client); and
• professional liability insurance, if appropriate, including but not limited to malpractice or errors and omissions coverage and in compliance with any regulation mandating such coverage.

Each of such policies shall have as a minimum a limit of liability not less than one million dollars ($1,000,000). Client shall have COMPANY listed as an additional insured on all such policies. By the Effective Date of this Agreement, Client shall furnish COMPANY with Certificates of Insurance as evidence of coverage. Each of such policies shall be on an “occurrence” basis. However, in the event that an “occurrence” policy is not available, Client shall maintain an equivalent “claims made” policy until the expiration of all statutes of limitation applicable to any claim which could arise under this Agreement or by virtue of the services provided by the Covered Employees.

12.0 FIDELITY BONDS.

Client shall advise COMPANY of any Covered Employee with access to cash or Fidelity Bonds, or other property of Client or of any third-party property within the control of Client. COMPANY shall have no obligation with respect to or liability as a result of embezzlement, fraud, defalcation or misappropriation of any of such property by any Covered Employee, and Client indemnifies COMPANY against loss, cost, claim, or expense arising from any such action.

13.0 DEFAULT.

In the event of default by Client in performance of any obligation under this Agreement, COMPANY may, at its option and at Client’s expense, (i) take such action as may be necessary to cure any such default, (ii) impose an additional charge or fee to compensate COMPANY for any costs, expense, or inconvenience resulting from such default, (iii) offset against any security deposit held by COMPANY any amount due COMPANY hereunder, terminate this Agreement as provided in section 16, and (v) exercise any other remedy available by law, including but not limited to enforcement of any obligation of Client to indemnify COMPANY under this Agreement. COMPANY shall be entitled to recover as liquidated damages an early termination fee of $500.00 per Covered Employee that is active in third-party PEO’s system at the time of termination by COMPANY for the breach by Client, in addition to other remedies available to it under this Agreement.

14.0 TERMINATION.

14.1 NOTICE.

After the initial first year term of this Agreement, Client may terminate this Agreement for any reason by providing COMPANY notice of such termination no less than ninety (90) days prior to the effective date of the termination. Client may also terminate this Agreement in the event of a material breach by COMPANY following (1) a written notice of breach; and (2) a period of no less than thirty (30) days to cure the breach set forth in said notice.

14.2 IMMEDIATE TERMINATION.

COMPANY may, in its discretion, terminate this Agreement immediately without prior written notice for any of the following reasons:

• failure to pay any invoice and/or amounts owed when Termination of the Agreement shall not relieve Client of any and all obligations set forth in this Agreement. COMPANY will no longer have any additional obligations under this Agreement with respect to Client and Client’s Covered Employees;
• failure to comply with any directive of COMPANY, when such directive is made to comply with (a) a federal, state or local governmental body, department or agency, or (b) a directive by an insurance carrier providing coverage to COMPANY and/or its employees;
• performing any act that usurps any legal or contractual right or obligation of COMPANY to the Covered Employees;
• the threat of, or actual, filing by or against Client for bankruptcy, reorganization or appointment of a receiver, supervisor, assignee, or liquidator over its assets or property;
• a material breach of this Agreement;
• a money judgment against Client which remains unsatisfied for more than thirty (30) days and has not been appealed; and/or
• COMPANY determines, in its sole discretion, which Client is a credit risk.

14.3 OBLIGATIONS OF THE PARTIES.

Upon termination of this Agreement, regardless of how occurring, (i) Client shall pay to COMPANY the fees reflected on outstanding invoices and obligations set forth in the Quotation during the term of this Agreement, (ii) Client shall indemnify and hold COMPANY harmless from any loss, cost, claim, or expense, resulting from termination of COMPANY ’s relationship with Covered Employees as a result of the termination by Client of this Agreement. Following termination of this Agreement, COMPANY shall have no further obligations hereunder except as specifically described in this Agreement.

14.4 EARLY TERMINATION FEE.

In the event Client terminates this Agreement in a manner that contravenes Section 14.1, Client shall pay COMPANY an early termination fee equal to $850 multiplied by three (3) months. This early termination fee is due to the costs and administrative burdens placed on COMPANY when a client terminates without sufficient notice or otherwise not in accordance with the terms of this Agreement.

15.0 DISPUTE RESOLUTION.

15.1 ARBITRATION.

Except for claims for non-payment of fees under this Agreement and claims for injunctive relief, in the event of any claim, dispute or controversy arising out of or relating to the interpretation, performance and/or breach of this Agreement, the parties agree that any claim, dispute and/or controversy which would otherwise require or allow resort to any court or other governmental dispute resolution forum between Client and COMPANY, whether based on tort, contract, statutory or equitable law, or otherwise, shall be submitted to and determined exclusively by binding arbitration. The arbitration proceedings shall occur in New York State. The New York Code of Civil Procedure and Evidence shall apply to any such proceeding, and the arbitrator shall be a retired Federal or New York Superior Court Judge. To the extent applicable in New York civil actions, the following shall apply and be observed: all rules of pleading (including the right to file a demurrer and motion to strike), all rules of evidence, all rights to resolution of the dispute by means of motions for summary judgment, summary adjudication, and judgment on the pleadings. Resolution of the dispute shall be based solely upon the law governing the claims and defenses pled, and the arbitrator may not invoke any basis other than such controlling law. Awards exceeding Fifty Thousand Dollars ($50,000.00) shall include the arbitrator’s written opinion providing reasoned explanations for the decision, and at either party’s written request within ten (10) days after issuance of the award, shall be subject to reversal and remand, modification, or reduction following review of the record and arguments of the parties by a second arbitrator who shall, as far as practicable, proceed according to the law and procedures applicable to appellate review by the New York courts of appeal regarding a civil judgment following court trial.

15.2 SMALL CLAIMS.

Any claim, controversy, or dispute arising out of or related to this Agreement in an amount equal to or less than the jurisdictional limits applicable under the Small Claims Division of Justice Courts of the State of New York (the “Small Claims Division”) shall be brought in New York and shall be subject to, for purposes of this provision, the Small Claims Division. Client waives any objection to jurisdiction of the courts of the State of New York.

16.0 CONFIDENTIALITY.

16.1 DEFINITIONS.

a. Definition.  Each Party (the “Receiving Party”), agrees that all confidential, non-public information received by the Party, its affiliates and it or its affiliates’ employees, agents and contractors (collectively “Personnel”) relating to the other Party, its customers, or its vendors in connection with this Agreement, regardless of the manner or medium in which it is furnished to or otherwise obtained by the Receiving Party, its affiliates and its Personnel will be deemed confidential information of the disclosing Party; provided such information was disclosed under circumstances in which the receiving individual would have reasonably known such information was confidential (collectively, “Confidential Information”).  Notwithstanding the foregoing: (a) COMPANY and its Personnel shall not be deemed to be Client’s Personnel, (b) Client acknowledges that COMPANY’S Confidential Information includes (regardless of the circumstance in which it was disclosed) this Agreement, each COMPANY Proposal (regardless of whether it was signed), the details of how COMPANY performs its Services and all COMPANY business plans, marketing plans, marketing materials, strategies, forecasts, analyses, financial information, client and supplier lists, employee information and information regarding COMPANY’S and its vendors’ vendors’ software and other information technology systems; and (c) COMPANY acknowledges that Client’s Confidential Information includes (regardless of the circumstance in which it was disclosed) all Client business plans, product or service offering plans, marketing plans, marketing materials, strategies, forecasts, analyses, financial information, client and supplier lists, Client’s employee information and information regarding Client’s and its vendors’ software and other information technology systems. 

b. Proposed Business.  This Section 16 (Confidentiality) also applies to any information exchanged between the Parties regarding proposed business, regardless of whether the Parties enter into a Proposal or other contract regarding such proposed business.

c. Personal Data.  “Personal Data” (which term is defined below) is a subset of Confidential Information.  If information is both Personal Data and Confidential Information, the Parties shall comply with requirements herein applicable to both and if they conflict, the more restrictive of the two requirements shall apply.  If either Party becomes aware of improper access to and/or disclosure of the Personal Data of the other Party (e.g., its Personnel, clients, etc.), such Party shall promptly notify the other Party of such access and/or disclosure.

d. Exceptions.  Except for Personal Data, information shall not be deemed Confidential Information if the information: (a) becomes available to the general public through no fault of the Receiving Party (but excluding from the foregoing exception information disclosed pursuant to a data or security breach of the Receiving Party or its Personnel’s systems); (b) is rightfully disclosed to the Receiving Party by a third party not, to Receiving Party’s knowledge, subject to any confidentiality obligation (directly or indirectly) to the disclosing Party with respect to such information; (c) is rightfully in the possession of the Receiving Party at the time of disclosure or thereafter (without an obligation of confidentiality to the disclosing party); or (d) is previously known to or developed by the Receiving Party independent of the disclosing Party’s Confidential Information.

e. Legal Requirements.  In the event that the Receiving Party is required to disclose Confidential Information of the other Party pursuant to a valid court order or other legal requirement, or the Receiving Party desires to do so in any dispute between the Parties, the Receiving Party shall (unless in the such Party’s legal counsel’s opinion it is prohibited from doing so by Applicable Law): (a) promptly notify the disclosing Party of the proposed disclosure, and (b) provide reasonable assistance to, and allow the disclosing Party to, contest the release of the Confidential Information and/or seek confidential treatment and/or other protection therefor at the disclosing Party’s sole cost and expense.

f. Obligations.  Each Party shall treat as confidential and shall not disclose (except as otherwise permitted herein) the other Party’s Confidential Information.  Each Party: shall (a) use the Confidential Information only for purposes of performing its obligations and/or exercising its rights under this Agreement and as otherwise permitted hereunder; (b) restrict disclosure of the Confidential Information to its Personnel with a need to know the Confidential Information in connection with such Party performing its obligations and/or exercising its rights under this Agreement; (c) advise those representatives of the obligation to not disclose the Confidential Information; (d) copy the Confidential Information only as necessary; and (e) use, and require its Personnel to use, the same degree of care as is used with its own Confidential Information, which degree of care shall in no event be less than reasonable care.

16.1 PERSONAL DATA PROTECTION.

i. “Business Purpose” (i) has the meaning ascribed to the term “business purpose” in the CCPA, or (ii) has the meaning ascribed to that term or any similar term in any Data Protection Legislation, as applicable. In the event of conflicting definitions set forth in Data Protection Legislation, the definition that is the most protective of Personal Data will apply.

ii. “Data Protection Legislation” means any and all applicable laws and regulations, in effect, from time to time, relating to the privacy, confidentiality, security, protection, and Processing of Personal Data in any jurisdiction as may be applicable including: (i) the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq. (“CCPA”), (ii) the Fair and Accurate Credit Transaction Act, (iii) the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d, “HIPPA”), (iv) the Payment Card Industry (“PCI”) Data Security Standard (“DSS”), (v) the CCPA, and (v) the EU General Data Protection Regulation 2016/679 (“GDPR”), and EU Member State laws supplementing the GDPR; the EU Directive 2002/58/EC (“e-Privacy Directive”), and EU Member State laws implementing the e-Privacy Directive.

iii.  “Personal Data” means any information relating to an identified or identifiable individual that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, including such information that may be: (i) viewed, accessed, and/or Processed at any time by a Party in anticipation of, in connection with, or incidental to a Party’s performance of its obligations or exercise of its rights under this Agreement, or (ii) derived by a Party from such information.  Personal Data includes all information now or hereafter protected under any applicable Data Privacy Legislation, including “protected health information” as defined under HIPPA, “cardholder information” as defined under the PCI DSS, “personal information” as defined under the CCPA and that term or any similar term in all similar Data Protection Legislation, and “Personal Data” as that term is defined in the GDPR.  COMPANY’S Personal Data includes all such data of COMPANY’S employees, clients and its/their Personnel.  Likewise, Client’s Personal Data includes all such data of Client’s employees, customers and its/their Personnel. 

 iv. “Process” or “Processing” means any operation or set of operations performed upon the Personal Data, whether or not by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination and deletion of Personal Data.

 v. “Sell” (i) has the meaning ascribed to the term “Sell” in the CCPA, or (ii) has the meaning ascribed to that term or any similar term in any Data Protection Legislation, as applicable. In the event of conflicting definitions set forth in Data Protection Legislation, the definition that is the most protective of Personal Data will apply.

 vi.  “Service Provider” (i) has the meaning ascribed to the term “Service provider” in the CCPA, or (ii) has the meaning ascribed to that term or any similar term in any Data Protection Legislation, as applicable. In the event of conflicting definitions set forth in Data Protection Legislation, the definition that is the most protective of Personal Data will apply.

16.3 PERSONAL DATA RESTRICTIONS.

Without limiting their obligations specified herein, each Party will:

i. gather, store, log, archive, use, Process and otherwise retain the other Party’s Personal Data strictly in accordance with the terms of the Agreement, and applicable Law, and solely for the purposes of complying with its obligations and exercising its rights under this Agreement;

 ii. not Sell or in any other way monetize the other Party’s Personal Data, and such Party will not retain, use, or disclose the other Party’s Personal Data outside of the direct business relationship between Client and Foothold;

 iii.  not retain, use, or disclose the other Party’s Personal Data for any period longer than necessary for such Party to fulfill its obligations and exercise its rights under the Agreement (including, in COMPANY’S case, the specific purpose of performing the Services);

iv. at all times, take all appropriate technical and organizational measures against unauthorized or unlawful Processing of the other Party’s Personal Data, and against accidental loss, destruction of, or damage to other Party’s Personal Data. Such measures must ensure a level of security appropriate to the harm that might result from the unauthorized or unlawful Processing of other Party’s Personal Data or the loss, destruction of, or damage to other Party’s Personal Data, the nature of the other Party’s Personal Data,

 v. cause its Personnel to undergoing training in the care and handling of Personal Data;

 vi. promptly inform the other Party in writing and cooperate with such Party (at such Party’s expense) if, in connection with such Party’s Personal Data, an individual requests: (i) access to that individual’s Personal Data, (ii) information about the categories of sources from which that individual’s Personal Data is collected, or (iii) information about the categories or specific pieces of that individual’s Personal Data, including by providing the requested information in a portable and, to the extent technically feasible, readily useable format that allows the individual to transmit the information to another entity without hindrance;

vii. on the other Party’s request in regard to such Party’s Personal Data promptly return, or destroy and purge electronic copies from its systems all originals and copies of a particular individual’s Personal Data from its records. In the event a Party is unable to delete the individual’s Personal Data for reasons permitted under the CCPA or any other similar Data Protection Legislation, as applicable, the other Party will: (A) promptly inform the requesting Party of the reason for its non-compliance with the deletion request; (B) ensure the privacy, confidentiality and security of such Personal Data, and (C) delete such Personal Data promptly after the reason for such Party’s non-compliance no longer applies;

viii. Each Party acknowledges that the other Party’s Personal Data that is disclosed to or otherwise makes available to such Party under or in connection with the Agreement is provided to such Party for a Business Purpose, and neither Party agrees to Sell (or is selling) Personal Data to the other Party in connection with this Agreement; and

ix. By agreeing to this Agreement, each Party is certifying to the other Party in writing that it understands and will comply with the requirements and restrictions set forth in this Section.

16.4 SERVICE PROVIDER.

COMPANY is acting solely as a Service Provider with respect to Personal Data received from Client.

16.5 INCIDENT NOTIFICATION.

Upon learning of an incident involving a Party’s systems or Personnel (the “Impacted Party”), that may or has resulted in unauthorized disclosure, use of, or access to, the other Party’s (the “Affected Party”) Confidential Information (e.g., business or Personal Data), the Impacted Party will promptly, at no cost to the Affected Party (i) provide notice of the incident to Affected Party in accordance with the terms of this Agreement, (ii) provide information requested by the Affected Party related to the incident and provide assistance to enable the Affected Party to notify its employees, customers or other affected persons of the breach, (iii) provide information to, and cooperate fully with, law enforcement agencies and regulators, and (iv) take commercially reasonable steps necessary to mitigate the impact of the incident.

17.0 GENERAL

17.1 WAIVER OF COVENANT, CONDITION, OR REMEDY.

The failure to require performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered a waiver of any other covenant, condition or promise, nor shall it excuse future performance in strict accordance with the provisions of this Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and the provisions in this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded.

17.2 APPLICABLE LAW.

This Agreement will be determined to be a contract made within the State of New York and for all purposes will be governed and construed under and in accordance with the laws of the State of New York, notwithstanding choice of law principles, except that the COMPANY licensing laws of the state where the Covered Employee(s) work or worked shall apply, where applicable.

17.3 HEADINGS.

Captions and organization are for convenience and shall not be used in construing meaning.

17.4 TIME IS OF THE ESSENCE.

Time is of the essence in this Agreement.

17.5 SEVERABILITY.

Should any term, warranty, covenant, condition or provision of this Agreement be held to be invalid or unenforceable by a court or other body of competent jurisdiction or pursuant to arbitration, the balance of this Agreement shall remain in force and shall stand as if the unenforceable part did not exist. The invalid or unenforceable provision shall be replaced by a provision as similar as possible and which is valid and enforceable.

17.6 ENTIRE AGREEMENT.

This Agreement is incorporated into the quotation and it constitutes the entire agreement between the parties. Client acknowledges that it has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement, including but not limited to any statement made by any marketing agent of COMPANY. Client acknowledges that COMPANY has made no representation concerning whether COMPANY ‘s services will improve the performance of Client’s business.

This Agreement (including the applicable Proposal) constitutes the entire Agreement between the Client and COMPANY and supersedes all prior agreements, statements, promises or practices, written or oral, as to the subject matter hereof, and all prior understandings, negotiations and discussions of the Parties. Client agrees that it would be unreasonable for Client to rely upon any promise or representation not contained in this Agreement. Handwritten changes to this Agreement including any  Proposal are unenforceable.  COMPANY may change this Agreement at any time by posting a subsequent version on this webpage (or any successor webpage which COMPANY makes the Client aware of).  Client is responsible for periodically reviewing this Agreement and if Client does not wish to accept such changes, Client must promptly after any such change notify COMPANY in writing of its objection to such change (which notice must specify Client’s specific concern); otherwise, Client’s continued acceptance of any or all of the Services shall constitute Client’s acceptance of the modified Agreement whether or not COMPANY notified Client of the changes.  COMPANY, as a general practice, endeavors to provide its clients advance notice of any significant price changes or other changes to material terms of its agreement with such Client.

17.7 ENFORCEMENT COSTS.

In any action or proceeding to enforce any of the provisions of this Agreement, the prevailing party shall, in addition to all of the rights and remedies of the law, be entitled to recover the costs and expenses of any such litigation, including reasonable attorney’s fees and costs.

17.8 SUCCESSORS AND ASSIGNS.

The rights and obligations contained in this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

17.9 ASSIGNMENT.

This Agreement shall not be assigned by Client to another party without the written consent of COMPANY, which consent shall not be unreasonably withheld. COMPANY may assign this Agreement without any consent or notice to Client. Client recognizes and agrees that the undersigned COMPANY’s ability to freely assign this Agreement as necessary.

17.10 AMENDMENTS.

This Agreement can be amended or modified only by written agreement between the parties, provided however that notwithstanding anything to the contrary set forth in this Agreement or this Section, COMPANY may change any of the terms and conditions in this Agreement upon thirty (30) days’ prior written notice to CLIENT. If the other party is unwilling for the Agreement to continue as amended, it may terminate the Agreement by giving notice to the amending party no later than the effective date of the amendment. For the avoidance of doubt, no unilateral amendment will retroactively modify any binding dispute-resolution provisions of the Agreement for then-pending disputes (for example, binding-arbitration provisions) unless the parties expressly agree otherwise. For the avoidance of doubt, without the Client’s express written agreement, a unilateral amendment to this Agreement will not retroactively eliminate or modify any right already exercised by the non-amending party, including for example any right to demand that the amending party perform an obligation, under the Agreement. However, the Quotation is subject to unilateral amendment by COMPANY without notice based on changing market conditions and changes in the Client’s business operations since the Effective Date that may be discovered by COMPANY at any time.

17.11 NOTICES.

All notices and demands by mail shall be made by certified mail, postage prepaid, return receipt requested or by electronic mail. Notice shall be considered given and effective when mailed, or when transmitted, as applicable. Unless otherwise advised in writing by the other party, each party shall transmit notices and demands to the addresses indicated in the introductory paragraph of this Agreement or to any other such address or e-mail address provided to the other party in writing from time to time.

17.12 NO PARTNERSHIP OR JOINT VENTURE.

Nothing herein contained shall be deemed to create a joint venture or partnership between Client and COMPANY. COMPANY is an independent contractor of Client and shall not be its principal, director, agent, master, servant, or employee.

17.13 WAIVER OF SUBROGATION.

The parties each hereby waive any claim which it or anyone claiming through, or under it, by subrogation or otherwise, might now or hereafter have against the other party on account of any loss or damage which is insured against, to the extent that such loss or damage is recovered under policies of insurance required to be provided hereunder. Each party agrees to immediately give each insurance carrier providing any such policy written notice of the terms of the mutual waiver described above, and to have said insurance policies properly endorsed to reflect such waiver. Each party shall cause its insurance carrier to provide written evidence of said waiver.

17.14 NO CONSTRUCTION AGAINST DRAFTER.

COMPANY has prepared this Agreement and provided it to Client for Client’s review. Client has either retained counsel or had the opportunity to do so to review this Agreement. With respect to any dispute concerning the meaning of this Agreement, this Agreement shall be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of this Agreement shall be construed against COMPANY on the basis that COMPANY drafted it. This Agreement shall be viewed as if prepared jointly by COMPANY and Client.

17.15 COUNTERPARTS AND FAX SIGNATURES.

This Agreement, any document or instrument entered into, given, or made pursuant to this Agreement or authorized hereby, and any amendment or supplement thereto may be executed in two or more counterparts, and, when so executed, will have the same force and effect as though all signatures appeared on a single document. Any Party may deliver its signature to this Agreement by facsimile or via email, and that signature shall be treated as an original for all purposes. Any signature page of this Agreement or of such an amendment, supplement, document, or instrument may be detached from any counterpart without impairing the legal effect of any signatures thereon, and may be attached to another counterpart identical in form thereto but having attached to it one or more additional signature pages.

17.16 FALSE OR OMITTED INFORMATION.

Any false statement or omission with regard to any information supplied by Client to COMPANY in anticipation of Client’s contracting with COMPANY or at any other time shall be deemed a material breach of this Agreement and COMPANY, at its option, may terminate this Agreement and seek appropriate relief.

17.17 RESPONSIBILITY FOR LEGAL RIGHTS.

Client acknowledges and agrees that COMPANY is not engaged in the practice of law or the provision of legal services, and that Client alone is completely and independently responsible for its own legal rights and obligations. COMPANY ’s agreement to perform certain employer functions does not establish an obligation to perform all employer related functions, and COMPANY reserves the right to reject claims by Covered Employees with respect to matters that are not the responsibility of COMPANY.

NEITHER CLIENT NOR COMPANY WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR BUSINESS INTERRUPTION DAMAGES) HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17.19 SCOPE OF SERVICES.

COMPANY shall provide only the services expressly described in this Agreement and the quotation. No other services shall be provided or implied. COMPANY is not obligated to provide, nor is it responsible for, strategic, operational or other business-related decisions with regard to Client’s business. Nor shall COMPANY have any obligation to provide equipment for the Covered Employees. Covered Employees in supervisory positions shall have no responsibility for employees other than the Covered Employees, nor shall COMPANY have responsibility or liability for Client’s employees other than the Covered Employees.

17.20 TERMS SURVIVING TERMINATION OF AGREEMENT.

Termination of this Agreement shall not affect the continuation of any outstanding obligation or liability incurred by either party during the term of this Agreement. The obligation of either party to notify, indemnify, defend and hold harmless the other under the terms of this Agreement shall continue after the termination hereof with respect to events occurring prior to such termination. In addition, the following provisions shall survive the termination of this Agreement: Section 5.7 (Cooperation with COMPANY), Section 6.5 (Interest on Late Payments), Section 8 (Indemnity), Section 15 (Default), Section 6.8 (Deposit), Section 16.5 (Obligations of the Parties), Section 16 (Dispute Resolution), and Section 18.27 (Duty to Cooperate).

17.21 FORCE MAJEURE.

If COMPANY is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, strike, lockout or other labor trouble, any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority, riot, war, rebellion or other causes beyond the reasonable control of COMPANY or other acts of God, then upon written notice to Client, the affected provisions and/or other requirements of this Agreement shall be suspended during the period of such disability and COMPANY shall have no liability to Client or its affiliates (or any other party) in connection therewith. COMPANY shall make all reasonable efforts to remove such disability as soon as reasonably practicable.

17.22 SIGNATURES.

Any individual signing this Agreement on behalf of Client or COMPANY represents, warrants and guarantees that she or he has full authority to do so. Signatures may be provided electronically, and the parties agree that all future transactions between them may be executed via electronic signature. The parties agree that digitally signed, scanned, or faxed copies of this Agreement, shall be deemed to have the same legal force and effect as the original signed copy. Thus, neither party will contest an otherwise valid signature on the basis that it was provided electronically.

17.23 SECURITY OR GUARANTEE.

COMPANY may, at its option, request security from Client. This security may, but is not required to be, in the form of a security deposit or personal guarantee.

17.24 NO INDUCEMENT.

Client understands, acknowledges and agrees that the COMPANY services provided pursuant to this Agreement are not being provided as aninducement to purchase insurance coverage of any kind, nor do such services constitute insurance or the sale of insurance of any kind.

17.25 COMPANY DOES NOT PROVIDE LEGAL OR TAX ADVICE.

Client understands, acknowledges and agrees that the COMPANY services provided pursuant to this Agreement shall not constitute legal or tax advice to Client and Client shall seek all appropriate legal and tax advice from its own legal and tax advisors.

17.26 DUTY TO COOPERATE.

Each party will have the duty to cooperate with the other in the event of any claim filed by a Covered Employee or former Covered Employee, or any government agency investigation of a complaint filed by a Covered Employee or a former Covered Employee who is covered by his Agreement. Such duty will survive the termination of this Agreement. Client agrees to cooperate with COMPANY as needed for any state licensing and/or registration requirements. Client further agrees to cooperate with COMPANY as needed for compliance with any additional state statute, regulation, or other requirement not aforementioned or referenced above or below. Such duties will survive the termination of this Agreement.

17.27 MARKETING.

Client agrees that COMPANY may use the Client’s name and logo on its website and in other marketing materials.

18.0 EFFECTIVE DATE.

The actual effective date of this Agreement is the actual first day of the of the first payroll period of the Client where thierd-party PEO rocesses payroll for the Covered Employees as defined in the Agreement and Client pays, timely and in full, any and all invoices for related services (the “Effective Date”). This Agreement shall not be in effect nor will COMPANY be responsible for any workers’ compensation, payroll, related tax computation or payment, general services or duties as described in this Agreement until the Effective Date is confirmed by COMPANY and that conditions described above are fully met.