Service Agreement

SERVICE AGREEMENT

THIS SERVICE AGREEMENT (hereinafter “Agreement”) is entered into by and between TAYLOR MADE TESTING SERVICE, a North Carolina corporation with its principal place of business at 2760 E WT Harris Blvd. Suite 102, Charlotte, NC 28213 (hereafter referred to as “Taylor Made Testing Service”) and Employer (hereinafter referred to “Client”).  This Agreement is entered into with reference to the following:

1. Client employs persons who operate commercial motor vehicles in commerce, and is required to comply with the requirements of 49 CFR Part 382.
2. Client has implemented, or will implement concurrent with this Agreement, a drug and alcohol policy (the “Policy”) that complies with U.S. Department of Transportation (“DOT”) rules and regulations applicable to Client, including without limitation, 49 CFR part 382 and 49 CFR Part 40, governing employees engaged in “safety sensitive functions” as defined in 49 CFR, Part 382.107, or such other applicable regulations as may be promulgated during the term of this Agreement.
3. Client has requested and Taylor Made Testing Service agrees to provide services in connection with Client’s compliance with 49 C.F.R Part 40.

NOW THEREFORE, Client and Taylor Made Testing Service agree as follows.

1. TERM OF AGREEMENT.

The Term of this Agreement shall be for one calendar year beginning on the Effective Date, and expiring at 5:00 p.m. on December 31 of the same year.  The Agreement shall be automatically renewed for successive periods of one (1) year unless terminated or cancelled as provided for in this Agreement.

1. DESCRIPTION OF SERVICES.

Taylor Made Testing Service shall provide Client with the services necessary for Client’s compliance with rules and regulations implemented by DOT, or any other governmental agency, that are applicable to Client with respect to drug and alcohol testing, including without limitation 49 CFR Part 40.  Taylor Made Testing Service’s services shall include coordinating of pre-employment testing, random testing of employees, post-accident testing, reasonable suspicion testing, return to duty and follow-up testing, reporting requirements and records retention.

Pre-Employment Testing.

1. Taylor Made Testing Service shall coordinate the pre-employment testing of all of Client’s prospective employees, new-hires, etc., in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
2. For the purpose of this Agreement, pre-employment testing shall include testing of current employees of Client who are transferring to, or will be employed in, a safety-sensitive function, who were not previously subject to drug or alcohol testing.
3. Client acknowledges that it is Client’s sole and exclusive responsibility to determine whether a prospective employee, new-hire or current employee is required to undergo pre-employment testing pursuant to the DOT regulations applicable to Client, and to ensure that each prospective employee or current employee for whom Taylor Made Testing Service coordinates such pre-employment testing has not assumed a safety-sensitive function prior to the completion of such testing procedures in accordance with the regulations applicable to Client.

Random Employee Testing.

1. Taylor Made Testing Service shall coordinate the random testing of all of Client’s employees in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
2. Client and Taylor Made Testing Service agree that during the term of this Agreement Client shall engage in random drug and alcohol testing on a monthly basis and that Taylor Made Testing Service’s rates, as set forth in Section IV, are premised upon such monthly testing.  Taylor Made Testing Service shall coordinate the random testing of Client’s employees in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.  To facilitate such random testing, Client agrees as follows:
   1. Client shall ensure that each employee for whom Taylor Made Testing Service coordinates such testing has the same fair and equal chance of being tested as any other employee of Client that is subject to applicable DOT rules and regulations requiring random testing.
   2. Client shall ensure that all employees of Client, including temporary and seasonal Employees, who perform work for Client in a safety-sensitive function, will be subject to random drug testing at any time with no advance notice
   3. Client agrees, that concurrent with the execution of this Agreement, it shall provide to Taylor Made Testing Service a list of the total number of employees or personnel engaged in safety-sensitive functions for employer (the “Employee Pool”), which shall include all temporary, seasonal and other employees or personnel subject to random drug testing under the DOT regulations applicable to Client.  The list shall identify each member of the Employee poll in the manner reasonably requested by Taylor Made Testing Service
   4. Client shall, on a monthly basis, provide to Taylor Made Testing Service an updated list of the Employee Pool, and shall be responsible for making all appropriate additions and deletions to this list prior to its submission to Taylor Made Testing Service.
   5. Client agrees that random drug testing will be administered at a rate equal to twenty-five percent (50%) of the total pool of employees subject to such testing, or such other percentage as may be required under the relevant DOT rules and regulations in effect during the term of this Agreement.  The number of number of monthly random drug tests will be calculated using the following formula, (Employee Pool x 0.50) /12 = Number of Quarterly Random Tests, or such other formula reasonably requested by Taylor Made Testing Service to ensure compliance with the relevant regulation in effect during the terms of this Agreement.  Any fractional amount under the foregoing formula, or any other formula, will be rounded up to the next whole number (e.g., 2.15 will be rounded up to 3).
   6. Client agrees that random alcohol testing will be administered at a rate equal to ten percent (10%) of the total pool of employees subject to such testing, or such other percentage as may be required under the relevant DOT rules and regulations in effect during the term of this Agreement. The number of number of monthly alcohol tests will be calculated using the following formula, (Employee Pool x 0.10) /12 = Number of Quarterly Random Tests, or such other formula reasonably requested by Taylor Made Testing Service to ensure compliance with the relevant regulations in effect during the term of this Agreement.  Any fractional amount under the foregoing formula, or any other formula, will be rounded up to the next whole number (e.g., 2.15 will be rounded up to 3).
   7. Client agrees that the selection procedure for both random drug and random alcohol testing will exceed the required testing percentage for the relevant twelve-month period in order to reach the appropriate testing level during each test period.
3. Client agrees that it is Client’s sole and exclusive responsibility to take all necessary and appropriate actions required under the relevant regulations in effect during the term of this Agreement with respect to the result of any random drug and alcohol test including, without limitation, precluding an employee from engaging in any safety sensitive function in the event of a positive drug or alcohol test or a refusal to test.

Reasonable Suspicion Testing

1. Taylor Made Testing Service shall coordinate the reasonable suspicion testing of all of Client’s employees in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
2. Client acknowledges that it is Client’s sole and exclusive responsibility to determine whether an employee is required to undergo reasonable suspicion testing pursuant to the DOT regulations applicable to Client, and to ensure that Client has complied with all applicable rule and regulations prior and subsequent to requiring an employee to undergo reasonable suspicion testing.
3. Client agrees that it is Client’s sole and exclusive responsibility to take all necessary and appropriate actions required under the relevant regulations applicable to Client in effect during the term of this Agreement with respect to the result of any reasonable suspicion test including, without limitation, precluding an employee from engaging in any safety sensitive function in the event of a positive drug or alcohol test or a refusal to test.

Post-Accident Testing

1. Taylor Made Testing Service shall coordinate the post-accident testing of all of Client’s employees in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
2. Client acknowledges that it is Client’s sole and exclusive responsibility to determine whether an employee is required to undergo post-accident testing pursuant to the DOT regulations applicable to Client, and to ensure that Client has complied with all applicable rules and regulations prior and subsequent to requiring an employee to undergo post-accident testing.
3. Client agrees that it is Client’s sole and exclusive responsibility to take all necessary and appropriate actions required under the relevant regulations applicable to Client in effect during the term of this Agreement with respect to the result of any post-accident test including, without limitation, precluding an employee from engaging in any safety sensitive function in the event of a positive drug or alcohol test or a refusal to test.

Return to Duty and Follow-up Testing.

1. Taylor Made Testing Service shall coordinate the return to duty and follow-up testing of all of Client’s employees in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
2. Client acknowledges that it is Client’s sole and exclusive responsibility to determine whether an employee is eligible to and/or required to undergo return to duty and follow-up testing pursuant to the DOT regulations applicable to Client, and to ensure that Client has complied with all applicable rules and regulations prior and subsequent to permitting an employee to undergo return to duty and follow-up testing.
3. Client agrees that it is Client’s sole and exclusive responsibility to take all necessary and appropriate actions required under the relevant regulations applicable to Client in effect during the term of this Agreement with respect to the result of any return to duty and/or follow-up test, including, without limitation, precluding an employee from engaging in any safety sensitive function in the event of a positive drug or alcohol test or a refusal to test.

 Medical Review Officer:

1. Taylor Made Testing Service shall provide Client with a Medical Review Officer (MRO), in accordance with Department of Transportation 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.  Client agrees to use the MRO designated by Taylor Made Testing Service: provided, however, that Client may, at Client’s election, designate an alternative MRO for one, some or all tests requiring review by an MRO.  In the event that Client elects to use an alternative MRO, Client assumes the obligation to pay for the full and complete cost of any test result interpretation by such alternate MRO and, notwithstanding anything herein to the contrary, Taylor Made Testing Service shall not be responsible for the coordination of any such MRO review procedures, including any follow-up procedures, all of which Client expressly agrees to assume, unless otherwise agreed to by Taylor Made Testing Service in writing.
2. Client agrees that the Taylor Made Testing Service’s designated MRO for the review and interpretation of drug test results under as provided for in this Agreement is:

Dr. Stephen Kracht

8140 Ward parkway

Suite 275

Kansas City, MO 64114

Donald S Freedman M.D. C.M.R.O.

PO Box 550749

Jacksonville, FL 32555

Or any qualified MRO outside of the contracted areas.

3. Taylor Made Testing Service shall be entitled to re-designate the MRO provided hereunder on five (5) days written notice to Client.

Reporting and Record Retention.

1. Taylor Made Testing Service shall provide Client with a copy of each drug or alcohol test performed for an employee of Client as written evidence of the drug test and its result. For any test result that is reported directly to Client, Client shall immediately forward a copy to Taylor Made Testing Service.
2. Taylor Made Testing Service shall provide Client with an annual report as required under applicable Federal regulations.
3. Client may request reporting on a monthly, quarterly, or semi-annual upon payment of a fee to Taylor Made Testing Service for the preparation of such reports.
4. The test results for each drug and alcohol test provided for hereunder are the property of the Client.
5. Taylor Made Testing Service agrees to maintain a record of the drug and alcohol testing performed hereunder for the period of time required under applicable State and Federal regulations.

Testing Procedures and Facilities

1. Urine Collection Sites.
2. a)   Urine sample collection will be handled in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
3. b)   Provided, however, that Client may, at Client’s election, use an alternative urine collection site. In the event that Client elects to use an alternative collection site Client assumes the full obligation and responsibility to pay for the fees and costs of the collection site and, notwithstanding anything herein to the contrary, Taylor Made Testing Service shall not be responsible for the coordination of any such samples, including any follow-up procedures, all of which Client expressly agrees to assume, unless agreed to by Taylor Made Testing Service in writing.
4. Urine Sample Testing
5. a)   Urine sample testing and drug screening shall be conducted in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement, using a NIDA Laboratory certified under the DHHS Mandatory Guidelines for Federal Work Place Drug Testing Programs. Client agrees to use the following laboratories, or such other laboratories as Taylor Made Testing Service may designate from time to time during the term of this Agreement:

QUEST DIAGNOSTICS

LABORATORY CORPORATION OF AMERICA

1. b)   Provided, however that Client may, at Client’s election, use an alternative approved laboratory. In the event that Client elects to use an alternative laboratory Client assumes the obligation to pay for the full and complete cost of the laboratory and, notwithstanding anything herein to the contrary, Taylor Made Testing Service shall not be responsible for the coordination of any such laboratory results, including any follow-up procedures, all of which Client expressly agrees to assume, unless otherwise agreed to by Taylor Made Testing Service in writing.
2. Breath Testing
3. a)   Breath sample collection for alcohol testing will be handled in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
4. b)   Provided, however, that Client may, at Client’s election, use an alternative breath collection site. In the event that Client elects to use an alternative collection site Client assumes the full obligation and responsibility to pay for the fees and costs of the collection site and, notwithstanding anything herein to the contrary, Taylor Made Testing Service shall not be responsible for the coordination of any such samples, including any follow-up procedures, all of which Client expressly agrees to assume, unless agreed to by Taylor Made Testing Service in writing.
5. Cut-Off Levels/Testing Procedures.
6. a)  Initial drug and alcohol testing and confirmatory drug and alcohol testing cut-off levels will be set in accordance with DOT rules and regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.
7. b)  Testing procedures shall be as required under DOT Rules and Regulations, as set forth in 49 CFR Part 40, or such other rules and regulations as may be promulgated from time to time during the term of this Agreement.

FEE SCHEDULE.

1. Client agrees to pay for all services rendered by Taylor Made Testing Service under this Agreement in accordance with the following fee schedule:

Account fees:

(Signup cost will include the following, company drug & alcohol policy, and employee education guide.)

Taylor Made Testing Service will invoice Client for services rendered at the time a service is rendered.

2. Taylor Made Testing Service invoices will be due and payable by Client within five (5) days of the invoice date.
3. All invoices that remain unpaid beyond fifteen (15) days from the invoice date, will incur a service fee of $25.00 and accrue interest at the rate of 1.5% per month on the outstanding balance due.

CONFIDENTIALITY.

1. Taylor Made Testing Service shall take all reasonable steps necessary to maintain the confidentiality of information concerning employee drug and/or alcohol test results provided for hereunder, and shall not disclose such information to a third party without the prior written authorization of the employee, unless such disclosure is required pursuant to the relevant rules and regulations applicable to Client during the term of this Agreement, or as otherwise required by law.
2. Client agrees that Client shall take all reasonable steps necessary to maintain the confidentiality of information concerning employee drug and/or alcohol test results provided for hereunder and shall comply with all rules and regulations regarding confidentiality of drug and alcohol testing of employees applicable to Client.

REPRESENTATIONS AND WARANTIES.

Taylor Made Testing Service and Client represent that each shall comply with any and all provisions of federal, state or local statutes or regulations governing the performance of any obligation hereunder that are applicable to such party.

INCORPORATION OF APPLICABLE LAW.

This Agreement shall incorporate by reference, and will be modified as though agreed to by both parties hereto, any and all revisions, modifications, changes, additions or deletions to the applicable provisions of any and all federal, state or local statutes or regulations governing the performance of any obligation hereunder.

FORCE MAJEURE:

In no event, shall Taylor Made Testing Service have any responsibility or liability to Client, of any kind or nature whatsoever, for any failure or delay in performance by Taylor Made Testing Service that is not otherwise excused and which results from, or is due to, directly or indirectly, in whole or in part, any cause or circumstances beyond the reasonable control of Taylor Made Testing Service.  Such causes and circumstances shall include (but shall not be limited to) acts of God, acts of the Client, rules, regulations, or orders of any governmental authority or agency thereof (whether civil, military, executive, legislative, judicial or otherwise), strikes or other concerted acts of workers, lock-outs, or other labor disputes or difficulties, fires, storms, floods, earthquakes, epidemics, or other natural disasters, accidents, wars, riots, rebellion, sabotage, insurrection, or civil disturbances, difficulties or delays in private or public transportation or postal delivery services, inability to obtain or use from Taylor Made Testing Service’s usual sources sufficient services, supplies, materials, energy, labor, machinery, facilities, equipment or transportation, or any other cause beyond Taylor Made Testing Service’s reasonable control.

CANCELLATION.

Either party to this Agreement may cancel or terminate this Agreement as follows:

50. Without Cause.     This Agreement may be cancelled without cause, by either party hereto, at any time during the term of this Agreement, upon thirty (30) days prior written notice.  Notice of such cancellation shall be sent, in writing, to the other party to this Agreement in accordance with the provisions of Section XVI.  In the event Client cancels this contract pursuant to this section, any outstanding balance on Client’s account shall be immediately due and payable.  A cancellation fee of $50.00 shall be payable to Taylor Made Testing Service may require that Client pre-pay for the services provided under this Agreement in the thirty (30) day period prior to the cancellation date.
51. For Cause.   This Agreement may be terminated, for cause, by either party hereto upon ten (10) days written notice.  Cause shall be limited to a material breach of this Agreement by the other party.  In the event Client terminates this Agreement pursuant to this section, any outstanding balance on Client’s account shall be immediately due and payable.  Taylor Made Testing Service shall process any drug or alcohol tests pending at the time of the termination, but shall not be required to accept, process, or coordinate any further testing.

ASSIGNMENT:

This Agreement is not assignable in whole or in part by either party without the prior written consent of the other party.

INDEPENDENT CONTRACTOR / INDEMNIFICATION / INSURANCE.

1. Taylor Made Testing Service is an independent contractor providing CLIENT with drug and alcohol services to assist in Clients compliance with DOT rules and regulations, as set forth in 49 CFR Part 40.  Taylor Made Testing Service shall not be deemed to be engaged either directly or indirectly in the business of the Client nor shall it be deemed to be an agent of Client.  Client acknowledges and agrees that Taylor Made Testing Service does not and shall not be deemed to have any control of Client’s personnel policies or interaction with the personnel of Client.
2. Client agrees to and shall indemnify, defend and hold harmless, Taylor Made Testing Service, its owners, officers, employees and agents, from and against any and all liability, loss, expense (including reasonable attorneys’ fees) or claims for injury or damages arising out of the performance of this Agreement to the maximum extent permitted by law, whether or not as a result of willful, intentional or negligent act or omissions, including without limitation any claim asserted against Taylor Made Testing Service claiming, or relating to a claim, that any drug and/or alcohol test was improperly or unlawfully conducted, or that records of a drug and or alcohol test have been improperly disclosed, or that an employee has been wrongfully discharged based on a drug or alcohol test.
3. Client shall maintain liability insurance that provides coverage against claims under or arising from Client’s drug and alcohol policy and the testing requirements there under, and shall name Taylor Made Testing Service an additional insured on such policy.

SURVIVAL OF AGREEMENT.

The provisions of this Agreement relating to indemnification and confidentiality shall survive any expiration or termination of this Agreement.

WAIVER.

No waiver of any single breach or failure by either party to enforce any of the terms or conditions of this Agreement, at any time, shall constitute a continuing waiver, and shall not, in any manner, limit or waive such party’s right thereafter to enforce and to compel strict compliance with every term and condition hereof.

GOVERNING LAW.

This Agreement will be construed in accordance with the laws of the State of North Carolina, without regard to conflict of law principles.

ATTORNEYS’ FEES.

In the event of any dispute arising of the Agreement, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs.

NOTICES.

Any notice required to be given hereunder will be given by hand delivery, certified or registered mail, postage prepaid at the following addresses or such substitute address as are later supplied in writing in accordance with this section:

Taylor Made Testing Service
2760 E WT Harris Blvd., Suite 102
Charlotte, NC 28213

ENTIRE AGREEMENT.

This Agreement constitutes the entire Agreement between Taylor Made Testing Service and Client with respect to the subject matter hereof.  This Agreement is fully integrated and supersedes all prior agreements, whether oral or written, and any and all representations made either verbally or in writing that are not part of this Agreement.  No modification of this Agreement will have any force or effect unless such modification is in writing and signed by both parties and refers to the specific sections of this Agreement to be modified.

SEVERABILITY.

It is the intention of the parties that the provisions of this Agreement will be enforceable to the fullest extent possible under applicable law, and that the enforcement of any provision or provisions of this Agreement by any such law will not render unenforceable, or impair, the remainder of the Agreement.  If any provision or provisions hereof are deemed invalid or unenforceable, either in whole or in part, this Agreement will be deemed amended to delete or modify, as necessary, the offending provision or provisions in order to render such provision or provisions valid and enforceable.

IN WITNESS WHEREOF, Taylor Made Testing Service and Client have caused this Agreement to be executed by their duly authorized representative.