TRUSS Master Services Agreement

This Master Services Agreement (“MSA”) is entered into between Lincoln Labs, Inc. d/b/a TRUSS (“TRUSS”) and client (“Customer”), effective as of the date Customer signs the Sales Order

Relationship of the Parties. The Parties agree to enter into an arrangement for TRUSS to provide employer of record (“EOR”) services to Client as a co-employer of Client’s employees. For purposes of providing EOR services under this arrangement, TRUSS agrees it is designated as the “Administrative Employer” and agrees that it is a co-employer for purposes of carrying out the responsibilities described in Section 2 of this Agreement (hereafter “EOR Services”). Client is designated as the “Work Site Employer” and agrees that it is a co-employer for purposes of carrying out the responsibilities described in Section 3 of this Agreement. Client’s employees are referred to as Work Site Employees (WSEs) throughout this Agreement.
1. Not a Certified PEO Provider. TRUSS is not a certified PEO provider covered by 26 U.S.C. § 3511. Nothing in this Agreement alters Client’s liability for federal employment taxes on remuneration remitted by TRUSS to the employees covered by this Agreement.
2. Services. Client and TRUSS may, during the Term (as defined below), from time to time enter into one or more Statements of Work (“SOWs”) for the provision the TRUSS Services. Such Statement of Work will be substantially in the form attached hereto as Exhibit A (each a “Statement of Work”). TRUSS shall provide Employer of Record Services and enter into an “Employment Agreement” with one or more “Employee(s)” proposed by the Client and: (a) TRUSS shall assign the Employee(s) to the Client to perform work as directed by, and under the supervision of, the Client; and (b) TRUSS shall ensure the completion of any and all of TRUSS’s obligations in relation to the employment of the Employee(s), excluding the Assignment, in connection with the Employer of Record Services, as contemplated by this Agreement.
  1. The Parties agree that the scope of work defined in each Statement of Work is in compliance with all applicable international, federal, national, state, provincial, and local laws and requirements.
  2. Employees may be hired by affiliated TRUSS Entities in the Employee’s country of residence. As such, the TRUSS Entities may be subcontracted by TRUSS to provide the TRUSS Services.
Rights and Responsibilities of TRUSS.
1. TRUSS assumes full responsibility, as the Administrative Employer of WSEs, for the duties described in this Section 2.
2. Payment of wages, as reported by Client, through TRUSS’s payroll, including the following from which TRUSS will make all required deductions and withholdings under applicable federal, state, and local laws:
  1. salary or other base pay;
  2. commission;
  3. bonuses;
  4. overtime pay;
  5. vacation pay;
  6. sick time pay;
  7. paid time off;
  8. paid leaves of absence; and
  9. severance.
3. Reporting and remitting payroll taxes, in compliance with all international, federal and state tax requirements on payroll wages paid under this Agreement.
4. Providing and administering health and welfare benefits through TRUSS-sponsored plans, in compliance with applicable federal and state laws, and subject to eligibility requirements. These employee benefits are provided subject to all applicable plan documents and may include all or some of the following benefits: medical, dental, vision, health flexible spending accounts, commuter benefits, life insurance, and disability insurance.
5. Compliance with all applicable laws pertaining to health benefits and/or other fringe benefits.
6. Compliance with requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and any international equivalent laws related to post-employment obligations for continued health benefits and employee and/or patient privacy.
7. Providing a Section 401(k) plan or other retirement plan.
8. Providing workers’ compensation insurance coverage required by applicable law that covers the WSEs, as well as processing and defending all workers’ compensation claims.
9. Processing and defending unemployment claims.
10. Providing Client with all employee-related policies, that are necessary and comply with applicable federal, state, and local laws in all locations where Client has employees.
11. Training employees on compliance with workplace policies, including those that may be required by law.
12. Providing a worksite safety program, including training of WSEs, as may be require by law.
13. Verify eligibility work eligibility for all WSEs.
14. Maintaining all employee-related records, as may be required by international, federal and state laws.
15. Managing and tracking employee leaves of absence, as may be required by applicable federal, state, and local law.
16. TRUSS and Client are jointly responsible for compliance with all applicable employment laws, including, but not limited to the following federal laws, and their state or local equivalents, all as amended.
17. TRUSS and Client agree to accurately inform each other if they have knowledge of any actual or potential employment-related claim regarding the WSEs, including complaints (oral or written), charges, incidents, allegations, lawsuits, government investigations or audits, or change in employee status.
Rights and Responsibilities of Client. Client agrees, as the Work Site Employer, to be responsible for the following duties described in this Section 3.
1. Client shall have sole responsibility for the day-to-day control and supervision of WSEs, as well as recruitment, hiring, firing, disciplining, or promoting WSEs.
2. Properly classify employees as exempt or non-exempt under applicable wage and hour laws.
3. Maintain accurate records regarding time worked by WSEs and timely transmit compensation payment information to TRUSS for each workweek on a weekly basis, including:
  1. wages, including whether salaried or hourly, and regular rate of pay;
  2. overtime;
  3. commissions;
  4. bonuses;
  5. vacation pay;
  6. sick pay;
  7. paid time off;
  8. paid leaves of absence; and
  9. severance payments.
4. Timely report to TRUSS any changes in its workforce, such as employees hired or terminated, and any changes in salary, hour, wages, or other compensation.
5. Provide and administer employee benefits not provided by TRUSS, including all equity compensation plans, programs, and arrangements that provide for grants of stock options, restricted stock, performance awards, or other similar awards.
6. Maintain licenses that may be required of any WSEs.
7. Provide a safe work environment, in compliance with all applicable federal, state, and local laws, and timely report any work-related injuries to TRUSS.
8. The Client shall fully cooperate with TRUSS and comply with all of TRUSS’s requests that TRUSS determines are necessary in TRUSS’s sole discretion, to ensure that its employment of each Employee complies with all applicable labor and employment laws, including, but not limited to, those laws relating to unlawful discrimination and wrongful termination, and workplace health and safety.
Term. This Agreement shall commence as of the Effective Date and, unless sooner terminated pursuant to Section 6, shall continue for a period of two (2) years, after which it will automatically renew for additional one (1) year renewal terms unless either party gives at least 30 days written notice of non-renewal prior to end of the then-current term.
Fees; Payment Terms.
1. Deposit. Within five (5) after signing this Agreement, an upfront Deposit must be paid to TRUSS, in an amount further described in the attached SOW (the “Deposit”). TRUSS shall return this upfront Deposit to Client within sixty (60) days of having received full and final payment of all invoices relating to the applicable Scope of Work after its termination. TRUSS shall not be obliged to supply the TRUSS Services until it has received the upfront Deposit from Client.
2. Management Fee. Client shall pay to TRUSS a monthly management fee of $399 USD (the “Management Fee”). This monthly fee must be paid to TRUSS no later than the first of each month during the Term of this Agreement. The Service Fee is non-refundable and will not be prorated. TRUSS has the right to adjust its Management Fee in writing every year in line with its published pricing, subject to at least three (3) months’ notice. If the Client objects to the adjustment of the Management Fee, then the Client may terminate the corresponding Statement of Work. If the Client does not terminate the Services, the adjustment of the Management Fee shall apply for the Client from the effective date onwards. For the avoidance of doubt, currency rate adjustments are not subject to the prior notice requirement set forth in this clause.
3. Employment Cost Fee. Client shall pay to TRUSS an Employee Cost fee in the amount equal to the full amount TRUSS paid per WSE, including but not limited to, base income, standard benefits, and any additional remuneration for statutory leave, legal costs, severance or any other such payments incurred due the provision of the TRUSS Services, as may be further set forth in the SOW (the “Employment Cost Fee”).
4. Reimbursement to TRUSS. In the event of a change to local laws or regulations that may generate additional expenses, external costs and charges incurred by TRUSS in the performance of its obligations under this Agreement, such expenses, costs and charges shall be reimbursed by Client, unless the Parties expressly agreed otherwise beforehand in writing and provided that any such increase must be limited to the amount of the additional cost imposed upon TRUSS.
5. Payment Terms. TRUSS shall issue invoices to Client, which shall be due and payable within thirty (30) days after Client receives the invoice. All payments hereunder shall be in US dollars and made by check or wire transfer.
6. Interest for Law Payments. If Client fails to make any payment due to TRUSS under this Agreement by the due date for payment, then, without limiting TRUSS’s other remedies under this Agreement, Client shall pay interest on any unpaid amount owed to TRUSS at the rate of 0.15% per day such payment is late. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Client shall pay the interest together with the overdue amount, unless otherwise agreed to by the Parties.
7. Credit Card Processing Fee. When the Client pays the Client Fee by credit card, the additional payment charge of a percentage of the amount is billed to the Client.
Currency, Exchange Rate and Taxes
1. Value-Added Taxes. All fees and expenses due and payable hereunder are payable in and excluding value-added tax (“VAT”). All amounts payable should be considered as exclusive of any VAT which is chargeable on the services provided pursuant to this Agreement. If VAT is or becomes chargeable on any services performed under this Agreement, and TRUSS is required to account to the relevant tax authority for such VAT, the Client will pay to TRUSS (in addition to and at the same time as paying for such services) an amount equal to the amount of such VAT.
2. Currency. All payments must be made in the same currency (“Client Currency”).
  1. Any exchange rate conversion or fluctuation between the Client Currency and currency paid to the Employee(s), or currency agreed for the fee for the services, will be billed to the client on the next submitted invoice.
3. Changes in Tax Code. Changes in taxes, and other elements outside of TRUSS’s influence, such as social security contributions that may change the calculation of the fees payable to TRUSS pursuant to this Agreement, will be billed to the Client and payable to TRUSS.
4. Payment Terms. PEO Provider shall issue invoices to Client, which shall be due and payable [upon receipt/within [30/[OTHER NUMBER]] days after Client receives the invoice][, except for any amounts disputed by Client in good faith]. All payments hereunder shall be in US dollars and made by check or wire transfer.
Termination; Effect of Termination.
1. Either Party, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause, by providing thirty (30) days’ prior written notice to the other party. On the termination of this Agreement for any reason, the WSEs will remain employees of TRUSS as the initial employer.
2. TRUSS may terminate this Agreement for cause, effective upon written notice to the Client (the “Defaulting Party”), if the Defaulting Party:
  1. materially breaches this Agreement, and such breach is incapable of cure; or (y) with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within eight (8) days after receipt of written notice of such breach.
  2. becomes insolvent or admits its inability to pay its debts generally as they become due; (w) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within [seven (7) business days or is not dismissed or vacated within 45 days after filing; (x) is dissolved or liquidated or takes any corporate action for such purpose; (y) makes a general assignment for the benefit of creditors; or (z) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3. The rights and obligations of the parties set forth in this Section 7 and Section 8, Section 9, Section 10, Section 11, and Section 14, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
Intellectual Property Rights; Ownership.
1. Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the materials provided by TRUSS pursuant to its obligations under this Agreement (hereafter “Deliverables”), including all intellectual property rights therein. TRUSS agrees, and will cause its employees (meaning those employees employed by TRUSS to provide services under this Agreement, who are hereafter referred to as “TRUSS Personnel”) to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, TRUSS hereby irrevocably assigns, and shall cause TRUSS Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all intellectual property rights therein. TRUSS shall cause TRUSS Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such employees may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
2. Upon the reasonable request of Client, TRUSS shall, and shall cause TRUSS Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.
Confidential Information. Both parties may be given access to or acquire information which is proprietary or confidential to the other party and its affiliated companies, clients, and customers. Any and all such information obtained by either party or the WSEs shall be deemed to be confidential and proprietary information. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than the providing of Services under this Agreement. Either party may request WSEs or TRUSS Personnel to enter into confidentiality agreements.
Representations and Warranties.
1. Each party represents and warrants to the other party that:
  1. it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
  2. it has the full right, power, and authority to enter into this Agreement, to grant any rights and licenses granted hereunder, and to perform its obligations hereunder;
  3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
  4. when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
2. TRUSS represents and warrants to Client that:
  1. it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; and
  2. it is in compliance with, and shall perform the Services in compliance with, all applicable laws.
3. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10: (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT; AND (B) TRUSS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT AGREES THAT FOR BREACH OF THE ABOVE WARRANTIES, CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND TRUSS’ SOLE AND EXCLUSIVE LIABILITY, SHALL BE THE RE-PERFORMANCE OF ITS SERVICES, AND IF TRUSS FAILS TO RE-PERFORM THE SERVICES AS WARRANTED, THEN CLIENT SHALL BE ENTITLED TO RECOVER AN AMOUNT UP TO THE FEES PAID TO TRUSS FOR SUCH SERVICES.
Indemnification.
1. TRUSS shall defend, indemnify, and hold harmless Client and Client’s affiliates and its/their officers, directors, employees, agents, successors, and permitted assigns (each, a “Client Indemnitee”) from and against any and all claims, demands, damages (including liquidated, punitive, and compensatory), actions in state or federal courts or before administrative agencies, losses and liabilities, costs, and expenses (including attorneys’ fees), and monetary fines or penalties assessed by any administrative agency (hereafter “Actions”) arising out of or resulting from:
  1. bodily injury, death of any person, or damage to real or tangible, personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of TRUSS or Employees; and
  2. TRUSS’s material breach of any representation, warranty, or obligation of TRUSS set forth in this Agreement, including TRUSS’s failure to comply with all employment laws in connection with the Services provided by TRUSS under this Agreement.
2. Client shall defend, indemnify, and hold harmless TRUSS and TRUSS’s Affiliates and their officers, directors, employees, agents, successors, and permitted assigns from and against any and all Actions arising out of or resulting from:
  1. bodily injury, death of any person, or damage to real or tangible, personal property resulting from the grossly negligent or willful acts or omissions of Client; and
  2. Client’s material breach of any representation, warranty, or obligation of Client in this Agreement.
3. The Party seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any Action and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this Section 10.3 shall not relieve the indemnifying Party of its obligations under this Section 10.3 except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at its own cost and expense.
Limitation of Liability.
1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12(c), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12(c), IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO TRUSS PURSUANT TO THIS AGREEMENT OR APPLICABLE STATEMENT OF WORK IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
3. The exclusions and limitations in Section 12(a) and Section 12(b) shall not apply to:
  1. damages or other liabilities arising out of or relating to a Party’s failure to comply with its obligations under Section 6 (Intellectual Property Rights; Ownership);
  2. damages or other liabilities arising out of or relating to a Party’s failure to comply with its obligations under Section 7 (Confidential Information);
  3. a Party’s indemnification obligations under Section 10 (Indemnification);
  4. damages or other liabilities arising out of or relating to a Party’s gross negligence, willful misconduct, or intentional acts;
  5. death or bodily injury or damage to real or tangible personal property resulting from a Party’s negligent acts or omissions;
  6. damages or liabilities to the extent covered by a Party’s insurance; and
  7. a Party’s obligation to pay attorneys’ fees and court costs in accordance with this Agreement
Insurance.
1. Lincoln Labs shall maintain without interruption and at its own expense, insurance having the following coverage:
  1. Commercial general liability insurance with a limit of not less than One Million Dollars ($1,000,000) on a per occurrence basis;
  2. “Umbrella” liability insurance in an amount of not less than Five Million Dollars ($5,000,000) to cover claims in excess of the coverage limits for commercial general liability;
  3. Workers’ compensation insurance for employees of Provider or its subcontractors at the applicable statutory limit and including employers’ liability;
  4. Professional liability insurance which shall describe as professional services covered thereunder all Services furnished by Vendor under the Agreement and which shall provide coverage in an aggregate amount of not less than Five Million Dollars ($5,000,000);
  5. Cyber liability insurance with such insurance in an amount of not less than Three Million Dollars ($3,000,000).
Non-Solicitation.
1. During the Term of this Agreement and for a period of twelve (12) months thereafter, neither Party shall, directly or indirectly, in any manner solicit or induce for employment any Employee or person who performed any work under this Agreement who is then employed by or contracting to provide services for the other party. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 14, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section 14.
2. If either TRUSS or Client breaches Section 14, the breaching party shall, on demand, pay to the non-breaching party a sum equal to one year’s base salary or the annual fee that was payable by the claiming party to that Employee, worker, or independent contractor, plus the recruitment costs incurred by the non-breaching party in replacing such person.
Notices.
1. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the [third/[NUMBER]] day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 14.1).
Marketing. Upon Client’s prior approval, TRUSS may refer to Client by name and trademark in TRUSS’ marketing materials and web site.
Assignment. Neither Party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other, provided that each Party may assign and otherwise transfer this agreement in whole and without the consent of the other Party as part of a merger or sale of all or substantially all of its assets, whether by way of merger, acquisition of stock or assets or operation of the law. This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
Governing Law. The terms and conditions of this Agreement shall be governed by the laws of the State of Delaware. Any dispute or cause of action arising out of the Services or the terms of this Agreement shall be brought in a state or federal court located in Oshkosh, Wisconsin.
Severability. If any of the provisions of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.
Entire Agreement. This Agreement, together with all Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to its subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Statement of Work, this Agreement shall govern.
No Third-Party Beneficiaries. The provisions of the Agreement are intended solely for the benefit of Client and TRUSS and shall create no rights or obligations enforceable by any other Party unless such beneficiaries are expressly set forth in a Schedule hereto.
No Implied Waiver. No term, provision or clause of this Agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and executed by a duly authorized representative of each Party. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
Non-Agency. Nothing in this Agreement shall be construed to make the Parties partners, joint venturers, representatives or agents of each other, nor shall either Party so represent to any third person. The Parties hereunder are acting in performance of this Agreement as independent contractors engaged in the operation of their own respective businesses

IN WITNESS WHEREOF, the parties hereto have executed this MSA as of the Effective Date.

Lincoln Labs, Inc. d/b/a TRUSS