HomeMy WebLinkAboutADP INC MASTER SERVICES AGREEMENTADP, INC.
NATIONAL ACCOUNT SERVICES
MASTER SERVICES AGREEMENT
(cover page)
/ -
(Effective Date)
ADP, INC.: 5800 Windward Parkway (referred to herein as "ADP ")
Alpharetta, GA 30005
CLIENT: Augusta- Richmond County (referred to herein as "Client')
503 Greene Street
Augusta, Georgia 30911
Attention: Roderick Powell
FEIN: � .V p4
Client desires ADP to provide to Client the services set forth in this Agreement and ADP desires to provide such services to Client, all
as provided in this Agreement.
Therefore, upon the terms and subject to the conditions set forth in this Agreement and intending to be legally bound, the parties hereto
agree as follows:
ADP will provide to Client and Client will receive from ADP, all upon the terms and conditions set forth in this Agreement, the Services
(as such term is defined in Annex A) specified in this Agreement. ADP may provide to Client and Client may receive additional services
hereunder upon mutual agreement and by completion of an Additions Schedule. This Agreement includes the Annexes marked with an
"X" below and each Additions Schedule attached hereto. Each Annex marked with an "X" below and each Additions Schedule attached
hereto is incorporated into this Agreement by this reference as if set forth in this Agreement in full. Client acknowledges and agrees that
a particular Annex may provide that a wholly -owned subsidiary of Automatic Data Processing, Inc., as designated by ADP, shall, in lieu
of ADP, provide certain of the Services covered by such Annex in accordance with the terms and conditions of this Agreement. In the
event that such Annex shall be separately executed by such subsidiary, evidencing its agreement to be bound thereby, then the
agreement for the Services to be provided by such subsidiary shall be deemed to be between Client and such subsidiary of Automatic
Data Processing, Inc. and ADP shall be responsible for the performance of such subsidiary.
X Annex A:
General Terms and Conditions
Annex U:
Tax Credit Services
Annex B:
Payroll Services
_
_ Annex V:
VirtualEdge Services
_
Annex C:
Tax Filing Services
_ Annex W:
ADP Garnishment Services
_
Annex D:
Official Bank Checks Provisions
_ Annex X:
Labor Billing Policy
_
Annex E:
ADP Tax Services
Annex Y:
Travel and Expense Policy
_
Annex F:
ADP Enterprise Services
_
X Annex Z:
Service and Fee Schedule
_
Annex G:
Print Services
_ Annex AA:
HR /Benefits
_
Annex H:
Unemployment Compensation Management Services
Annex BB:
TotalPay Card Services
_
Annex l:
ADP Enterprise Implementation Services
_
Annex DD:
1 -9 Compliance Services
_
X Annex K:
Benefits Administration Services
_
_ Annex EE:
Expense Management Services
Annex 0:
Time and Labor Management Services
Annex FF:
Taxware Services
_
Annex Q:
COBRA Services
_
Annex GG:
Verification Services
_
Annex R:
Screening Services
_
_ Annex HH:
HR Anytime Services
_
Annex S:
PayForce Services
_ Annex JJ:
ADP Hosted Software Services
_
Annex T:
TotalPay Services
_ Annex LL:
ADP Talent Management Services
IN WITNESS WHEREOF, ADP and Client have executed this Agreement to be effective as of the Effective Date set forth above.
NAS MSA Cover Page v20
ADP, INC.
(Signature of Authorized Representative)
Marvin M. Peden
Sr. VP. Field Services
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NAS RASA Cover Page v2o
ANNEX A
General Terms and Conditions
SECTION 1 DEFINITIONS.
Capitalized words in this Agreement that are not otherwise defined
have the meanings shown below, for both singular and plural
forms. Unless otherwise specified, any reference in this Annex to a
section or other subdivision is a reference to a section or
subdivision of this Annex.
1.1 "ADP Products" means the Application
Programs, tutorials and related documentation delivered to Client
by ADP.
1.2 "Additions Schedule" means a written
supplement to this Agreement, signed by Client and ADP,
describing additional Services to be provided by ADP to Client.
1.11 "Termination Event" means with respect to
any party, (i) that party becomes the subject of a proceeding under
the Bankruptcy Code, (a) seeking the appointment of a trustee,
receiver or custodian or (b) seeking the liquidation, winding -up,
dissolution, reorganization or the like of such party, and the
proceeding is not dismissed within 30 days of its commencement,
or (ii) a substantial part of such party's property becomes subject
to any levy, seizure, assignment, application or sale for or by any
creditor or government agency, (iii) a moratorium is agreed or
declared with regard to the payment or performance of such party's
obligations, or (iv) such party makes an assignment for the benefit
of creditors. If part (i) of this Section 1.11 occurs with respect to
Client, Client agrees to promptly seek court authorization to pay all
fees as an administrative expense, if deemed appropriate by the
trustee and the court having jurisdiction over the proceeding.
1.3 "Agreement" means this Master Services
Agreement, each Annex marked on the cover page and each
Additions Schedule that supplements this Master Services
Agreement, as amended from time to time.
1.4 "Application Programs" means the computer
software programs and modules delivered to Client by ADP as part
of the Services but excludes pre - packaged third party software and
custom programs developed by ADP for Client.
1.5 "Business Day" means any day except a
Saturday, a Sunday, or a Federal holiday.
1.6 "Client Group" means Client, Client's majority
owned subsidiaries, and affiliates of Client. Affiliates are listed in
Section 1 of Annex Z.
1.7 "Client Infringement Event" means (i) any
change, or enhancement in the ADP Products made by Client or
any third party for the Client, (ii) Client's use of the ADP Products
except as permitted under this Agreement or in combination with
any hardware, software or other materials not expressly authorized
by ADP, (iii) Client's use of other than the most current release of
the ADP Products that results in a claim or action for infringement
that could have been avoided by use of the current release, or (iv)
the provision by Client to ADP of materials, designs, know -how,
software or other intellectual property with instructions to ADP to
use the same in connection with the Services.
1.8 "Confidential Information" means all
information that is confidential or proprietary provided by the
disclosing party to the receiving party for use in connection with the
Services, but does not include (i) information the receiving party
already knows (ii) information that becomes generally available to
the public except as a result of disclosure by the receiving party in
violation of this Agreement, and (iii) information that becomes
known to the receiving party from a source other than the
disclosing party on a non - confidential basis. Confidential
Information also includes all trade secrets, processes, proprietary
data, information or documentation or any pricing or product
information the disclosing party provides to the receiving party.
1.9 "Effective Date" means the date written in the
space marked "Effective Date" on the cover page of this
Agreement.
1.10 "Services" means the services described in
each Annex, the services in each Additions Schedule, and any
other services that ADP provides to Client at Client's request.
SECTION 2 THE SERVICES.
2.1 Use of Services. Client will follow the
instructions and reasonable policies established by ADP from time
to time and communicated to Client. Client will use the Services
only for the internal business purposes of the Client and the Client
Group. Client agrees that each of the entities included in the
Client Group must comply with each of the provisions contained in
this Agreement applicable to the Client. Client will provide to ADP
access to Client's systems, and will maintain its internal systems,
equipment and software, as required in order for ADP to provide
the Services. Client agrees to procure and maintain appropriate
licenses to the software and other works in respect of which
interfaces are to be delivered or maintained by ADP as part of the
Services.
2.2 Accuracy of Client Information, Review of
Output. All Services will be based upon information provided to
ADP by Client and Client is responsible for the accuracy and timely
input of all such information. Upon receipt from ADP, Client will
promptly review all payroll registers, disbursement records, reports
and documents produced by ADP for accuracy, validity and
conformity with Client's records. Client will promptly notify ADP of
any error or omission discovered by Client or any discrepancy
between the information provided by ADP and Client's records and
will not distribute any paycheck or rely on any record, report or
document containing any discovered error, omission or
discrepancy until such error, omission or discrepancy, has been
corrected. Client will be responsible for the consequences of any
instructions Client may give to ADP.
2.3 Compliance with Laws. The Services are
designed to assist Client in complying with its applicable legal and
regulatory responsibilities. Nevertheless, Client (and not ADP) will
be responsible (i) for compliance by Client with all laws and
governmental regulations affecting its business and (ii) for any use
Client may make of the Services to assist it in complying with such
laws and governmental regulations. ADP acknowledges that this
Agreement and certain documentation may be subject to the
Georgia Open Records Act (O.C.G.A. § 50- 18 -70, et seq.). ADP
shall cooperate fully in responding to such requests and shall make
all records, not exempt, available for inspection and copying as
required by law. ADP shall clearly mark any information provided
to Client which ADP contends is Proprietary Information. ADP
shall notify Client immediately of any Open Records request arising
out of this contract and shall provide to Client a copy of any
response to the same.
NAS MSA Annex A General Terms; v7 A -1
2.4 Communication Lines. Except as otherwise
provided in this Agreement, if the Services require the use by
Client of communication lines to connect to ADP facilities, Client
will be responsible for those communication lines. Client will pay
all installation, use, service and repair charges for the
communication lines. ADP will not be responsible for the reliability
or availability of the communication lines used by Client to access
the Services.
2.5 Additional Services. If Client requests additional
services not included in this Agreement, and ADP agrees to
provide those services, such services will be included in an
Additions Schedule, an Amendment or Change Item to be signed
and attached to and made a part of this Agreement.
SECTION 3 FEES, TAXES AND PAYMENT TERMS.
3.1 Fees for Services. Client will pay ADP for the
Services at the fees shown in Annex Z. Client will pay those fees
regardless of which entity in the Client Group receives the
Services. The fees in Annex Z are based upon current
requirements, specifications, volumes and quantities as
communicated by Client to ADP and may be revised if Client's
actual requirements, specifications, volumes or quantities vary
materially from those communicated to ADP. The fees in Annex Z
do not include amounts to be paid by Client to third parties in
connection with the Services.
3.2 Taxes. Client represents and warrants that it is
exempt from sales and other taxes. Client's tax exemption
identification number is
3.3 Payment Terms. Client will pay all invoices in full
within 45 days of invoice date. All amounts not paid when due are
subject to a late payment charge of 1 %% per month (not to exceed
the maximum allowed by law) of the past due amount from the due
date until the date paid. All fees are shown in U.S. Dollars and all
payments will be made in U.S. Dollars.
3.4 Collection Expenses. Both parties will reimburse
each other for all expenses each may incur, including reasonable
attorney fees, in collecting any amounts past due under this
Agreement.
SECTION 4 DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
ADP EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON - INFRINGEMENT, NON -
INTERRUPTION OF USE, AND FREEDOM FROM PROGRAM
ERRORS WITH RESPECT TO THE SERVICES, THE ADP
PRODUCTS, CUSTOM PROGRAMS OR ANY THIRD -PARTY
SOFTWARE DELIVERED BY ADP.
SECTION 5 INTELLECTUAL PROPERTY.
5.1 Ownership of Proprietary Rights. The ADP
Products will at all times remain the exclusive, sole and absolute
property of ADP or the third parties from whom ADP has obtained
the right to use the ADP Products. Except for the license granted
to Client in this Agreement, Client will have no interest in the ADP
Products. All rights, title and interest in or to any copyright,
trademark, service mark, trade secret, and other proprietary right
relating to the ADP Products and the related logos, product names,
etc. are reserved and all rights not expressly granted are reserved
by ADP and such third parties. Client may not obscure, alter or
remove any copyright, trademark, service mark or proprietary rights
notices on any ADP Products.
5.2 ADP Infringement Indemnity. ADP will defend
Client in any suit or cause of action alleging that the ADP Products
as provided by ADP and used in accordance with the terms of this
Agreement infringe upon any United States patent, copyright, trade
secret, or other proprietary right of a third party. ADP will pay
damages assessed, including reasonable attorneys' fees and
settlement amounts, against Client in any such suit or cause of
action, provided that, (i) ADP is promptly notified in writing of such
suit or cause of action, (ii) ADP controls any negotiations or
defense and Client assists ADP as reasonably required by ADP,
and (iii) Client takes all reasonable steps to mitigate any potential
damages that may result. The foregoing infringement indemnity
will not apply and ADP will not be liable for any damages assessed
in any suit or cause of action to the extent resulting from a Client
Infringement Event. If any ADP Product is held or believed to
infringe on any third - party's intellectual property rights, ADP may,
in its sole discretion, (a) modify the ADP Product to be non -
infringing, (b) obtain for Client a license to continue using such
ADP Product, or (c) if neither (a) nor (b) are practical, terminate
this Agreement as to the infringing ADP Product and return to
Client any unearned fees paid by Client to ADP in advance. This
Section 5.2 states ADP's entire liability and Client's exclusive
remedies for infringement of intellectual property rights of any kind.
5.3 Client Infringement Indemnity. Client will defend
ADP against, and pay damages assessed in, any suit or cause of
action alleging infringement upon any United States patent,
copyright, trade secret, or other proprietary right of a third party, to
the extent that any such suit or cause of action results from a Client
Infringement Event.
SECTION 6 GENERAL PROVISIONS.
6.1 Protection of Client Files. ADP will take
reasonable precautions to prevent the loss of or alteration to
Client's data files in ADP's possession. Client will, to the extent it
deems necessary, keep copies of all source documents of the
information delivered to ADP or inputted by Client or on behalf of
Client into the ADP system and will maintain a procedure external
to the ADP system for the reconstruction of lost or altered data
files.
6.2 Employee and Plan Participant Access. Client
shall ensure that its employees and plan participants ( "Users ") who
access the Services or the System comply with any on -line terms.
ADP may suspend or discontinue access to the Services by any
User if ADP reasonably believes that such User has violated such
terms or is otherwise using the Services in an inappropriate
manner. Client shall take any and all actions reasonably
necessary to maintain the privacy of User names and passwords
for the Services and the System.
6.3 Nondisclosure. All Confidential Information
disclosed under this Agreement will remain the exclusive and
confidential property of the disclosing party. The receiving party
will not disclose the Confidential Information of the disclosing party
and will use at least the same degree of care, discretion and
diligence in protecting the Confidential Information of the disclosing
party as it uses with respect to its own confidential information. The
receiving party will limit access to Confidential Information to its
employees with a need to know the Confidential Information and
will instruct those employees to keep the information confidential.
It is understood, however, that ADP may disclose the Client's
Confidential Information on a need to know basis to its
subcontractors who are performing Services for the Client,
provided those subcontractors have executed confidentiality
agreements and further provided that ADP shall remain liable for
any unauthorized disclosure of the Client's Confidential Information
by those subcontractors. In addition, ADP will establish and follow
reasonable security measures to prevent unauthorized access to
Client's data files. Notwithstanding the foregoing, the receiving
party may disclose Confidential Information (1) to the extent
necessary to comply with any law, rule, regulation or ruling
NAS MSA Annex A General Terms; v7 A -2
applicable to it, (ii) as appropriate to respond to any summons or
subpoena or in connection with any litigation and (iii) to the extent
necessary to enforce its rights under this Agreement. Upon the
request of the disclosing party, the receiving party will return or
destroy all Confidential Information of the disclosing party that is in
its possession. The provisions of this Section 6.3 will survive the
termination of this Agreement.
6.4 No Solicitation of Employees. Neither party will
recruit or solicit the other's personnel or employees that have
become known to a party as a result of the Services performed
until the earlier of one year after (i) the termination of this
Agreement or (ii) that person is no longer employed by the other
party. The provisions of this Section 6.4 will survive the termination
of this Agreement.
6.5 U.S. Government Restricted Rights. The
Services, the ADP Products and the related materials are provided
with RESTRICTED RIGHTS. Use, duplication or disclosure by the
Government is subject to restrictions in FAR §52.227 -14, FAR
§52.227 -19, or DFARS §252.227- 7013(c)(1)(ii), as applicable.
Contractor is ADP, Inc., 5800 Windward Parkway, Alpharetta, GA
30005.
6.6 Independent Contractors. The performance by
ADP of its duties and obligations under this Agreement will be that
of an independent contractor and nothing contained in this
Agreement will create or imply an agency, joint venture or
partnership between ADP and Client. Neither the employees of
ADP nor ADP's subcontractors will be considered employees or
agents of Client. Unless expressly stated in this Agreement, none
of ADP, its employees or its subcontractors may enter into
contracts on behalf of, bind, or otherwise obligate Client in any
manner whatsoever.
6.7 Use of Services via the Internet. This provision
applies to any Services which are being provided to Client via the
Internet or which Client may access via the Internet. Data
transmitted through the Internet is encrypted for Client's protection.
However, the security of transmissions over the Internet can never
be guaranteed. ADP is not responsible for Client's access to the
Internet, for any interception or interruption of any communications
through the Internet, or for changes to or losses of data through the
Internet. In order to protect Client and Client's data, ADP may
suspend Client's use of the Services via the Intemet immediately,
without notice, pending an investigation, if any breach of security is
suspected.
6.8 Use Outside the U.S. Except as otherwise
specifically agreed by ADP and the Client in writing, Client will use
the Services and the ADP Products only in the U.S. For any
agreed upon use of the Services or the ADP Products outside the
U.S., Client agrees to comply with any applicable export
restrictions, laws and regulations imposed from time to time by the
governments of the U.S. or the other country, if any, in which the
ADP Products will be used by Client.
SECTION 7 LIMITATION OF LIABILITY.
7.1 Errors and Omissions. Subject to any claim by
Client under Section 7.3 or any section in the Annexes titled
"Further Limitation of Liability," ADP's liability for claims of any type
or character arising from errors or omissions in the Services that
are caused by ADP shall be to correct the affected Client report,
data or tax agency's filings, as the case may be. Upon the request
of Client, ADP will correct any error or omission made by ADP in
connection with the Services at no additional charge to Client.
7.2 Mitigation of Damages. ADP and Client will each
use reasonable efforts to mitigate any potential damages or other
adverse consequences arising from or related to the Services.
7.3 Limit on Monetary Damages. Notwithstanding
anything to the contrary contained in this Agreement, ADP's liability
under this Agreement for damages (monetary or otherwise) under
any circumstances for claims of any type or character arising from
or related to a particular Service will be limited in each instance to
the amount of actual damages incurred by Client, provided,
however, that ADP's aggregate liability hereunder in any calendar
year (other than and subject to Section 5.2 of Annex A, and (if
applicable) Section 4 of Annex C, and Section 3 of Annex E) will
not exceed six (6) times the average charge for one month's fees
paid by Client to ADP for the affected Service during such calendar
year. If Client continues to receive Services, any such monetary
damages shall be paid to Client by way of a credit against future
fees payable. The Annexes attached to this Agreement may
contain provisions further addressing the liability of ADP for
monetary damages.
7.4 No Consequential Damages. NOTWITH-
STANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, NEITHER ADP NOR CLIENT WILL BE
RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING
LOST PROFITS) THAT THE OTHER PARTY MAY INCUR OR
EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR
THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER
THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.5 Limitation of Liability relating to Breach of
Section 6.3, Nondisclosure. The limitation of liability specified in
Sections 7.3 and 7.4 shall not apply to a breach of Section 6.3
(Nondisclosure). In the event of a breach of Section 6.3
(Nondisclosure), ADP's aggregate liability hereunder in any
calendar year will not exceed twelve (12) times the average charge
for one month's fee paid by Client to ADP for the affected Service
during such calendar year. Any damages recovered under this
Section will be applied against and will reduce according, ADP's
limitation of liability in Section 7.3
SECTION 8 TERM AND TERMINATION.
8.1 Initial Term. This Agreement is effective on the
Effective Date. The initial term ( "Initial Term ") of this Agreement
starts on the Effective Date and ends on the termination date
shown in Annex Z.
8.2 Renewals. Subject to approval by Client, after the
Initial Term, this Agreement may be renew for additional one -year
periods unless terminated by either party upon prior written notice
to the other.
8.3 Termination by Client. In addition to any
termination rights in other Annexes, if (i) ADP fails to perform any
material obligation under this Agreement and that failure continues
for 60 days after ADP receives written notice from Client specifying
in reasonable detail the nature of that failure, or (ii) a Termination
Event occurs with respect to ADP, Client may terminate this
Agreement by further written notice to ADP.
8.4 Termination by ADP. In addition to any
termination rights in other Annexes, if (i) Client fails to pay any
amount due under this Agreement within 25 days after the due
date, (ii) Client fails to perform any other material obligation and
that failure continues for 60 days after Client receives written notice
from ADP specifying in reasonable detail the nature of that failure,
or (iii) a Termination Event occurs with respect to Client, ADP may
terminate this Agreement by further written notice to Client. In the
event that the material breach in question is a failure to reimburse
ADP for funds expended by ADP on Client's behalf (e.g., failure to
reimburse ADP for tax filing amounts filed by ADP on Client's
behalf), then the time to cure shall be 10 days in lieu of 60 days. At
ADP's option, ADP may, in the event of delinquent payment
NAS MSA Annex A General Terms; v7 A -3
pursuant to clause (1), suspend the affected Services upon ten (10)
Business Day's prior written notice to Client, and ADP shall have
no liability to Client for such suspended Services.
8.5 Buy Out Fee. Client shall have the right to
terminate this Agreement for Client's convenience prior to the end
of the Initial Term for any reason except those in Section 8.3, Client
shall pay to ADP a buy -out fee ( "Buy Out Fee ") equal to A
multiplied by B divided by 2, where A equals the number of months
remaining in the Initial Term of the Agreement at the effective date
of termination, and B equals the average monthly fee for all
Services under this Agreement during the twelve -month period
immediately preceding the termination (or a shorter period of time if
monthly fees have been payable for less than twelve months at the
termination date). If monthly fees for Services have not yet been
payable at- the time of termination, B shall equal the estimated
monthly fees that would have been payable under this Agreement.
Client's obligation to pay the Buy Out Fee shall not affect its
obligation to pay any Early Exit Fee or Deferred Fee payable under
this Agreement. Client shall also pay one -half the Buy Out Fee in
the event of any reduction in Client's volume or usage of the
Services by more than fifty percent.
8.6 Effect of Termination. Upon expiration or
termination of this Agreement, or any Annex or Additions Schedule
or any Services for any reason (i) all licenses and other rights
granted to Client under the respective Annex or Additions Schedule
or in connection with the terminated Services, will become null and
void, (ii) all materials provided by either party to the other under the
respective Annex or Additions Schedule or in connection with the
terminated Services, will be returned within five Business Days
after the effective date of termination, and (iii) all earned and
unpaid fees and expenses will become immediately due and
payable. Each party's termination rights in this Agreement are
cumulative and are in addition to all other rights and remedies
available to the parties.
SECTION 9 MISCELLANEOUS PROVISIONS.
9.1 Amendment. This Agreement may not be modified
except by a writing signed by the authorized representatives of
ADP and Client.
9.2 Notices. All communications required to be sent or
given under this Agreement will be in writing and will be duly given
and effective immediately if delivered in person or five Business
Days after mailed by certified mail return receipt requested or upon
confirmation of signature recording delivery, if sent via a nationally
recognized overnight courier service with signature notification
requested, to Client at the address shown on the first page of this
Agreement or to ADP at the address shown in Annex Z or to any
other address a party may identify in writing from time to time. For
ADP, a copy of all communications of a legal nature must be sent
to ADP, Inc., One ADP Boulevard, MS 425, Roseland, New Jersey
07068, Attention: General Counsel. For Client, a copy of all
communications of a legal nature must be sent to Augusta Law
Department, 501 Greene Street, Suite 302, Augusta, GA 30901.
Attention: General Counsel.
9.3 Injunctive Relief. in the event of an actual or
impending breach of Section 6.3 or 6.4, the non - breaching party, in
addition to any remedy available at law, will be entitled to seek
equitable relief, including injunction and specific performance.
9.4 Assignment. Neither this Agreement, nor any of
the rights or obligations under this Agreement, may be assigned by
any party without the prior written consent of the other party.
Notwithstanding the foregoing, certain of the Services to be
provided by ADP will be provided by subsidiaries of Automatic Data
Processing, Inc., and ADP shall be responsible for the performance
of those subsidiaries. This Agreement is binding upon and inures
NAS MSA Annex A General Terms; v7
to the benefit of the parties hereto and their respective successors
and permitted assigns.
9.5 Entire Agreement. This Agreement, including the
Annexes and Additions Schedules, is the entire agreement and
understanding between ADP and Client with respect to the subject
matter and merges and supersedes all prior discussions,
agreements and understandings of every kind and nature between
them, and no party will be bound by any representation, warranty,
covenant, term or condition other than as expressly stated in this
Agreement. If any provision of an Annex or Additions Schedule
conflicts with a provision of another Annex or Additions Schedule,
the provision of each Annex or Additions Schedule will govern, but
solely with respect to the Services covered by such Annex or
Additions Schedule. Purchase Orders submitted by Client are
for Client's internal administrative purposes only and the
terms and conditions contained in those purchase orders will
have no force and effect.
9.6 No Third Party Beneficiaries. Nothing in this
Agreement creates, or will be deemed to create, third party
beneficiaries of or under this Agreement. CLIENT AGREES THAT
OTHER THAN ADP'S OBLIGATIONS TO CLIENT IN THIS
AGREEMENT, ADP HAS NO OBLIGATION TO ANY THIRD
PARTY (INCLUDING, WITHOUT LIMITATION, CLIENT'S
EMPLOYEES AND /OR ANY TAXING AUTHORITIES) BY VIRTUE
OF THIS AGREEMENT.
9.7 Force Majeure. Any party to this Agreement will
be excused from performance under this Agreement for any period
of time that the party is prevented from performing its obligations
under this Agreement due to an act of God, war, earthquake, civil
disobedience, court order, or other cause beyond the party's
reasonable control. Such non - performance will not constitute
grounds for default.
9.8 Waiver. The failure by any party to this
Agreement to insist upon strict performance of any provision of this
Agreement will not constitute a waiver of that provision.
9.9 Headings. The section headings in this
Agreement are intended for convenience of reference and will not
affect its interpretation.
9.10 Severability. If any provision of this Agreement
is held invalid, illegal, or unenforceable, the validity, legality or
enforceability of the remainder of this Agreement will not in any
way be affected or impaired.
9.11 Governing Law. This Agreement will be
governed by and construed in accordance with the internal laws of
the State of Georgia, without regard to conflict of law principles.
9.12 Use of Client's Name. ADP may use Client's
name for promotional purposes subject to Client's prior written
consent.
SECTION 10 ADP ENTITY.
Notwithstanding the use in this Annex of the term "ADP ", to the
extent the provisions in this Annex are applicable to the particular
Services described in the Annexes attached, each of the rights and
obligations in this Agreement are applicable to and assumed by
ADP and /or the wholly -owned subsidiary of Automatic Data
Processing, Inc. which may be designated as the service provider
in a particular Annex. ADP shall be responsible for the
performance of such subsidiary(ies).
A_4���
ANNEX K
Benefits Administration Services
SECTION 1 BENEFITS ADMINISTRATION
SERVICES.
1.1 Description. ADP will provide the
benefits administration services specified in Annex Z
(collectively, the "Benefit Services ") to the Client in
accordance with the terms of this Agreement. Upon any
additional or modified services hereunder being
requested by the Client Benefits Liaison (as defined
herein), such shall be incorporated into the Benefit
Services without further action by Client, if an
attachment describing such additional services and
accompanying changes, if any, in fees, shall be
approved in writing by ADP and the Client Benefits
Liaison. Upon such written approval, such additional
attachment shall be deemed incorporated into this
Agreement.
1.2 Grant of License; Limitation on Use.
ADP grants to Client a personal, non - exclusive, non-
transferable right and license to use solely for the
internal business usage of the Client Group and only in
connection with its receipt of Benefit Services, the
Application Programs delivered to Client, if any, in
connection with the Benefit Services. Client may make
one copy of the Application Programs only for its own
backup purposes. Client may not make a copy of any
of the Application Programs which include a
mechanism to limit or inhibit copying and are marked
"copy protected ". Client will not copy (except as
provided above), assign, loan, sub - license or otherwise
transfer the Application Programs, or alter, modify or
adapt (or cause to be altered, modified or adapted) the
Application Programs. Client may not obscure, alter or
remove any copyright, trademark, service mark or
proprietary rights notices on any Application Programs.
Client will not publish the results of benchmark tests run
with the Application Programs. CLIENT WILL NOT
RECOMPILE, DISASSEMBLE, REVERSE ENGINEER,
OR MAKE OR DISTRIBUTE ANY OTHER FORM OF
OR, EXCEPT AS PERMITTED BY THIS SECTION 1.2,
ANY DERIVATIVE WORK FROM, THE APPLICATION
PROGRAMS. Client's use of any pre - packaged third
party software will be governed by the terms and
conditions of the applicable third party license
agreement delivered to Client with such pre - packaged
third party software. Client will not (1) employ the
development tools provided to Client, (ii) write or modify
reports (excluding ReportSmith reports) or interfaces or
(iii) modify the database, in any way, except as
expressly authorized by ADP.
accessible to ADP or as otherwise set forth in Annex Z.
"Client Content" means any materials provided by
Client for incorporation in the Benefit Services,
including, but not limited to, any images, photographs,
illustrations, graphics, audio clips, video clips and text.
1.5 License to Client Content. Client
hereby grants ADP a non - exclusive, non - transferable
license to use, edit, modify, adapt, translate, exhibit,
publish, reproduce, copy (including back -up copies) and
display the Client Content as reasonably necessary to
perform the Benefit Services.
1.6 Limitation on Client Content. Client is
solely responsible for all Client Content and for
obtaining all required rights and licenses to use and
display such Client Content in connection with the
Benefit Services. Client shall provide to ADP Client
Content that does not contain any content or materials
which are obscene, offensive, inappropriate,
threatening, malicious, which violate any applicable law
or regulation or any contract, privacy or other third party
right or which otherwise exposes ADP to civil or
criminal liability. ADP reserves the right to exclude or
immediately remove from the System any Client
Content which violates the previous sentence, provided
that ADP has no obligation to review or monitor the
Client Content. "System" means the hardware,
operating system software, web application (if
applicable to the Benefit Services), Application
Programs, database programs and network connectivity
described in Annex Z.
SECTION 2 SPECIFIC PROCEDURES.
2.1 Processing FSA Claims for Certain Run -
Out Periods. This Section 2.1 shall apply if ADP is
providing flexible spending account ( "FSA") services
( "FSA Services ") as part of the Benefit Services. If ADP
fulfills a Client request to process FSA claims for a run -
out period that relates to a plan year or any portion of a
plan year during which ADP was not the Client's service
provider for the applicable flexible benefit plan ( "prior year
run -out period "), Client shall retain full responsibility for
the accuracy and overall compliance of its plan with
respect to the claims processing during the prior year
run -out period. ADP will process and reimburse such
claims upon Client request, using each participant's
remaining balance prior to the run -out period, as provided
by Client, and make any adjustments to such balance as
needed.
1.3 Improvements, Enhancements, etc.
ADP will deliver to Client, at no additional cost, all
improvements, enhancements, modifications and
updates to any Application Programs that are included
in the Benefit Services if and as they are made
generally available by ADP to its other clients at no
additional cost. All other improvements,
enhancements, modifications and updates to any
Application Programs will be made available by ADP to
Client at ADP's then prevailing prices. All such
improvements, enhancements, modifications and
updates may, if applicable, be delivered to Client in the
form of computer media, which will be installed by
Client.
1.4 Delivery of Client Content. Client shall
promptly deliver to ADP the Client Content as required
by ADP in an electronic file format specified and
Notwithstanding any representation, warranties or
covenants ADP makes in any part of this Agreement to
Client regarding FSA Services, ADP shall not be
responsible or liable for any consequences, damages,
penalties, or similar issues relating to processing and
reimbursing FSA claims per Client direction from Client's
previous plan year (or any portion thereof) which was not
fully administered by ADP.
2.2 Client Benefits Liaison. Prior to the
commencement of ADP's provision of Benefit Services,
Client shall designate in writing to ADP the name or
names of one or more persons who shall serve as
ADP's designated contact for the Benefit Services (the
"Client Benefits Liaison "). Client hereby represents and
warrants to ADP that the Client Benefits Liaison has,
and shall at all times have, the requisite authority to
NAS MSA Annex K Benefit Services v99 K -1 Benefits
transmit information, directions and instructions on
behalf of Client, each "plan administrator" (as defined in
Section 3(16)(A) of the Employee Retirement Income
Security Act of 1974, as amended ( "ERISA ") and
Section 414(g) of the Internal Revenue Code of 1986,
as amended (the "Code ")) and, if applicable, each
"fiduciary" (as defined in Section 3(21) of ERISA) of
each separate employee benefit plan covered by the
Benefit Services (each, a "Benefit Plan "). The Client
Benefits Liaison also shall be deemed to have authority
to issue, execute, grant, or provide any approvals (other
than amendments to this Agreement), requests,
notices, or other communications required or permitted
under this Agreement (including, without limitation,
Change Items) or requested by ADP in connection with
the Benefit Services.
2.3 Client Responsibility. In the event
ADP shall have any questions relating to a particular
set of facts, or if a participant or beneficiary of a Benefit
Plan notifies ADP of an objection to ADP's
interpretation or application of any policies provided to
ADP by Client, then ADP shall notify the Client Benefits
Liaison in writing of such questions or objections. The
Client Benefits Liaison shall have the responsibility to
obtain answers to any such questions or objections and
ADP shall be entitled to rely upon such answers and to
follow any directions communicated by the Client
Benefits Liaison. Client authorizes ADP to release
employee - related data to health care providers or other
third party vendors of Client as are designated by Client
from time to time.
2.4 Benefit Plan Information. Prior to the
commencement of Benefit Services, Client shall furnish
to ADP all necessary information and data ( "Client
Benefits Data ") for each Benefit Plan. Thereafter,
Client shall provide ADP with all Client Benefits Data
that is necessary for the provision by ADP of Benefit
Services and is the responsibility of Client to provide
under this Agreement.
2.5 Benefit Plan Amendments.
Implementation of any Benefit Plan amendment by ADP
shall constitute ADP's acceptance of the use of the
documents for such amendment, but shall not
constitute ADP's approval of such documents' contents
or their effect. Client shall assume full responsibility to
ADP and to all interested parties for such contents and
effect.
2.6 Compliance of Benefit Plans. Client
shall be responsible for the final preparation, approval
and submission of all Benefit Plans and related
amendments to the applicable government authority.
Client shall be responsible for, and shall take all
measures required under state and federal law
(including applicable provisions of the Code and the
regulations promulgated thereunder) and all other
applicable laws and regulations, to assure the
qualification and compliance of the Benefit Plans with
such laws. ADP shall be under no duty to question the
measures taken by Client pursuant to any section of
this Annex K.
2.7 Mutual Indemnity. Except as
otherwise provided in this agreement, Client shall
indemnify, defend and hold ADP harmless from and
against any and all liabilities, claims, penalties,
damages, forfeitures, suits, and the costs and expenses
incident thereto (including the costs and expenses of
defense, settlement and reasonable attorneys' fees),
arising from or claimed to have arisen from the
performance by ADP of the Benefit Services, including
any such liability, claims, damages, costs or expenses
arising from or claimed to have arisen from actions ADP
performs in connection with Benefit Services pursuant
to any Client Benefits Data supplied by Client or any
instruction, request or representation of Client, except
to the extent such liability, claims, damages, costs or
expense arise from the gross - negligence or willful
misconduct of ADP. ADP shall be under no duty to
review any such Client Benefits Data, instruction,
request or representation.
Subject to the limitation on monetary damages set forth
in Annex A, ADP shall indemnify, defend and hold
Client harmless from and against any and all liabilities,
claims, penalties, damages, forfeitures, suits, and the
costs and expenses incident thereto (including the
costs and expenses of defense, settlement and
reasonable attorneys' fees), arising from or claimed to
have arisen from ADP's breach of this Agreement in
connection with the Benefit Services, except to the
extent such liability, claims, damages, costs or expense
arise from the gross - negligence or willful misconduct of
the Client.
2.8 Disclaimer. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED
HEREIN OR IN THE SCOPE OF SERVICES, CLIENT
EXPRESSLY ACKNOWLEDGES THAT ADP IS NOT
THE "ADMINISTRATOR" OR "PLAN
ADMINISTRATOR" AS DEFINED IN SECTION
3(16)(A) OF ERISA AND SECTION 414(g) OF THE
CODE, RESPECTIVELY, NOR IS ADP A "FIDUCIARY"
WITHIN THE MEANING OF ERISA SECTION 3(21),
NOR IS ADP A "HEALTH CARE CLEARINGHOUSE"
WITHIN THE MEANING OF SECTION 1171 OF HIPAA
AND CLIENT SHALL NOT REQUEST OR
OTHERWISE REQUIRE ADP TO ACT AS SUCH.
ADP SHALL NOT EXERCISE ANY DISCRETIONARY
AUTHORITY OR DISCRETIONARY CONTROL
RESPECTING MANAGEMENT OF ANY BENEFIT
PLAN OR MANAGEMENT OR DISPOSITION OF ANY
BENEFIT PLAN ASSETS. ADP SHALL NOT RENDER
INVESTMENT ADVICE FOR A FEE OR OTHER
COMPENSATION, DIRECT OR INDIRECT, WITH
RESPECT TO ANY MONIES OR OTHER PROPERTY
OF ANY BENEFIT PLAN, NOR DOES ADP HAVE ANY
AUTHORITY OR RESPONSIBILITY TO DO SO. ADP
HAS NO DISCRETIONARY AUTHORITY OR
DISCRETIONARY RESPONSIBILITY IN THE
ADMINISTRATION OF THE BENEFIT PLAN(S).
SECTION 3 FUNDING OF OBLIGATIONS AND
SPECIAL PAYMENT PROVISIONS.
3.1 Funding of Obligations. If
applicable, Client will remit or otherwise make available
to ADP sufficient good and available funds within the
commercially reasonable deadline established by ADP
and via a reasonable method of delivery reasonably
required by ADP to cover Client's third party payment
obligations covered by the Benefit Services (including,
without limitation, as applicable, Client's payment
obligations to its employees and its health and welfare
insurance carriers (the "Carriers ")). With respect to
flexible spending account and commuter benefits
NAS MSA Annex K Benefit Services v99 K -2 Benefits
administrative Benefit Services, the method of delivery
shall be direct debit. ADP will apply such funds to
satisfy the Client's third party payment obligations as
required to perform the Benefit Services. ALL
AMOUNTS EARNED ON ALLFUNDS REMITTED TO
ADP IN CONNECTION WITH ADP'S BENEFIT
SERVICES PENDING DISBURSEMENT TO CLIENT,
CLIENT'S EMPLOYEES, OR CARRIERS SHALL BE
RETAINED BY ADP AS COMPENSATION. ADP'S
CURRENT PROCESS FOR DISBURSEMENT OF
SUCH FUNDS IS DESCRIBED ON ATTACHMENT 1.
ADP MAY COMMINGLE CLIENT'S FUNDS WITH
SIMILAR FUNDS FROM OTHER CLIENTS AND WITH
SIMILAR ADP AND ADP- ADMINISTERED FUNDS.
3.2 Funds and Termination. Upon
termination of this Agreement Client directs ADP to
send all outstanding and /or remaining Client funds to
Client, and all outstanding and /or remaining participant
or carrier funds to the applicable participant or carrier
as appropriate. If this Agreement is terminated and
ADP is unable to contact Client after three reasonable
attempts using the contact data on file with ADP, Client
directs ADP to treat Client funds as unclaimed funds,
subject to state escheatment or similar laws.
SECTION 4 IMPLEMENTATION SERVICES.
4.1 Implementation Services. If specified
in Annex Z, ADP will assist Client in implementing the
Benefit Services for the benefit of and in conjunction
with Client in accordance with the provisions of this
Section 4. ADP will use commercially reasonable efforts
to complete the implementation services in a timely
manner.
4.2 Conversion of Data. Client shall
provide to ADP, and shall cause any third -party
providers to provide to ADP, such applicable Client
files, databases and other information related to the
Benefit Plans and the participants, beneficiaries and
other individuals interested therein (the "Client Files ")
as is necessary to permit the Benefit Services to be
performed by ADP, or as otherwise reasonably
requested by ADP and approved by Client (which
approval shall not be unreasonably withheld). Client
assumes the responsibility for the Client Files to be
transmitted to ADP, including, but not limited to, their
condition, content, format, usability or correctness.
Client shall perform all Client Files refinement,
purification and reformatting in order for the Benefit
Services to be performed by ADP. ADP may request
approval from the Client (such approval not to be
unreasonably withheld) to perform such services at an
expense to be determined by the parties if Client fails to
perform Client's obligations in the preceding sentence.
Client will cooperate with ADP and provide ADP with all
necessary information and assistance required in order
for ADP to successfully convert the Client Files. ADP
will notify Client when, in accordance with its normal
acceptance procedures, the applicable Client Files
have been successfully converted and when the Benefit
Services are operational and available for Client's use.
The obligations described in this Section 4.2 shall apply
to ongoing provision of Client Files to ADP by Client.
4.3 Project Managers. Each of Client and
ADP will designate a project manager for the
implementation of the Benefit Services and will
promptly notify the other of the name, telephone
number and address of such person. The Client project
manager and the ADP project manager, as appropriate,
will be deemed to have authority to issue, execute,
grant, or provide any approvals, requests, notices, or
other communications required under this Annex or
requested by the other party in connection with the
implementation of the Benefit Services.
4.4 Review Meetings. As agreed by the
project managers, appropriate personnel from ADP and
Client will meet to discuss the progress made in the
performance of their respective obligations under this
Agreement during the preceding period.
SECTION 5 CUSTOM PROGRAMMING.
If ADP develops computer programs for Client's use in
connection with the Benefit Services, such computer
programs will be owned by ADP, and Client shall retain
a non - exclusive, non - transferable license to such
computer programs, subject to the remainder of this
Section 5. All rights to such computer programs not
expressly granted to Client hereunder are reserved by
ADP. ADP shall be entitled to use such computer
programs without having to account to Client or to
obtain Client's prior consent. The fees for developing
such computer programs will be mutually agreed to by
ADP and Client and are in addition to any other charges
covered by this Agreement. Client agrees to allow such
computer programs to be used solely in connection with
its receipt of the Benefit Services. All such computer
programs shall exclude the Application Programs.
SECTION 6 ADDITIONAL TERMINATION OR
SUSPENSION BY ADP.
The provisions of Sections 6.1 and 6.2 do not apply to
any Benefit Services which are provided to Client under
the terms of Section 10.
6.1 Basis for Termination. If Client fails to
comply with any provision of Section 3.1 hereof ADP
may terminate the applicable Benefit Service under this
Agreement immediately upon notice to Client. If any
Benefit Service is terminated by ADP, Client will
immediately (i) be responsible for payment of Client's
third party obligations covered by the affected Benefit
Services then and thereafter due, including, without
limitation, any penalties and interest accruing after the
date of such termination, and (ii) reimburse ADP for all
third party obligations paid by ADP on behalf of Client
and theretofore not paid or reimbursed by Client. The
termination of any Benefit Service shall immediately
terminate Client's license to such software provided
hereunder that is designated by ADP as adjunct to such
Benefit Service.
6.2 Reinstatement after Termination. If
ADP terminates any Benefit Service pursuant to
Section 6.1 and Client determines that its failure to
comply with the provisions of Section 3.1 was the result
of a clerical error, Client may request in a writing
delivered to ADP (a "Reinstatement Request ") that
ADP reinstate the Benefit Service. The Reinstatement
Request shall be certified by an executive officer of
Client and include a detailed description of the
circumstances surrounding Client's failure to comply
with the provisions of Section 3.1. If ADP agrees, in its
NAS MSA Annex K Benefit Services v99 K -3 Benefits
reasonable discretion, that Client failed to comply with
the provisions of Section 3.1 because of a clerical error,
ADP will reinstate Client's affected Benefit Service(s) at
the earliest date reasonably possible.
6.3 Suspension of Services. ADP may
suspend any or all of the Benefit Services to the extent
ADP's provision of such Benefit Service or Benefit
Services is in violation of any laws or regulations.
6.4 Termination Due to Noncompliance.
In addition to the other termination rights set forth
elsewhere in this Agreement, ADP may terminate this
Annex K immediately upon written notice to the Client
upon the failure of Client to maintain its Benefit Plan(s)
in compliance with ERISA or other applicable laws or
regulations.
SECTION 7 REGULATORY FEES.
In the event that the Client, Client's Benefit Plans or
ADP is subjected to any form of governmental or
regulatory fees or charges related to the Benefit
Services provided by ADP under this Annex, such
charges will be the responsibility of Client.
SECTION 8 CHANGE ITEMS.
8.1 Change Item Policy. If any change in
the Benefit Services occurs, including, without limitation
the items specified below (each, a "Change Item "), that
requires ADP or the Client to devote resources, expend
time or otherwise incur costs not contemplated by this
Agreement as part of the Benefit Services, ADP will
follow the change procedures specified in Section 8.2
prior to devoting such resources, expending such time
or incurring such costs. Change Items include the
following:
(i) services requested or otherwise
required to be provided in connection with the Benefit
Services that are outside the original scope of the
Benefit Services,
(ii) services requested or otherwise
required to be provided in connection with the Benefit
Services resulting from changes to the magnitude of
scope of the Benefit Services due to the discovery or
disclosure of new information since such services were
accepted, or due to incorrect information upon which
such services were based,
(iii) any change to a previously
approved document or deliverable that is produced
during the project,
(iv) failure by a Client resource to
maintain the agreed upon time commitment or schedule
related to the Benefit Services,
(v) failure by Client to provide an
environment necessary to support the Benefit Services
or the implementation of the Benefit Services (i.e.,
workspace, personal computers, printers, administrative
support, etc.), or
(vi) any Benefit Plan amendments
8.2 Change Item Procedures. Upon the
occurrence of a Change Item, ADP will deliver to the
Client a notice (a "Change Item Notice ") setting forth
(i) the details of the Change Item, (ii) an analysis of the
impact of the Change Item on the Client's system, (iii)
an estimate of the time, materials, and aggregate costs
required to address the Change Item, and (iv) whether
the Change Item is an optional item. Change Items may
result in changes to expected or target completion
dates. ADP will notify Client as soon as practicable of
any changes to any such dates.
8.2.1 Required Change Items.
Required Change Items are identified by clauses (iv),
(v) and (vi) of Section 8.1. If a Change Item is required,
ADP will provide the additional resources as required
on a time and materials basis and will proceed to
provide the Benefit Services taking into consideration
the Change Item.
8.2.2 Optional Change Items. Optional
Change Items are identified by clauses (i), (ii) and (iii) of
Section 8.1. If the Change Item is optional, the Client
will notify ADP within thirty Business Days of receipt of
the Change Item Notice whether or not the Client
authorizes ADP to proceed to provide the Benefit
Services required by the Change Item. ADP will take
no action on the Change Item until the earlier of the
expiration of the thirty- Business -Day period or Client's
authorization of the Change Item. If the Client denies
authority to complete the Change Item, ADP will
proceed to provide the Benefit Services without
implementing the Change Item. If the Client does not
respond to the Change Notice within such thirty -
Business -Day period, the Change Item will be deemed
unauthorized and ADP will proceed to provide the
Benefit Services without implementing the Change
Item. If the Client authorizes the Change Item within
such thirty- Business -Day period, ADP will provide the
additional resources as required on a time and
materials basis and will proceed to provide the Benefit
Services taking into consideration the Change Item.
SECTION 9 LICENSED ENTITY.
Notwithstanding the use in this Annex K of the word
"ADP ", in the event that ADP determines that all or a
portion of the Benefit Services may be subject to
licensing or other regulatory requirements, such
services shall be performed solely by such wholly
owned subsidiary of Automatic Data Processing, Inc. as
shall be designated by ADP.
SECTION 10 STORED VALUE CARD SERVICES.
10.1 If Client elects to receive Stored
Value Card Services ( "Stored Value Card Services ") as
indicated on Annex Z, Client acknowledges and agrees
that Client's receipt of such Services shall be subject to
the additional terms and conditions of this Section 10.
10.2 Client and ADP hereby
acknowledge and agree that the Stored Value Card
Services shall refer to the use by Client's employees of
an ADP Stored Value Card to obtain qualified fringe
benefits under Client's benefit plan(s). The ADP Stored
Value Cards may be referred to herein collectively as
the "Cards" or each a "Card" and employees of Client
who receive a Card may be referred to herein
collectively as "Cardholders" or each a "Cardholder."
NAS MSA Annex K Benefit Services v99 K -4 Benefits
10.3 Additional Documents. ADP shall
not be obligated to provide the Stored Value Card
Services unless Client has executed and delivered to
ADP the applicable documents, forms or instruments
necessary for ADP to render to Client the Stored Value
Card Services. Client will execute and deliver to ADP or
the third party card service provider designated by ADP
copies of the Automated Clearing House agreements
( "ACH Agreements "), Authorization to Debit/Credit
( "Debit Authorization "), and such other documents,
forms or instruments necessary for ADP or the third
party card service provider designated by ADP to
render to Client the Stored Value Card Services. In
addition, Client shall use the form of enrollment
documents provided by ADP in connection with the
Stored Value Card Services, or shall amend its
enrollment forms with such language as may be
required by ADP from time to time. All such
agreements, documents and forms may be assigned by
ADP in the event ADP elects to use a different Card
issuer, originating bank or other related card or voucher
vendor.
10.4 Issuance of Cards. Client shall be
responsible for providing the required information regarding
each participant that has elected to receive a Card. Client will
provide the information in the manner prescribed by ADP.
Upon receipt and processing of a participant's information
and subject to the Card issuer's approval, the Card will be
mailed to the participant, together with the terms and
conditions for the use of the Card. All Cards issued to
Cardholders are the property of the Card issuer and are
subject to cancellation by the Card issuer at any time.
10.5 Cardholder Services. ADP will
make available Cardholder services to Cardholders.
Client will direct Cardholders to resolve all disputes
regarding Card fees and charges and disputed charges
on a Card with, and to report any lost or stolen Cards
to, Cardholder services. Contact information for
Cardholder services is located on the terms and
conditions of use provided with each Card.
Notwithstanding the foregoing, Client will be
responsible for resolving all disputes by Cardholders
regarding use of the Cards.
10.6 Remittance of Funds. In order to
settle the amounts expended by Client's Cardholders
pursuant to the Stored Value Card Services, ADP or the
third -party service provider designated by ADP will
initiate debits to Client's designated bank account (the
"Client Account "). Such debits shall be initiated on a
daily basis or on such other schedule as may be set
forth in an ACH Agreement, Debit Authorization or as
may be communicated to Client from time to time.
Client shall receive notice via email prior to any such
debit, and a settlement report from ADP detailing the
amounts expended by Client's Cardholders within a
reasonable period after such debit. Client covenants
and agrees to have at all times sufficient good and
available funds in the Client Account to satisfy all debits
initiated in connection with the Stored Value Card
Services. In the event the Client Account does not
contain adequate funds to satisfy such debit, Client
shall immediately wire to ADP or such third party card
service provider designated by ADP the amount
necessary to satisfy such debit and, in addition to any
other remedies available to ADP, ADP shall charge,
and Client shall pay, a reasonable nonsufficient funds
( "NSF ") charge for each NSF occurrence.
NAS MSA Annex K Benefit Services v99
10.7 Recovery of Funds. Client agrees
to cooperate with ADP and any other parties involved in
processing the Card transactions to recover funds credited to
or expended by Cardholders in error. Such cooperation
may include withholding amounts from participant's
wages, offsetting against subsequent valid expense
claims under the plan, and /or invalidating Cardholder's
card until the amount has been repaid.
10.8 Debits. Client shall be liable for each
debit to the Client Account initiated by ADP or its designee
hereunder in accordance with the terms of this Agreement or
the Debit Authorization. Client unconditionally promises to
pay to ADP any debit that is returned to ADP because of
insufficient or uncollected funds or for any other reason,
upon demand, together with interest thereon at the rate set
forth in Section 3.3 of Annex A. Also, in the event that ADP
attempts to recover funds in accordance with Section 10.6
above and ADP is not able to recover such funds for any
reason, Client unconditionally promises to pay the amount of
such insufficiency upon demand, together with interest
thereon at the rate set forth in Section 3.3 of Annex A.
10.9 Termination of Stored Value
Card Services. Either ADP or Client may terminate the
Stored Value Card Services upon 90 days prior written
notice to the other. In the event that ADP exercises its
right to terminate under this section, ADP shall make
reasonable efforts to offer Client a traditional flexible
spending account and /or commuter benefits
administration service and, if applicable, an alternative
source of transit vouchers.
10.10 Additional Termination. If (i)
Client defaults in the payment of any sum of money
hereunder for a period of time exceeding thirty days, (ii)
Client fails to comply with Section 10.6 above or
otherwise provide sufficient, collected funds to ADP
within a reasonable deadline established by ADP to
satisfy Client's third party obligations which results in a
loss or financial risk to ADP, (iii) Client defaults in the
performance of any of its other obligations under this
Section 10, (iv) Client has any material adverse change
in its financial condition, (v) any unauthorized credits or
debits are initiated in Client's name, (vi) the bank
originating debit and credit instructions on ADP's behalf
notifies ADP that it is no longer willing to originate
debits or credits for any reason and after reasonable
effort, ADP is unable to obtain another bank to provide
such debits and credits, (vii) the ACH Agreement or
Debit Authorization is terminated by Client, or (viii) the
Card issuers cancel the Cards issued on behalf of Client;
ADP may (a) immediately terminate the Stored Value
Card Services, (b) declare all amounts due and to
become due immediately due and payable and /or (c)
require Client to prepay for future Card processing.
K -5 Benefits
ATTACHMENT 1
Carrier Enrollment Benefit Services. If Client receives carrier enrollment Benefit Services hereunder, ADP will on a
monthly basis determine the premium amounts due from the Client to the Carriers. Premium payment disbursements to
the Carriers are received by ADP via the following methods of payment: Fed wire; ACH transfer; or Client check. Such
payments are deposited into an ADP zero balance account for processing and reconciliation by ADP. This account is
maintained separately from ADP's operating accounts. Due to the nature of the ACH system, ADP generally receives use
of the amounts disbursed to ADP via ACH transfer within two Business Days from the ACH impound date. Fed wire funds
are made available to ADP immediately. Within 24 hours following receipt of premium amounts via ACH transfer or Fed
wire, or as soon as confirmation is made that the Client's check has cleared, ADP remits to the Carriers the payment
amounts made by the Client for the premiums then due. Such payments to Carriers are made by ADP either by check or
by ACH transfer. Once disbursed by ADP, if payments are made to the Carriers by check, on average checks remain
outstanding for fifteen days before being presented for payment. In some cases, if additional contractual arrangements
have been made with the Client and with the Carrier, ADP may be entitled to an insurance commission, and ADP would
then be authorized to deduct the commission from the Client premium payments being remitted to the Carrier.
Flexible Spending Account and Commuter Benefits Administration Benefit Services. As flexible spending account
and commuter benefits claims are adjudicated by ADP, and ADP determines that a participant is entitled to
reimbursement, ADP determines the aggregate amount to be paid as reimbursement to participants and obtains Client
funds for such reimbursements. In the event that ADP provides Stored Value Card Services to Client, the provisions of
Section 10.6 of Annex K shall apply. All such reimbursement amounts disbursed to ADP pending participant
reimbursement are maintained in an account that is separate from ADP's operating accounts. Clients remit claim
reimbursement payment amounts to ADP via Client- initiated Fed wire or ACH transfer, via ADP - initiated ACH transfer, or
via Client check. Due to the nature of the ACH system, ADP generally receives use of the amounts disbursed to ADP via
ACH transfer within two Business Days from the ACH impound date. Once Client checks clear the banking system, the
payment amounts are made available to ADP. Fed wire funds are made available to ADP immediately. Immediately
upon ADP's receipt of good funds from the Client, ADP makes disbursements in the amount of the applicable
reimbursement to each participant. Participants receive such payments either by check or, if they and the Client have
elected, by direct deposit. On average, checks remain outstanding for nine to twelve days before being presented for
payment. In some cases, upon the Client's request and as a convenience to the Client, ADP holds a Client- determined
amount on account in order to facilitate the prompt reimbursement of participant claims at the time of claim adjudication.
ADP does not determine the amount to be held on account for the Client, and all such amounts may be withdrawn at any
time by the Client.
Investment of Amounts Held. ADP invests such funds, pending disbursement or presentment for payment, in long and
short term investments, such as money market funds, United States treasury obligations, United States government
agency obligations, corporate notes, and other investments. Notwithstanding the foregoing, ADP shall in all events have
an affirmative obligation to pay funds provided to ADP hereunder to the third party payees (e.g., participant carriers) in
respect of whom the Services are being provided, and this section shall not modify or lessen that affirmative obligation.
NAS MSA Annex K Benefit Services v99 K -6
Benefits
- ANNEX Z
Service and Fee Schedule
SECTION 1 THE CLIENT GROUP.
Augusta- Richmond County
SECTION 2 ADDRESS OF ADP FOR NOTICES.
With Respect to Benefits Administration Services:
ADP, Inc.
2835 South Decker Lake Drive
Salt Lake City, Utah 84119
Attention: General Manager
With Respect to COBRA FSA & Commuter Benefits Services:
ADP, Inc.
2575 Westside Parkway, Suite 500
Alpharetta, GA 30004
Attention: General Manager
SECTION 3 TERMINATION DATE.
This contract shall terminate absolutely and without further obligation on the part of Augusta- Richmond County at the
close of the calendar year in which it was executed and at the close of each succeeding calendar year for which it may be
renewed. This contract can be renewed for additional one (1) year periods for up to five (5) years upon mutual agreement
of both parties in writing unless positive action is taken by Augusta- Richmond County to terminate this contract.
SECTION 4 FEE CHANGES; TAXES.
The fees set forth on Annex Z will remain fixed for one (1) year following the Effective Date. Thereafter, ADP may modify the fees
for the Services on an annual basis and will give Client at least 90 days prior written notice of any changes in such fees. All fee
changes shall be mutually agreed to in writing by both parties prior to any fee changes going into effect.
SECTION 5 PAYROLL SERVICES AND FEES.
None.
SECTION 6 TAX FILING SERVICES AND FEES.
None.
SECTION 7 ADP TAX SERVICES AND FEES.
None.
SECTION 8 ADP ENTERPRISE SERVICES AND FEES.
None.
SECTION 9 ADP ENTERPRISE SERVICES IMPLEMENTATION SERVICES AND FEES.
None.
SECTION 10 UCM SERVICES AND FEES.
None.
SECTION 11 PRINT SERVICES AND FEES.
None.
SECTION 12 ADPCHECK SERVICES AND FEES.
None.
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SECTION 13 BENEFITS ADMINISTRATION SERVICES AND FEES.
13.1 Health & Welfare Administration Services
Health & Welfare Administration Fees
■ Implementation Fees: Ninety -five thousand dollars and zero cents ($95,000.00)
0 50% of the implementation fees will be invoiced at commencement of the project and the remaining 50% will be
invoiced upon go -live for the services.
Ongoing Fees: An Ongoing Per Month Fee of seven dollars and seventy -three cents ($7.73) per Eligible Employee
• In the course of providing services, ADP may incur direct costs on behalf of the Client and will invoice the Client for
such expenses. Billing for pass through expenses will occur monthly and will include no administration fee.
Examples of pass - through items include, but are not limited to: outside vendor fees, printing charges,
postage /shipping charges, and any other reasonably incurred client - related expenses.
• Billing for ongoing services will commence during the month that live data is loaded and processed. All other fees
are invoiced monthly and will be based on the services provided.
Health & Welfare Administration Assumptions
Implementation
■ Augusta- Richmond County will be utilizing the ADP administered health and welfare solution. Augusta- Richmond County will
be guided through the implementation process and be required to provide the appropriate resources to support the
implementation process.
■ Implementation will utilize conference calls and web meetings. Face to face sessions are available for an additional fee.
■ Augusta- Richmond County will go live with ongoing processing. Pricing assumes a single live date for all populations.
■ Implementation continues for an estimated 18 - 20 weeks. (Additional complexity may extend the timeline beyond 18 weeks).
■ ADP will convert current employee election and covered dependent data from a single source. Augusta- Richmond County will
be responsible to provide conversion data in ADP's standard layout.
■ Pricing assumes Augusta - Richmond County data is reasonably clean and standard services include importing of two (2) test
conversion files throughout the course of the project. Additional partial test files are included as necessary to accommodate
implementation.
Ongoing Services
■ Assumes approximately 2,400 active Benefit Eligible employees and approximately 400 retirees.
■ Assumes Complexity Level 1:
• Up to nine (9) combinations of unique waiting periods and rates
• Up to fifteen (15) benefit areas include: (Medical, Dental, Vision, RX, Basic EAP, Basic and Optional STD, Basic and
Optional LTD, Basic Life, Supplemental Life, Spouse Life, Child Life, Basic and Optional AD &D, HC FSA, DC FSA,
HSA and LPFSA, Parking, Transit Accounts, Option based Group Legal, Vacation Buy and Business Travel
Accident).
• Up to thirty -five (35) unique healthcare options (medical, dental, vision, Rx) across all benefit programs.
• Up to three (3) unique pay calendars /schedules.
• The same tier structure must be used for each option in a given benefit area.
■ ADP will perform manage the following benefit processes on behalf of Augusta- Richmond County:
• Generation and distribution of monthly dependent warning letter for those dependents becoming overage.
• Process EOI approvals and denials on a monthly basis.
• Process emergency enrollments with the carriers.
• Perform monthly audit requesting proof of family status changes (assumes 25% of events will be audited).
• ADP will manage QMCSO process (after Augusta- Richmond County's has interpreted and signed off on the order).
Augusta- Richmond County will add an indicator to the employee record within HRMS. ADP will adjust coverage,
generate a confirmation of election changes and track the court ordered dependent. Augusta - Richmond County will be
responsible to communicate to the agency.
Employee Self Service
■ ADP's benefits enrollment web self service module is included as part of the overall solution.
■ Self service module will display the client's logo and colors across the top banner and client can determine text in designated
areas. Pricing assumes text is the same for all populations.
■ Web module is scripted in English and includes decision support tools (i.e. plan selection cost calculator, context sensitive
help) and FSA modeling worksheets.
■ Up to fifty (50) documents or forms will be displayed to all employees.
■ Provide ability to enroll for coverage, manage dependents and manage beneficiary designations.
■ Up to five (5) client administrators have administrator access for performing day to day benefits administration tasks.
Participant Support
• ADP will be responsible to provide participant support, including:
■ Participant support provided through ADP's Solution Center in a multi -team environment.
■ English Solution Center has a fixed, consecutive, ten (10) hour schedule between 8:00 a.m. and 8:00 p.m. Eastern Time.
• Call center services may be provided to you from any one of a combination of our ADP locations within our global network
of operations.
• ADP will establish an aggregate "pool" for calls assuming two (2) calls per employee per year (inclusive of annual enrollment
calls) which equates to twice the number of employees as outlined below. If the number of calls and event activities is exceeded and
this is not due to commensurate headcount changes, a review of performance standards and /or pricing will occur. Pricing
adjustments will be based on a cost of eight dollars and ninety -five cents ($8.95) per call and assume the same call and wrap -up
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time durations as noted above. Activity will be recorded monthly and assessed annually. The calculation will be based on an
average of the eligible count on the first of each month. The average will be divided by the total number of calls at the end of the
year. Fees will be invoiced on actual volumes. If volume increases or decreases by ten percent (10 %), rates maybe adjusted
accordingly upon mutual agreement by both parties in writing.
■ In the course of providing call center services, ADP may incur direct telecom fees on behalf of the Client and will invoice
the Client for such expenses with no administration fee.
■ Supporting non - English speakers with Language Line (billed as a pass- through expense with no administration fee).
Ongoing Services - Retiree Administration
■ ADP will administer a retiree population of approximately four hundred (400) retirees with four (4) retiree eligibility groups.
Ongoing Services — Communications
■ E Mail notifications are provided to participant's for the following transactions:
• Notification of opportunity to register for ADP self service and enroll.
• Acknowledgement of enrollment change.
■ Standard eligibility summaries /worksheets and election confirmation statements (are available electronically as PDF files via
employee self service.
■ ADP to print standard ADP worksheet and confirmation statements on behalf of the client.
Ongoing Services — Interfaces
■ Weekly inbound census data from the client's single HRMS solution, in ADP's standard layout. Augusta- Richmond County will
provide the data electronically on a weekly scheduled basis.
■ Scheduled processing of outbound payroll data to Client's single HRMS solution. ADP will support deduction calculations for up
to four (4) unique pay calendars /schedules. This interface will be run and managed by the ADP hosting center.
■ Weekly processing of up to four (4) plan provider /carrier electronic eligibility interfaces in the EDI/834 standard format for the
active population. Pricing assumes a single health care account/policy /group number per option per program. ADP will be
responsible to work directly with the carriers to resolve reconciliation issues.
■ Up to twenty (20) standard carrier add /drop /change reports will be produced for those carriers who will not accept an electronic
file. ADP will send all reports to the vendors.
■ Weekly file /reporting to a third party COBRA vendor as required.
■ Weekly file /reporting to ADP's FSA Service as required.
Reporting
■ Up to five (5) client representatives have web access to view standard reports containing health and welfare data, including
historical records of elections and transactions.
■ Up to five (5) client administrators have web access for ad hoc report writing functionality using ADP Reporting.
Client Training and Support
■ Up to five (5) client administrators attend each session of web -based online, self -paced training and live, instructor -lead
training sessions.
■ A single client administrator will have access to ADP's web -based iSl security administration training
■ Up to five (5) client HR /Benefits day to day contacts (email or phone) into the ADP client service center.
■ Client support is provided via phone and email between the hours of 8:00 am- 5:00 pm MT.
Annual Enrollment and Rollover
■ ADP will support up to two annual enrollment windows per calendar year.
■ All annual enrollments are assumed to be passive.
■ Augusta- Richmond County will provide ADP with required plan, rate and eligibility changes a minimum of 8 weeks prior to the
enrollment period.
■ ADP's annual enrollment services include:
• Enrollment period definition
• Employee and employer prices /rates, premiums, ASO and stop loss fees
• Zip code and state code tables from current carriers
• Payroll schedules
• Annual enrollment ESS /participant communication messages
■ Any changes outside the above list (such as changes to current benefit areas, options, carriers, additional or deletions of pay
schedules and eligibility rules) will be treated as a scope change each year. ADP will provide the client a cost estimate prior to
each annual enrollment period.
13.2 Flexible Spending Account Services and Fees:
FSA Pricing and Start Date
Start Date: Provided this contract is renewed for the year of 2011, FSA services shall begin on January 1, 2011. Unless this
agreement is modified by the parties, FSA Services shall not be a part of this contract for 2010.
Implementation Fees: Included with H &W pricing
o Implementation billing begins at commencement of the project. Billing for ongoing services will commence during the
month that live data is loaded and processed. All other fees are invoiced monthly and will be based on the services
provided.
Ongoing Fees: Four dollars and seventy cents ($4.70) per participant per month with a monthly minimum of one hundred and sixty
dollars and zero cents ($160.00) with an estimated ninety -five (95) participant per month.
o In the course of providing services, ADP may incur direct costs on behalf of the Client and will invoice the Client for such
expenses. Billing for pass through expenses will occur monthly and will include no administration fee. Examples of
pass- through items include, but are not limited to: outside vendor fees, printing charges, postage /shipping charges, and
any other reasonably incurred client - related expenses.
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One dollar and eighty -five cents ($1.85) per standard prepaid card issued (including card, agreement, and instruction
primer).
•
Rollover Fees
• FSA Administration Renewal Fees is a base of one thousand, one hundred dollars and zero cents ($1 ,100.00).
a. Where FSA services are not renewed for the upcoming plan year, services provided by ADP in relation to run -out claims
for the previous plan year shall be charged at the monthly participant fee in effect at the time of services termination. The
monthly participant fee shall be paid for the entire run -out period regardless of any participant's balance (positive, negative
or zero).
FSA Assumptions
Implementation
• ADP assumes a ninety (90) day implementation.
• Health care and Dependent Care plan set -up.
• Client provides ADP with current FSA elections and prior balances (if applicable) in a single file in ADP's required format.
• Plan procurement template — initial and ongoing maintenance of the plan document is the responsibility of the client.
• Employee enrollment materials shipped to one location.
• As resources allow, one individual to attend one onsite benefits fair meeting (providing the client pays travel and expense).
Ongoing Services — Interfaces
• Weekly processing of an electronic inbound census file from one ADP PC /Payroll Systems or Enterprise /CSS HRizon system(s) or
ADP's standard layout.
Ongoing Services
• Services includes: processing, adjudication, and direct deposit reimbursements.
• All plan limits are the same for all populations.
• Prepaid Card substations and follow -up documentation if necessary.
• Funding of reimbursements - daily transaction report provided to client - ADP has direct -debit access to one client -owned account.
• Annual Grace Period processing.
Ongoing Services — Communications
• Standard processing claim forms to one client location.
• Prepaid card fulfillment — if applicable (card expires after three years).
Web / IVR / Call Center Support
• English web and IVR - unlimited client administrator and participant access.
• Participant support provided through ADP's Solution Center in a multi -team environment.
• English Solution Center available for continuants for a 12 -hour window (Monday — Friday except holidays) between 8:00 a.m. and
8:00 p.m. Eastern Time. Call center services may be provided to you from any one of a combination of our ADP locations within our
global network of operations.
Reporting
• Standard reports will be posted to the web application based on the report frequency; hard copy FSA reports will be sent to a single
client location each month.
• Reports include: Summary Account Statement, Miscellaneous Adjustments, Stale Dated Checks, and Daily Transactions.
• Nondiscrimination pass /fail test within the current plan year assuming client provides preliminary data for ADP to perform
calculations and results.
Annual Rollover
• The new plan year includes the same number of plans, plan rules, payroll schedules as the current year. The client submits the new
plan year design data via a clean, ADP format ten (10) weeks prior to annual enrollment. Any plan or rate information submitted
after the mutually agreed upon schedule will result in additional fees which would be captured via our scope change process and
based upon mutual agreement by both parties in writing.
• Where FSA services are not renewed for the upcoming plan year, services provided by ADP in relation to run -out claims for the
previous plan year shall be charged at the monthly participant fee in effect at the time of services termination. The monthly
participant fee shall be paid for the entire run -out period regardless of any participant's balance (positive, negative or zero).
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