EXHIBIT “B”
TERMS AND CONDITIONS
EFFECTIVE 12/01/2024

The following terms and conditions apply to this Agreement.

1. Term.  

 The term of this Agreement will commence on the Effective Date and continue for one (1) year (“Initial Term”).  Upon completion of the Initial Term, this Agreement will renew and continue for successive one (1) year terms (“Successive Term”), unless and until a written notice of non-renewal is issued by a Party no later than ninety (90) days prior to the completion of the Initial or Successive Term.  Initial and Successive Terms will be referenced herein collectively as the “Term.”  During the Term, this Agreement may also be terminated in accordance with Section 12 of this Agreement.  

2. Scope of Agreement.

2.1. FrankCrum’s services shall not apply to Client employees living and/or working outside of the United States, and such employees shall not be Covered Employees.  

2.2. FrankCrum has no responsibility for Client employees who are not Covered Employees, or any other worker, laborer contractor, or subcontractor providing services to Client. In the event FrankCrum has more than one workers’ compensation insurance policy, the coverage provided by such policy or policies is strictly limited to the employees specified in the insurance policy documents. Client will secure and maintain workers’ compensation insurance for all Client’s workers, if any, who are not Covered Employees under this Agreement.

2.3. Insurance. Client acknowledges that FrankCrum is not an insurance carrier and that as such FrankCrum may not be subject to certain laws and regulations governing insurance or the sale of insurance.  

3. Reservations of Rights.

This Agreement may reserve certain rights to FrankCrum for the purpose of FrankCrum delivering PEO services in compliance with applicable PEO licensing, registration, certification and other laws authorizing the delivery of PEO services. The reservation of rights in this Agreement is not an admission that FrankCrum either has exercised, or will exercise, such rights. It is the intent of the parties that no inference of liability arises from the reservation of rights, other than the liabilities arising from the express terms of this Agreement. Furthermore, notwithstanding any reservation of rights sets forth in this Agreement, Client remains solely responsible for the day-to-day supervision of Covered Employees and for the selection of qualified workers for employment.

4. Obligations of FrankCrum.   FrankCrum’s obligations are as follows with respect to the Covered Employees:  

4.1. Payroll Taxes and Unemployment Insurance. In those states or other jurisdictions in which FrankCrum may or must use Client’s employer account for purposes of reporting and remitting unemployment insurance contributions or any other payroll taxes, Client authorizes FrankCrum to do so and agrees to cooperate with FrankCrum in the use of Client’s account. Client will provide all required and requested forms, signatures, powers of attorney, reports, documents, credentials, and historical data within thirty (30) days of the effective date of payroll processing in such state(s).  

4.2. Employee Benefits. Client will cooperate with FrankCrum in all matters necessary for FrankCrum to properly administer the FrankCrum Benefit Plans, including, without limitation, executing all necessary agreements or other documents. FrankCrum’s obligations with respect to employee benefits will not extend beyond the scope of the FrankCrum Benefit Plans.  FrankCrum reserves the right to change or substitute benefit plans or to implement cost increases.  FrankCrum also reserves the right to cancel a plan due to lack of participation or a change in applicable law.  

4.3. Workers’ Compensation Insurance. Client will cooperate with FrankCrum to provide any required notices to state agencies and/or Covered Employees in connection with the provision of workers’ compensation insurance to Covered Employees.  

4.4. Human Resource Consulting. To the extent requested by Client, FrankCrum may provide Human Resource consulting services to designated management employees of Client either directly or through the use of third-party consultants or vendors, including providing consulting services with respect to an Employee Handbook and other personnel policies and procedures.  Other services may be available and additional fees may apply. Client shall be solely responsible to handle, investigate, and resolve any issue raised by a Covered Employee pertaining to harassment, discrimination, retaliation, leave entitlements, or other employment-related issue. To the extent requested by Client, FrankCrum may provide best practices information and assistance to Client; however, Client retains sole responsibility for complying with applicable Employment Laws (defined below).  Client expressly understands and agrees that in providing Human Resource consulting services, FrankCrum is not providing legal advice, and FrankCrum is not providing such services as a joint employer. Regardless of whether Client uses FrankCrum’s Human Resource consulting services, Client is ultimately responsible for all personnel decisions, and Client is responsible to consult with legal counsel as needed regarding Human Resource or employment-related issues.  

4.5  Use of Affiliates and Other Sources of Revenue. Client understands, acknowledges and agrees that (i) some of the products and/or services provided pursuant to this Agreement may be provided by third parties that are affiliated with or otherwise related in some way to FrankCrum (“Affiliates”) and therefore some of the fees or charges paid by Client may include amounts payable to Affiliates; and (ii) to the extent consistent with applicable law, FrankCrum and/or Affiliates may receive commissions, referral fees or other sources of revenue with respect to the products and/or services provided pursuant to this Agreement.

5. Obligations of Client.  Client’s obligations under this Agreement include the following:

5.1. Implementation. Client and FrankCrum will agree upon an implementation schedule shortly after the execution of this Agreement. Client is responsible for providing documents, making decisions, and securing the cooperation of its employees, as needed to complete implementation according to the agreed-upon schedule.  

5.2. Covered Employee Onboarding. Client is solely responsible for onboarding new Covered Employees by using FrankCrum’s electronic onboarding workflow, or by submitting completed, accurate, new hire paperwork for each new employee before a newly hired employee first performs any work for Client and for whom Client receives notification in writing of FrankCrum’s acceptance of the employee as a Covered Employee. As indicated below in paragraph 5.5, Client is also solely responsible for completing the I-9 verification process for each newly hired employee, and Client understands and agrees that FrankCrum is unable to process payroll for any newly-hired employee for whom Client has not completed all required I-9 processes and procedures.

5.3. Covered Employee Termination and Wage Changes. Client is solely responsible for any late payment penalties resulting from Client providing FrankCrum with inadequate advance notice of termination or wage change.  Client authorizes FrankCrum to add such penalties to the final payment and invoice Client for same and/or to make deductions from Client’s accounts as set forth in this Agreement.

5.4. Change in Circumstances. Client shall notify FrankCrum 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, including Covered Employees who transition to a remote work arrangement, or who are hired to work remotely. Client must provide prior written notice to FrankCrum of any new lines of business, new locations, and new class codes, and FrankCrum reserves the right to approve or deny any such new business or class codes.  Failure to provide such notice is a material breach of this Agreement.  

5.5. Immigration. Client is solely responsible for all I-9 and E-Verify processes and procedures. Client will ensure that an I-9 is timely and properly completed for all new hires; retain I-9 documents for the period required by law; and update I-9s when required by law. To the extent requested by Client, FrankCrum may provide information to Client regarding the proper procedures for completion of the I-9 or E-Verify procedures; however, Client retains sole responsibility for complying with all Form I-9 and E-Verify legal requirements. Any obligation placed upon an employer by applicable law or by Client’s decision to verify the eligibility of an individual for employment through the E-Verify program or any successor program or to in any manner utilize the E-Verify system, to the extent allowed by law, is retained solely and exclusively by Client. Any fines or other penalties resulting from Client failing to follow proper I-9 or E-Verify procedures and processes will be solely Client’s responsibility. Client will not engage in any discriminatory or other unlawful acts with respect to the I-9, E-Verify process, or immigration status.  

5.6. Payroll and Inactivity.  Client shall be solely responsible for the verification of payroll information, including but not limited to verifying that child labor laws have been complied with, and for providing applicable meal periods, rest breaks, and other breaks, as required under applicable law, and for ensuring that wages, minimum wage, overtime, prevailing wage rate, piece rate, commissions, and bonuses have been correctly calculated. In the event of a public utility or data processing/storage service outage that prevents FrankCrum from performing its payroll processing services using complete and accurate data, FrankCrum reserves the right to elect to pay estimated wages until such time as complete and accurate data is available to allow reconciliation and Client funding of outstanding wages.  Although FrankCrum may, at Client’s request, consult with Client regarding minimum and overtime wages and exempt status requirements, Client is solely responsible for determining and maintaining the exempt status of Covered Employees and Client agrees that Client alone possesses sufficient information to make such decisions. Client is solely responsible for any prevailing or municipal minimum wage compliance requirements. Client shall be solely responsible for all non-compliance penalties and liabilities resulting from Client’s failure to timely forward legal process or other necessary payroll data to FrankCrum or to sign required authorization documents.  If Client does not report payroll for a Covered Employee for a period of thirty (30) days, the Covered Employee will be automatically terminated as a Covered Employee.  

5.7. Business Operations. Client will oversee all aspects of the operation of Client's business, including, but not limited to the production and delivery of services and products, product design, accounting, cash control, and loss/breakage/theft prevention.  FrankCrum is not responsible for the acts, errors, or omissions of Client or and Covered Employee, or any crimes, torts, misconduct, or wrongdoing of Covered Employees because they are not under FrankCrum’s direction, supervision, and control.  Client is solely responsible for recruiting and selecting competent workers in order for Client to conduct its business safely and lawfully. To the extent required by applicable law, Client is solely responsible for providing tools and equipment necessary for Covered Employees to perform their job duties and reimbursing Covered Employees for all recoverable expenses incurred in the course of their employment. Client shall supervise, direct, and control Covered Employees to the extent necessary for Client to conduct its business safely and lawfully.  Client is solely responsible for compliance with wage and hour laws governing scheduling, such as holidays, reporting time, on call time, stand by time, make up time, shift spacing, meal periods, breaks, rest periods, days of rest, fluctuating workweeks, flexible scheduling arrangements, scheduling notifications, and all other matters related to hours scheduled and worked. Client acknowledges that such matters are not within FrankCrum’s control and Client agrees to timely pay any penalties, premiums, or other amounts owed related to these issues. Covered Employees in supervisory positions shall have no responsibility for employees other than the Covered Employees.

5.8. Business and Occupational Legal Compliance. Client will comply with all laws governing Client’s business, including but not limited to laws pertaining 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(s) will be deemed an employee of Client for such licensure purposes. Client will be solely responsible for verifying licensure and/or providing the required supervision.

5.9. Client Employee Benefit Plans. Client will not provide employee benefits to Covered Employees or their dependents (“Client Plans”) in addition to or in lieu of the benefits available under the FrankCrum Plans without the express written consent of FrankCrum. To the extent employee benefits are provided to Covered Employees or their dependents under a Client Plan, 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) FrankCrum is not a plan sponsor, plan administrator or fiduciary with respect to any Client Plan; (b) FrankCrum 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 FrankCrum 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) FrankCrum shall have no discretion with respect to such services, (3) FrankCrum shall not take on any fiduciary or other obligations as 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.

5.10. Cooperation with FrankCrum. Client will respond in a timely and accurate fashion to requests from FrankCrum for records and data necessary for FrankCrum to perform its services. Upon receipt Client will immediately (and no later than one (1) business day after receipt) send FrankCrum copies of demands, notices, claims, summons and other legal papers related to the Covered Employees. Client will cooperate with FrankCrum in the investigation, remediation, settlement, and defense of legal claims related to the Covered Employees.  

5.11. Legal Compliance. Client will comply with federal, state and local laws governing its business, including labor and employment laws. Although FrankCrum may consult with Client regarding labor and employment related compliance matters, Client is responsible for conducting its business and decision-making in a way that complies with all federal, state, and local labor, employment, wage theft and other wage payment laws, and employee benefit laws, including, without limitation, the Civil Rights Acts of 1866, 1964 (including Title VII), and 1991; the Age Discrimination in Employment Act; 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; the Pregnancy Workers Fairness Act; the Fair Labor Standards Act, including amendments thereto under the Providing Urgent Maternal Protections for Nursing Mothers Act; the Vietnam Era Veteran’s Readjustment Assistance Act; Executive Order 11246; the Rehabilitation Act of 1973; the Fair Credit Reporting Act (FCRA); the Employee Polygraph Protection Act; the Immigration Reform and Control Act (IRCA); the Older Workers Benefits Protection Act (OWBPA); the Occupational Safety and Health Act (OSHA); the Uniformed Services Employment and Reemployment Rights Act (USERRA); the Genetic Information Non-Discrimination Act (GINA); the Coronavirus Aid, Relief and Economic Security Act (CARES Act), the Taxpayer Certainty and Disaster Tax Relief Act of 2020, the Consolidated Appropriations Act, 2021, and the American Rescue Plan Act of 2021, and related regulations and guidance, and all other local, state and federal laws governing the employment relationship, including but not limited to, such laws governing discrimination in the workplace (collectively, “Employment Laws”).

5.12. Employment Contracts. FrankCrum is not bound by any employment contract between Client and a Covered Employee. However, FrankCrum will comport with Client’s instructions in the course of providing services with respect to a Covered Employee covered by an employment contract with Client, so long as such instructions are lawful, fully disclosed to FrankCrum, and consistent with all other terms of this Agreement. Client is solely responsible for compliance with and the legal interpretation of any employment contract.  

5.13. Background Checks and Other Responsibilities. FrankCrum does not assume any responsibility for, and makes no assurances, warranties, or guarantees as to, the ability or competence of any Covered Employee. This Agreement in no way alters any responsibilities of Client to perform any and all work history, reference checks and background checks on Covered Employees (including driving and accident record history and the maintenance of a valid license to drive Client’s vehicles). Additionally, Client assumes full and complete responsibility for the consequences of performing or failing to perform, initially and on an on-going basis such checks. FrankCrum shall have no responsibility with regard to these matters.  

5.14. Collective Bargaining Agreement. If Client has entered into a Collective Bargaining Agreement (CBA) pertaining to any Covered Employees, Client agrees that it will remain the sole employer of such Covered Employees for purposes of the National Labor Relations Act (NLRA), and that it will remain solely responsible and liable for all obligations arising under the NLRA and any applicable CBA, including, without limitation, the duty to bargain. Additionally, Client expressly warrants that this Agreement will not modify any of the terms of any applicable CBA.  FrankCrum shall not be considered a party to any such CBA. Client represents and warrants that Client has not entered into a CBA pertaining to any Covered Employee during the Term unless such CBA is disclosed and the appropriate Addendum to this Agreement is executed.  

5.15. Leave and Disability Accommodation. To the extent applicable to Client and to the extent required by law, Client will accept obligations and costs associated with compliance with the FMLA, ADA, and similar state and local laws, including but not limited to the cost of providing reasonable accommodation of disabilities, recordkeeping requirements related to leave and disability accommodation, 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. Client agrees that should the FMLA be applicable to Client, to the extent allowed by law, Client has sole responsibility for compliance and that it is the intent of the Parties that this Agreement shall have no impact on Client’s obligations as an employer responsible for FMLA compliance.

5.16. Downsizing Notices. Client is solely responsible for providing all notices required by the WARN Act and similar state and local laws.  

5.17. Government Contracts. Client will be solely responsible for compliance with requirements pertaining to government contracts pursuant to federal, state, county and local laws, regulations, and ordinances, including but not limited to compliance with Executive Order 11246, the Rehabilitation Act of 1973, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, the Walsh-Healey Public Contracts Act, the Davis Bacon Act, and the Service Contract Act of 1965, and E-Verify, if applicable.  

5.18. Other Taxes and Fees. Other than required payroll withholding taxes covered by this Agreement, Client is responsible for paying and reporting all applicable taxes and governmental fees (including environmental fees required by the California Health and Safety Code for Covered Employees working in California). Additionally, any tax imposed by any local or state taxing authority based upon Client’s relationship with FrankCrum, such as a sales or use tax, or gross receipts tax, shall be the sole responsibility of Client.  

5.19. Incentive Compensation and Fringe Benefits. Client is solely responsible for funding and accurately determining eligibility for incentive compensation and fringe benefits, including, without limitation, vacation, paid sick leave (including legally mandated paid sick leave), other paid time off, profit sharing, deferred compensation, bonuses, severance payments, stock- or other equity-based compensation, commissions, and other incentive compensation payments, including determining whether individuals qualify to receive W-2 wages and benefits.  Although said payments should be made through FrankCrum’s payroll in order to ensure proper reporting and remittance of taxes, FrankCrum has no responsibility for the administration or funding of fringe benefits payments. Notwithstanding the forgoing, FrankCrum will process payroll with respect to fringe benefits at Client’s request, provided FrankCrum has received any requested documentation in a form and substance reasonably satisfactory to FrankCrum, and when appropriate and permitted by law, and FrankCrum will assist Client with tracking accruals and payments of fringe benefits when practicable, so long as such activities are consistent with all other terms of this Agreement. Given Client’s unique knowledge of its incentive compensation programs, Client remains solely responsible for determining when overtime compensation is owed on such payments and shall inform FrankCrum of same.

5.20. Work Site 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 FrankCrum to manage or control Client’s business or operations, and FrankCrum has no duty or authority to inspect, install, modify, repair, or maintain any equipment, tools, vehicles, or machinery that Covered Employees may use.  However, FrankCrum reserves the right to inspect Client’s workplace for the sole purpose of verifying compliance with the terms of this Agreement. Any inspections that FrankCrum or its workers’ compensation insurance carrier may conduct are not for the purpose of identifying the unique threats to the health and safety of Covered Employees that may exist in Client’s workplace(s), thus such inspections would not fulfill a requirement for a full safety audit or inspection under applicable laws or regulations. Thus, Client shall, at its sole cost and expense, take all necessary steps to comply with Workplace Safety Laws, including, without limitation, the following:

5.20.1. Client shall take reasonable steps to evaluate worksite conditions pertaining to the health and safety of Covered Employees, by doing periodic inspections; Client shall identify all known hazards to Covered Employees’ health and safety, inform Covered Employees of such health and safety hazards, and take all reasonable measures to eliminate such health and safety hazards; Client shall provide Covered Employees with appropriate and required personal protective equipment; Client shall provide legally required training to Covered Employees regarding the safe performance of job duties, the proper use of personal protective equipment, and the maintenance of a safe work environment; Client shall establish and maintain a written, effective Injury and Illness Prevention Program (“IIPP”) that protects Covered Employees, and Client shall fully implement Client’s IIPP; Client shall implement specific safety programs as required by OSHA or any applicable state or local requirements, depending on the work environment and the type of work being performed by Covered Employees;  

5.20.2. Client shall ensure that each Covered Employee has, and is informed of, the following protections:  (i) Covered Employees have the right to complain or report work conditions that the Covered Employee reasonably believes to be unsafe, unhealthful, or hazardous; (ii) Covered Employees have the right to refuse to work in conditions that the Covered Employee reasonably believes to be unsafe, unhealthful, or hazardous; and (iii) Covered Employees will not be subjected to any sort of retaliation or discrimination for reporting unsafe, unhealthful, or hazardous conditions or for refusing to work in unsafe, unhealthful, or hazardous conditions; and

5.20.3. In the event FrankCrum provides advice or information to Client regarding safety in the workplace, FrankCrum does so as a consultant only and not as the employer in control of the workplace. Client at all times retains sole responsibility for providing appropriate training regarding job duties, workplace safety, and other related topics.  

5.21. Accident and Injury Reporting Procedure. Client shall immediately, (and under all circumstances within one (1) business day) report accidents and injuries involving Covered Employees including “first-aid” events.  Client shall deliver a complete written report of an accident or injury to FrankCrum no later than three (3) business days after the occurrence of such accident or injury. Failure to provide the complete report of accident or injury within three (3) business days may result in a late reported claim fee. Client is solely responsible to report accidents and injuries involving Covered Employees to OSHA and/or any similar state agency as required by applicable law. Client's failure to timely report an accident or injury involving Covered Employees may result in one or more substantial fines, or other costs, pursuant to applicable law or to insurance company protocols and/or operating procedures. Any fines or any other costs incurred as a consequence of Client’s failure to comply with the provisions of Sections 5.20 and 5.21 shall be the sole responsibility of Client.  Client agrees that if FrankCrum receives a citation as a consequence of Client’s failure to comply with Sections 5.20 and 5.21, Client’s indemnification obligations, set forth in Paragraph 10 shall apply; Client will cooperate in accident/injury investigations by the applicable workers’ compensation carrier or its representative.  If modified or light duty is required for a Covered Employee by applicable law or requested by FrankCrum or its workers’ compensation carrier for the purpose of reducing the cost of claims that may be incurred, Client agrees to accommodate modified or light duty, whenever possible.  

5.22. Contractors. Client shall ensure that contractors, subcontractors, and others providing services to Client have the appropriate and required workers' compensation insurance coverage. Client shall also maintain appropriate and required workers' compensation insurance coverage for Client workers who are not covered by this Agreement, if any. Client is solely responsible for any costs, expenses, employer responsibilities, and liabilities associated with Client independent contractors, including subcontractors of such independent contractors, who are reclassified as Client employees (including, without limitation, paying additional workers’ compensation premiums from the date such Covered Employee would be eligible to be covered under any workers’ compensation insurance policy made available by FrankCrum). In the event FrankCrum is subjected to threatened or actual litigation as a result of such reclassification, whether the reclassification is voluntary or involuntary, Client shall defend and indemnify FrankCrum pursuant to Section 10.

5.23. Record Keeping. Client will maintain accurate records of hours worked to the extent required by law and will make such records available to FrankCrum upon request.  Client is solely responsible for creating and maintaining accurate records of hours worked and attendance, including any state or federal requirement to file a report or information providing pay data information, and Client is solely responsible for the proper use of any time and attendance system, regardless of whether the system is provided by FrankCrum (if any) or another source. Client will ensure that all hours worked by Covered Employees are accurately captured and reported by the time and attendance system. Client will not use any method, including rounding or off-the-clock work, to pay Covered Employees less than the amount due to them pursuant to applicable law. To the extent state or local law requires employers to provide wage statements containing information different than or in addition to the information contained in FrankCrum’s wage statements, Client shall issue supplemental wage statements to Covered Employees in compliance with applicable law. Client will maintain other records as directed by FrankCrum and in compliance with FrankCrum’s policies and procedures. Client is solely responsible for complying with all federal, state, and local laws that require posting of information at Client’s workplace(s) or providing notices to employees.  

5.24. Healthcare Reform / 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 FrankCrum agrees to assist Client with satisfying these obligations, Client understands, acknowledges and agrees that: (i) FrankCrum 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) FrankCrum 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.

5.25. Inspection and Audit.  Upon any request by FrankCrum or its assigns, and at least annually, Client shall allow an on-site physical examination of such books, records, documents and other information sources deemed appropriate by FrankCrum and/or its assigns to aid FrankCrum and/or its assigns in the determination of proper workers' compensation classifications of Covered Employees and to aid in the determination of payroll amounts paid to such Covered Employees. Such examination shall be strictly for the purposes of determining proper workers' compensation classifications of Covered Employees and to aid in the determination of payroll amounts paid to such Covered Employees.  Client shall remain obligated to FrankCrum for any misclassification, delinquency and/or unpaid premium amount found in the audit.  If Client fails to comply with this section in any respect, Client will pay a premium to FrankCrum of three (3) times the most recent estimated annual workers’ compensation premium.  This provision shall survive the expiration or other termination of this Service Agreement

6. Insurance. During the Term of this Agreement, Client will at a minimum maintain the following insurance coverage: (i) comprehensive general liability insurance; (ii) automobile liability insurance, including non-owned and hired autos (to the extent any Covered Employees will be assigned to positions requiring them to drive for Client); and (iv) professional liability insurance, if appropriate, including, without limitation, malpractice or errors and omissions coverage and in compliance with any regulation mandating such coverage. Each of such policies will have as a minimum a limit of liability not less than $1,000,000 per occurrence. Upon request, FrankCrum will be listed as an insured, or additional insured on the policy or on an alternate employer endorsement, or other similar endorsement. Client will furnish FrankCrum with Certificates of Insurance as evidence of coverage within five (5) days of executing this Agreement or a change in policy/coverage.

7. Fees.

7.1. Rates.  Client will pay FrankCrum’s administrative fees according to the rates set forth in the Rate Sheet (Exhibit “A”).  

7.2. Fee Calculations. For purposes of fee calculations for gross payroll, any references to wages refer to gross wages, including but not limited to salary, hourly wages, sick pay, vacation or paid time off, wages in lieu of notice, overtime wages, piece rate wages, tips and gratuities, bonuses, other incentive wages, severance, and commissions.  Administrative fees are calculated based on a percentage of gross wages, as set forth in the Rate Sheet (Exhibit “A”).  In addition to Administrative Fees and all other applicable fees and charges, Client shall pay to FrankCrum all gross wages; federal, state, and local taxes and related charges (including but not limited to FICA, FUTA, and SUTA); health insurance charges (including but not limited to premiums, administration costs, and FrankCrum administrative charges); workers’ compensation insurance charges (including but not limited to premiums, assessments, minimums, and FrankCrum administrative charges), and other insurance costs and charges attributable to Covered Employees, as invoiced by FrankCrum. Benefits and insurance charges include all applicable insurance premiums, fees, costs, and FrankCrum’s administrative charges related to same.

7.3. Fee Adjustments. FrankCrum may adjust the administrative fee rates at any time with thirty (30) days’ advance notice, or without advance notice in the event of immediate changes in payroll tax, assessments levied, insurance rates, changes in insurance requirements or costs, or changes in workers’ compensation insurance codes.  

7.4. Invoiced Amounts May Not Equal Costs. Client understands, acknowledges and agrees that any fees, charges or other amounts invoiced and/or paid pursuant to this Agreement (“Invoiced Amounts”) may not equal the actual costs of FrankCrum, regardless of how such Invoiced Amounts are presented on any invoice, proposal or otherwise, including, without limitation, Invoiced Amounts identified as taxes, contributions, premiums or deductibles. To the extent that any such Invoiced Amounts exceed the actual costs of FrankCrum, Client understands, acknowledges and agrees that such excess is part of the reasonable compensation payable to FrankCrum for the services provided pursuant to this Agreement.  

7.5. Retroactive Fees or Charges. To the extent that any tax, premium or other cost of FrankCrum is unilaterally increased by a governmental body or other third party beyond the control of FrankCrum, whether prospectively or retroactively, Client understands, acknowledges and agrees that FrankCrum 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.

7.6. Early Cancellation Fee.  In addition to any other remedies available to Frank Crum, if after executing this Agreement, Client fails to process Client’s first payroll with Frank Crum, Client will pay FrankCrum an early cancellation fee of $2,500 for the costs associated with the set-up and termination of Client’s account and processing of Covered Employees.  

7.7. Payment Procedures. Client will provide FrankCrum, in the method authorized by FrankCrum, the payroll data upon which each Covered Employee's compensation is calculated, in the format proscribed by FrankCrum. As soon as practicable following receipt of the payroll data, FrankCrum will send to Client an invoice for payment.  Once you are notified of the invoice amount for your payroll, including all service charges or fees, either electronically, by telephone, facsimile, or actual receipt, Client has four (4) hours to notify FrankCrum of acceptance or dispute the amount so that FrankCrum can correct any errors before payroll is distributed. Client agrees that its failure to respond within four (4) hours of receiving the invoice is deemed acceptance of the invoice, agreement to pay the full amount therein and a waiver of any billing dispute.  Client shall ensure that sufficient funds will be available to pay the amount of the invoice. You must make payment by ACH/debit (subject to approval) or guaranteed funds which may include the wire transfer of funds, certified, or cashier’s check, or regular bank check, as FrankCrum deems appropriate and approved by FrankCrum. The payment is due prior to or at the time payroll checks are delivered to Client or any direct deposits are released into the account of any Covered Employee, unless hand delivery is not feasible due to Client’s location; in that case, Client must pay the payment to FrankCrum by wire transfer of funds to FrankCrum’s financial institution the business day immediately prior to the applicable payroll date. FrankCrum will then transmit the payroll checks to Client by overnight delivery or a similar type of delivery. In addition, any fees or other charges not paid on or before the due date will be subject to finance charges equal to One and One-Half percent (1.5%) per month, or such maximum lesser amount set by applicable law, if applicable law sets a lower rate, of the outstanding balance per month.  This paragraph will survive termination of this Agreement.

7.8. Pre-payment. FrankCrum in its discretion may require Client to pre-pay the estimated invoicing for any upcoming pay period prior to commencement of that pay period.  This requirement may be imposed indefinitely or, in FrankCrum’s discretion, may be imposed temporarily.  The prepayment will be maintained by FrankCrum to ensure Client’s performance of all terms, covenants, and obligations under this Agreement.  If Client should fail to pay FrankCrum any payment when due, FrankCrum may apply the prepayment to any amounts due.  Client will not be entitled to any interest on the prepayment.  FrankCrum will refund any remaining prepayment within ninety (90) days after the termination of this Agreement, upon Client’s written request, unless (i) Client has not fulfilled all of its obligations (monetary or non-monetary) under this Agreement, (ii) Client did not provide proper and timely notice when terminating this Agreement, or (iii) FrankCrum terminates this Agreement due to Client’s breach of this Agreement.

7.9. Bankruptcy. Client will immediately notify FrankCrum 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 FrankCrum prior to such bankruptcy that remain unpaid by Client shall be treated as outstanding wage obligations for the purposes of determining priority in the associated legal proceedings with the intended effect that FrankCrum shall have the same rights as Covered Employees with respect to such wages and associated taxes and shall be entitled to relief as necessary to apply such status.

8. Employment Practices Liability Insurance.

FrankCrum will provide Employment Practices Liability Insurance (“EPLI”) coverage for the Covered Employees.  In the event Client maintains its own EPLI coverage (separate from FrankCrum’s) Client’s coverage will be primary.  In the event of a claim against Client and/or FrankCrum covered by FrankCrum’s EPLI, Client will be responsible for payment of the deductible or self-insured retention (collectively “Deductible”) including all legal fees and costs incurred within the Deductible.  Client will be responsible for any legal or general defense costs associated with any claim brought by a Covered Employee against Client and/or FrankCrum not covered by FrankCrum’s EPLI as well as any settlement or claim costs that exceed the amount paid by the EPLI carrier. FrankCrum’s EPLI will only apply to claims made and submitted for coverage during the Term of this Agreement and arising from events occurring during the Term of this Agreement.  Client shall (a) act in conformity with the terms of the EPLI; (b) cooperate with FrankCrum and the EPLI carrier in the investigation and processing of EPLI claims; (c) cooperate in the handling of EPLI claims; and (d) reimburse FrankCrum any amounts advanced or paid by FrankCrum on any claim brought by a Covered Employee.  In the event of a conflict between the terms of the EPLI policy and this Agreement, the EPLI policy terms will control. FrankCrum makes no representations regarding the insurance carrier, insurance limits, Deductible, or scope of coverage provided by FrankCrum’s EPLI policy, and all such terms are subject to change without notice.

9. Confidential Information.

9.1.  In the course of performing its obligations set forth herein, a party (“Disclosing Party”) may disclose, furnish, or provide to the other party (“Recipient”) non-public confidential information, including, but not limited to, personnel information and payroll data (collectively, “Confidential Information”). The Recipient shall keep confidential and shall not directly or indirectly disclose, disseminate, or use Confidential Information except as necessary to perform its obligations hereunder or as required by law, and shall take reasonable efforts to protect Confidential Information. Confidential Information does not include information which: (1) was in the possession or control of the Recipient prior to the time of disclosure hereunder; (2) at the time of disclosure or thereafter becomes public knowledge through no action of the Recipient; or (3) is lawfully obtained by the Recipient from a third party under no enforceable obligation of confidentiality to the Disclosing Party. The Recipient represents that it has implemented and maintains information security policies and procedures that are reasonably designed to protect against unauthorized access to, or use of, Confidential Information. For purposes of this section, "breach" means any unlawful access to, disclosure or use of data that compromises the security, integrity, or confidentiality of Confidential Information. The Recipient will use reasonable information security measures to safeguard Confidential Information against breaches and in compliance with applicable law. If the Recipient discovers reasonable grounds to conclude Confidential Information of the Disclosing Party was breached, the Recipient will comply with investigation and notice requirements dictated by law. The Recipient will also promptly inform the Disclosing Party in writing to the extent required by law.  In the event of a breach as defined by applicable law, or any other event regarding Confidential Information that requires notification under applicable law, the Recipient agrees to provide reasonable assistance to the Disclosing Party. Upon receiving written notice about such breach from the Recipient, the Disclosing Party will permit the Recipient to take reasonable steps to stop or remediate unlawful use of Confidential Information and ensure that Recipient’s use of Confidential Information is consistent with this Agreement. These obligations shall survive the termination of the Agreement.  The Recipient will not be in breach of this Agreement by disseminating Confidential Information as required by legal process or to comply with a disclosure obligation required by law. To the extent permitted by law, Recipient will notify the Disclosing party as far in advance as reasonably possible before the Recipient delivers such Confidential Information to any third party. If Client and FrankCrum have entered into a separate Confidentiality and/or Non-Disclosure Agreement, the terms of that document will control.  

9.2. Broker Release.  Notwithstanding anything to the contrary in Section 9.1, Client hereby authorizes FrankCrum to release any and all information provided by Client to Broker so that Broker may assist Client with quotes for services such as health insurance or other similar services.  Client may withdraw this authorization at any time by providing such withdrawal to FrankCrum in writing by emailing a Client’s assigned team member.

10. Indemnification.

10.1. Without regard to the fault or negligence of any party, Client hereby unconditionally indemnifies, holds harmless, protects and defends and unconditionally releases, acquits, remises, waives and forever discharges, and to the fullest extent allowed by law covenants not to sue FrankCrum, and all subsidiary, affiliate, related, and parent companies, their current and former respective shareholders, non-Covered Employees, attorneys, officers, directors, agents and representatives (all indemnified parties referred to as "FC Indemnified Parties") 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 attorneys’ 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 (whether active or passive) of FC or any FC Indemnified Party that may be asserted or brought against any FC Indemnified Party which is in any way related to this Agreement, or Client’s obligations or warranties under this Agreement, or the products or services provided by Client or by FrankCrum, the actions of any Covered Employee, the actions of any non-Covered Employee employed by Client, or of any other individual, any act by or against any individual who is acting outside the capacity of a Covered Employee at the time the matter arises, including without limitation, any violation of any local, state and/or federal law, regulation, ordinance, directive or rule whatsoever, and all employment-related matters which shall include but not be limited to all matters arising under local, state and/or federal right-to-know laws, environmental laws, immigration laws (including I-9 and E-Verify obligations), all laws within the jurisdiction of the National Labor Relations Board (“NLRB”), the Occupational Safety and Health Administration, the U.S. Department of Labor, and the U.S. Equal Employment Opportunity Commission (“EEOC”), including Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act (including without limitation those aspects relating to employment, public access and public accommodation), the Patient Protection and Affordable Care Act (“PPACA”), the WARN Act, Employee Retirement Income Security Act (“ERISA”), all laws governing wages and hours (including without limitation: prevailing wage rate; exempt and non-exempt status; child labor; family and medical leave; and minimum wage and overtime matters), all laws governing race, sex, harassment of any nature, sexual harassment, retaliation, religion, national origin, color, age, genetic information, veteran status, disability, union status, marital status, and all other types of discrimination prohibited by applicable law, all laws governing disclosed and undisclosed benefit plans, and all other labor laws.  

10.2. Neither we nor any of our insurance carriers (except for matters covered by any applicable FC Employment Practices Liability Insurance (“EPLI”) policy or any applicable FC workers’ compensation policy) have any duty to defend you, or any of your agents or officers in any action whatsoever without exception.  Should FrankCrum’s workers’ compensation insurance carrier continue to pay indemnity benefits related to a covered injury, Client will cooperate in efforts to recover such overpayments.  

10.3. You are solely responsible and liable for any employment contract between you and any employee (including Covered Employees), and we will not be a party to any such agreement.

10.4. Without limiting your obligation to indemnify us under this Agreement, you and we each waive to the fullest extent permitted by law, any right to, or claim for, any punitive or exemplary damages against the other.  You and we also agree that, in the event of a dispute between you and us, the party making claim will be limited to recovery of any damages it sustains, as well as appropriate equitable relief.

10.5. All indemnifications by you will survive the termination of this Agreement.

11. Client’s Representations and Warranties.  Client represents and warrants as follows:  

11.1. Client’s Obligations to Covered Employees. (i) All compensation of the Covered Employees accrued prior to the Effective Date and for which Client or any third party is responsible and obligated has been paid in full; (ii) there are no separate contracts, agreements or other arrangements existing with respect to the Covered Employees as a group or any of them which would bind or obligate Client, except as expressly set forth herein; (iii) Client will provide timely and accurate notification to FrankCrum 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 (iv) 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 will not be deemed a breach under the terms of those plans.

11.2. Accuracy of Data. 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 data, employee lists, job descriptions and classifications, compensation, benefits, and time reports is and will be true and correct. Client maintains, and will continue to maintain during the Term, to the extent required by law, systems and controls which ensure Covered Employees: (i) accurately record and receive credit for all hours worked; (ii) receive breaks and rest periods; and (iii) receive credit for applicable premium and overtime hours. 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 data of Client or guarantor were provided to Client.

11.3. Collective Bargaining Agreement. Client has not entered into a CBA pertaining to any Covered Employee during the Term unless such CBA is disclosed and Client has executed the appropriate Addendum to this Agreement.  

11.4. No Litigation. Except as previously disclosed to FrankCrum 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 FrankCrum promptly upon the inception of any such action, suit, proceeding, investigation or threat thereof.

11.5. 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 will remain in compliance with all applicable statutes, regulations, and executive orders respecting Covered Employees and employment practices, including but not limited to the state and federal employment laws. Client acknowledges that certain requirements applicable to employers under various federal and state statutes, rules, are based on the status of the employer and number of employees, 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.  

11.6. Work Site 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.  

11.7.  Operations.  Client confirms it shall not act as a Professional Employer Organization and will not do so throughout the entire term of this Agreement.

12. Termination.

12.1. Noticed Termination: Either Party may terminate this Agreement following ninety (90) days’ advance written notice.  Prior to termination of this Agreement, Client shall pay to FrankCrum all invoiced fees and other monies due and owing. Client shall also reimburse FrankCrum for any and all payments FrankCrum has made to any third parties and Covered Employees of behalf of Client prior to the termination of this Agreement.  Once notice of termination has been provided, and through the notice period, Client will continue to comply with all obligations as set forth in this Agreement, including reporting all wages and other taxable compensation of the Covered Employees to us at the contracted annualized payroll amount as reflected on Client’s most current Client Rate Sheet, Exhibit “A.”  FrankCrum will confirm this annualized payroll amount in writing and provide you with the most current Client Rate Sheet, Exhibit “A,” on record once Client provides its termination notice in writing.

12.2. Immediate Termination:  FrankCrum may terminate this Agreement immediately, without prior written notice, in the event of: (1) Client’s material breach of this Agreement, including a material misrepresentation or omission to FrankCrum or the commission of a fraudulent act against FrankCrum; (2) Client’s failure to pay any invoice when due or any other monetary obligation; (3) FrankCrum, or its insurance carrier, in its sole discretion determine that the workers’ compensation risk is unacceptable. In lieu of termination, FrankCrum reserves the right to modify rates reflected on the Client Rate Sheet, Exhibit “A” pursuant to section 7.5 these Terms & Conditions, Exhibit “B;” (5) Client making a direct payment of taxable wages in violation of this Agreement; (6) Client performing any act that expressly or implicitly disclaims Client’s obligations under this Agreement; (7) 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; (8) a change in the composition or location of Covered Employees which prohibits FrankCrum from servicing the Client’s accounts and performing under this Agreement; (9) Client fails to properly report all time worked and wages due to any Covered Employee and/or (10) Client becoming a credit risk or Client experiences a material adverse change in its financial position, as determined by FrankCrum in its sole discretion.

12.3. Replacement Coverage. In the event that this Agreement is terminated, regardless of the reason for the termination, Client will immediately secure: (i) replacement workers’ compensation insurance for the benefit of the employees who continue their employment with Client; and, if applicable, (ii) replacement group health insurance for the benefit of both the employees who continue their employment with Client and any former employees (including dependents of such employees) of Client who are maintaining COBRA continuation coverage under a FrankCrum Plan or who are otherwise entitled to COBRA continuation coverage. Should Client fail to obtain replacement group health insurance coverage in accordance with clause (ii) of the previous sentence, Client will pay to FrankCrum a fee of $500 per month for each former Covered Employee, former employee of Client, and/or dependent of a former Covered Employee or former employee of Client who is maintaining COBRA continuation coverage under a FrankCrum Plan for any period of time following the termination of this Agreement.

12.4. Effective Date of Termination. To the extent permitted by law, upon termination of this Agreement for any reason, or upon Client's failure either to provide payroll data as required herein or to timely pay as required herein, all FrankCrum obligations set forth herein (including, without limitation, the payment of wages and the provision of benefits) will revert to Client retroactive to the last date on which FrankCrum was paid in full for FrankCrum’s services.  

12.5. Transition Cooperation. In the event of termination, regardless of the reason for termination, FrankCrum agrees to cooperate with Client with the transitioning of payroll, workers’ compensation insurance, group health insurance, EPLI, and all other FrankCrum related functions to Client or to Client’s chosen vendor.  Additional fees may apply to such transition services.

12.6. Early Termination Transition Fee.  In the event Client terminates this Agreement, other than as set forth in Paragraph 12.1, or should Client fail to perform under this Agreement by failing to remit payment due FrankCrum, Client shall pay FrankCrum an early termination transition fee in the amount of one and one half percent (1.5%) of the total contracted amount of annual payroll, as set forth in the most recent Client Rate Sheet, Exhibit “A,” due to the costs and administrative burdens placed on FrankCrum when a client terminates without sufficient notice.

13. Intellectual Property of FrankCrum.  

Client acknowledges and agrees that all computer hardware and software, including, but not limited to, all computer programs, and web designs provided by FrankCrum (unless such property was created by a third party) (the “FrankCrum Property”), are Confidential and the sole property of FrankCrum. Client acknowledges and understands that it has been granted a limited license to use the computer software programs and databases provided by FrankCrum, and that this license is exclusive to Client and the license will terminate when this Agreement terminates. Client agrees not to copy, distribute, lend, or reproduce any FrankCrum Property. Client also agrees not to recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from the FrankCrum Property. Client agrees that it will abide by the terms and conditions of any user license or other agreement relating to the FrankCrum Property.  

14. Governing Law.  Waiver of Right to Jury Trial/Venue.  

14.1.    Applicable Law. This Agreement will be determined to be a contract made within the State of Florida and both Parties agree the exclusive, proper, and convenient venue shall be exclusively in the applicable court in Pinellas County, Florida or the United States District Court of the middle District of Florida, Tampa Division. Each Party waives any defense, whether asserted by motion or pleading, that such venue is improper or inconvenient.  For all purposes this Agreement will be governed and construed under and in accordance with the laws of the State of Florida, notwithstanding choice of law principles, except that the PEO licensing laws of the state where the Covered Employee(s) work or worked shall apply, where applicable.

14.2.    WAIVER OF RIGHT TO JURY TRIAL.  TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BETWEEN THE PARTIES, INCLUDING, BUT NOT LIMITED, TO ANY ACTION TO ENFORCE OR DEFEND ANY RIGHT, POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR WITH RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.  EACH OF THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.  EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO THE ACCEPTANCE OF THIS AGREEMENT BY THE OTHER PARTY HERETO.

14.3.   Enforcement Costs.  The prevailing party in any litigation arising out of or relating to this Agreement will be entitled to reimbursement of all of its reasonable attorneys’ fees, including all costs of defense, incurred at all stages of the proceedings.

15. LIMITATION OF LIABILITY.  Notwithstanding any other provision of this Agreement, the total liability of FrankCrum for any claim of Client, whether in contract, tort, statute or otherwise, shall not exceed the aggregate amount of Administration Charges paid by Client over the twelve (12) months prior to the incident from which the liability arose. FC shall have no liability to Client for indirect, special, consequential, punitive, or exemplary damages, including, but not limited to, loss of profits, loss of business opportunity, loss of good will or treble damages.

16. General.

16.1. Assignability. This Agreement is assignable by Client only with the written consent of FrankCrum. Such consent to assignment shall not be unreasonably withheld.  FrankCrum may assign this Agreement without notice.

16.2. Signatures. Any individual signing this Agreement on behalf of Client or FrankCrum 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.

16.3. Counterparts. This Agreement may be executed in one or more counterparts and counterparts signed by Client and FrankCrum in the aggregate will constitute a single original instrument.

16.4. Force Majeure and Other Events. Neither Party shall be liable for any delay in delivery or nonperformance or inadequate performance in whole or in part of its obligations under this Agreement if prevented from doing so by a cause or causes beyond its control, including, without limitation, acts of God or public enemy, fire, floods, swarms, earthquakes, hurricanes, riots, strikes, pandemics, war, interruption in services provided by a public utility or a data processing/storage vendor, and restraints of government. The suspension of performance shall be of no greater scope and no longer duration than is reasonably required and the non-performing Party shall use reasonable efforts to remedy its inability to perform.  

16.5. Definitions. Terms and phrases that are defined in any part of this Agreement shall have the defined meanings wherever used throughout this Agreement. The terms "hereunder" and "herein" and similar terms used in this Agreement shall refer to this Agreement in its entirety and not merely to the section, paragraph or subparagraph in which the term is used.  

16.6. Construction. FrankCrum 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 will be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of this Agreement will be construed against FrankCrum on the basis that FrankCrum drafted it. This Agreement will be viewed as if prepared jointly by FrankCrum and Client.

16.7. False or Omitted Information. Any false statement or omission with regard to any information supplied by Client to FrankCrum in anticipation of Client's contracting with FrankCrum or at any other time will be deemed a material breach of this Agreement and FrankCrum, at its option, may terminate this Agreement and seek appropriate relief.

16.8. Headings. Captions and organization are for convenience and will not be used in construing meaning.

16.9. Reference to “Day” or “Days”. Unless there is a specific reference to the contrary, any reference to "day" or "days" in this Agreement shall mean calendar days.

16.10. Independent Contractor Relationship. FrankCrum is an independent contractor of Client and will not be its principal, director, agent, master, servant, or employee.

16.11. Integration and Amendment. This document, together with the Schedules, Exhibit(s) and/or Addenda attached hereto, constitutes the full, complete, absolute and entire Agreement between the parties. This Agreement supersedes any prior statements, understandings, or offers. This Agreement may only be altered or amended by a written amendment signed by the Parties with the exception of any alteration or amendment to this Agreement sent by FrankCrum to Client in writing, in a manner in which proof of delivery can be established and which shall be deemed to have amended this Agreement and have been accepted by Client if not objected to in writing by Client. Notice of such objection must be received by FrankCrum within fourteen (14) days of Client’s receipt of FrankCrum’s notification of change (proof of FrankCrum’s receipt of objection must be supplied by Client upon request of FrankCrum.  

16.12. No Waiver of Rights. The failure of either Party strictly to enforce any provision hereof will not be construed as a waiver thereof or as excusing either Party from future performances in strict accordance with the provisions of this Agreement.

16.13. Notices. All notices and demands will be given in writing and transmitted by hand delivery, overnight courier delivery with signature required verifying receipt, or by e-mail.  All confirmations by mail shall be made by certified mail, postage prepaid, return receipt requested. Notice will be considered given and effective when received. Unless otherwise advised in writing by the other Party, each Party shall transmit notices and demands to the addresses indicated in the Agreement.  

16.14. Corporate Status. Client agrees to notify FrankCrum promptly of any change in the corporate or operating status of Client’s business, including subsidiaries and affiliates.

16.15. Change of Control.  Either Party may terminate this Agreement, effective upon written notice, as set forth in Paragraph 12.1, above, in the event that client’s legal entity is merged with or into a third-party corporation or other entity, or all, or substantially all of Client’s assets are sold to a third-party corporation or other entity.  Failure by Client to provide termination notice as required under Paragraph 12.1. shall result in the assessment of an early termination fee as set forth in Paragraph 12.6. above.

16.16. Electronic Signature.  By executing this Agreement, Client agrees that FrankCrum and Client may transact business electronically pursuant to, and is deemed to have opted in, to the “Electronic Signatures in Global and National Commerce Act,” P.L. 106-229, and any other similar state or local statute that authorizes electronic signatures in commerce. Client agrees that FrankCrum may rely on electronic authorization by Client or a Covered Employee to make changes to employee or payroll records or data relating to a Covered Employee.  Client hereby releases FrankCrum and waives any right to bring an action or seek damages from FrankCrum based in whole or in part on electronic instructions or authorizations by Client or a Covered Employee. The indemnity obligations described in Section 10 shall apply to FrankCrum’s reliance on electronic authorizations or instructions by Client or a Covered Employee.

16.17. Client Intellectual Property. Any and all inventions, discoveries, improvements, copyrightable works, and creations (hereafter referred to as “Intellectual Property”), which Client has previously, solely or jointly, conceived or made or may conceive or make during the Term of this Agreement, whether or not accomplished through the use of Covered Employees, shall be the sole and exclusive property of Client. Client shall have sole and exclusive responsibility for protecting its rights to such Intellectual Property and to all of its other assets, and FrankCrum shall have no responsibility or liability with regard to same.  

16.18. Scope of Services. Client acknowledges and agrees that FrankCrum is not engaged in the practice of law or the provision of legal, insurance, financial, tax, or investment advice or services, and that Client alone is completely and independently responsible for its own legal rights and obligations, regardless of any human resource advice or form which may be supplied to Client. Client at all times retains the right to seek appropriate advice from professionals of its own choosing, including, but not limited to attorneys and accountants. FrankCrum’s agreement to perform certain employer functions does not establish an obligation to perform all employer related functions, and FrankCrum reserves the right to reject claims by Covered Employees with respect to matters that are not the responsibility of FrankCrum. FrankCrum will provide only the services expressly described in this Agreement. No other services will be provided or implied. FrankCrum 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 FrankCrum have any obligation to provide equipment for Covered Employees.  

16.19. Personal Guaranty.  We require, as a condition of entering into this Agreement, that an Officer of Client, authorized to legally bind Client, execute the Personal Guaranty in the form attached hereto as Exhibit “C.” We must approve the financial credit of the individual executing the Personal Guaranty prior to such execution.  The Personal Guaranty shall obligate the Guarantor to all amounts due to FrankCrum under this Agreement or as authorized by applicable law.

16.20.    Securities/Setup Fee.

16.20.1. In addition to any other rights it may have under the Agreement, FrankCrum may, in its discretion and at any time, require Client to provide one or more advance payments, guarantees or other forms of security, including, without limitation, a letter of credit.  In any case, such security must be in form and substance reasonably satisfactory to FrankCrum.

16.20.2. FrankCrum may require Client to pay a set-up fee upon the execution of this Agreement.  Client hereby acknowledges and agrees that this set-up fee covers the initial administrative cost of initiating its account and the set-up fee is immediately non-refundable.

16.21. Consumer Report.  Client authorizes FrankCrum to conduct a credit and background reference check on Client and its officers as FrankCrum deems appropriate for account review and in compliance with the requirements of the law.

16.22. 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 will remain in force and will stand as if the unenforceable part did not exist. The invalid or unenforceable provision will be replaced by a provision as similar as possible and which is valid and enforceable.  

16.23. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Parties hereto.

16.24. Terms Surviving Termination of Agreement. Termination of this Agreement will 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 will continue after the termination hereof with respect to events occurring prior to such termination.  

16.25. Third Party Beneficiaries. The parties acknowledge and agree that no parties other than the parties hereto are intended to benefit hereunder. No rights of any third party are created by this Agreement and no person other than parties to this Agreement may rely on any aspect of this Agreement notwithstanding any representation, written or oral, to the contrary.

16.26. No Inducement. Client understands, acknowledges and agrees that the FrankCrum services provided pursuant to this Agreement are not being provided as an inducement to purchase insurance coverage of any kind, nor do such services constitute insurance or the sale of insurance of any kind.

16.27. Time of Performance. Time is of the essence with respect to performance of all obligations set forth herein.

16.28. Duty to Cooperate. Each Party will have the duty to cooperate with the other in the event of any claim filed by an employee or former employee, or any government agency investigation of a complaint filed by an employee or former employee covered by this Agreement. Such duty will survive the termination of this Agreement. Client agrees to cooperate with FrankCrum as needed for any state licensing and/or registration requirements. Client further agrees to cooperate with FrankCrum 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.

 

Policy Details – Table of Revision
Revised on	Version	Description	Approved by
December 1st, 2024	1.0	Creation of Client Service Agreement Terms and Conditions	Danielle Grubb  Corporate Counsel