- 1. Services.TCH shall provide the following services to CLIENT:
1.1. Consulting. TCH shall provide insurance consulting services to CLIENT for the purposes of identifying and procuring employee insurance products which are suitable to CLIENT given CLIENT’s business, budget, and objectives.
1.2. QSEHRA. TCH shall provide to CLIENT a Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) Plan and supporting documents. The Plan and supporting documents shall include, but not be limited to: (i) a Resolution for CLIENT approving the QSEHRA Plan, (ii) the QSEHRA Plan document, (iii) a description of the plan, (iv) forms and documents necessary to administer the plan, and (iv) at TCH’s discretion, other documents which may be needed to for the operation of CLIENT’s QSEHRA.
1.3. Administration. CLIENT shall be the Administrator of CLIENT’s QSEHRA, and TCH shall be the authorized service provider.
TCH, as the authorized service provider, shall:
- Set up internal TCH accounts for each of CLIENT’s employees;
- Receive, store, and process all of CLIENT’s employees’ documentation necessary for the administration of the Plan;
iii. Process reimbursement requests under the Plan for CLIENT’s employees and send CLIENT a monthly recommendation for which expenses to reimburse;
- Provide end of the year accounting to CLIENT for all reimbursements made to CLIENT’s employees; and
- Provide CLIENT with compliance reports and/or receipts upon written request by CLIENT representatives or the IRS, for up to 3 years.
CLIENT, as administrator, shall:
- Fund the Plan reimbursement amounts, as specified by TCH, through a mechanism such as payroll adjustment, separate check, or other procedure defined by CLIENT;
vii. Provide TCH’s online insurance signup product to employees, along with a recommendation (but not a requirement) that employee use TCH’s online platform to procure their individual insurance;
viii. Provide TCH with employee contact information and allow TCH to contact employees to send relevant QSEHRA and health insurance information;
- Return funds to CLIENT’s general operating account or carry funds over to the next year, depending on CLIENT’s plan and the end of the year accounting statements delivered to CLIENT by TCH.
- Compensation. In exchange for the services set forth in Section 1 of this Agreement, CLIENT shall pay TCH a per employee per month fee, as agreed upon at the time of purchase. All employees that are eligible to receive reimbursements shall be included in the total employee count. Employees can be dropped or added at any time, however if an employee is active during any part of the month, CLIENT will be billed for the whole month for that employee. Rates are subject to change.
- Confidential and Proprietary Rights. The Parties acknowledge and agree that the execution of this Agreement requires that both Parties divulge to each other certain Confidential and Proprietary Information. Parties agree to maintain confidential information and not sell, misuse, or in any way profit or gain advantage from information provided to the Parties.
- Representations and Warranties. TCH and CLIENT hereby make the following representations and warranties:
4.1. The execution of this Agreement does not breach any contract or agreement, oral or written, between the Parties or one of the Parties and any third party; nor will the same violate any duty or obligation either of the Parties have to a third party.
4.2. The Parties are currently in compliance with all applicable laws, statutes and/or ordinances, including all licensing laws, and entering into this Agreement shall not cause or constitute a violation of any law, statute and/or ordinance.
4.3. CLIENT understands that a QSEHRA is not an insurance plan or product and rather an employee insurance reimbursement. TCH shall not be providing insurance to CLIENT’s employees, and CLIENT’s employees are each individually responsible for procuring their own insurance plan through TCH’s online platform.
4.4. CLIENT represents and warrants that it shall abide by the terms and conditions of the Plan documents TCH delivers and that CLIENT executes.
4.5. CLIENT agrees that there are no third party beneficiaries to this Agreement and specifically represents and warrants that CLIENT’s employees are not third party beneficiaries to this Agreement.
4.6. CLIENT agrees to notify TCH in the event that new employees are hired or existing employees are terminated, or otherwise leave their employment with CLIENT.
4.7. CLIENT acknowledges that the Plan, Plan documents, and other materials provided to CLIENT by TCH are TCH’s sole and exclusive intellectual property. CLIENT may use the materials for the purposes intended under this Agreement and for no other. CLIENT may not create derivate works, distribute, or otherwise use the Plan documents for anything other than the administration of the Plan.
- Term and Termination.
5.1. The term of this Agreement shall be month-to-month and will automatically renew each month unless either party notifies the other of its intent not to renew this Agreement in writing with at least thirty (30) days’ notice.
5.2. If in the first three (3) months of the Agreement, CLIENT may automatically terminate this Agreement, at anytime, at CLIENT’s sole discretion by paying a termination fee equal to 3 months unpaid Compensation.
5.3. In the event of a breach of this Agreement by either Party, the non-breaching Party shall give the breaching Party written notice of the breach. The non-breaching party shall have twenty-one (21) days after receipt of such written notice to cure such breach to the satisfaction of the non-breaching Party. If the breaching Party fails to timely cure such breach, the non-breaching Party may terminate this Agreement for cause by giving the other Party seven (7) days prior written notice of such termination.
5.4. In the event of a termination by either Party, TCH shall retain all compensation earned and/or paid up to the date of termination under the Compensation Plan.
- Indemnification. CLIENT hereby agrees to hold TCH harmless and indemnify TCH’s officers, directors, shareholders, employees, successors, and assigns of and from any and all manner of actions, causes of action, suits, proceedings, debts, dues, contract judgments, damages, costs, expenses, attorney’s fees, claims and demands whatsoever in law and equity arising out of or related to CLIENT’s breach of this Agreement, negligence, willful misconduct, and/or fraud. CLIENT further agrees to indemnify TCH from any and all claims of any of CLIENT’s employees made against TCH. The Parties to this Agreement expressly agree that no employee of CLIENT shall have any cause of action against TCH unless mandated by law or the Plan for TCH’s provision of services under this Agreement.
- Notices. Any notices required by or submitted in connection with this Agreement shall be in writing and deemed effective upon the first to occur of either (a) actual receipt or (b) three (3) days after deposit in the U.S. Mail, certified, return receipt requested, and addressed as follows:
To: Take Command Health
Attn: Jack Hooper
1910 Pacific Ave., 20th Floor
Dallas, Texas 75201
- Relationship Between the Parties. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between TCH and CLIENT other than that of independent entities, and nothing herein shall be construed as making the Parties joint venturers, employees, agents, or representatives of the other.
- General Provisions.
9.1. Survival. The restrictions and obligations of the Parties as contained in this Agreement shall survive the expiration, termination or cancellation of this Agreement, and shall continue in full force and effect indefinitely. In the event that the time period provided herein shall be declared by a court of competent jurisdiction to exceed the maximum time period such court deems reasonable and enforceable, TCH and CLIENT hereto agree that the time period shall be the longest time period deemed reasonable and enforceable by such court.
9.2. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, without regard to principles of conflicts of law. All proceedings necessary to enforce, interpret, or adjudicate this Agreement shall be heard by, and the parties agree to submit to the jurisdiction of, the state district courts of Dallas County, Texas.
9.3. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction, such provision shall be deemed modified to eliminate the invalid element, and, as so modified, such provision shall be deemed a part of this Agreement. If it is not possible to modify any such provision to eliminate the invalid element, such provision shall be deemed eliminated from this Agreement. The invalidity of any provision of this Agreement shall not affect the force and effect of the remaining provisions.
9.4. Successors and Assigns. This Agreement shall be binding upon and the benefits
thereof shall inure to TCH and CLIENT and their respective legal representatives, heirs, successors, and permitted assigns. This Agreement may not be assigned by either Party without the prior written consent of the other. No permitted assignment shall relieve a Party of its obligations hereunder with respect to Confidential Information disclosed to the Receiving Party prior to that assignment. Any assignment in violation of this Section shall be void.
9.5. Amendment and Waiver. No provision of this Agreement may be altered,
amended and/or waived except by a written document signed by both TCH and CLIENT setting forth such alteration, amendment, and/or waiver. TCH and CLIENT hereto agree that the failure of the other to enforce any provision or obligation under this Agreement shall not constitute a waiver thereof or serve as a bar to the subsequent enforcement of such provision or obligation or any other provisions or obligation under this Agreement.
9.6. Captions. Captions contained in this Agreement are inserted for reference and in
no way define, limit, extend or describe the scope of this Agreement or the intent of any provision to this Agreement.
9.7. Authority to Execute. TCH and CLIENT hereto warrant and represent to
each other that this Agreement shall be binding upon it once executed and that the individual executing this Agreement is duly authorized or has been empowered to do so in accordance with applicable law.
9.8. Entire Agreement. This Agreement constitutes the entire Agreement between
TCH and CLIENT with respect to the Proposed Transaction and contains all of the agreements between said Parties and supersedes any and all other agreements, whether written or oral, with respect to the subject matter hereof. There is no statement, promise, agreement or obligation in existence which may conflict with the terms of this Agreement or may modify, enlarge, or invalidate this Agreement or any provision hereof.
9.9. Facsimile and Online Signatures/Copies. TCH and CLIENT agree that a facsimile
or online signature legally binds each party as if the signature was an original.