ZINN INSURANCE, LLC. TERMS AND CONDITIONS
The following are the Terms and conditions that are agreed to in the Zinn Insurance, LLC. Insertion order, Change order, and any agreement with Zinn Insurance, LLC. Zinn Insurance, LLC. reserves the right to modify these terms and conditions at any time:
Engagement. Client is engaging ZINN INSURANCE, LLC., a New Mexico limited liability company, (“Zinn”), located at 1141 N. Loop 1604 East #105428 San Antonio, Texas 78232, as an independent contractor for services including, but not limited to benefits management, fractional HR services and compliance. Client agrees to provide Zinn with requested information as required to complete these services.
Agreement. This Agreement is the entire agreement between Zinn and Client with respect to the Work Product to be performed hereunder, and it supersedes all prior and/or contemporaneous agreements and understandings with respect hereto, whether oral, written, or in any other medium. In the event of any conflict, ambiguity or inconsistency between this Agreement and any other document, including any which may be annexed to this Agreement and any terms and conditions on Client’s purchase orders or other documents, the terms and conditions of this Agreement shall govern. No modification to any provision of this Agreement shall be binding unless in writing and signed by both parties.
1. Services. Zinn shall provide the Client with services as detailed in this agreement. Zinn shall have the right to control and direct the method by which the Services are performed under this Agreement. The nature of the Services to be provided hereunder may be amended or modified by a Party to this Agreement only with the prior written consent of the other Party. Any such modification shall include notice of (a) the nature of the change, (b) the justification for such change, and (c) the impact, if any, of the change on the compensation, scope, time of performance, or other terms of this Agreement.
Compensation and Expenses.
2.1. Compensation. For all Services provided during the Initial Term by Zinn to the Client hereunder, the Client shall pay Zinn all fees as described in this agreement commencing on the Effective Date and continuing for each month thereafter. The Fee shall be paid following the payment terms detailed on this agreement during the Initial Term or Renewal Term of this Agreement with or without request by Zinn. Zinn may issue invoices to the Client on a monthly basis. All invoices submitted to the Client must be paid net thirty (30) days after receipt.
2.2. Expenses. Zinn shall be responsible for all its own expenses unless otherwise stated elsewhere in this Agreement or agreed to in writing by the Parties, in which case additional expenses may be paid or reimbursed to Zinn by the Client from time to time. Notwithstanding the foregoing, the Client shall also reimburse Zinn for the cost to purchase data, recording fees for Inland Revenue Services, payroll integration charges, or other third-party expenses, necessary for Zinn to provide the Services hereunder. Any such expense reimbursement shall be paid or reimbursed to Zinn within fifteen (15) days after presentation of receipts for such preapproved expenses.
2.3. Additional Services. The Parties hereto agree that Zinn shall be entitled to payment for additional fees for any services not covered by the SOW (“Additional Services”), provided that prior to carrying out such Additional Services, Zinn shall obtain written approval from the Client. Such fees for Additional Services will be calculated based on monthly estimated hours using a blended rate of One Hundred and Forty Dollars ($140) per hour.
3. Taxes. Zinn shall be responsible for payment of all taxes arising out of Zinn’s receipt of the Fee under this Agreement, including by way of illustration but not limitation, federal and state income tax, and any other taxes or business license fees as required. The Client will, to the extent it is legally required to do so, file all necessary tax information and reports with federal, state and local taxing authorities, including an IRS Form 1099, to report payments made to Zinn. The Client will not withhold or pay any taxes or any other assessments from the payments made to Zinn, unless it is required to do so by law. Zinn represents and warrants Zinn will report all payments received from the Client pursuant to this Agreement, and will pay all federal, state and local income taxes and other assessments required to be paid by Zinn under the law. Upon demand, Zinn shall provide the Client with proof that such payments have been made.
4. Equipment. Zinn shall be responsible for procuring all equipment, materials, supplies, and labor necessary to perform the Services. Except as otherwise provided under this Agreement, the Client shall not provide or compensate Zinn for such equipment, materials, supplies, and labor, and Zinn shall pay all ordinary and necessary expenses arising from its performance of the Services.
5. Term and Termination.
5.1. Term, The initial term of this Agreement shall commence on the Effective Date and shall continue until (the “Initial Term”) unless terminated earlier pursuant to this Section 5. Upon expiration of the Initial Term, this Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive one calendar month periods (the “Renewal Term”), unless either Party provides written notice of its intention not to extend the term of the Agreement at least ninety (90) days prior to the end of the applicable Renewal Term. The Initial Term and any extension or Renewal Term shall be referred to herein together as the “Term” of this Agreement.
5.2. Termination without Cause. This Agreement may be terminated by either the Client or Zinn at any time and for any reason during the Initial Term; provided that, unless otherwise provided herein, either Party shall be required to give the other Party at least ninety (90) days advance written notice of any termination of this Agreement.
5.3. Termination for Breach. Notwithstanding Sections 5.1 and 5.2, either Party may terminate this Agreement if the other Party commits a breach of any provision of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice thereof.
5.4. Termination for Insolvency. Notwithstanding Sections 5.1 and 5.2, if either Party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation or insolvency or for the appointment of a receiver, conservator, or similar officer, or makes an assignment for the benefit of all or substantially all of its creditors or enters into any agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other party may, by giving prior written notice thereof to the non-terminating Party, terminate this Agreement as of a date specified in such notice.
6. No Agency or Employment Relationship. The Parties understand and agree Zinn is an independent contractor engaged in the operation of its own respective business, that neither Party will be considered the agent, employer, or employee of the other Party for any purpose whatsoever, and that neither Party has any general authority to enter into any contract, assume any obligations or make any warranties or representations on behalf of the other Party.
7. Non-Solicitation. The Client understands and acknowledges Zinn has expended and continues to expend significant time and expense in recruiting and training its employees and the loss of employees would cause significant and irreparable harm to Zinn. In exchange for receipt of the
Employee Benefits Management Services Agreement. Page 2 of 10 Zinn Insurance, LLC
Confidential Information (as defined below) and other good and valuable consideration received under this Agreement, the Client agrees and covenants not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of Zinn, or induce the termination of employment of any employee of Zinn during the Term and for a period of two (2) years following termination of this Agreement, regardless of the reason for the termination.
This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, or social media. However, it will not be deemed a violation of this Agreement if the Client merely connects with an employee of Zinn on Facebook, LinkedIn, or other social media platform without engaging in any other substantive communication, by social media or otherwise, that is prohibited by this section.
8. Indemnification. The Client agrees it shall indemnify, defend, and hold harmless Zinn, its officers, employees, agents, and directors from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages, and expenses (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) sustained by Zinn by reason of or arising or resulting from: (i) any act or omission on the part of the Client or its agents, employees, or directors in the performance of this Agreement, and (ii) the acts, omissions, breach of contract, negligence, gross negligence, recklessness, or willful misconduct of the Client or its agents, employees, or directors in the performance of this Agreement.
Zinn agrees it shall indemnify, defend, and hold harmless the Client, its officers, employees, agents, and directors from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages, and expenses (including, without limitation, reasonable counsel fees incurred in litigation or otherwise) sustained by the Client by reason of or arising or resulting from: (i) any act or omission on the part of Zinn or its agents, employees, or directors in the performance of this Agreement, and (ii) the acts, omissions, breach of contract, negligence, gross negligence, recklessness, or willful misconduct of Zinn or its agents, employees, or directors in the performance of this Agreement.
9. Confidential Information. During the Term of this Agreement, and forever after the termination thereof for any reason, each Party agrees that, because of the valuable nature of the Confidential Information of the other Party, any written or oral information or data provided by either Party under this Agreement and marked or identified as proprietary or confidential shall not be disclosed, unless mutually agreed to in writing by the Parties. Each Party agrees to use reasonable care with respect to the Confidential Information of the other Party, but no less care than it uses to protect its own Confidential Information. Each Party agrees that it will not use Confidential Information of the other Party, other than for the purposes of this Agreement, or disclose such Confidential Information, to any person, other than to its affiliates, directors, officers, employees, agents or subcontractors, who have a need to know such Confidential Information and who are under an obligation of confidentiality consistent with the terms of this Agreement. The obligations of this Section shall not apply to: (a) information that is available in the public domain or that becomes available through no fault of the receiving Party; (b) information learned by the receiving Party from a third party not subject to a duty of confidentiality to the providing Party; (c) information that was already known to the receiving Party before receipt from the providing Party, as evidenced by the receiving Party’s prior records; (d) information that is independently developed by the receiving Party, as evidenced by the receiving Party’s records made in the ordinary course of business; or (e) information that the receiving Party is required to disclose by law, regulation or court order to disclose, provided that the providing Party is given as much prior notice and opportunity to restrict or limit such disclosure as the circumstances permit. Without in any manner limiting the generality of the foregoing obligation, each Party agrees it shall not, directly or in directly, undertake or attempt to undertake any of the following activities:
(a) disclose any Confidential Information to any other person or entity;
(b) use any Confidential Information for the Party’s own purposes;
(c) make any copies, duplicates or reproductions of any Confidential Information;
(d) forward any emails of the other Party to a personal email account or provide
any customer, vendor or third party with any email address other than an approved email address provided by the other Party;
(e) authorize or permit any other person or entity to use, copy, disclose, publish or distribute any Confidential Information; or
(f) undertake or attempt to undertake any activity the Party is prohibited from undertaking or attempting to undertake by any of its present or future clients, customers, suppliers, vendors, consultants, agents or contractors.
9.1. Confidential Information Defined. As used in this Agreement, the term “Confidential Information” means any knowledge, information or property relating to, or used or possessed by, the Party, from which the Party derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure, and includes, without limitation, the following: trade secrets; patents, copyrights, software (including, without limitation, all programs, specifications, applications, routines, subroutines, techniques and ideas for formulae); concepts, data, drawings, designs and documents; names of clients, customers, employees, agents, contractors, and suppliers; sales, promotional or marketing plans or strategies; financial information and other business records; and all copies of any of the foregoing, including notes, extracts, memoranda prepared or suffered or directed to be prepared by the Party based on any Confidential Information. Each Party agrees that all information possessed by the Party, or disclosed to the Party, or to which the Party obtains access during the Term of this Agreement shall be presumed to be Confidential Information under the terms of this Agreement, and the burden of proving otherwise shall rest with the disclosing Party.
9.2. Return of Confidential Information. Upon termination of this Agreement for any reason, each Party agrees not to retain or remove from the other Party’s premises any records, files or other documents or copies thereof belonging to the other Party or containing Confidential Information of the other Party, and each Party agrees to surrender Confidential Information belonging to the other Party, wherever it is located, immediately upon termination of this Agreement. For any electronically stored information, if requested by the other Party, each Party shall certify under penalty of perjury, in writing, and notarized, within three (3) days after termination of this Agreement, regardless of reason, that the Party has destroyed all electronic copies of all Confidential Information. A Party’s failure to so certify shall be deemed to be an acknowledgement that the Party has Confidential Information in the Party’s possession and is using, or intends to use, same in violation of this Agreement.
10. Warranty. Zinn warrants to the Client that the Services shall (a) be performed in a workmanlike manner in accordance with applicable commercial standards; (b) comply with any applicable law, rule or regulation, and Consultant will have obtained all permits and licenses required to comply with such laws and regulations; and (c) not violate or infringe upon any presently issued United States copyright, patent, trade secret or other property, contractual, employment or confidentiality right of a third party.
11. Records and Audit. Zinn shall maintain such books and records as may be needed to accurately determine the amounts payable by the Client to Zinn in accordance with this Agreement. These records shall be available for inspection from time to time by the Client during normal business hours upon reasonable notice from the Client.
12. Notices. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, sent by registered or certified mail, return receipt requested, postage prepaid, or by private overnight mail service (e.g., Federal Express) to the Party at the address set forth as follows:
ZINN INSURANCE AGENCY, LLC 1141 N. Loop 1604 East #105428 San Antonio, Texas 78232
With copy to: ROSENBLATT LAW FIRM, P.C. Attn: James D. Rosenblatt 16731 Huebner Road
San Antonio, Texas 78248
or to such other address as either Party may hereafter give notice of in accordance with the provisions hereof. Notices shall be deemed given on the sooner of the date actually received or the third business day after sending.
13. Governing Law / Venue / Jurisdiction. This Agreement shall be governed by the laws of the State of Texas without regard to its conflicts of laws principles. Mandatory and exclusive venue for any dispute regarding this Agreement shall only be appropriate in San Antonio, Bexar County, Texas. The Parties hereby consent to the exclusive personal jurisdiction of the courts in and for the State of Texas in the event of litigation pertaining to this Agreement.
14. Sole Agreement. This Agreement shall supersede all prior agreements and understandings between the Parties respecting the subject matter hereof. No representations or statements made by representatives of the Client or Zinn that are not stated herein shall be binding.
15. Assignment. No Party may assign its rights and duties under this Agreement at any time without the consent of the other Party.
16. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform, where such delay or failure is due to causes or circumstances beyond its control and without its fault or negligence, including, but not limited to, acts of civil or military authority, national emergencies, labor strikes, fire, flood or catastrophe, pandemic, epidemic, acts of God, insurrection, war or riots.
17. Binding Effect/Amendment. This Agreement shall inure to the benefit of, be binding upon and enforceable against, the Parties hereto and their respective successors, heirs, beneficiaries and permitted assigns. This Agreement contains the entire agreement of the Parties with respect to the subject matter contained herein and shall not be amended except in writing and signed by both Parties.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
19. Headings. The headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
20. Severability. In the event any provision or provisions of this Agreement are held to be invalid or unenforceable by any court of law or otherwise, the remaining provisions of this Agreement shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included therein.
21. Attorneys’ Fees. The prevailing Party in any action to enforce the terms of this Agreement shall be entitled to collect reasonable attorneys’ fees and costs of collection.
22. Construction. The provisions of this Agreement have been carefully negotiated and bargained for between the Parties hereto, and the fact that one Party may have taken the lead in drafting this Agreement shall not cause any supposed ambiguities or other defects in any provisions hereof to be construed against the drafting Party.
23. Waiver. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a continuing waiver of any subsequent breach by either Party. No waiver by either Party of any provision or condition to be performed shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or any prior or subsequent time.
24. Waiver of Trial by Jury. THE CLIENT AND ZINN AGREE ALL DISPUTES ARISING FROM OR RELATED TO THE AGREEMENT SHALL BE RESOLVED BEFORE A JUDGE, WITHOUT A JURY.