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Agreement - Swimming Swan, LLC - Signed 2025-03-18
City of Gilroy Agreement/Contract Tracking Today’s Date: March 18, 2025 Your Name: Adam Henig Contract Type: Other (Non-Standard contracts must be reviewed by the City Administrator prior to initiating) Phone Number: 408-846-0577 Contract Effective Date: (Date contract goes into effect) 3/18/2025 Contract Expiration Date: 10/31/2025 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) Swimming Swan, LLC Contract Subject: (no more than 100 characters) Aquatics Operator for 2025 at Christopher High School Contract Amount: (Total Amount of contract. If no amount, leave blank) 383894.41 By submitting this form, I confirm this information is complete: Date of Contract Contractor/Consultant name and complete address Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid) Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached Taxpayer ID or Social Security # and Contractors License # if applicable Contractor/Consultant signer’s name and title City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form) Routing Steps for Electronic Signature Risk Manager City Attorney Approval As to Form City Administrator or Department Head City Clerk Attestation Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -1- 4835-2267-0361v1 LAC\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 – NON-DESIGN, NON-ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 18 day of March, 2025, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: Swimming Swan, LLC, having a principal place of business at 903 Paseo Del Lago, Fallbrook, CA 92028. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on March 18, 2025 and will continue in effect through October 31, 2025 unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. ______ Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY’S employees, including, without limitation, disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONTRACTOR A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit “A” (“Specific Provisions”) and Exhibit “B” (“Scope of Services”), within the time periods described in Exhibit “C” (“Milestone Schedule”). B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above-described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR’S services. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -2- 4835-2267-0361v1 LAC\04706083 C. Employment of Assistants CONTRACTOR may, at the CONTRACTOR’S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR’S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR’S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event however shall the total compensation paid to CONTRACTOR exceed $383,894.41. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR’S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -3- 4835-2267-0361v1 LAC\04706083 ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONTRACTOR agrees to provide workers’ compensation insurance for CONTRACTOR’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONTRACTOR’S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRACTOR’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY’S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -4- 4835-2267-0361v1 LAC\04706083 E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONTRACTOR is not CITY’S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONTRACTOR’S payments; • CITY will not make state or federal unemployment insurance contributions on CONTRACTOR’S behalf; • CITY will not withhold state or federal income tax from payment to CONTRACTOR; • CITY will not make disability insurance contributions on behalf of CONTRACTOR; • CITY will not obtain workers’ compensation insurance on behalf of CONTRACTOR. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR’S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR’S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR’s Business/ Death of CONTRACTOR. CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR’s business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’ receipt of such notice of sale. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -5- 4835-2267-0361v1 LAC\04706083 If CONTRACTOR is an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONTRACTOR’S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR’S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C” which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR’S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONTRACTOR’s duties by any new CONTRACTOR hired by the CITY to complete such services. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -6- 4835-2267-0361v1 LAC\04706083 ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -7- 4835-2267-0361v1 LAC\04706083 F. Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -8- 4835-2267-0361v1 LAC\04706083 L. Waiver CONTRACTOR agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: CITY: Swimming Swan, LLC CITY OF GILROY By: By: Name: Melissa Swanson Musil Name: Jimmy Forbis Title: President Title: City Administrator Social Security or Taxpayer Identification Number 47-1754638 Approved as to Form ATTEST: City Attorney City Clerk Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “A” SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign Melissa Swanson Musil, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written “Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Adam Henig, Recreation Manager shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. (“Notices”) of this Exhibit “A”. B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit “C”. IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -2- 4835-2267-0361v1 LAC\04706083 Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR’S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY’S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR’S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY’s offices within five (5) business days after CITY’s request. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -3- 4835-2267-0361v1 LAC\04706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR’S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY’S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONTRACTOR may retain and use copies thereof subject to Section V.D of this Exhibit “A”. CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -4- 4835-2267-0361v1 LAC\04706083 H. NOTICES. Notices are to be sent as follows: CITY: Adam Henig, Recreation Manager City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: Melissa Swanson Musil 903 Paseo Del Lago Fallbrook, CA 92028 I. FEDERAL FUNDING REQUIREMENTS. If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “B” SCOPE OF SERVICES Christopher High School Aquatics Center Operations A. GENERAL REQUIREMENTS The Aquatic Service CONTRACTOR (“CONTRACTOR”) shall deliver the following scope of services and meet the following minimum requirements: 1. Facility: The CONTRACTOR shall operate the facility commonly known as the Christopher High School Aquatics Center (“CHS Aquatics Center”), which consists of two pools: the activity pool with a play structure and four waterslides and a 50-meter competition pool with two diving boards, which will not be in operation. The facility also includes outdoor showers, a men’s bathroom, a women’s bathroom, lifeguard office, concrete pool decks with shade structures and picnic tables, bleachers, storage closet, storage shed, a triage room and an adjoining office with a ticket window. Pool maintenance is handled by Gilroy Unified School District staff (“GUSD”) and they have sole access to the pump room. 2. Services: The CONTRACTOR must provide the following aquatic services: swim lessons and recreation swim. Additional services may include: lap swim, master swim, water aerobics/exercise classes, swim team partnership, lifeguard certification classes, pool parties/rental program, aquatics-focused summer camp, and/or food and non-alcoholic drink concession operations. Other programs or services outside of the intended use of the facility or from the list mentioned above will require prior approval by the City and may require approval from GUSD. 3. Hours of Operation: When school is not in session, the CONTRACTOR may use the Activity Pool. During the summer, the Activity Pool is available between 8:00am to 8:00pm, six days per week (not available on Mondays due to weekly maintenance). The CONTRACTOR may use the competition pool when school is not in session and is not being used by a GUSD program. The City will negotiate the schedule on behalf of the CONTRACTOR. 4. Program Fees: The fees charged by the CONTRACTOR for aquatic services shall be comparable rates and fees charged by other public aquatic facilities in surrounding communities and reviewed by the CITY prior to being publicly released. The CONTRACTOR shall provide an option for low-cost swim lessons for income eligible youth (17 years old and under ) living in the incorporated areas of Gilroy. 5. Community Access & Scheduling: The CONTRACTOR will be solely responsible for the operation and schedule of the facility. The CONTRACTOR shall provide reasonable public access and community use of the facility which shall be determined by the City and CONTRACTOR. The CONTRACTOR will not reduce the public access and community use without prior approval of the City. 6. Program Administration: The CONTRACTOR shall have a method for the public to register, pay, and receive adequate customer service in an easy and effective manner. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -2- 4835-2267-0361v1 LAC\04706083 Administrative staff and assistance should be provided to support all hours of operation. Policies and procedures for handling registration, refunds, and complaints are required. The CONTRACTOR shall provide sufficient communication and marketing in order to inform the public of its programs and services. The CONTRACTOR shall take appropriate steps to maintain a high level of customer service and overall satisfaction at all times. 7. Program Equipment and Supplies: The CONTRACTOR is responsible for providing all the equipment and supplies needed to operate the facility. The current City aquatics equipment and supplies are available for use, however, the City will not replace any damaged or missing items. These include: o Spinal boards o Rescue tubes o Swim lesson equipment o AED o Lifeguard chairs and umbrellas The City will not provide the following: o Office supplies (e.g., computers, printer, pens, paper, and electronic devices) o First Aid supplies o Janitorial supplies o Paper products and soap for the restrooms 8. Reporting and Meeting Requirements: The CONTRACTOR shall meet on a regular basis with the Recreation Division’s Designated Representative. Once registration begins for that season, the CONTRACTOR shall provide a monthly report to the representative that includes the following items: o Participation statistics by program area that includes swimming lessons, recreation swimming and any other program offered to the public. o Resident v. non-resident participants o Current challenges (e.g., need 3 more lifeguards; more cool days than warm days) o The number of seasonal passes and party rentals. o Monthly and yearly comparison tables In addition, seasonal audits and reviews demonstrating standards of care are met (required by OSHA) should be shared with the designated representative. Risk management documentation Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -3- 4835-2267-0361v1 LAC\04706083 (required by OSHA) must be always readily available. The CONTRACTOR will maintain reasonable evidence and documentation of these statistics and results (listed above) and make these records accessible to the City upon request. 9. School and Neighborhood Impacts: To minimize impacts on residents of the surrounding neighborhood, the CONTRACTOR will notify the City (through the submission of their program calendar) of swim meets and any other large group events that exceed the normal day-to-day operations. The City reserves the right to limit the number of major events at CHS Aquatics Center that may conflict with GUSD events. Amplified sound must be maintained at a reasonable level, as determined by the City. 10. Staff Qualifications: The CONTRACTOR will always be expected to provide reasonable and adequate staffing to maintain operations. The CONTRACTOR shall maintain adequate layers of protection including active supervision. The staff will have the required qualifications and certifications for each position. The CONTRACTOR will maintain appropriate and safe ratios for lifeguards on deck to pool users at all times. Certifications and training records must be accessible by the City and/or OSHA at any time following proper notice (OSHA conducts unannounced visits for the waterslides). 11. Compliance with Laws & Regulations: The CONTRACTOR must remain in compliance with all City, county, state and federal laws and regulations as well as industry standards related to pool and aquatic program operations. These regulators include but are not limited to: o City of Gilroy o Gilroy Unified School District o Santa Clara County Health Department o California Department of Health Services o Cal/OSHA Amusement Ride and Tramway Unit o California Department of Labor o Emergency Medical Services Authority (EMSA) o Consumer Product Safety Commission & Virginia Graeme Baker Act o Americans With Disabilities Act o California Department of Fair Employment and Housing o Centers for Disease Control and Prevention o American Red Cross o WhiteWater (waterslides manufacturer) - The CONTRACTOR shall: Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -4- 4835-2267-0361v1 LAC\04706083 Comply with Cal/OSHA’s rules and regulations for operating waterslides Be present and participate in OSHA inspections (scheduled and unannounced visits) Maintain daily records for water slide inspections and make these records accessible to the City Maintain staff lifeguard certification records and training records for OSHA inspections and make these records accessible to the City The City and GUSD reserves the right to conduct periodic and regular site inspections and operational audits to ensure CONTRACTOR is compliant with City, county, state, and federal regulations. City staff will follow up with the CONTRACTOR on specific safety issues it identifies, but does not relieve the CONTRACTOR of its duty to inspect and maintain the facility in safe working order and notify CITY of safety issues it identifies, nor does it transfer responsibility for identifying safety issues or mitigating them to the CITY. The CONTRACTOR will be required to comply with the City’s requests in a timely manner. In addition, documentation demonstrating compliance with all regulators/regulations will be required to be kept up to date and reviewed as deemed necessary by the City. 12. Health & Safety: The CONTRACTOR will be required to maintain health and safety standards and associated training records in a reasonable and acceptable manner for the facility, participants, and its employees that comply with City standards and other regulatory agencies listed above. The CONTRACTOR is responsible for keeping up to date with all changes, additions, or amendments to the laws, regulations, and codes related to pool operations and aquatic programs. These standards include but are not limited to: o Employee Injury and Illness Prevention Plan o Hazardous Materials Communications and Business Plan o Bloodborne Pathogens and Biohazardous Exposure Control Plan o Hazard Communications (labeling & MSDS management) o Hearing Conservation o Lifting and Fall Prevention/Protection (Equipment) o Electrical Safety Plan o Lock Out, Tag Out Equipment Specific Procedures o Emergency Action Planning/Drills o First Aid/CPR/AED o Oxygen Administration Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -5- 4835-2267-0361v1 LAC\04706083 o Heat Illness and Sun Protection o Confined Spaces/Entry Equipment o Chemical Storage/Spill Response/Cleanup o Fire Extinguisher o Personal Protective Equipment o Recreational Waterborne Illnesses (RWI’s) o Signage/Labeling 13. Standard of Care: The CONTRACTOR will be expected to provide aquatic programs and manage the facility in a manner that is comparable to or above the Standard of Care (e.g., Red Cross, Public Health Department, OSHA, etc.) that is reasonable and acceptable for a public pool. This Standard of Care should be demonstrated in all areas including operations, staff training, record keeping, maintenance and janitorial, safety and risk management. The CONTRACTOR is expected to ensure that they are maintaining this Standard of Care by conducting seasonal audits and reviews by qualified external experts and including this information in the report to the City. 14. Risk Management: The CONTRACTOR shall take all appropriate and necessary steps to provide adequate risk management planning to minimize liability or negligence by the CONTRACTOR. In addition to maintaining an acceptable Standard of Care, the CONTRACTOR shall manage their risk by demonstrating proficiency in the following areas: o Facilities & equipment o Supervision o Documentation (staff manuals, certifications, and training records) The CONTRACTOR is expected to ensure they are maintaining and performing adequate risk management planning and practices by conducting annual audits and reviews by qualified external experts. This information will also be included in an annual report to the City mentioned above. 15. Emergency Action Plan & Procedures: The CONTRACTOR shall create and maintain all emergency procedures and EAPs for the Facility. An EAP is required under Title 29 of Federal Regulations Sections 1910.38/.120/.156, and Title 8 California Code of Regulations, Sections 3220 and 3221. The EAP covers all employees and non-employees who may be exposed to hazards arising from emergency situations. It must contain information for all the CONTRACTOR’s employees including administration and line level employees, which shall use the plan in order to reduce the severity of emergency situations and minimize the risk to life and property. 16. Facility Maintenance & Records: The CONTRACTOR shall maintain the facility in an orderly, clean, and professional condition at all times. GUSD will provide maintenance services on the pool and pool equipment to ensure that the pool is operating per health standards. The Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -6- 4835-2267-0361v1 LAC\04706083 CONTRACTOR will be responsible for the hourly chlorine checks and will notify the GUSD Pool Technicians if the water chemistry is out of the normal operating range per Santa Clara County Health Department and California Code of Regulations (Title 22) section 65529, Public Pool Disinfection. The CONTRACTOR will ensure that the facility is maintained in a clean, safe, and professional manner (the CONTRACTOR will perform general cleaning and custodial duties) in the following areas: o Offices o Restrooms o Outdoor shower areas o Supply storage areas o Private party area o Picnic table areas o Equipment/mechanical rooms o Disposing of garbage to nearby GUSD dumpster o Lights in Facility o Personal Protection Equipment (PPE) o Slip and fall protection equipment The CONTRACTOR shall maintain standard operation procedure manuals and maintenance records and logs. These records should include: o Daily Pool and Chemical Log o Daily Water Slide Inspection Log o Checklist for routine maintenance and janitorial duties (daily, weekly, monthly, quarterly, bi-annual, and annual) The CITY shall maintain the Annual Water Slide Inspection. GUSD shall maintain the following: o Daily Pool and Chemical Log o Equipment Log for each piece of major equipment with maintenance schedule, maintenance contracts, record of work or repairs conducted, manufacturer guidelines, and specifications Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -7- 4835-2267-0361v1 LAC\04706083 o Training Log for GUSD Pool Technicians The CONTRACTOR will also be responsible for any damage that is outside the normal wear and tear of the facility. If the damage is beyond normal wear and tear of the facility (e.g. due to misuse, poor maintenance or damage caused by the CONTRACTOR and/or the CONTRACTOR’s employees, agents, and service users) as determined by the City, the CONTRACTOR will be required to make the appropriate repairs within 30 days of a written notice (or reimburse the City the cost of the repairs within 30 days). Any fines or fees incurred by the City for OSHA or health inspector violations issued when the CONTRACTOR is operating the pool shall be reimbursed by the CONTRACTOR within 30 days of receiving notice. 17. Signage: The CONTRACTOR will be required to maintain and provide program specific signage for the facility. These signs shall include pool rules and other signs as needed or required. Please note, the City and GUSD are not responsible for lost or stolen items. Per the County Health Code, the City and GUSD will maintain the following signage for the facility: o Shallow Water Diving Warnings o Maximum Pool Capacity o Chemical Storage o 911 Emergency o First Aid/CPR o AED o Depth Markers 18. Custodial Costs: The CONTRACTOR will assume sole financial responsibility for the custodial services and shall operate and maintain the facility at no cost to the City. 19. Insurance: The CONTRACTOR will be required to acquire and maintain Workers’ Compensation, Employer Liability, Commercial General Liability, Sexual Abuse Molestation, and owned/non-owned/hired automobile liability insurance coverage relating to the CONTRACTOR’s use of the Facility, including coverage of the activity pool’s play structure and four waterslides. The insurance coverage will need to be approved by the City. The CONTRACTOR will need to provide the City with 30 days’ notice of any changes, cancellations, or non-renewals. In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, with a minimum combined single limit coverage of $10,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; (b) Insurance coverage for owned and non-owned automobiles with a minimum combined single limit coverage of $1,000,000 per occurrence; Insurance coverage for Sexual Abuse Molestation with a minimum combined single limit coverage of $1,000,000 per occurrence. As a condition precedent to CITY’S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -8- 4835-2267-0361v1 LAC\04706083 officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. 20. CONTRACTOR shall provide free admission for recreation swimming to City of Gilroy Recreation-sponsored programs that serve youth and vulnerable populations such as summer day camp and adaptive programs. City staff will coordinate in advance with CONTRACTOR on an agreed upon schedule. C. CITY REQUIREMENTS City will provide access to the CHS Aquatics Center during the agreed upon assigned hours. The City will be responsible for all building maintenance (not janitorial), capital improvement(s), utilities, and water slide waxing. City will serve as the liaison between GUSD and CONTRACTOR (beyond water-chemistry related issues). City will provide the following advertisement opportunities: • Featured in the monthly recreation e-newsletter • An announcements to current participants through our CivicRec database In addition, the City will assume sole responsibility for the following: * Utilities and pool maintenance services for the Facility billed to the City from GUSD for the use of the facility occupied by the CONTRACTOR *Annual, structural, and operational inspection of the waterslides conducted by a qualified safety inspector (QSI) who is employed by either the Division or by the owner or Contractor. * Facility and building maintenance expenses. *The City shall maintain the Water Slide and be responsible for the Annual Water Slide Inspection Additional Services: Any services not identified in the Scope of Services will be considered additional services. Additional services will be provided only as authorized in writing by the City prior to commencement of the particular task and/or activity. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “C” MILESTONE SCHEDULE 2025 - March through April: Recruitment and hiring of lifeguards, pool managers, and cashiers. - Finalize program and fee schedule. A draft program and fee schedule are appended to this Exhibit as Exhibit "E." The final program schedule shall be negotiated between CITY and CONTRACTOR in good faith and shall reflect substantially the same level of service as in the draft schedule attached as Exhibit E. The final fee schedule shall be negotiated as set forth in Paragraph B.4 of the Scope of Services (Exhibit B). -Open registration for summer swim lessons - Begin offering lifeguarding and/or water safety certification courses -Memorial Day weekend through Labor Day weekend: Open Aquatics Center for swimming lessons and recreation swimming based on agreed upon schedule between City of Gilroy and Gilroy Unified School District. September: Meet with City staff to debrief aquatic programs and facility operations Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE A management fee of $383,894.41, which will cover insurance, certifications, equipment, and any additional administrative expenditures, will be paid over the course of a calendar year and will be issued in semi-annual installments of $191,947.21 and $191,947.20 on the following dates: June 1 and October 15. On the first of every month, beginning April 1, through October 1, contractor will provide a monthly report to City staff representative as explained in Exhibit "B," Scope of Services (Secton B, #8). Failure to provide monthly status reports will result in delay of payment. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 2025 Hours of Operation: Spring: Saturday, May 24 - Sunday, June 15, 2025 (Closed Mondays) •Weekdays:4:30 - 7:30 PM •Weekends:12:00 - 5:00 PM Summer: Tuesday, June 17 - Sunday, August 17, 2025 (Closed Mondays) •Weekdays:8:30 AM - 7:00 PM •Weekends:8:30 AM - 5:00 PM Fall: Saturday, August 23 - Sunday, August 31, 2025 •Weekends:12:00 - 5:00 PM Special Events Sunset Swims with Themes - 1 Event per month •6:30 - 8:30 PM Programming Schedule Spring: May 24 - June 15, 2025 (Closed Mondays) WEEKDAYS (4:30 - 7:30 PM) •Group Swim Lessons: 4:30 - 7:30 (Weekdays) •Aqua Fitness - ZUMBA T/Th, 6PM -7PM WEEKENDS (8:30 AM - 7 PM) •Recreational/Lap Swim: 12:00 - 5:00 PM (Weekends) •Private & Semi-Private Swim Lessons (Weekends) 12:30 - 5:00 PM •Private Party Rentals: 12:00PM - 4:30 PM Summer: June 16 - August 18, 2024 (Closed Mondays) WEEKDAYS (8 AM - 7 PM) •Recreational Swim/Slides Open: 12:00 - 4:30 PM •Group Swim Lessons (30-minute lessons): 8:30-11:00AM & 5:00 - 7:00PM •Private & Semi-Private Swim Lessons: 12:10 PM - 4:40 PM •Aqua Aerobics o Aqua Zumba 6:00 - 7 :00 PM (T/Th) o With Heidi 10:00 - 11:00 AM (W/F) •SUP Yoga: 10:00 - 11:00 AM (T/Th/Sat) •Lap Swim: 8:30 AM - 7:00PM •Jr. Lifeguard (11 - 14 yrs): o Session 1 - June 17-27 (T/W/Th/F), 9:00 AM-12:00 PM o Session 2 - July 8-18 (T/W/Th/F), 9:00 AM-12:00 PM •Itty Bitty Camp: o June 25-27 (W/Th/F), 9:00 AM-12:00 PM •Private Party Rentals: 12:00PM - 4:30 PM •Youth Swim Fitness •Youth Swim Camp (Tuesday-Friday) o Session 1 - August 12-15 (T-F), 9:00 AM - 2:00 PM WEEKENDS (8 AM - 5 PM) •Group Swim Lessons - 8:30 - 11:00AM •Private Swim Lessons - 12:10 - 4:40PM •Recreational Swim/Slides Open - 12:00PM - 5:00PM •Lap Swim - 8:30 AM - 5:00PM •SUP Yoga - 10:00 - 11:00AM (Saturday) •Private Party Rentals - 12:00PM - 4:30PM Fall: August 24 - September 1, 2024 (Weekends Only) •Recreational/Lap Swim - 12:00 - 5:00 PM (Weekends) •Group Swim Lessons (30-minute lessons): 8:30 - 11:00AM •Private & Semi-Private Swim Lessons: 12:10 PM - 4:40 PM •Private Party Rentals: 12:00PM - 4:30 PM EXHIBIT “E” Schedule & Fees Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 FEE STRUCTURE Swim Lessons Fees 2% increase from 2023 2 Week Sessions $122 per resident swimmer/session $132 per non- resident swimmer/session Open Swimming Fees Children under age 2 are free Weekdays/Weekends Seniors Resident $8/$9 Military Resident $8/$9 Youth Resident $8/$10 Adult Resident $10/$12 SUP Yoga Rates Sup Yoga $45 Aqua Fitness and Aqua Rates Aqua Fitness - per class $15 Swim Camp Age 6-12 $200 2 staff minimum, 5 participant minimum, 20 max enrolled Certification Courses Variable Fees, courses might be included as a part of job placement Shallow Lifeguard Certification Course $225 Water Safety Instructor Course $300 First Aid/CPR Course $75 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 Junior Lifeguard Camp $260 Itty Bitty Lifeguard Camp $125 Lane Rental Rates 3% increase from 2023 Per Hour/Per Lane Instructional Pool Quadrants Per Hour Swim Meet (2.5 Hours) 6 lanes $15 $40 $300 Monthly Passes $85 per resident $100 per non resident Summer Passes $275 per resident $300 per non resident Family Passes Must live in same household $325 residents $350 non residents Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 03/20/2025 Marsh Affinity a division of Marsh USA LLC. PO BOX 14404 Des Moines, IA 50306-9686 ADP Total Source 10200 Sunset Drive Miami, FL 33173 Marsh Affinity 800-743-8130 ADPTotalSource@marsh.com Zurich American Ins Co 16535 A EPLI EPL 6541325-15 2024-08-01 2025-08-01 Total Policy Period Aggregate $1,000,000 Certificate Holder is an Additional Insured under the above stated policy as the 'Client Company' This is a Claims Made Policy. Deductibles: $75,000 Defense Costs and $25,000 Settlements or Judgments. Coverage for states other than California. Coverage for California claims are subject to different deductibles. The limit shown on this certificate applies to all entities on the same ADP TotalSource Client Service Agreement. Coverage effective date for the additional insured is the active execution of ADP TotalSource Client Service Agreement or the policy effective date listed above, whichever date is later. THE SWIMMING SWAN, LLC 903 Paseo Del Lago Fallbrook, CA 92028 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 POLICY NUMBER: ESB-HS-GL-0001096-01 COMMERCIAL GENERAL LIABILITY CG 20 26 12 19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 26 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 1 – ADDITIONAL INSURED DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): The City of Gilroy Its officers, officials, employees, and volunteers 7351 Rosanna Street Gilroy, CA 95020 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. – A. Section II Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1.In the performance of your ongoing operations; or 2.In connection with your premises owned by or rented to you. However: 1.The insurance afforded to such additional insured only applies to the extent permitted by law; and 2.If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B.With respect to the insurance afforded to these additional insureds, the following is added to – Section III Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1.Required by the contract or agreement; or 2.Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 03/20/2025 Marsh Affinity a division of Marsh USA LLC. PO BOX 14404 Des Moines, IA 50306-9686 Marsh Affinity 800-743-8130 ADPTotalSource@marsh.com AIU Insurance Company 19399 A N 12/26/2024 07/01/2025 2,000,000 2,000,000 2,000,000 ADP TotalSource DE IV, Inc. 5800 Windward Parkway Alpharetta, GA 30005 L/C/F: THE SWIMMING SWAN, LLC 903 PASEO DEL LAGO Fallbrook, CA 920280000 WC 069373226 CA All worksite employees working for THE SWIMMING SWAN, LLC paid under ADP TOTALSOURCE, INC.'s payroll, are covered under the above stated policy. Proprietor/Partner/Executive Officer/Member are not excluded as long as they are in the ADPTS payroll or have completed the SEI Participation Addendum. The City of Gilroy, its officers, officials, employees and volunteers 7351 Rosanna Street Gilroy, CA 95020 X Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 Page 1 of 3 City of Gilroy STAFF REPORT Agenda Item Title: 2025 Christopher High School Aquatics Center Operator Meeting Date: March 17, 2025 From: Jimmy Forbis, City Administrator Department: Administration Submitted By: Bryce Atkins, Assistant to the City Administrator Prepared By: Bryce Atkins, Assistant to the City Administrator STRATEGIC PLAN GOALS Not Applicable RECOMMENDATION 1. Council selection of one of three options: a. Swimming Swan one-year proposal at a higher cost ($383,894 for 2025 season). b. Swimming Swan original three-year proposal but with 5% revenue share ($258,894 for 2025 season with 5% revenue share offset, 5% CPI each year thereafter). c. Not enter into an agreement and postpone the next aquatics season to 2026. 2. Authorize the City Administrator to execute any and all agreement documents to effectuate the option selected by Council. BACKGROUND At the February 3, 2025 regular City Council meeting, staff brought to Council for consideration a three-year agreement with Swimming Swan to serve as the contracted pool operator for the next three years. That staff report and documents are attached to this report. At that meeting, Council took action to award the contract for one year, at the rate of $258,998.39. Staff responded that we would approach the vendor to see if they would accept the one-year contract at the rate provided. 9.3 p. 360 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 2025 Aquatics Operation City of Gilroy City Council Page 2 of 3 March 17, 2025 ANALYSIS Staff entered discussions with Swimming Swan, based on Council direction, and Swimming Swan is not willing to provide a single year of service at the rate directed by Council. They expressed that certain costs were spread across the three-year period, and so a one-year agreement would carry a higher cost. After a few rounds of discussion, Swimming Swan is offering the following options: 1. One-year agreement for a total of $383,894.41, an increase of $125,000 2. Three-year agreement originally quoted, but now with a 5% revenue share with Gilroy based on the following: a. Daily fees b. Memberships c. Group and private swim lessons d. Private party rentals Recreation staff are estimating, based on prior year attendance reported by the vendor and fee rates charged, that the revenue sharing option would generate approximately $18,000 per year in offsetting revenue. The fee rates do not necessarily match the CPI increases of 5%, so the projected cost below only considers $18,000 each year in offsetting revenue for a conservative projection: Year Total Fee Proposal Revenue Share Net Cost 2025 $258,894.41 1 $18,000 $240,894.41 2026 $271,839.13 $18,000 $253,839.13 2027 $285,431.09 $18,000 $267,431.09 While negotiating with Swimming Swan, staff also reached out to the other proposing firm, which offered to maintain their quoted price for a one-year offer. Concerns are still present regarding their ability to provide a quality service based on their initial proposal. Staff also contacted the YMCA. After their review, the YMCA did not feel that they could safely deliver services in time for the 2025 summer season. ALTERNATIVES Council may direct staff to enter into a contract with Swimming Swan for either of their provided options. Alternatively, Council may also choose not to enter into any agreement for pool operation, which would result in no aquatics season for 2025. Whichever option Council determines to pursue, staff will conduct a comparative analysis during either the contract term or the pause in aquatics to present to Council a detailed analysis of the long-term aquatics options. 1 The original staff report had a deviation of approximately $100 extra in this initial amount, it was corrected for this report. 9.3 p. 361 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 2025 Aquatics Operation City of Gilroy City Council Page 3 of 3 March 17, 2025 FISCAL IMPACT/FUNDING SOURCE Depending upon which option is selected, the cost may be either $383,894.41 for the 2025 season only, or if the three-year option is selected, the amounts per season are estimated as follows: Year Net Cost Estimate 2025 $240,894.41 2026 $253,839.13 2027 $267,431.09 Should Council determine not to select either option, there would be no associated costs with the lack of aquatics programming. Any costs to provide aquatics programming will be charged to the Recreation Fund (290), which carries an annual investment of $1.5 million from the General Fund (100) for various recreation services in addition to charges for services received. PUBLIC OUTREACH This item was originally presented to the City Council at the February 3, 2025 City Council Meeting. This report was included on the publicly posted agenda for this meeting. NEXT STEPS Staff will proceed to implement Council’s direction. Attachments: 1. Swimming Swan 2025 Proposal 2. February 3, 2025 Pool Operator Contract Staff Report 9.3 p. 362 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 363 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 364 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 365 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 366 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 367 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 368 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 369 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 9.3 p. 370 of 427 Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 This Client Services Agreement (“Agreement”) is between ADP TotalSource, Inc. and any of its subsidiaries or affiliates to which it may assign this Agreement or a portion thereof (“TotalSource”), and the other party executing this Agreement (“Client”), and will be effective and binding upon the parties as of 12:01 a.m. on the first day of the first payroll period for which TotalSource processes the payroll (“Effective Date”). I. Relationship between the Parties and the Worksite Employees. A. Relationship between the Parties. As a professional employer organization (“CPEO”) certified under the Internal Revenue Code of 1986, as amended (the “Code”), TotalSource will provide Client with the CPEO services set forth in Part 1, Section IV (“Services”). In the CPEO relationship TotalSource and Client will share certain employer responsibilities and will allocate other employer responsibilities between each other as set forth in this Agreement. B. Rights and Responsibilities with Respect to the Worksite Emp loyees. 1. During the term of this Agreement, Client will remain an employer of the Worksite Employees , as such term is defined below, and TotalSource will become a co-employer of the Worksite Employees as set forth in this Agreement. 2. Client will have: (i) direction and control over the Worksite Employees as is necessary to conduct Client’s business, discharge any fiduciary responsibility it may have, or comply with any applicable licensure, regulatory or statutory requirement of Client; (ii) control over the day-to-day job duties of Worksite Employees and over the job sites at which, or from which, Worksite Employees perform their services (“Worksite”); and (iii) responsibility over the professional and licensed activities of Worksite Employees including ensuring that Worksite Employees are supervised by licensed individuals as required by law; determining whether an applicant or Worksite Employee meets Client’s hiring criteria and is qualified to safely and competently pe rform his or her job; as well as any on-going compliance with regulatory or professional licensing requirements. 3. TotalSource reserves a right of direction and control over Worksite Employees as is necessary to fulfill its obligations and provide the Services under this Agreement. This reservation of rights shall not be deemed a requirement to exercise such rights and does not affect Client’s independent ability to exercise its rights as an employer. 4. TotalSource and Client will each have a right to hire, discipline a nd terminate the Worksite Employees as to each one’s employment relationship with the Worksite Employees. C. No Change to Underlying Employment Relationship. This Agreement does not change the underlying employment relationship between any Worksite Emplo yee and Client and does not create any rights for any Worksite Employee that did not previously exist. Existing or future employment agreements including non -competition and confidentiality agreements remain the exclusive responsibility and liability of C lient. Client acknowledges that TotalSource does not become a party to any employment agreement between Client and any Worksite Employee. II. Employment of the Worksite Employees. A. Worksite Employees. The term “Worksite Employee” shall mean an individual hired by Client (i) who completed TotalSource’s new hire forms, (ii) who is eligible to work in the United States (“U.S.”) as evidenced by the timely and accurate completion and submission to TotalSource of the U.S. Department of Homeland Security’s Form I-9, Employment Eligibility Verification (“I-9”) and any other legally required employment eligibility verification system, and (iii) who has been placed on TotalSource’s payroll. Client shall ensure the timely and accurate completion of an I-9 (paper or electronic) for each Worksite Employee, provide a paper copy of or submit I-9 data electronically to TotalSource within three (3) days of hire and, in the case of a paper I-9, comply with all retention requirements under applicable law. No individual hired by Client will be employed by TotalSource and covered under this Agreement or any TotalSource policy or benefit until the conditions established in this Section II.A for Worksite Employee status have been met. Both parties agree that all Client employees must timely satisfy the conditions set forth herein and become Worksite Employees of TotalSource. Client will not employ anyone not covered under this Agreement without prior written notification to TotalSource. The term “TotalSource Corporate Employees” means individuals employed by TotalSource providing the Services to Client under this Agreement. The term Worksite Employees does not include TotalSource Corporate Employees. B. Non-Worksite Employees. Independent contractors or individuals who may be providing services to Client under any other arrangements including a temporary employee provided through a staffing agency shall collectively be referred to as “Non-Worksite Employees”. C. Self-Employed Individuals. Client agrees to identify all self-employed individuals providing services to Client to be covered under this Agreement (“SEI”), which may include partners, limited liability company members, and 2% or more owners of Subchapter S Corporations. Client acknowledges that all SEIs will be required to execute TotalSource’s Self-Employed Individual and Non-Paid Owner Participation Addendum to acknowledge the respective individual tax responsibility of such SEI. Self-employed individuals who do not provide services for Client are not Worksite Employees and will not be covered under this Agreement. Due to rules under the Code, Client acknowledges that SEIs may not be able to participate in all components of the TotalSource Health and Welfare Plan. D. Payroll of Worksite Employees Exclusively Through TotalSource. Unless expressly agreed to otherwise, Client agrees to process and pay all taxable wages and other taxable payments to Worksite Employees exclusively through TotalSource. Client further agrees not to process and issue manual checks to Worksi te Employees containing taxable wages and other taxable payments without the prior written notice and approval of TotalSource. ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 1 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM This Client Services Agreement (“Agreement”) is between ADP TotalSource, Inc. and any of its subsidiaries or affiliates to which it may assign this Agreement or a portion thereof (“TotalSource”), and the other party executing this Agreement (“Client”), and will be effective and binding upon the parties as of 12:01 a.m. on the first day of the first payroll period for which TotalSource processes the payroll (“Effective Date”). I. Relationship between the Parties and the Worksite Employees. A. Relationship between the Parties. As a professional employer organization (“CPEO”) certified under the Internal Revenue Code of 1986, as amended (the “Code”), TotalSource will provide Client with the CPEO services set forth in Part 1, Section IV (“Services”). In the CPEO relationship TotalSource and Client will share certain employer responsibilities and will allocate other employer responsibilities between each other as set forth in this Agreement. B. Rights and Responsibilities with Respect to the Worksite Emp loyees. 1. During the term of this Agreement, Client will remain an employer of the Worksite Employees , as such term is defined below, and TotalSource will become a co-employer of the Worksite Employees as set forth in this Agreement. 2. Client will have: (i) direction and control over the Worksite Employees as is necessary to conduct Client’s business, discharge any fiduciary responsibility it may have, or comply with any applicable licensure, regulatory or statutory requirement of Client; (ii) control over the day-to-day job duties of Worksite Employees and over the job sites at which, or from which, Worksite Employees perform their services (“Worksite”); and (iii) responsibility over the professional and licensed activities of Worksite Employees including ensuring that Worksite Employees are supervised by licensed individuals as required by law; determining whether an applicant or Worksite Employee meets Client’s hiring criteria and is qualified to safely and competently pe rform his or her job; as well as any on-going compliance with regulatory or professional licensing requirements. 3. TotalSource reserves a right of direction and control over Worksite Employees as is necessary to fulfill its obligations and provide the Services under this Agreement. This reservation of rights shall not be deemed a requirement to exercise such rights and does not affect Client’s independent ability to exercise its rights as an employer. 4. TotalSource and Client will each have a right to hire, discipline a nd terminate the Worksite Employees as to each one’s employment relationship with the Worksite Employees. C. No Change to Underlying Employment Relationship. This Agreement does not change the underlying employment relationship between any Worksite Emplo yee and Client and does not create any rights for any Worksite Employee that did not previously exist. Existing or future employment agreements including non -competition and confidentiality agreements remain the exclusive responsibility and liability of C lient. Client acknowledges that TotalSource does not become a party to any employment agreement between Client and any Worksite Employee. II. Employment of the Worksite Employees. A. Worksite Employees. The term “Worksite Employee” shall mean an individual hired by Client (i) who completed TotalSource’s new hire forms, (ii) who is eligible to work in the United States (“U.S.”) as evidenced by the timely and accurate completion and submission to TotalSource of the U.S. Department of Homeland Security’s Form I-9, Employment Eligibility Verification (“I-9”) and any other legally required employment eligibility verification system, and (iii) who has been placed on TotalSource’s payroll. Client shall ensure the timely and accurate completion of an I-9 (paper or electronic) for each Worksite Employee, provide a paper copy of or submit I-9 data electronically to TotalSource within three (3) days of hire and, in the case of a paper I-9, comply with all retention requirements under applicable law. No individual hired by Client will be employed by TotalSource and covered under this Agreement or any TotalSource policy or benefit until the conditions established in this Section II.A for Worksite Employee status have been met. Both parties agree that all Client employees must timely satisfy the conditions set forth herein and become Worksite Employees of TotalSource. Client will not employ anyone not covered under this Agreement without prior written notification to TotalSource. The term “TotalSource Corporate Employees” means individuals employed by TotalSource providing the Services to Client under this Agreement. The term Worksite Employees does not include TotalSource Corporate Employees. B. Non-Worksite Employees. Independent contractors or individuals who may be providing services to Client under any other arrangements including a temporary employee provided through a staffing agency shall collectively be referred to as “Non-Worksite Employees”. C. Self-Employed Individuals. Client agrees to identify all self-employed individuals providing services to Client to be covered under this Agreement (“SEI”), which may include partners, limited liability company members, and 2% or more owners of Subchapter S Corporations. Client acknowledges that all SEIs will be required to execute TotalSource’s Self-Employed Individual and Non-Paid Owner Participation Addendum to acknowledge the respective individual tax responsibility of such SEI. Self-employed individuals who do not provide services for Client are not Worksite Employees and will not be covered under this Agreement. Due to rules under the Code, Client acknowledges that SEIs may not be able to participate in all components of the TotalSource Health and Welfare Plan. D. Payroll of Worksite Employees Exclusively Through TotalSource. Unless expressly agreed to otherwise, Client agrees to process and pay all taxable wages and other taxable payments to Worksite Employees exclusively through TotalSource. Client further agrees not to process and issue manual checks to Worksi te Employees containing taxable wages and other taxable payments without the prior written notice and approval of TotalSource. ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 1 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 E. Notice to Worksite Employees. TotalSource will provide notice to Worksite Employees in writing about the CPEO relationship at both the inception and termination of co-employment with TotalSource. TotalSource will provide Client with Basic Employment Policies (“BEP”) either electronically or in paper and Client will ensure that each Worksite Employee receives and acknowledges receipt of the BEP. If the Worksite Employee does not electronically acknowledge receipt of the BEP via My TotalSource, Client must return a copy of the Worksite Employee’s executed acknowledgement of receipt of the BEP to TotalSource along with the other new hire paperwork as provided in Part 1, Section II.A. III. Duties of the Parties with Respect to the Worksite Employees. A. Duty to Inform. Client and TotalSource agree to accurately inform each other when they have knowledge of any potential or actual employment-related matter involving the Worksite Employees including claims, complaints (whether oral or written), incidents, allegations, charges, lawsuits, government investigations or audits, union organizing at Client’s worksite, changes in status such as leaves of absences, reduction in hours from full -time to part-time, new hires and terminations. B. Duty to Cooperate. TotalSource and Client agree to cooperate with each other in addressing employee issues including participating in employment-related investigations, providing training to Worksite Employees, following lawful employment policies and procedures, including those provided to Client by TotalSource, and assisting in resolving Worksite Employee complaints and/or the defense of employment-related claims. C. Duty to Consult. In order for TotalSource to provide its Services, Client will consult with TotalSource before taking any adverse employment action such as termination, formal discipline, or demotion. D. Duty to Provide Access. During the term of this Agreement, Client will give TotalSource (or designated agents), upon prior request and reasonable notice during normal business hours, the right to access and examine Worksite Employee information, data, files and Worksites. In the case of a government investigation involving the Worksite Employees Client agrees to immediately provide TotalSource with access to Worksite Employee information and Worksites. IV. Professional Employer Services. During the term of this Agreement, TotalSource will provide Client with the Services set forth below in this Section IV. Client acknowledges that TotalSource’s provision of the Services is dependent upon the completeness, accuracy, and timeliness of the information that Client provides to TotalSource. A. Payroll and Tax Filing. TotalSource will: (i) pay Worksite Employees as reported by Client to TotalSource; (ii) withhold and remit federal, state and local employment taxes; (iii) deliver payroll to Client; (iv) process direct deposits to those Worksite Employees electing such service; and (v) process calendar year-end W-2 forms for the Worksite Employees (collectively “Payroll Services”). B. Wage Withholding Orders; Garnishment; Lien Processing. TotalSource will administer Worksite Employee garnishments, liens and withholding orders provided that Client timely provides them to TotalSource. C. Unemployment Claims Administration. TotalSource will provide unemployment claims administration. Client agrees to provide TotalSource with a power of atto rney to permit TotalSource to administer Client’s unemployment account if required by state law and provide TotalSource with all information and documentation required to assist TotalSource with providing its unemployment claims administration services. D. Human Resources Services; Products. TotalSource will provide Client with a secure, online human resources website that provides Client with access to an employer forms library, allows Client to process and report newly hired and terminated Worksite Employees, and administers Worksite Employee records as provided to TotalSource by Client. TotalSource will also provide Client with policies and procedures regarding commercially accepted human resource practices and access to human resource, payroll and benefits professionals. TotalSource will provide Client with assistance in preparation of a written response to a charge of discrimination and/or retaliation filed by a Worksite Employee or applicant under any state or federal discrimination law provided the re is not a conflict of interest between Client and TotalSource. E. Human Resources Guidance. TotalSource will provide human resources guidance consistent with federal, state, and local employment laws including: Title VII of the Civil Rights Act; the Americans with Disabilities Act; the Pregnancy Discrimination Act, the Equal Pay Act; the Age Discrimination in Employment Act; the Fair Labor Standards Act; the Immigration and Nationality Act and the Immigration Reform and Control Act as it applies to comp letion of the I-9 forms; the Fair Credit Reporting Act; and the Family and Medical Leave Act. F. Leave Administration. TotalSource will administer Worksite Employee leaves required under state or federal leave laws. G. Employee Service Center. TotalSource will provide the Worksite Employees with toll-free access to an Employee Service Center to assist Worksite Employees. ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 2 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM E. Notice to Worksite Employees. TotalSource will provide notice to Worksite Employees in writing about the CPEO relationship at both the inception and termination of co-employment with TotalSource. TotalSource will provide Client with Basic Employment Policies (“BEP”) either electronically or in paper and Client will ensure that each Worksite Employee receives and acknowledges receipt of the BEP. If the Worksite Employee does not electronically acknowledge receipt of the BEP via My TotalSource, Client must return a copy of the Worksite Employee’s executed acknowledgement of receipt of the BEP to TotalSource along with the other new hire paperwork as provided in Part 1, Section II.A. III. Duties of the Parties with Respect to the Worksite Employees. A. Duty to Inform. Client and TotalSource agree to accurately inform each other when they have knowledge of any potential or actual employment-related matter involving the Worksite Employees including claims, complaints (whether oral or written), incidents, allegations, charges, lawsuits, government investigations or audits, union organizing at Client’s worksite, changes in status such as leaves of absences, reduction in hours from full -time to part-time, new hires and terminations. B. Duty to Cooperate. TotalSource and Client agree to cooperate with each other in addressing employee issues including participating in employment-related investigations, providing training to Worksite Employees, following lawful employment policies and procedures, including those provided to Client by TotalSource, and assisting in resolving Worksite Employee complaints and/or the defense of employment-related claims. C. Duty to Consult. In order for TotalSource to provide its Services, Client will consult with TotalSource before taking any adverse employment action such as termination, formal discipline, or demotion. D. Duty to Provide Access. During the term of this Agreement, Client will give TotalSource (or designated agents), upon prior request and reasonable notice during normal business hours, the right to access and examine Worksite Employee information, data, files and Worksites. In the case of a government investigation involving the Worksite Employees Client agrees to immediately provide TotalSource with access to Worksite Employee information and Worksites. IV. Professional Employer Services. During the term of this Agreement, TotalSource will provide Client with the Services set forth below in this Section IV. Client acknowledges that TotalSource’s provision of the Services is dependent upon the completeness, accuracy, and timeliness of the information that Client provides to TotalSource. A. Payroll and Tax Filing. TotalSource will: (i) pay Worksite Employees as reported by Client to TotalSource; (ii) withhold and remit federal, state and local employment taxes; (iii) deliver payroll to Client; (iv) process direct deposits to those Worksite Employees electing such service; and (v) process calendar year-end W-2 forms for the Worksite Employees (collectively “Payroll Services”). B. Wage Withholding Orders; Garnishment; Lien Processing. TotalSource will administer Worksite Employee garnishments, liens and withholding orders provided that Client timely provides them to TotalSource. C. Unemployment Claims Administration. TotalSource will provide unemployment claims administration. Client agrees to provide TotalSource with a power of atto rney to permit TotalSource to administer Client’s unemployment account if required by state law and provide TotalSource with all information and documentation required to assist TotalSource with providing its unemployment claims administration services. D. Human Resources Services; Products. TotalSource will provide Client with a secure, online human resources website that provides Client with access to an employer forms library, allows Client to process and report newly hired and terminated Worksite Employees, and administers Worksite Employee records as provided to TotalSource by Client. TotalSource will also provide Client with policies and procedures regarding commercially accepted human resource practices and access to human resource, payroll and benefits professionals. TotalSource will provide Client with assistance in preparation of a written response to a charge of discrimination and/or retaliation filed by a Worksite Employee or applicant under any state or federal discrimination law provided the re is not a conflict of interest between Client and TotalSource. E. Human Resources Guidance. TotalSource will provide human resources guidance consistent with federal, state, and local employment laws including: Title VII of the Civil Rights Act; the Americans with Disabilities Act; the Pregnancy Discrimination Act, the Equal Pay Act; the Age Discrimination in Employment Act; the Fair Labor Standards Act; the Immigration and Nationality Act and the Immigration Reform and Control Act as it applies to comp letion of the I-9 forms; the Fair Credit Reporting Act; and the Family and Medical Leave Act. F. Leave Administration. TotalSource will administer Worksite Employee leaves required under state or federal leave laws. G. Employee Service Center. TotalSource will provide the Worksite Employees with toll-free access to an Employee Service Center to assist Worksite Employees. ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 2 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 H. Employee Assistance Program. TotalSource will make available to Worksite Employees a confidential employee assistance program (“EAP”). I. EEO-1 Guidance. The Equal Employment Opportunity Commission (“EEOC”) requires certain employers to file an EEO-1 Component 1 report annually. Upon Client request, TotalSource will provide Client with access to tools which permit Client to access data that may be necessary for its filing of any required EEO-1 Component 1 reports to the EEOC. For the avoidance of doubt, Client remains solely responsible for filing any required EEO-1 Component 1 report to the EEOC. Notwithstanding the foregoing, TotalSource will only provide access to such tools and data for EEO-1 Component 1 reports for the calendar year(s) in which the Agreement is in effect. TotalSource does not become a federal or state subcontractor by providing CPEO Services to a Client that is a federal or state contractor or subcontractor. J. Worksite Safety Guidance. TotalSource will provide Client with guidance regarding loss prevention and workplace safety practices; access to safety training; assistance with s afety program development; a customizable safety manual and Occupational Safety and Health Act compliance assistance regarding Worksite Employees and Client’s Worksites. K. Workers’ Compensation Claims Administration. TotalSource will provide workers’ compensation claims administration and provide a toll-free number for reporting claims. L. TotalSource Training. TotalSource will provide Client with access to training on management and employee development, regulatory compliance and employment laws. M. Benefits Administration. TotalSource will provide benefits administration for the ADP TotalSource Health and Welfare Plan, which includes Consolidated Omnibus Budget Reconciliation Act, as amended (“COBRA”), administration, plan administration, enrollment and renewal. N. Elective Services: i. Drug Testing; Drug Free Workplace Program. For an additional fee as set forth in the Pricing Addendum, and if requested by Client, TotalSource will provide Client with access to drug testing and a drug free workplace program. ii. ADP Recruitment Services. For an additional fee, and if requested by Client, TotalSource will provide Client with access to recruiting services. iii. Time and Labor Management. Upon Client’s request, TotalSource will provide Client with access to the time and labor management services described in Part 2 of the Pricing Addendum (“Time and Labor Management”). Client’s use of Time and Labor Management shall be subject to the fees and costs set forth in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. iv. General Ledger Infolink. Upon Client’s request, TotalSource will provide Client with access to the General Ledger Infolink (“GLI”) services described in Part 2 of the Pricing Addendum. Client’s use of the GLI services shall be subject to the fees and costs set forth in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. v. Enhanced Talent Suite. Upon Client’s request, TotalSource will provide Client with access to the talent management services set forth in Part 2 of the Pricing Addendum (“Enhanced Talent Suite”). Client’s use of Enhanced Talent Suite shall be subject to the fees and costs provided in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. vi. Screening and Selection Services. Upon Client’s request, TotalSource will provide Client with access to the screening services set forth in the Pricing Addendum for the additional fees set forth therein (the “Screening Services”). The Screening Services set forth in the Pricing Addendum are subject to change in TotalSource’s sole discretion and will be provided to Client through TotalSource’s affiliate, ADP Screening and Selection Services, Inc. (“SASS”). vii. Application Programming Interface. Upon Client’s request, TotalSource will provide Client with access to its Application Programming Interface services described in Part 2 of the Pricing Addendum (“API”). Client’s use of API shall be subject to the fees and costs set forth in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. viii. Employment Verification Services. Upon Client’s request, TotalSource will provide Client with the Employment Verification Services described in Part 2 of this Agreement. Client’s use of Employment Verification Services shall be subject to the fees and costs invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. ix. Work Opportunity Tax Credit Services. As applicable and upon request, Client will be provided with the WOTC Services as defined in Part 2 of this Agreement. In addition to any applicable taxes and direct fees and other costs required by any governmental or agency in connection with the WOTC Services, the fees and costs for the WOTC Services will be included in the Services Fee described in Part 2, Section 2.A. V. Benefits. ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 3 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM H. Employee Assistance Program. TotalSource will make available to Worksite Employees a confidential employee assistance program (“EAP”). I. EEO-1 Guidance. The Equal Employment Opportunity Commission (“EEOC”) requires certain employers to file an EEO-1 Component 1 report annually. Upon Client request, TotalSource will provide Client with access to tools which permit Client to access data that may be necessary for its filing of any required EEO-1 Component 1 reports to the EEOC. For the avoidance of doubt, Client remains solely responsible for filing any required EEO-1 Component 1 report to the EEOC. Notwithstanding the foregoing, TotalSource will only provide access to such tools and data for EEO-1 Component 1 reports for the calendar year(s) in which the Agreement is in effect. TotalSource does not become a federal or state subcontractor by providing CPEO Services to a Client that is a federal or state contractor or subcontractor. J. Worksite Safety Guidance. TotalSource will provide Client with guidance regarding loss prevention and workplace safety practices; access to safety training; assistance with s afety program development; a customizable safety manual and Occupational Safety and Health Act compliance assistance regarding Worksite Employees and Client’s Worksites. K. Workers’ Compensation Claims Administration. TotalSource will provide workers’ compensation claims administration and provide a toll-free number for reporting claims. L. TotalSource Training. TotalSource will provide Client with access to training on management and employee development, regulatory compliance and employment laws. M. Benefits Administration. TotalSource will provide benefits administration for the ADP TotalSource Health and Welfare Plan, which includes Consolidated Omnibus Budget Reconciliation Act, as amended (“COBRA”), administration, plan administration, enrollment and renewal. N. Elective Services: i. Drug Testing; Drug Free Workplace Program. For an additional fee as set forth in the Pricing Addendum, and if requested by Client, TotalSource will provide Client with access to drug testing and a drug free workplace program. ii. ADP Recruitment Services. For an additional fee, and if requested by Client, TotalSource will provide Client with access to recruiting services. iii. Time and Labor Management. Upon Client’s request, TotalSource will provide Client with access to the time and labor management services described in Part 2 of the Pricing Addendum (“Time and Labor Management”). Client’s use of Time and Labor Management shall be subject to the fees and costs set forth in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. iv. General Ledger Infolink. Upon Client’s request, TotalSource will provide Client with access to the General Ledger Infolink (“GLI”) services described in Part 2 of the Pricing Addendum. Client’s use of the GLI services shall be subject to the fees and costs set forth in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. v. Enhanced Talent Suite. Upon Client’s request, TotalSource will provide Client with access to the talent management services set forth in Part 2 of the Pricing Addendum (“Enhanced Talent Suite”). Client’s use of Enhanced Talent Suite shall be subject to the fees and costs provided in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. vi. Screening and Selection Services. Upon Client’s request, TotalSource will provide Client with access to the screening services set forth in the Pricing Addendum for the additional fees set forth therein (the “Screening Services”). The Screening Services set forth in the Pricing Addendum are subject to change in TotalSource’s sole discretion and will be provided to Client through TotalSource’s affiliate, ADP Screening and Selection Services, Inc. (“SASS”). vii. Application Programming Interface. Upon Client’s request, TotalSource will provide Client with access to its Application Programming Interface services described in Part 2 of the Pricing Addendum (“API”). Client’s use of API shall be subject to the fees and costs set forth in the Pricing Addendum and shall be invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. viii. Employment Verification Services. Upon Client’s request, TotalSource will provide Client with the Employment Verification Services described in Part 2 of this Agreement. Client’s use of Employment Verification Services shall be subject to the fees and costs invoiced to Client in addition to the Service Fee described in Part 2, Section 2.A. ix. Work Opportunity Tax Credit Services. As applicable and upon request, Client will be provided with the WOTC Services as defined in Part 2 of this Agreement. In addition to any applicable taxes and direct fees and other costs required by any governmental or agency in connection with the WOTC Services, the fees and costs for the WOTC Services will be included in the Services Fee described in Part 2, Section 2.A. V. Benefits. ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 3 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 A. Group Health; Welfare Benefits. TotalSource will offer health, dental, vision, disability and life insurance benefits through the ADP TotalSource Health and Welfare Plan to Worksite Employees as described in the attached and incorporated Client Benefit Election form (“CBE”). Worksite Employees must meet the eligibility requirements under the applicable plan and governing laws. B. Multiple Employer 401(k) Plan. At Client’s election, the ADP TotalSource Retirement Savings Plan, a multiple employer 401(k) plan (“MEP”), will be offered to the Worksite Employees. If Client elects to participate in the ADP TotalSource Retirement Savings Plan, Client agrees to execute a separate Retirement Savings Plan Adoption Agreement. VI. Workers’ Compensation Coverage. A. Workers’ Compensation Coverage Provided by TotalSource. TotalSource will maintain workers’ compensation coverage for Worksite Employees. Coverage will not extend to Non-Worksite Employees. Workers’ compensation coverage will cease on the effective date of termination of this Agreement. Jones Act, Long Shoreman’s Act and Outer- Continental coverage is not provided. TotalSource’s workers’ compensation policy carries standard workers’ compensation coverage for international travel. The policy will solely provide for emergency care in the foreign country where the injury occurred and repatriation back to the United States for treatment. B. Workers’ Compensation for Non-Worksite Employees. Should Client use or engage the services of Non- Worksite Employees, Client will maintain or cause workers’ compensation coverage to be maintained for such Non- Worksite Employees. Cl ient also agrees to provide TotalSource with a certificate naming TotalSource as a certificate holder, obtain a labor contractor endorsement (or the equivalent) in favor of TotalSource, and require that Client’s insurer notify TotalSource in advance of any termination of coverage. Client will require its independent contractors to enter into independent contractor agreements with Client and to maintain workers’ compensation coverage. Furthermore, Client agrees to cooperate with TotalSource or any of its agents as it relates to any review for purposes of verifying compliance with the terms of this Section VI. C. Modified Light Duty. Client agrees to provide light duty work within the physic al limitations set by an authorized treating physician for Worksite Employees who have a work-related injury. Client will not be obligated to create a new position for a Worksite Employee solely for the purpose of satisfying its obligations under this Section VI C. of the Agreement. Further, Client agrees to notify TotalSource of any Worksite Employees assigned to light duty work or participating in a return to work program in satisfaction of the terms of this Section VI.C. VII. Employment Practices Liability Insurance. TotalSource will provide a claims-made Employment Practices Liability Insurance policy (“EPLI”) with an endo rsement that extends coverage to Client for covered claims filed by Worksite Employees and applicants against Client alleging wrongful employment practices as defined in the policy. Client’s coverage is subject to annual aggregate limits and deductibles (retention) which must be satisfied by Client. The deductibles (retention) are set forth in the attached and incorporated Pricing Addendum. The terms of the EPLI policy govern the rights of the parties. TotalSource reserves the right to change the EPLI p olicy terms or any related terms and conditions set forth in the Pricing Addendum, cancel and/or self-insure after providing Client with reasonable prior notice. VIII. Legal Defense Benefit. TotalSource will provide Client a Legal Defense Benefit for claims that are covered by the EPLI policy whereby TotalSource will pay for a specified amount of Client’s attorney’s fees exclusive of costs and disbursements (e.g., travel costs, mediation expenses, deposition transcripts, filing fees, copying fees, etc.), subject to conditions described in this Section. TotalSource will not provide the Legal Defense Benefit for claims not covered by the EPLI Policy (such as wage and hour claims). The amount of the Legal Defense Benefit is set forth in the attached and incorporated Pricing Addendum. This benefit is not insurance, it is not indemnification, and it is not to be used as a fund to settle disputes between Client, TotalSource, and/or an applicant or Worksite Emplo yee (former or current). A. Conditions for Benefit. To obtain the Legal Defense Benefit, Client must meet all of the following requirements for each claim: 1) follow TotalSource’s policies for employment practices; 2) consult with TotalSource before taking any adverse employment action such as termination, discipline or demotion, and follow TotalSource’s recommendation(s) regarding the incident from which the claim arose; 3) comply with this Agreement in all material respects; 4) accept TotalSource’s choice of defense counsel; and 5) cooperate with c hosen defense counsel. If Client prefers to select its own counsel, the Legal Defense Benefit will not be available to cover the attorney’s fees associated with that selection. If there is a conflict of interest between Client and TotalSource, this benefit is not available. Further, the Legal Defense Benefit will no longer be available if TotalSource, in its sole discretion, with input from chosen defense counsel, determines that a reasonable settlement is possible and Client refuses such settlement. Under those circumstances, Client becomes responsible for any attorney’s fees incurred thereafter. B. Scope of Benefit. If Client fulfills the above requirements, and provided TotalSource was involved in addressing the particular incident from which the claim arose by providing a recommendation regarding such incident, TotalSource will pay attorney’s fees up to the amount set forth in the Pricing Addendum to defend employment claims covered under the EPLI policy (excluding class action claims), filed by an applicant or current or former Worksite Employee based on facts or circumstances that arose during the term of this Agreement. The Legal Defense Benefit is only available while this Agreement is in effect. Upon termination of this Agreement, the Legal Defense Benefit will terminate ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 4 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM A. Group Health; Welfare Benefits. TotalSource will offer health, dental, vision, disability and life insurance benefits through the ADP TotalSource Health and Welfare Plan to Worksite Employees as described in the attached and incorporated Client Benefit Election form (“CBE”). Worksite Employees must meet the eligibility requirements under the applicable plan and governing laws. B. Multiple Employer 401(k) Plan. At Client’s election, the ADP TotalSource Retirement Savings Plan, a multiple employer 401(k) plan (“MEP”), will be offered to the Worksite Employees. If Client elects to participate in the ADP TotalSource Retirement Savings Plan, Client agrees to execute a separate Retirement Savings Plan Adoption Agreement. VI. Workers’ Compensation Coverage. A. Workers’ Compensation Coverage Provided by TotalSource. TotalSource will maintain workers’ compensation coverage for Worksite Employees. Coverage will not extend to Non-Worksite Employees. Workers’ compensation coverage will cease on the effective date of termination of this Agreement. Jones Act, Long Shoreman’s Act and Outer- Continental coverage is not provided. TotalSource’s workers’ compensation policy carries standard workers’ compensation coverage for international travel. The policy will solely provide for emergency care in the foreign country where the injury occurred and repatriation back to the United States for treatment. B. Workers’ Compensation for Non-Worksite Employees. Should Client use or engage the services of Non- Worksite Employees, Client will maintain or cause workers’ compensation coverage to be maintained for such Non- Worksite Employees. Cl ient also agrees to provide TotalSource with a certificate naming TotalSource as a certificate holder, obtain a labor contractor endorsement (or the equivalent) in favor of TotalSource, and require that Client’s insurer notify TotalSource in advance of any termination of coverage. Client will require its independent contractors to enter into independent contractor agreements with Client and to maintain workers’ compensation coverage. Furthermore, Client agrees to cooperate with TotalSource or any of its agents as it relates to any review for purposes of verifying compliance with the terms of this Section VI. C. Modified Light Duty. Client agrees to provide light duty work within the physic al limitations set by an authorized treating physician for Worksite Employees who have a work-related injury. Client will not be obligated to create a new position for a Worksite Employee solely for the purpose of satisfying its obligations under this Section VI C. of the Agreement. Further, Client agrees to notify TotalSource of any Worksite Employees assigned to light duty work or participating in a return to work program in satisfaction of the terms of this Section VI.C. VII. Employment Practices Liability Insurance. TotalSource will provide a claims-made Employment Practices Liability Insurance policy (“EPLI”) with an endo rsement that extends coverage to Client for covered claims filed by Worksite Employees and applicants against Client alleging wrongful employment practices as defined in the policy. Client’s coverage is subject to annual aggregate limits and deductibles (retention) which must be satisfied by Client. The deductibles (retention) are set forth in the attached and incorporated Pricing Addendum. The terms of the EPLI policy govern the rights of the parties. TotalSource reserves the right to change the EPLI p olicy terms or any related terms and conditions set forth in the Pricing Addendum, cancel and/or self-insure after providing Client with reasonable prior notice. VIII. Legal Defense Benefit. TotalSource will provide Client a Legal Defense Benefit for claims that are covered by the EPLI policy whereby TotalSource will pay for a specified amount of Client’s attorney’s fees exclusive of costs and disbursements (e.g., travel costs, mediation expenses, deposition transcripts, filing fees, copying fees, etc.), subject to conditions described in this Section. TotalSource will not provide the Legal Defense Benefit for claims not covered by the EPLI Policy (such as wage and hour claims). The amount of the Legal Defense Benefit is set forth in the attached and incorporated Pricing Addendum. This benefit is not insurance, it is not indemnification, and it is not to be used as a fund to settle disputes between Client, TotalSource, and/or an applicant or Worksite Emplo yee (former or current). A. Conditions for Benefit. To obtain the Legal Defense Benefit, Client must meet all of the following requirements for each claim: 1) follow TotalSource’s policies for employment practices; 2) consult with TotalSource before taking any adverse employment action such as termination, discipline or demotion, and follow TotalSource’s recommendation(s) regarding the incident from which the claim arose; 3) comply with this Agreement in all material respects; 4) accept TotalSource’s choice of defense counsel; and 5) cooperate with c hosen defense counsel. If Client prefers to select its own counsel, the Legal Defense Benefit will not be available to cover the attorney’s fees associated with that selection. If there is a conflict of interest between Client and TotalSource, this benefit is not available. Further, the Legal Defense Benefit will no longer be available if TotalSource, in its sole discretion, with input from chosen defense counsel, determines that a reasonable settlement is possible and Client refuses such settlement. Under those circumstances, Client becomes responsible for any attorney’s fees incurred thereafter. B. Scope of Benefit. If Client fulfills the above requirements, and provided TotalSource was involved in addressing the particular incident from which the claim arose by providing a recommendation regarding such incident, TotalSource will pay attorney’s fees up to the amount set forth in the Pricing Addendum to defend employment claims covered under the EPLI policy (excluding class action claims), filed by an applicant or current or former Worksite Employee based on facts or circumstances that arose during the term of this Agreement. The Legal Defense Benefit is only available while this Agreement is in effect. Upon termination of this Agreement, the Legal Defense Benefit will terminate ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 4 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 and TotalSource will cease paying attorney’s fees. The legal fees for the Legal Defense Benefit will be based on the hourly rate that the chosen defense counsel selected by To talSource charges TotalSource. IX. Service Guarantee. TotalSource is confident about the quality of its Services. As a result, we make the following guarantee: if Client experiences a Service failure and terminates this Agreement within the first six (6) months of the Effective Date, TotalSource will refund the Service Fee set forth in the Pricing Addendum that Client paid TotalSource, excluding wages, direct expenses, payroll taxes, workers’ compensation costs, implementation fees and other mandatory insurance (the “Refund Amount”). No amount required to be paid pursuant to the CBE will be refunded. This Service Guarantee is not available if Client materially breaches this Agreement, including failure to pay. In order for Client to receive the Refund Amount under this Service Guarantee, Client must first notify TotalSource, in writing, of the Service failure(s) within five (5) business days of Client experiencing such failure(s) and provide TotalSource with ten (10) business day’s opportunity to cure the Service failure after having notified TotalSource. The foregoing Service Guarantee does not apply in the case of a frivolous or immaterial Service failure. X. Pricing. Client will pay TotalSource as indicated in the Pricing Addendum and a s set forth in Part 2, Section 2. XI. Term. This Agreement has an initial one (1) year term starting on the Effective Date (“Initial Term”). After the Initial Term this Agreement renews automatically on its anniversary date for successive one (1) year terms. This Agreement may be terminated as set forth in Part 2, Section 15. XII. Terms and Conditions; Exhibits; Addenda. Part 2: Terms and Conditions (“Part 2”), Part 3: Federal and State Addendum (“Part 3”), and Part 4: Data Privacy Appendix (“Part 4”) are attached hereto and are incorporated by reference in and are a part of this Agreement. TotalSource’s provision of Services is subject to this Part 1, Part 2, Part 3, and Part 4, and any exhibit, addendum or document referenced, attached or incorporated herein by reference. This Agreement may be executed in m ultiple counterparts, each of which shall be d eemed an original and all of which t oge t her co nstitute one and the same docum e nt. The parties agree that a signature transmitted via facsimile or electronic mail shall be deemed original for all purpo ses hereunder. Either party may execute this Agreement using an electronic signature and such signature shall be treated in all respects as having the same effect as an original ha ndwritten signature. TotalSource and Client execute this Agreement, in their respective corporate names by their duly authorized officers on the dates provided below. ADP TotalSource, Inc. Client: DBA: FEIN: _____________________________________________ _____________________________________________ Signature Signature _____________________________________________ _____________________________________________ Name Name _____________________________________________ _____________________________________________ Title Title _____________________________________________ _____________________________________________ Date Date CLIENT ADDRESS FOR NOTICES: _____________________________________________ _____________________________________________ _____________________________________________ Upon the Effective Date, this Agreement shall be assigned to with Federal Employer Identification Number THE SWIMMING SWAN, LLC 471754638 364210977 TotalSource DE IV, Inc. Fallbrook, CA, 92028 903 Paseo Del Lago ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 5 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Melissa Swanson Melissa Swanson CEO Nov 26, 2024 and TotalSource will cease paying attorney’s fees. The legal fees for the Legal Defense Benefit will be based on the hourly rate that the chosen defense counsel selected by To talSource charges TotalSource. IX. Service Guarantee. TotalSource is confident about the quality of its Services. As a result, we make the following guarantee: if Client experiences a Service failure and terminates this Agreement within the first six (6) months of the Effective Date, TotalSource will refund the Service Fee set forth in the Pricing Addendum that Client paid TotalSource, excluding wages, direct expenses, payroll taxes, workers’ compensation costs, implementation fees and other mandatory insurance (the “Refund Amount”). No amount required to be paid pursuant to the CBE will be refunded. This Service Guarantee is not available if Client materially breaches this Agreement, including failure to pay. In order for Client to receive the Refund Amount under this Service Guarantee, Client must first notify TotalSource, in writing, of the Service failure(s) within five (5) business days of Client experiencing such failure(s) and provide TotalSource with ten (10) business day’s opportunity to cure the Service failure after having notified TotalSource. The foregoing Service Guarantee does not apply in the case of a frivolous or immaterial Service failure. X. Pricing. Client will pay TotalSource as indicated in the Pricing Addendum and a s set forth in Part 2, Section 2. XI. Term. This Agreement has an initial one (1) year term starting on the Effective Date (“Initial Term”). After the Initial Term this Agreement renews automatically on its anniversary date for successive one (1) year terms. This Agreement may be terminated as set forth in Part 2, Section 15. XII. Terms and Conditions; Exhibits; Addenda. Part 2: Terms and Conditions (“Part 2”), Part 3: Federal and State Addendum (“Part 3”), and Part 4: Data Privacy Appendix (“Part 4”) are attached hereto and are incorporated by reference in and are a part of this Agreement. TotalSource’s provision of Services is subject to this Part 1, Part 2, Part 3, and Part 4, and any exhibit, addendum or document referenced, attached or incorporated herein by reference. This Agreement may be executed in m ultiple counterparts, each of which shall be d eemed an original and all of which t oge t her co nstitute one and the same docum e nt. The parties agree that a signature transmitted via facsimile or electronic mail shall be deemed original for all purpo ses hereunder. Either party may execute this Agreement using an electronic signature and such signature shall be treated in all respects as having the same effect as an original ha ndwritten signature. TotalSource and Client execute this Agreement, in their respective corporate names by their duly authorized officers on the dates provided below. ADP TotalSource, Inc. Client: DBA: FEIN: _____________________________________________ _____________________________________________ Signature Signature _____________________________________________ _____________________________________________ Name Name _____________________________________________ _____________________________________________ Title Title _____________________________________________ _____________________________________________ Date Date CLIENT ADDRESS FOR NOTICES: _____________________________________________ _____________________________________________ _____________________________________________ Upon the Effective Date, this Agreement shall be assigned to with Federal Employer Identification Number THE SWIMMING SWAN, LLC 471754638 364210977 TotalSource DE IV, Inc. Fallbrook, CA, 92028 903 Paseo Del Lago ADP TOTALSOURCE® CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 1 Page 5 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Melissa Swanson Melissa Swanson CEO Nov 26, 2024Nov 26, 2024 Hernandez,Gilbert Financial Executive Hernandez,Gilbert Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 1. GENERAL TERMS GOVERNING THE PROVISION OF SERVICES. A. Accuracy of Client Information. Client represents that the information provided to TotalSource prior to executing this Agreement was and continues to be accurate and complete as of the Effective Date. Client is solely responsible for any demand or claim that existed, accrued or relates to facts and circumstances which occurred before the Effective Date. Client acknowledges that such responsibility includes payment of attorney’s fees, investigation costs, damages or similar charges, costs or expenses and that the Legal Defense Benefit is not available for such demand or claim. Client is responsible for providing TotalSource with complete, accurate, and timely information necessary for TotalSource to provide Services and fulfill its responsibilities. Client will promptly notify TotalSource at any time it discovers any inaccuracies or discrepancies. B. Accuracy of Payroll; Submission of Payroll; Wage and Hour Laws. Client will provide TotalSource with complete and accurate information regarding hours worked, all legally required data elements for earning statements, job classifications, exemption status under the Fair Labor Standards Act (“FLSA”) and similar state and local laws (collectively, with all regulations, rules, and judicial, regulatory and administrative orders, findings, guidance and other interpretations thereunder, “Wage and Hour Laws”), and other payroll information needed for TotalSource to accurately pay Worksite Employees and as is otherwise necessary for TotalSource to satisfy its obligations in connection with this Agreement (“Payroll Information”). In order for TotalSource to process payroll for the Worksite Employees on the designated pay date, Client must submit the Payroll I nformation to TotalSource using the TotalSource Payroll Processing Platform no later than three (3) business days before each pay date. Client agrees to comp ly with, and acknowledges that it is solely responsible for compliance with, Wage and Hour Laws (including the application of any exemptions from these requirements) applicable to Worksite Employees, including, without limitation, minimum wage, overtime, meal and rest periods, recordkeeping, paid sick leave (including any requirements to provide employees with sick leave balance information if not including this information on an earning statement), notice requirements, wage deductions (including authorization requirements) and the application of credits / allowances for board, lodging or other facilities against minimum wage and overtime pay requirements. C. Bonuses, Commissions, Vacation, Holiday, Sick, Severance Pay Agreements. Any responsibility and/or liability with regard to agreements for bonuses, commissions, vacation, holiday, sick pay or simil ar time off accruals, and severance pay (“Nonstandard Wages”) shall remain the sole responsibility of Client. The fact that TotalSource may process Nonstandar d Wages as a part of its Payroll Services, does not evidence any agreement or assumption by TotalS ource of responsibility or liability for payment of Nonstandard Wages to Worksite Employees. Client must notify TotalSource of any Nonstandard Wages that must be paid out at termination for a Worksite Employee. D. Use of Services. Client will use the Services solely for its own Internal Business Purposes. “Internal Business Purposes” means the usage of the Services, including the Application Programs, exclusively by Client for its own internal business purposes and will not otherwise share or distribute any element of the Services. “Application Programs” means the computer software programs and related documentation, including any updates, modifications or enhancements thereto, that are either delivered or made accessible to Client through a hosted environment by TotalSource in connection with the Services. Client acknowledges and agrees that TotalSource’s Services are not intended to be and will not be relied upon by Client as either legal, financial, insurance or tax advice. TotalSource is not, and will not be, Client’s record keeper. Accordingly Client will maintain such records as Client is otherwise required to maintain in the ordinary course of business. TotalSource shall not be responsible for providing Services as it relates to Client’s guests, invitees, independent contractors or other third parties and shall not be liable for the acts or omissions of Client’s guests, invitees, independent contractors or other third par ties. Unless otherwise agreed to, Client agrees that the Services will be utilized by Client solely in the United States. Client understands and agrees that only Users are permitted to access and use Application Programs (and that access by Unauthorized Third Parties is not permitted) and will reasonably cooperate with TotalSource to limit access to such persons. "User” means any single natural person who, subject to the terms of th is Agreement, is a Worksite Employee of Client, owner, or external administrator authorized by Client to use, access or receive the Services. E. Client Responsibility for Worksite Employees. Because Client has exclusive control over the day-to -day job duties of Worksite Employees, Client is responsible for the acts, errors, and omissions of Worksite Employees. TotalSource is not responsible for the acts, errors or omissions of Worksite Employees except when Worksite Employees are acting under the express direction and control of TotalSource. F. Compliance with Laws. Client and TotalSource shall each be solely responsible for their own compliance with all laws, government regulations and professional licensing affecting their business, products and services , including any applicable anti-bribery, export control, computer fraud and data protection laws. In connection with its obligations under the Agreement, each party shall comply with all anti-bribery laws and regulations applicable to it, and neither it nor anyone acting on its behalf shall pay, offer to pay, or give an ything of value to any person, entity, or association if the payment, offer, or gift influences, or has any reasonable likelihood of influencing, any act or decision that will assist TotalSource or Client in securing an improper advantage, or in improperly obtaining or retaining business, or in improperly directing business to any other person, entity, or association . TotalSource’s provision of Services does not relieve Client of its responsibility and obligations to comply with all federal, state and local laws, including employment and worksite safety laws. Client understands that it may now need to comply with laws that may apply as a result of the CPEO relationship (e.g., state leave laws). G. National Labor Relations Act. Client agrees to inform TotalSource before it executes a collective bargaining agreement. Client acknowledges that it is solely responsible for determining whether to: (i) operate as a union or non-union business; (ii) be involved with a union organizing campaign and/or election; (iii) negotiate a collective bargaining agreement; and (iv) process grievances and arbitrations under the National Labor Relations Act. Client acknowledges that if it has, or at any time enters into a collective bargaining agreement, Client and the applicable union(s) wi ll be required to enter into a Memorandum of Understanding with TotalSource explaining the nature of the CPEO relationship between TotalSource and Client. Client agrees th at TotalSource will have no responsibility for paying any contributions to any multiemployer pension and/or welfare plan and will not become a paying entity or contributing employer within the meaning of the Multiemployer Pension Plan Amendment Act and has no withdrawal liability. Client further acknowledges that TotalSource is not a collective bargaining employer with respect to Worksite Employees. TotalSource does not provide guidance with respect to the National Labor Relations Act. H. Immigration; Employment Eligibility; International Employees; Overseas Travel. i. TotalSource will not be a sponsoring employer for purposes of petitioning or applying for immigration visas for Worksite Employees. ii. Client is solely responsible for verification and re-verification of employment eligibility and compliance under applicable law, including any other legally required employment eligibility verification system and corrections or updates to any required forms such as the I-9. iii. Client is solely responsible for determining whether any international travel of a Worksite Employee will require the issuance of a travel visa, work visa and/or work permit by a foreign government or agency. iv. Payroll Services do not include processing and/or remitting to a foreign or US territory government any payroll and/or employment-related taxes or tax reports that Client and/or individual Worksite Employee has (or may) become subject to as a result of the Worksite Employee’s international travel or assignment to perform work for Client in a foreign country or any US territory. v. TotalSource does not provide guidance on any international laws or the laws of any US territory, including employment or tax laws. vi. Worksite Employees shall not be permitted to travel to any foreign country that is actively on the United States Department of State travel warning list. vii. Employees of Client assigned to work in or travel to foreign countries or any US territory for periods greater than six (6) month s, in the aggregate, in any given calendar year will not be covered by this Agreement and will not be considered Worksite Employees. Client shall not assign Worksite Employees to work in or travel to foreign countries or any US territory for periods greater than six (6) months, in the aggregate, in any given calendar year. I. Worker Adjustment and Retraining Act. Client has sole control over any decisions regarding plant closings, mass layoffs, or other events covered by the Worker Adjustment and Retraining Act (“WARN”) and similar state laws at any Worksite. Client shall be solely responsible for any notice required to comply with WARN and similar state laws. The termination of this Agreement shall not constitute an event requiring notification under WARN or similar state laws where Client continues to operate its business. Notwithstanding the foregoing, Client agrees to provide TotalSource at least ninety (90) days advance notice of a plant closing, mass layoff or other event covered by the WARN Act or similar state laws or as soon as practicable where Client does not have ninety (90) days notice. J. Additional Services Requested by Client. TotalSource may provide Client with access to additional services upon mutual agreement and by completion of an additional agreement or work order form, if applicable (“Additional Services Document”). Each Additional Services Document is incorporated into this Agreement by this reference as if set forth in this Agreement. To the extent there is any conflict between an Additional Service Document and this Agreement, the Additional Services Document will control with respect to the additional services in the Additional Services Document. K. ADP Marketplace. TotalSource may provide Client with access to the ADP Marketplace. Client acknowledges that any application or service purchased by Client through the ADP Marketplace is provided by a third party and not TotalSource (whether or not such third party is an affiliate of TotalSource) and TotalSource makes no endorsements, representations or warranties (including any representations or warranties regarding compliance with laws) regarding such application or service. Client will enter into a relationship directly with the third party provider of such CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 6 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM 1. GENERAL TERMS GOVERNING THE PROVISION OF SERVICES. A. Accuracy of Client Information. Client represents that the information provided to TotalSource prior to executing this Agreement was and continues to be accurate and complete as of the Effective Date. Client is solely responsible for any demand or claim that existed, accrued or relates to facts and circumstances which occurred before the Effective Date. Client acknowledges that such responsibility includes payment of attorney’s fees, investigation costs, damages or similar charges, costs or expenses and that the Legal Defense Benefit is not available for such demand or claim. Client is responsible for providing TotalSource with complete, accurate, and timely information necessary for TotalSource to provide Services and fulfill its responsibilities. Client will promptly notify TotalSource at any time it discovers any inaccuracies or discrepancies. B. Accuracy of Payroll; Submission of Payroll; Wage and Hour Laws. Client will provide TotalSource with complete and accurate information regarding hours worked, all legally required data elements for earning statements, job classifications, exemption status under the Fair Labor Standards Act (“FLSA”) and similar state and local laws (collectively, with all regulations, rules, and judicial, regulatory and administrative orders, findings, guidance and other interpretations thereunder, “Wage and Hour Laws”), and other payroll information needed for TotalSource to accurately pay Worksite Employees and as is otherwise necessary for TotalSource to satisfy its obligations in connection with this Agreement (“Payroll Information”). In order for TotalSource to process payroll for the Worksite Employees on the designated pay date, Client must submit the Payroll I nformation to TotalSource using the TotalSource Payroll Processing Platform no later than three (3) business days before each pay date. Client agrees to comp ly with, and acknowledges that it is solely responsible for compliance with, Wage and Hour Laws (including the application of any exemptions from these requirements) applicable to Worksite Employees, including, without limitation, minimum wage, overtime, meal and rest periods, recordkeeping, paid sick leave (including any requirements to provide employees with sick leave balance information if not including this information on an earning statement), notice requirements, wage deductions (including authorization requirements) and the application of credits / allowances for board, lodging or other facilities against minimum wage and overtime pay requirements. C. Bonuses, Commissions, Vacation, Holiday, Sick, Severance Pay Agreements. Any responsibility and/or liability with regard to agreements for bonuses, commissions, vacation, holiday, sick pay or simil ar time off accruals, and severance pay (“Nonstandard Wages”) shall remain the sole responsibility of Client. The fact that TotalSource may process Nonstandar d Wages as a part of its Payroll Services, does not evidence any agreement or assumption by TotalS ource of responsibility or liability for payment of Nonstandard Wages to Worksite Employees. Client must notify TotalSource of any Nonstandard Wages that must be paid out at termination for a Worksite Employee. D. Use of Services. Client will use the Services solely for its own Internal Business Purposes. “Internal Business Purposes” means the usage of the Services, including the Application Programs, exclusively by Client for its own internal business purposes and will not otherwise share or distribute any element of the Services. “Application Programs” means the computer software programs and related documentation, including any updates, modifications or enhancements thereto, that are either delivered or made accessible to Client through a hosted environment by TotalSource in connection with the Services. Client acknowledges and agrees that TotalSource’s Services are not intended to be and will not be relied upon by Client as either legal, financial, insurance or tax advice. TotalSource is not, and will not be, Client’s record keeper. Accordingly Client will maintain such records as Client is otherwise required to maintain in the ordinary course of business. TotalSource shall not be responsible for providing Services as it relates to Client’s guests, invitees, independent contractors or other third parties and shall not be liable for the acts or omissions of Client’s guests, invitees, independent contractors or other third par ties. Unless otherwise agreed to, Client agrees that the Services will be utilized by Client solely in the United States. Client understands and agrees that only Users are permitted to access and use Application Programs (and that access by Unauthorized Third Parties is not permitted) and will reasonably cooperate with TotalSource to limit access to such persons. "User” means any single natural person who, subject to the terms of th is Agreement, is a Worksite Employee of Client, owner, or external administrator authorized by Client to use, access or receive the Services. E. Client Responsibility for Worksite Employees. Because Client has exclusive control over the day-to -day job duties of Worksite Employees, Client is responsible for the acts, errors, and omissions of Worksite Employees. TotalSource is not responsible for the acts, errors or omissions of Worksite Employees except when Worksite Employees are acting under the express direction and control of TotalSource. F. Compliance with Laws. Client and TotalSource shall each be solely responsible for their own compliance with all laws, government regulations and professional licensing affecting their business, products and services , including any applicable anti-bribery, export control, computer fraud and data protection laws. In connection with its obligations under the Agreement, each party shall comply with all anti-bribery laws and regulations applicable to it, and neither it nor anyone acting on its behalf shall pay, offer to pay, or give an ything of value to any person, entity, or association if the payment, offer, or gift influences, or has any reasonable likelihood of influencing, any act or decision that will assist TotalSource or Client in securing an improper advantage, or in improperly obtaining or retaining business, or in improperly directing business to any other person, entity, or association . TotalSource’s provision of Services does not relieve Client of its responsibility and obligations to comply with all federal, state and local laws, including employment and worksite safety laws. Client understands that it may now need to comply with laws that may apply as a result of the CPEO relationship (e.g., state leave laws). G. National Labor Relations Act. Client agrees to inform TotalSource before it executes a collective bargaining agreement. Client acknowledges that it is solely responsible for determining whether to: (i) operate as a union or non-union business; (ii) be involved with a union organizing campaign and/or election; (iii) negotiate a collective bargaining agreement; and (iv) process grievances and arbitrations under the National Labor Relations Act. Client acknowledges that if it has, or at any time enters into a collective bargaining agreement, Client and the applicable union(s) wi ll be required to enter into a Memorandum of Understanding with TotalSource explaining the nature of the CPEO relationship between TotalSource and Client. Client agrees th at TotalSource will have no responsibility for paying any contributions to any multiemployer pension and/or welfare plan and will not become a paying entity or contributing employer within the meaning of the Multiemployer Pension Plan Amendment Act and has no withdrawal liability. Client further acknowledges that TotalSource is not a collective bargaining employer with respect to Worksite Employees. TotalSource does not provide guidance with respect to the National Labor Relations Act. H. Immigration; Employment Eligibility; International Employees; Overseas Travel. i. TotalSource will not be a sponsoring employer for purposes of petitioning or applying for immigration visas for Worksite Employees. ii. Client is solely responsible for verification and re-verification of employment eligibility and compliance under applicable law, including any other legally required employment eligibility verification system and corrections or updates to any required forms such as the I-9. iii. Client is solely responsible for determining whether any international travel of a Worksite Employee will require the issuance of a travel visa, work visa and/or work permit by a foreign government or agency. iv. Payroll Services do not include processing and/or remitting to a foreign or US territory government any payroll and/or employment-related taxes or tax reports that Client and/or individual Worksite Employee has (or may) become subject to as a result of the Worksite Employee’s international travel or assignment to perform work for Client in a foreign country or any US territory. v. TotalSource does not provide guidance on any international laws or the laws of any US territory, including employment or tax laws. vi. Worksite Employees shall not be permitted to travel to any foreign country that is actively on the United States Department of State travel warning list. vii. Employees of Client assigned to work in or travel to foreign countries or any US territory for periods greater than six (6) month s, in the aggregate, in any given calendar year will not be covered by this Agreement and will not be considered Worksite Employees. Client shall not assign Worksite Employees to work in or travel to foreign countries or any US territory for periods greater than six (6) months, in the aggregate, in any given calendar year. I. Worker Adjustment and Retraining Act. Client has sole control over any decisions regarding plant closings, mass layoffs, or other events covered by the Worker Adjustment and Retraining Act (“WARN”) and similar state laws at any Worksite. Client shall be solely responsible for any notice required to comply with WARN and similar state laws. The termination of this Agreement shall not constitute an event requiring notification under WARN or similar state laws where Client continues to operate its business. Notwithstanding the foregoing, Client agrees to provide TotalSource at least ninety (90) days advance notice of a plant closing, mass layoff or other event covered by the WARN Act or similar state laws or as soon as practicable where Client does not have ninety (90) days notice. J. Additional Services Requested by Client. TotalSource may provide Client with access to additional services upon mutual agreement and by completion of an additional agreement or work order form, if applicable (“Additional Services Document”). Each Additional Services Document is incorporated into this Agreement by this reference as if set forth in this Agreement. To the extent there is any conflict between an Additional Service Document and this Agreement, the Additional Services Document will control with respect to the additional services in the Additional Services Document. K. ADP Marketplace. TotalSource may provide Client with access to the ADP Marketplace. Client acknowledges that any application or service purchased by Client through the ADP Marketplace is provided by a third party and not TotalSource (whether or not such third party is an affiliate of TotalSource) and TotalSource makes no endorsements, representations or warranties (including any representations or warranties regarding compliance with laws) regarding such application or service. Client will enter into a relationship directly with the third party provider of such CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 6 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 application or service. Any application or service purchased through the ADP Marketplace will be governed exclusively by the terms and conditions agreed t o by Client and the third party provider and not by this Agreement (whether or not such third party is an affiliate of TotalSource). TotalSource will not provide any advice, service or support with respect to any application or service purchased on the AD P Marketplace. Client agrees to indemnify, protect, defend, release and hold harmless TotalSource, its parents, subsidiaries, affiliates, directors, officers, benefit plans and agents from and against any and all liability, expenses, losses and claims for damages arising from or in connection with Client’s purchase or use of any application or service provided through the ADP Marketplace. The Legal Defense Benefit will not be available for any claim arising from or related to Client’s purchase or use of any application or service provided through the ADP Marketplace. L. Seasonal Business Operations. If Client’s business operation is seasonal in nature, Client agrees to notify TotalSource in writing at least thirty (30) days prior to shut down or cessation of operations of Client’s business, the date Client’s business will resume operations and the date Worksite Employ ees will resume work (“Business Shutdown”). During the Business Shutdown, TotalSource shall provide no Services to Client, including workers’ compensation insurance coverage. M. Worksite Safety. Client is solely responsible for: (i) compliance with the Occupational Safety and Health Act and similar state laws (including, the responsibility to report injuries to OSHA or a state agency equivalent), the Worksite and safety of Worksite Employees, regardless of where Worksite Employees are assigned to work; (ii) making any Worksite accommodations required under the Americans with Disabilities Act (“ADA”); (iii) complying with Title III of the ADA (public access to facilities); and (iv) providing and ensuring the use of safety equipment required by law or by TotalSource’s workers’ compensation carrier. Client will rectify any unsafe working condition or violation of any safety law of which it is a ware, including any loss control recommendations made by TotalSource. Client understands that because TotalSource does not control the Worksite or the day-to- day job duties of Worksite Employees, TotalSource has no ability to abate any unsafe condition or violation of any safety law at a Worksite. Client will report to TotalSource any: (i)Worksite safety violations; (ii) work-related injuries or accidents; (iii) change in job functions and duties that affect workers’ compensation classification; (iv) workers’ compensation misclassification; (v) change in Worksite safety exposure; and (vi) change in the states in which Client has Worksites and in which Worksite Employees will work. Client is solely responsible for Worksite safety of Client’s invitees, guests, independent contractors and other third parties. Client will allow TotalSource’s workers’ compensation carrier access to audit Client’s Worksites upon reasonable prior notice and during regular business hours. N. Assignment of Worksite Employees. Client will not assign any Worksite Employee to work as an employee for any other company, even if such company is within the same control group of Client, without the knowledge and consent of TotalSource. 2. FEES, TAXES & PAYMENTS. A. Fees & Costs. Client shall pay TotalSource the amounts indicated on the Pricing Addendum, Client Benefit Election Form (“CBE”) and related employee benefits invoices, and any Additional Services Document. Except as stated in this Section 2, TotalSource will not change the fees and costs invoiced to and payable by Client during the Initial Term, including the rates used to determine t he Service Fee (as such term is described in the Pricing Addendum). Following the Initial Term, TotalSource may adjust the fees and costs invoiced to and payable by Client (including, without limitation, the rates used to determine the Service Fee) upon thirty (30) days prior written notice. TotalSource reserves the right to adjust the rates used to determine the Service Fee at any time, including during the Initial Term, under the following scenarios: (i) there is a change or an assessment related to federal, state and local taxes; (ii) Client hires individuals who should be classified in workers’ compensation codes different from Client’s cu rrent workers’ compensation codes; (iii) the information Client provided TotalSource before executing this Agreement (e.g., gross payroll, workers’ compensation classification codes) changed from the time TotalSource gave Client a quote; or (iv) a Worksite Employee is misclassified for workers’ compensation coverage purposes by either TotalSource or Client, or TotalSource’s workers’ compensation carrier requests a classification code change, provided that (a) unless the misclassification was caused by gross negligence or willful misconduct, TotalSource will adjust the Service Fee o n a prospective basis only, (b) if the misclassification is due to the gross negligence or willful misconduct of TotalSource, and the misclassification resulted in Client paying more to TotalSource than would have been due absent such misclassification , TotalSource will adjust the Service Fee in accordance with the appropriate classification code(s) retroactive to the later of the beginning of the policy year or the Effective Date of this Agreement, and (c) if the misclassification is due to the gross negligence or willful misconduct of Client, and the misclassification resulted in Client paying less to TotalSource than would have been due absent such misclassification, TotalSource will adjust the Service Fee in accordance with the appropriate classification code(s) retroactive to the later of the beginning of the policy year or the Effective Date of this Agreement and will invoice Client accordingly. The pricing set forth in the CBE will adjust with the applicable benefit plan or insurance policy renewal or anniversary date. TotalSource shall retain any Section 125 tax savings as part of its fee to offset operating costs. B. Payment Terms. Client agrees to pay TotalSource no later than forty-eight (48) hours prior to Client’s regularly scheduled payroll date. Client agrees to pay by Automatic Clearing House (“ACH”) debit transfer and agrees to complete the necessary forms so payment can be processed. Client agrees to have sufficien t funds in its designated bank account to satisfy any amounts then due to To talSource. TotalSource, in its sole discretion, may require Client to pay any invoice through pre-wire transfer funds, certified or cashier’s check, or other means. Without limiting the foregoing, should Client’s payroll exceed one and one half times Client’s immediate prior payroll, TotalSource may require Client to pay the invoice through pre-wire transfer funds. Without limiting the foregoing, upon termination of this Agreement, TotalSource will require Client to pay its final payroll by pre-wire transfer funds. If Client fails to pay any amount due, after written notice, Client shall pay interest at the rate of 1.5% per month (or the maximum allowed by law if less) on such past d ue amount from the due date thereof until the payment date. Client shall reimburse TotalSource for any expenses incurred, including interest and reasonable attorneys’ fees in collecting amounts due. Further, Client agrees to reimburse TotalSource any interest or penalty charges imposed by a taxing authority assessed to TotalSource attributable to untimely, inaccurate, or incomplete Payroll Information provided by Client. Client agrees that if it fails to pay an invoice when due, TotalSource has the discretion to cease any or all Services and TotalSource may pay Client’s owners and/or officers the FLSA or state minimum wage or salary instead of the regular wage or salary. C. Taxes. In addition to employment and payroll-related taxes, all invoices will include sales taxes levied or based on the Services provided pursuant to this Agreement. Client shall be responsible for the payment and administration of any federal, state and local business-related taxes including any sales or service tax that Client may be required to collect and remit. D. Cessation of Business; Receivership; Bankruptcy of Client. i. Client agrees to give TotalSource fourteen (14) days notice of its intent to make an assignment for the benefit of creditors, file for relief under Chapter 11 of the U.S. Bankruptcy Code, seek the appointment of a receiver or cease to operate its business. Client recognizes that a critical protection granted to TotalSource is its ability to terminate this Agreement without prior notice to Client in the event of Client’s breach, as more fully set forth in Section 15, without which protection TotalSource may require additional security by Client to ensure Client’s performance. ii. Client agrees that once it files a voluntary petition under Chapter 11 of the United States Bankruptcy Code or an involuntary petition is filed against it, it will: (i) immediately notify TotalSource of such filing; (ii) immediately seek to obtain permission from the Bankruptcy Court to pay any amounts owed on account of prepetition and post petition wages owed to the Worksite Employees and to TotalSource, including TotalSource’s Service Fee; and (iii) provide TotalSource with adequate protection of performance by Client un der this Agreement. In connection with any bankruptcy, TotalSource may, at its sole discretion, require the funding of payroll by the Client in advance by pre-wire transfer funds, the posting with TotalSource of a deposit or letter of credit, or other method as determined by TotalSource sufficient to cover any loss that TotalSource may sustain as a result of Client's failure to meet its payment obligations under the Agreement. Client agrees to execute any document requested by TotalSource in order to effectuate TotalSource’s request under this paragraph D of this Section 2. 3. INSURANCE. A. Client Insurance Requirements. Client shall maintain the following insurance: (i) Commercial general liability insurance coverage for all premises, completed operations, and products which relate to Worksite Employees, including blanket contractual liability coverage or contractual liability coverage specifically covering this Agreement; (ii) Comprehensive automobile liability insurance (including any personal injury protection required by any applicable state’s “no-fault” laws) covering bodily injury and property damage resulting from a Worksite Employee’s use of Client-owned, non-owned, or hired vehicle; (iii) Any specialized liability insurance pertaining to the nature of Client’s business (e.g., marine liability insurance) as is customary for Client’s industry or as required by law; (iv) Employee dishonesty (fidelity) and computer crime coverage (for losses arising out of or in connection with any fraudulent or dish onest acts committed by Worksite Employees, acting alone or in collusion with others) and (v) workers’ compensation coverage for any Non-Worksite Employee or Client shall require any Non-Worksite Employee, its independent contractors, and subcontractors to maintain workers’ compensation insurance coverage and will keep certificates of insurance documenting such coverage and provide evidence of such coverage to TotalSource upon request. Client agrees that it will obtain the above insurance policies with a m inimum limit of $500,000 per occurrence (or such other amounts as TotalSource reasonably requires), which names TotalSource as an additional insured on such policies, and gives TotalSource thirty (30) days written notice before cancellation of any such policies. All CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 7 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM application or service. Any application or service purchased through the ADP Marketplace will be governed exclusively by the terms and conditions agreed t o by Client and the third party provider and not by this Agreement (whether or not such third party is an affiliate of TotalSource). TotalSource will not provide any advice, service or support with respect to any application or service purchased on the AD P Marketplace. Client agrees to indemnify, protect, defend, release and hold harmless TotalSource, its parents, subsidiaries, affiliates, directors, officers, benefit plans and agents from and against any and all liability, expenses, losses and claims for damages arising from or in connection with Client’s purchase or use of any application or service provided through the ADP Marketplace. The Legal Defense Benefit will not be available for any claim arising from or related to Client’s purchase or use of any application or service provided through the ADP Marketplace. L. Seasonal Business Operations. If Client’s business operation is seasonal in nature, Client agrees to notify TotalSource in writing at least thirty (30) days prior to shut down or cessation of operations of Client’s business, the date Client’s business will resume operations and the date Worksite Employ ees will resume work (“Business Shutdown”). During the Business Shutdown, TotalSource shall provide no Services to Client, including workers’ compensation insurance coverage. M. Worksite Safety. Client is solely responsible for: (i) compliance with the Occupational Safety and Health Act and similar state laws (including, the responsibility to report injuries to OSHA or a state agency equivalent), the Worksite and safety of Worksite Employees, regardless of where Worksite Employees are assigned to work; (ii) making any Worksite accommodations required under the Americans with Disabilities Act (“ADA”); (iii) complying with Title III of the ADA (public access to facilities); and (iv) providing and ensuring the use of safety equipment required by law or by TotalSource’s workers’ compensation carrier. Client will rectify any unsafe working condition or violation of any safety law of which it is a ware, including any loss control recommendations made by TotalSource. Client understands that because TotalSource does not control the Worksite or the day-to- day job duties of Worksite Employees, TotalSource has no ability to abate any unsafe condition or violation of any safety law at a Worksite. Client will report to TotalSource any: (i)Worksite safety violations; (ii) work-related injuries or accidents; (iii) change in job functions and duties that affect workers’ compensation classification; (iv) workers’ compensation misclassification; (v) change in Worksite safety exposure; and (vi) change in the states in which Client has Worksites and in which Worksite Employees will work. Client is solely responsible for Worksite safety of Client’s invitees, guests, independent contractors and other third parties. Client will allow TotalSource’s workers’ compensation carrier access to audit Client’s Worksites upon reasonable prior notice and during regular business hours. N. Assignment of Worksite Employees. Client will not assign any Worksite Employee to work as an employee for any other company, even if such company is within the same control group of Client, without the knowledge and consent of TotalSource. 2. FEES, TAXES & PAYMENTS. A. Fees & Costs. Client shall pay TotalSource the amounts indicated on the Pricing Addendum, Client Benefit Election Form (“CBE”) and related employee benefits invoices, and any Additional Services Document. Except as stated in this Section 2, TotalSource will not change the fees and costs invoiced to and payable by Client during the Initial Term, including the rates used to determine t he Service Fee (as such term is described in the Pricing Addendum). Following the Initial Term, TotalSource may adjust the fees and costs invoiced to and payable by Client (including, without limitation, the rates used to determine the Service Fee) upon thirty (30) days prior written notice. TotalSource reserves the right to adjust the rates used to determine the Service Fee at any time, including during the Initial Term, under the following scenarios: (i) there is a change or an assessment related to federal, state and local taxes; (ii) Client hires individuals who should be classified in workers’ compensation codes different from Client’s cu rrent workers’ compensation codes; (iii) the information Client provided TotalSource before executing this Agreement (e.g., gross payroll, workers’ compensation classification codes) changed from the time TotalSource gave Client a quote; or (iv) a Worksite Employee is misclassified for workers’ compensation coverage purposes by either TotalSource or Client, or TotalSource’s workers’ compensation carrier requests a classification code change, provided that (a) unless the misclassification was caused by gross negligence or willful misconduct, TotalSource will adjust the Service Fee o n a prospective basis only, (b) if the misclassification is due to the gross negligence or willful misconduct of TotalSource, and the misclassification resulted in Client paying more to TotalSource than would have been due absent such misclassification , TotalSource will adjust the Service Fee in accordance with the appropriate classification code(s) retroactive to the later of the beginning of the policy year or the Effective Date of this Agreement, and (c) if the misclassification is due to the gross negligence or willful misconduct of Client, and the misclassification resulted in Client paying less to TotalSource than would have been due absent such misclassification, TotalSource will adjust the Service Fee in accordance with the appropriate classification code(s) retroactive to the later of the beginning of the policy year or the Effective Date of this Agreement and will invoice Client accordingly. The pricing set forth in the CBE will adjust with the applicable benefit plan or insurance policy renewal or anniversary date. TotalSource shall retain any Section 125 tax savings as part of its fee to offset operating costs. B. Payment Terms. Client agrees to pay TotalSource no later than forty-eight (48) hours prior to Client’s regularly scheduled payroll date. Client agrees to pay by Automatic Clearing House (“ACH”) debit transfer and agrees to complete the necessary forms so payment can be processed. Client agrees to have sufficien t funds in its designated bank account to satisfy any amounts then due to To talSource. TotalSource, in its sole discretion, may require Client to pay any invoice through pre-wire transfer funds, certified or cashier’s check, or other means. Without limiting the foregoing, should Client’s payroll exceed one and one half times Client’s immediate prior payroll, TotalSource may require Client to pay the invoice through pre-wire transfer funds. Without limiting the foregoing, upon termination of this Agreement, TotalSource will require Client to pay its final payroll by pre-wire transfer funds. If Client fails to pay any amount due, after written notice, Client shall pay interest at the rate of 1.5% per month (or the maximum allowed by law if less) on such past d ue amount from the due date thereof until the payment date. Client shall reimburse TotalSource for any expenses incurred, including interest and reasonable attorneys’ fees in collecting amounts due. Further, Client agrees to reimburse TotalSource any interest or penalty charges imposed by a taxing authority assessed to TotalSource attributable to untimely, inaccurate, or incomplete Payroll Information provided by Client. Client agrees that if it fails to pay an invoice when due, TotalSource has the discretion to cease any or all Services and TotalSource may pay Client’s owners and/or officers the FLSA or state minimum wage or salary instead of the regular wage or salary. C. Taxes. In addition to employment and payroll-related taxes, all invoices will include sales taxes levied or based on the Services provided pursuant to this Agreement. Client shall be responsible for the payment and administration of any federal, state and local business-related taxes including any sales or service tax that Client may be required to collect and remit. D. Cessation of Business; Receivership; Bankruptcy of Client. i. Client agrees to give TotalSource fourteen (14) days notice of its intent to make an assignment for the benefit of creditors, file for relief under Chapter 11 of the U.S. Bankruptcy Code, seek the appointment of a receiver or cease to operate its business. Client recognizes that a critical protection granted to TotalSource is its ability to terminate this Agreement without prior notice to Client in the event of Client’s breach, as more fully set forth in Section 15, without which protection TotalSource may require additional security by Client to ensure Client’s performance. ii. Client agrees that once it files a voluntary petition under Chapter 11 of the United States Bankruptcy Code or an involuntary petition is filed against it, it will: (i) immediately notify TotalSource of such filing; (ii) immediately seek to obtain permission from the Bankruptcy Court to pay any amounts owed on account of prepetition and post petition wages owed to the Worksite Employees and to TotalSource, including TotalSource’s Service Fee; and (iii) provide TotalSource with adequate protection of performance by Client un der this Agreement. In connection with any bankruptcy, TotalSource may, at its sole discretion, require the funding of payroll by the Client in advance by pre-wire transfer funds, the posting with TotalSource of a deposit or letter of credit, or other method as determined by TotalSource sufficient to cover any loss that TotalSource may sustain as a result of Client's failure to meet its payment obligations under the Agreement. Client agrees to execute any document requested by TotalSource in order to effectuate TotalSource’s request under this paragraph D of this Section 2. 3. INSURANCE. A. Client Insurance Requirements. Client shall maintain the following insurance: (i) Commercial general liability insurance coverage for all premises, completed operations, and products which relate to Worksite Employees, including blanket contractual liability coverage or contractual liability coverage specifically covering this Agreement; (ii) Comprehensive automobile liability insurance (including any personal injury protection required by any applicable state’s “no-fault” laws) covering bodily injury and property damage resulting from a Worksite Employee’s use of Client-owned, non-owned, or hired vehicle; (iii) Any specialized liability insurance pertaining to the nature of Client’s business (e.g., marine liability insurance) as is customary for Client’s industry or as required by law; (iv) Employee dishonesty (fidelity) and computer crime coverage (for losses arising out of or in connection with any fraudulent or dish onest acts committed by Worksite Employees, acting alone or in collusion with others) and (v) workers’ compensation coverage for any Non-Worksite Employee or Client shall require any Non-Worksite Employee, its independent contractors, and subcontractors to maintain workers’ compensation insurance coverage and will keep certificates of insurance documenting such coverage and provide evidence of such coverage to TotalSource upon request. Client agrees that it will obtain the above insurance policies with a m inimum limit of $500,000 per occurrence (or such other amounts as TotalSource reasonably requires), which names TotalSource as an additional insured on such policies, and gives TotalSource thirty (30) days written notice before cancellation of any such policies. All CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 7 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 such insurance coverage will be primary in the event of an occurrence for which both Client and TotalSource have insurance coverage, and any TotalSource insurance will be excess and non-contributory. Client agrees to give TotalSource a certificate of insurance indicating the above coverages when TotalSource reasonably requests. Client also agrees that it will promptly notify TotalSource in writing in the event any of its insurers materially modify the terms of any insurance discussed herein. B. Employment Practices Liability Insurance. Client acknowledges that the insurance carrier may deny coverage if Client fails to satisfy the deductible (retention) or comply with the terms of the EPLI policy. 4. RETIREMENT AND INCENTIVE COMPENSATION PLANS. Client may sponsor and maintain its own qualified or nonqualified retirement plans and incentive compensation plans (including equity-based compensation plans), provided that Client complies with the provisions outlined in this Section 4. Client shall be considered the employer, for purposes of this Section 4, of any Worksite Employee who is a participant or beneficial recipient of any Client sponsored plan. A. Section 401(k) Plan. If Client sponsors its own Section 401(k) plan (“Client’s 401(k) Plan”), Client will be solely responsible for ensuring that the Worksite Employees do not exceed the annual Internal Revenue Code Section 402(g) elective deferral limit (“Elective Deferral Limit”) if Client’s 401(k) Plan includes a Roth feature. Client will also be solely responsible for aggregating each Worksite Employee’s pre-tax Section 401(k) plan deferrals with any Roth post-tax contributions made for purposes of determining whether the Elective Deferral Limit has been exceeded. Client agrees to notify TotalSource when a Worksite Employee has reached the Elective Deferral Limit. Client is solely responsible for calculating any contributions that may be permitted under Client’s 401(k) Plan. B. Equity-Based Compensation. Client retains the exclusive right to grant stock or stock options or other equity-based compensation to Worksite Employees, to sponsor stock purchase plans and to determine the economic value of the la bor performed. TotalSource shall process related plan payments or contributions upon written request; however, Client is solely responsible and liable for such plan payments and contributions. Client is also solely responsible for determining the appropriate tax treatment of such payments and contributions and disclosing same to TotalSource. Client has the exclusive right to determine the economic value of the services performed by Worksite Employees (including wages and the number of units and value of stock compensation or other equity-based compensation granted). Consistent with the provisions of Part 1, Section I. B. of this Agreement, Client shall have a right to hire, terminate and control the activities of Worksite Employees. It is the intent of the par ties that the above provisions shall be applied consistent with FASB Accounting Standards Codification (ASC) 718 – Compensation – Stock Compensation (“FASB ASC 718”) such that any Worksite Employee who receives stock compensation or other equity-based compensation from Client shall be deemed an employee of Client under FASB ASC 718; provided that TotalSource shall have no liability or obligation with respect to any financial statement or o ther disclosures related thereto. 5. SCREENING AND SELECTION SERVICES. A. Screening Services. The following additional terms and conditions apply to the Screening Services: i. General. SASS is neither acting as an agent of Clien t nor making hiring decisions for or on behalf of Client. All consumer inquiries as to decisions based on Screening Reports are to be addressed by Client. ii. Screening Credentialing. Client will be granted access to certain of the Screening Services only after Client passing credentialing. Additional credentialing may be required from time to time, including, but not limited to, for access to credit reports and motor vehicle records, as applicable. iii. Screening Reports. Client is solely responsible for ensuring its own compliance with applicable laws and regulations in requesting, using, and maintaining Screening Reports, and for maintaining Screening Reports sufficient to comply with Client’s document retention policies. Client will have access to the Screening Reports through SASS’s online ordering system for at least one year from the applicable order date. ADP will not deliver copies of Screening Reports to Client once such Reports are no longer available within the Screening Services background screening site or after termination of this Agreement, except as required by law. ADP will follow reasonable quality assurance procedures with respect to preparin g Screening Reports. However, because the information contained in Screening Reports is obtained from third party sources, including, without limitation, and by way of example only, former employers, courts, and motor vehicle departments, SASS is not responsible for any errors or omissions in such third -party information. iv. Client understands and agrees that it shall do the following: a) Review the Notice to Users of Consumer Reports: Obligations of Users under FCRA (“Notice to Users”), available at www.adpselect.com\lgldocs\FCRANotices.pdf, and perform the legal obligations set forth in the Notice to Users. b) Request, use, and maintain Screening Reports in a manner consistent with applicable laws and regulations, as well as Client’s own hiring and document retention policies. c) Use the information provided by SASS for one-time use, solely for Employment Purposes (the “Permissible Purpose”) in accordance with applicable laws and regulations. d) Before requesting any Screening Report from SASS, make a clear and conspicuous disclosure to the individual who is the subject of the Screening Report (the “Consumer”) that a Screening Report may be obtained for the Permissible Purpose, making such disclosure in writing and in a document consisting solely of the disclosure. e) If a Screening Report constitutes an “investigative consumer report,” as defined by the FCRA, make a clear and accurate disclosure to the Consumer, as required by 15 U.S.C. § 1681d(a)(1), including , without limitation, a copy of the CFPB Summary of Your Rights Under FCRA, as applicable. “CFPB Summary of Your Rights Under FCRA” means the document prepared pursuant to 15 U.S.C. §1681g titled “A Summary of Your Rights Under the Fair Credit Reporting Act”, a copy of which as of the Effective Date is available at the following URL: https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit- reporting-act.pdf . Further, upon written request by the Consumer within a reasonable period of time after such Consumer’s receipt of the disclosure required by 15 U.S.C. § 1681d(a)(1), timely make a complete and accurate written disclosure to such Consumer of the nature and scope of any investigation requested. f) Obtain written authorization from the Consumer for each Screening Report prior to requesting any Screening Report and retain such written authorization. g) Ensure full compliance with the FCRA and all other applicable laws and regulations. h) If Client forms an intent to take an adverse action, based in whole or in part on any information contained in a Screening Report obtained from SASS, Client must provide (prior to taking the intended adverse action) proper additional notices to the Consumer, including, without limitation, a copy of the Screening Report obtained, a copy of the CFPB Summary of Your Rights Under FCRA, and any other documentation required by the FCRA or any other applicable law or regulation. After providing such additional pre-adverse action notice, Client shall provide the Consumer a reasonable opportunity to dispute information contained in a Screening Report prior to Client’s making a final adverse hiring decision or taking any other adverse action based on any information contained in a Screening Report. If Client then decides to take a final adverse action, based in whole or in part on any information contained in a Screening Report obtained from SASS, Client will provide such additional notices required under the FCRA and any other applicable law or regulation, which shall include, at a minimum: (1) the name, address and telephone number of SASS; (2) a statement that SASS did not make the adverse decision and is not able to explain why the decision was made; (3) a statement setting forth the Consumer’s right to obtain a free disclosure of the Screening Report from SASS if the Consumer makes the request within 60 days; and (4) a statement setting forth the Consumer’s right to dispute directly with SASS the accuracy or completeness of any information in the Screening Report. i) Take all measures to ensure that Screening Reports are requested, accessed, and/or viewed only by Client’s designated representatives, with the understanding that Client may disclose information within any Screening Report. j) Be responsible for the final verification of the Consumer’s identity and for the security and dissemination of the customer number provided to Client. k) Ensure that Client’s designated representative(s) do not attempt to obtain any Screening Report on themselves or on any other person, except in the exercise of their official duties. l) Not resell any Screening Report or any of the information contained in a Screening Report. v. Notice of Changes. Client agrees to notify SASS in writing within 10 days of any changes to Client’s company name, federal tax identification number, address, telephone number, contact person, sale or closure of business, merger, change in ownership of 50% or more of the stock or assets of Client, or a ny change in the nature of Client’s business that would in any way affect Client’s right to request and receive Screening Reports. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 8 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM such insurance coverage will be primary in the event of an occurrence for which both Client and TotalSource have insurance coverage, and any TotalSource insurance will be excess and non-contributory. Client agrees to give TotalSource a certificate of insurance indicating the above coverages when TotalSource reasonably requests. Client also agrees that it will promptly notify TotalSource in writing in the event any of its insurers materially modify the terms of any insurance discussed herein. B. Employment Practices Liability Insurance. Client acknowledges that the insurance carrier may deny coverage if Client fails to satisfy the deductible (retention) or comply with the terms of the EPLI policy. 4. RETIREMENT AND INCENTIVE COMPENSATION PLANS. Client may sponsor and maintain its own qualified or nonqualified retirement plans and incentive compensation plans (including equity-based compensation plans), provided that Client complies with the provisions outlined in this Section 4. Client shall be considered the employer, for purposes of this Section 4, of any Worksite Employee who is a participant or beneficial recipient of any Client sponsored plan. A. Section 401(k) Plan. If Client sponsors its own Section 401(k) plan (“Client’s 401(k) Plan”), Client will be solely responsible for ensuring that the Worksite Employees do not exceed the annual Internal Revenue Code Section 402(g) elective deferral limit (“Elective Deferral Limit”) if Client’s 401(k) Plan includes a Roth feature. Client will also be solely responsible for aggregating each Worksite Employee’s pre-tax Section 401(k) plan deferrals with any Roth post-tax contributions made for purposes of determining whether the Elective Deferral Limit has been exceeded. Client agrees to notify TotalSource when a Worksite Employee has reached the Elective Deferral Limit. Client is solely responsible for calculating any contributions that may be permitted under Client’s 401(k) Plan. B. Equity-Based Compensation. Client retains the exclusive right to grant stock or stock options or other equity-based compensation to Worksite Employees, to sponsor stock purchase plans and to determine the economic value of the la bor performed. TotalSource shall process related plan payments or contributions upon written request; however, Client is solely responsible and liable for such plan payments and contributions. Client is also solely responsible for determining the appropriate tax treatment of such payments and contributions and disclosing same to TotalSource. Client has the exclusive right to determine the economic value of the services performed by Worksite Employees (including wages and the number of units and value of stock compensation or other equity-based compensation granted). Consistent with the provisions of Part 1, Section I. B. of this Agreement, Client shall have a right to hire, terminate and control the activities of Worksite Employees. It is the intent of the par ties that the above provisions shall be applied consistent with FASB Accounting Standards Codification (ASC) 718 – Compensation – Stock Compensation (“FASB ASC 718”) such that any Worksite Employee who receives stock compensation or other equity-based compensation from Client shall be deemed an employee of Client under FASB ASC 718; provided that TotalSource shall have no liability or obligation with respect to any financial statement or o ther disclosures related thereto. 5. SCREENING AND SELECTION SERVICES. A. Screening Services. The following additional terms and conditions apply to the Screening Services: i. General. SASS is neither acting as an agent of Clien t nor making hiring decisions for or on behalf of Client. All consumer inquiries as to decisions based on Screening Reports are to be addressed by Client. ii. Screening Credentialing. Client will be granted access to certain of the Screening Services only after Client passing credentialing. Additional credentialing may be required from time to time, including, but not limited to, for access to credit reports and motor vehicle records, as applicable. iii. Screening Reports. Client is solely responsible for ensuring its own compliance with applicable laws and regulations in requesting, using, and maintaining Screening Reports, and for maintaining Screening Reports sufficient to comply with Client’s document retention policies. Client will have access to the Screening Reports through SASS’s online ordering system for at least one year from the applicable order date. ADP will not deliver copies of Screening Reports to Client once such Reports are no longer available within the Screening Services background screening site or after termination of this Agreement, except as required by law. ADP will follow reasonable quality assurance procedures with respect to preparin g Screening Reports. However, because the information contained in Screening Reports is obtained from third party sources, including, without limitation, and by way of example only, former employers, courts, and motor vehicle departments, SASS is not responsible for any errors or omissions in such third -party information. iv. Client understands and agrees that it shall do the following: a) Review the Notice to Users of Consumer Reports: Obligations of Users under FCRA (“Notice to Users”), available at www.adpselect.com\lgldocs\FCRANotices.pdf, and perform the legal obligations set forth in the Notice to Users. b) Request, use, and maintain Screening Reports in a manner consistent with applicable laws and regulations, as well as Client’s own hiring and document retention policies. c) Use the information provided by SASS for one-time use, solely for Employment Purposes (the “Permissible Purpose”) in accordance with applicable laws and regulations. d) Before requesting any Screening Report from SASS, make a clear and conspicuous disclosure to the individual who is the subject of the Screening Report (the “Consumer”) that a Screening Report may be obtained for the Permissible Purpose, making such disclosure in writing and in a document consisting solely of the disclosure. e) If a Screening Report constitutes an “investigative consumer report,” as defined by the FCRA, make a clear and accurate disclosure to the Consumer, as required by 15 U.S.C. § 1681d(a)(1), including , without limitation, a copy of the CFPB Summary of Your Rights Under FCRA, as applicable. “CFPB Summary of Your Rights Under FCRA” means the document prepared pursuant to 15 U.S.C. §1681g titled “A Summary of Your Rights Under the Fair Credit Reporting Act”, a copy of which as of the Effective Date is available at the following URL: https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit- reporting-act.pdf . Further, upon written request by the Consumer within a reasonable period of time after such Consumer’s receipt of the disclosure required by 15 U.S.C. § 1681d(a)(1), timely make a complete and accurate written disclosure to such Consumer of the nature and scope of any investigation requested. f) Obtain written authorization from the Consumer for each Screening Report prior to requesting any Screening Report and retain such written authorization. g) Ensure full compliance with the FCRA and all other applicable laws and regulations. h) If Client forms an intent to take an adverse action, based in whole or in part on any information contained in a Screening Report obtained from SASS, Client must provide (prior to taking the intended adverse action) proper additional notices to the Consumer, including, without limitation, a copy of the Screening Report obtained, a copy of the CFPB Summary of Your Rights Under FCRA, and any other documentation required by the FCRA or any other applicable law or regulation. After providing such additional pre-adverse action notice, Client shall provide the Consumer a reasonable opportunity to dispute information contained in a Screening Report prior to Client’s making a final adverse hiring decision or taking any other adverse action based on any information contained in a Screening Report. If Client then decides to take a final adverse action, based in whole or in part on any information contained in a Screening Report obtained from SASS, Client will provide such additional notices required under the FCRA and any other applicable law or regulation, which shall include, at a minimum: (1) the name, address and telephone number of SASS; (2) a statement that SASS did not make the adverse decision and is not able to explain why the decision was made; (3) a statement setting forth the Consumer’s right to obtain a free disclosure of the Screening Report from SASS if the Consumer makes the request within 60 days; and (4) a statement setting forth the Consumer’s right to dispute directly with SASS the accuracy or completeness of any information in the Screening Report. i) Take all measures to ensure that Screening Reports are requested, accessed, and/or viewed only by Client’s designated representatives, with the understanding that Client may disclose information within any Screening Report. j) Be responsible for the final verification of the Consumer’s identity and for the security and dissemination of the customer number provided to Client. k) Ensure that Client’s designated representative(s) do not attempt to obtain any Screening Report on themselves or on any other person, except in the exercise of their official duties. l) Not resell any Screening Report or any of the information contained in a Screening Report. v. Notice of Changes. Client agrees to notify SASS in writing within 10 days of any changes to Client’s company name, federal tax identification number, address, telephone number, contact person, sale or closure of business, merger, change in ownership of 50% or more of the stock or assets of Client, or a ny change in the nature of Client’s business that would in any way affect Client’s right to request and receive Screening Reports. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 8 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 vi. Client Certifications. Client certifies and covenants to each of the following certifications, obligations, and covenants and certifies to each of the following as of the time it orders the relevant Screening Report related to a Consumer in the United States: (i) Client certifies that it will use the Screening Reports and information contained therein only for the Permissible Purpose. Relatedly, Client certifies that it will not use the Screening Report or information therein for any other purpose; (ii) Client certifies that it has read the Notice to Users and that it has read and understands Client’s obligations under the FCRA, as well as the possible penalties for requesting Screening Reports under false pretenses or without a permissible purpose; (iii) Client agrees not to place an order for or otherwise request a Screening Report unless (1) it has provided to the applicable Consumer a clear and conspicuous disclosure in writing, in a document consisting solely of the disclosure, that a consumer report may be obtained for the Permissible Purpose and (2) such Consumer has authorized in writing the procurement of the Screening Report. Client, therefore, certifies that, prior to placing any order for a Screening Report, it will provide the required disclosures to the Consumer and receive the required authorizations from such Consumer in accordance with the FCRA, including, but not limited to, in compliance with 15 U.S.C. § 1681b(b)(2); (iv) Client certifies that it will comply with the pre-adverse and adverse action notice requirements contained in 15 U.S.C. §§ 1681b(b)(3) and 1681m, if it is considering taking an adverse action against a Consumer; (v) Client certifies that it will not use information from any Screening Report in violation of any applicable laws or regulations, including, but not limited to, any applicable federal or state equal employment opportunity law or regulation; (vi) Client agrees that the action of placing an order for or otherwise requesting a Screening Report constitutes an affirmative certification to SASS as to the Consumer in question, and that by placing an order for or otherwise requesting a Screening Report, Client is certifying as to the Consumer in question that: (1) Client has provided the Con sumer a clear and conspicuous disclosure in writing, in a document consisting solely of the disclosure, that a consumer report may be obtained for Employm ent Purposes; (2) that the Consumer has authorized in writing the procurement of the Screening Report; (3) if applicable, it will comply with 15 U.S.C. § 1681b(b)(3) (Client’s pre-adverse action obligations); and (4) no information in the Screening Report will be used in violation of any applicable laws or regulations, including, but not limited to, any applicable federal or state equal employment opportunity law or regulation; (vii) Client agrees not to place an order for or otherwise request a Screening Report that constitutes an “investigative consumer report,” as defined by the FCRA, unless it h as provided a clear and accurate disclosure to the Consumer, as required by 15 U.S.C. § 1681d(a)(1), including without limitation a copy of the CFPB Summary of Yo ur Rights under FCRA, as applicable. Client, therefore, certifies that prior to placing any order for a Screening Report that constitutes an “investigative consumer report,” as defined by the FCRA, it will provide the required disclosures to the Consumer and receive the required authorizations from the Consumer in accordance with the FCRA, including, but not limited to, in compliance with 15 U.S.C. § 1681d(a); (viii) Client certifies that for any Screening Report constituting an “investigative consumer report,” as defined by the FCRA, it will provide additional disclosures as required by 15 U.S.C. § 1681d(b). Specifically, Client certifies that it will comply with 15 U.S.C. § 1681d(b) by timely making a complete and accurate written disclosure to the Consu mer of the nature and scope of any investigation it requests, upon request made by the Consumer within a reasonable period of time af ter receipt of the disclosure required by 15 U.S.C. § 1681d(a)(1); and (ix) Client agrees that by placing an order for or otherwise requesting a Screening Report that constitutes an “investigative consumer report,” as defined by the FCRA, the action of placing the order or otherwise requesting such a Screening Report constitutes an affirmative certification as to the Consumer in question, and that Client is, therefore, certifying as to the Consumer in question, that: (1) it has provided to the Consumer the written disclosures for investigative consumer reports, as required by 15 U.S.C. §1681d(a)(1), including without limitation a copy of the CFPB Summary of Your Rights under the FCRA, as applicable; and (2) if applicable, it will comply with the additional disclosure requirements imposed by 15 U.S.C. § 1681d(b). vii. Client Alerts and Education. Client understands that from time to time SASS may provide information regarding laws and regulations applicable to users of Screening Reports, including, but not limited to, information pertaining to a user’s legal obligations under the FCRA and other applicable laws and regulations. Client understands and agrees that any information provided by SASS, including, but not limited to, information available for reference on “The Guide” at www.adpselect.com, is provided for educational purposes only and is not legal advice. Client understands and agrees that any samples of forms, whether provided in paper form or through a screening data collection tool, are samples only and client is responsible for the content. The Screening Services do not include any legal, financial, regulatory, benefits, accounting o r tax advice. Client understands and agrees that it should review all applicable laws and regulations and consult with experienced counsel for legal advice. viii. Client Compliance. Client understands and agrees that it (and not SASS) is solely responsible for ensuring compliance will all laws applicable to Users of Screening Reports, including, but not limited to, the disclosure and authorization requirements imposed by 15 U.S.C. § 1681b(b)(2), the disclosure requirements imposed by 15 U.S.C. § 1681d(a)-(b), the pre-adverse action notice obligations imposed by 15 U.S.C. § 1681b(b)(3), and the adverse action notice obligations imposed by 15 U.S.C. § 1681m. Client understands and agrees that it, and not SASS, will be solely responsible for (i) how it uses the Screening Services to comply with its legal and regulatory requirements and (ii) the consequences of any instructions that it gives to SASS, including as part of the initial set-up and implementation of the Screening Services. ix. Substance Abuse Testing. To the extent substance abuse testing services and medical services in the United States only are included in connection with the Screening Services, SASS will provide such substance abuse testing services and medical services via a vendor that specializes in the applicable industry. Further, as part of the substance abuse testing services, required medical reviews of the substance abuse testing services will be provided by a medical review officer (MRO), who will be engaged, as needed, by such vendor or its subcontractor. MRO services will be provided in accordance with applicable laws and regulations x. Screening Compliance Review. Within 10 days following SASS’s request, Client shall make available for SASS’s review such records as SASS deems necessary to determine that Client is in compliance with applicable laws and regulations relating to the Screening Services and the Agreement (“Screening Compliance Review”), which records may include, without limitation, Consumer and vendor authorizations/consents, but shall not include Client’s financial records. Client’s cooperation with Screening Compliance Reviews is essential to and required for the continued provision of the Screening Services. If either (i) Client fails to cooperate with SASS in the conduct of a Screening Compliance Review or (ii) SASS determines that Client has failed to comply with any laws or regulations applicable to the Screening Services, SASS may, in its sole discretion and upon notice to Client, immediately suspend or terminate the Screening Services. xi. Client Contact. Prior to the commencement of SASS’s provision of Screening Services, Client shall designate in writing to SASS the name or names of one or more persons who will service as SASS’s designated contact for the Screening Services (the “Client Contact”). Client agrees that the Client Contact has, and shall at all times have, the requisite authority to (i) transmit info rmation, direction, and instructions on behalf of Client and (ii) issue, execute, grant, or provide any approvals (other than amendments to this Agreement), requests, notices, or other communications required or permitted under this Agreement or requested by SASS in connection with the Screening Services. xii. Client and SASS shall each comply at all times with its obligations under any data protection legislation applicable to it in any specific country (a “Privacy Law”), whether or not deriving from the General Data Protection Regulation (EU) 2016/679 (“GDPR”). In the event and to the extent of any conflict between the terms and conditions of this Section and applicable law, the provision(s) of applicable Privacy Law shall govern. In order for SASS to provide the Screening Services hereunder, Client shall provide SASS with personal information pertaining to Client employees and former employees as well as beneficiaries, agents consultants, contractors, vendors, candidates and other individuals whose personal information is needed in connection with the Screening Services (“Data Subjects”). “Affiliate” means, with respect to any entity, any other entity that controls, is controlled by or under control with such first entity. For purposes of this Agreement, “control” (or variants of it) means the ability, whether directly or indirectly, to direct the management and action of an entity by means of ownership, contract or otherwise. Client represents and warrants that this personal information has been collected in accordance with applicable Privacy Laws and that it has the authority to provide such data to SASS for processing as contemplated by this Agreement. Each of Client and Client’s Affiliates acts as the “Controller” (as defined in the GDPR), and each of SASS and its Affiliates and subcontractors providing Screening Services act as the “Processor” (as defined in the GDPR). In its capacity as the Controller and also on behalf of its Affiliates (each as a Controller with respect to its employees), Client confirms that it is duly empowered to grant SASS and SASS’ Affiliates and subcontractors, each as a Processor, the right to access and process Data Subjects’ personal information for the purposes of this Agreement so that each such Client Affiliate shall be considered as having directly empowered SASS and each SASS Affiliate or subcontractor. Client and its Affiliates, as the respective Controller(s), shall determine the purposes of collecting, processing, and otherwise using personal information of the Data Subjects and SASS shall process such information only in accordance with the Sales Order or other pricing documentation and reasonable instructions received from Client from time to time in connection with the Screening Services. SASS shall at all times have implemented appropriate operational, technical and organizational measures that are reasonably designed to protect personal information received from Client against accidental or unlawful CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 9 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM vi. Client Certifications. Client certifies and covenants to each of the following certifications, obligations, and covenants and certifies to each of the following as of the time it orders the relevant Screening Report related to a Consumer in the United States: (i) Client certifies that it will use the Screening Reports and information contained therein only for the Permissible Purpose. Relatedly, Client certifies that it will not use the Screening Report or information therein for any other purpose; (ii) Client certifies that it has read the Notice to Users and that it has read and understands Client’s obligations under the FCRA, as well as the possible penalties for requesting Screening Reports under false pretenses or without a permissible purpose; (iii) Client agrees not to place an order for or otherwise request a Screening Report unless (1) it has provided to the applicable Consumer a clear and conspicuous disclosure in writing, in a document consisting solely of the disclosure, that a consumer report may be obtained for the Permissible Purpose and (2) such Consumer has authorized in writing the procurement of the Screening Report. Client, therefore, certifies that, prior to placing any order for a Screening Report, it will provide the required disclosures to the Consumer and receive the required authorizations from such Consumer in accordance with the FCRA, including, but not limited to, in compliance with 15 U.S.C. § 1681b(b)(2); (iv) Client certifies that it will comply with the pre-adverse and adverse action notice requirements contained in 15 U.S.C. §§ 1681b(b)(3) and 1681m, if it is considering taking an adverse action against a Consumer; (v) Client certifies that it will not use information from any Screening Report in violation of any applicable laws or regulations, including, but not limited to, any applicable federal or state equal employment opportunity law or regulation; (vi) Client agrees that the action of placing an order for or otherwise requesting a Screening Report constitutes an affirmative certification to SASS as to the Consumer in question, and that by placing an order for or otherwise requesting a Screening Report, Client is certifying as to the Consumer in question that: (1) Client has provided the Con sumer a clear and conspicuous disclosure in writing, in a document consisting solely of the disclosure, that a consumer report may be obtained for Employm ent Purposes; (2) that the Consumer has authorized in writing the procurement of the Screening Report; (3) if applicable, it will comply with 15 U.S.C. § 1681b(b)(3) (Client’s pre-adverse action obligations); and (4) no information in the Screening Report will be used in violation of any applicable laws or regulations, including, but not limited to, any applicable federal or state equal employment opportunity law or regulation; (vii) Client agrees not to place an order for or otherwise request a Screening Report that constitutes an “investigative consumer report,” as defined by the FCRA, unless it h as provided a clear and accurate disclosure to the Consumer, as required by 15 U.S.C. § 1681d(a)(1), including without limitation a copy of the CFPB Summary of Yo ur Rights under FCRA, as applicable. Client, therefore, certifies that prior to placing any order for a Screening Report that constitutes an “investigative consumer report,” as defined by the FCRA, it will provide the required disclosures to the Consumer and receive the required authorizations from the Consumer in accordance with the FCRA, including, but not limited to, in compliance with 15 U.S.C. § 1681d(a); (viii) Client certifies that for any Screening Report constituting an “investigative consumer report,” as defined by the FCRA, it will provide additional disclosures as required by 15 U.S.C. § 1681d(b). Specifically, Client certifies that it will comply with 15 U.S.C. § 1681d(b) by timely making a complete and accurate written disclosure to the Consu mer of the nature and scope of any investigation it requests, upon request made by the Consumer within a reasonable period of time af ter receipt of the disclosure required by 15 U.S.C. § 1681d(a)(1); and (ix) Client agrees that by placing an order for or otherwise requesting a Screening Report that constitutes an “investigative consumer report,” as defined by the FCRA, the action of placing the order or otherwise requesting such a Screening Report constitutes an affirmative certification as to the Consumer in question, and that Client is, therefore, certifying as to the Consumer in question, that: (1) it has provided to the Consumer the written disclosures for investigative consumer reports, as required by 15 U.S.C. §1681d(a)(1), including without limitation a copy of the CFPB Summary of Your Rights under the FCRA, as applicable; and (2) if applicable, it will comply with the additional disclosure requirements imposed by 15 U.S.C. § 1681d(b). vii. Client Alerts and Education. Client understands that from time to time SASS may provide information regarding laws and regulations applicable to users of Screening Reports, including, but not limited to, information pertaining to a user’s legal obligations under the FCRA and other applicable laws and regulations. Client understands and agrees that any information provided by SASS, including, but not limited to, information available for reference on “The Guide” at www.adpselect.com, is provided for educational purposes only and is not legal advice. Client understands and agrees that any samples of forms, whether provided in paper form or through a screening data collection tool, are samples only and client is responsible for the content. The Screening Services do not include any legal, financial, regulatory, benefits, accounting o r tax advice. Client understands and agrees that it should review all applicable laws and regulations and consult with experienced counsel for legal advice. viii. Client Compliance. Client understands and agrees that it (and not SASS) is solely responsible for ensuring compliance will all laws applicable to Users of Screening Reports, including, but not limited to, the disclosure and authorization requirements imposed by 15 U.S.C. § 1681b(b)(2), the disclosure requirements imposed by 15 U.S.C. § 1681d(a)-(b), the pre-adverse action notice obligations imposed by 15 U.S.C. § 1681b(b)(3), and the adverse action notice obligations imposed by 15 U.S.C. § 1681m. Client understands and agrees that it, and not SASS, will be solely responsible for (i) how it uses the Screening Services to comply with its legal and regulatory requirements and (ii) the consequences of any instructions that it gives to SASS, including as part of the initial set-up and implementation of the Screening Services. ix. Substance Abuse Testing. To the extent substance abuse testing services and medical services in the United States only are included in connection with the Screening Services, SASS will provide such substance abuse testing services and medical services via a vendor that specializes in the applicable industry. Further, as part of the substance abuse testing services, required medical reviews of the substance abuse testing services will be provided by a medical review officer (MRO), who will be engaged, as needed, by such vendor or its subcontractor. MRO services will be provided in accordance with applicable laws and regulations x. Screening Compliance Review. Within 10 days following SASS’s request, Client shall make available for SASS’s review such records as SASS deems necessary to determine that Client is in compliance with applicable laws and regulations relating to the Screening Services and the Agreement (“Screening Compliance Review”), which records may include, without limitation, Consumer and vendor authorizations/consents, but shall not include Client’s financial records. Client’s cooperation with Screening Compliance Reviews is essential to and required for the continued provision of the Screening Services. If either (i) Client fails to cooperate with SASS in the conduct of a Screening Compliance Review or (ii) SASS determines that Client has failed to comply with any laws or regulations applicable to the Screening Services, SASS may, in its sole discretion and upon notice to Client, immediately suspend or terminate the Screening Services. xi. Client Contact. Prior to the commencement of SASS’s provision of Screening Services, Client shall designate in writing to SASS the name or names of one or more persons who will service as SASS’s designated contact for the Screening Services (the “Client Contact”). Client agrees that the Client Contact has, and shall at all times have, the requisite authority to (i) transmit info rmation, direction, and instructions on behalf of Client and (ii) issue, execute, grant, or provide any approvals (other than amendments to this Agreement), requests, notices, or other communications required or permitted under this Agreement or requested by SASS in connection with the Screening Services. xii. Client and SASS shall each comply at all times with its obligations under any data protection legislation applicable to it in any specific country (a “Privacy Law”), whether or not deriving from the General Data Protection Regulation (EU) 2016/679 (“GDPR”). In the event and to the extent of any conflict between the terms and conditions of this Section and applicable law, the provision(s) of applicable Privacy Law shall govern. In order for SASS to provide the Screening Services hereunder, Client shall provide SASS with personal information pertaining to Client employees and former employees as well as beneficiaries, agents consultants, contractors, vendors, candidates and other individuals whose personal information is needed in connection with the Screening Services (“Data Subjects”). “Affiliate” means, with respect to any entity, any other entity that controls, is controlled by or under control with such first entity. For purposes of this Agreement, “control” (or variants of it) means the ability, whether directly or indirectly, to direct the management and action of an entity by means of ownership, contract or otherwise. Client represents and warrants that this personal information has been collected in accordance with applicable Privacy Laws and that it has the authority to provide such data to SASS for processing as contemplated by this Agreement. Each of Client and Client’s Affiliates acts as the “Controller” (as defined in the GDPR), and each of SASS and its Affiliates and subcontractors providing Screening Services act as the “Processor” (as defined in the GDPR). In its capacity as the Controller and also on behalf of its Affiliates (each as a Controller with respect to its employees), Client confirms that it is duly empowered to grant SASS and SASS’ Affiliates and subcontractors, each as a Processor, the right to access and process Data Subjects’ personal information for the purposes of this Agreement so that each such Client Affiliate shall be considered as having directly empowered SASS and each SASS Affiliate or subcontractor. Client and its Affiliates, as the respective Controller(s), shall determine the purposes of collecting, processing, and otherwise using personal information of the Data Subjects and SASS shall process such information only in accordance with the Sales Order or other pricing documentation and reasonable instructions received from Client from time to time in connection with the Screening Services. SASS shall at all times have implemented appropriate operational, technical and organizational measures that are reasonably designed to protect personal information received from Client against accidental or unlawful CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 9 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 destruction, alteration or unauthorized disclosure or access. Such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of implementation. In order to perform the Screening Services, personal information may be processed (including access and hosting) by SASS, its Affiliates or its subcontractors (collectively, “Subprocessors”) in countries that do not have laws that have been deemed adequ ate by the European Commission, including USA, Australia, Tunisia, the Philippines and India, provided SASS and its Affiliates have implemented reasonable safeguards to protect personal information with regard to all such processing, and provided further that: (a) SASS shall exercise appropriate due diligence in selecting Subprocessors and remain responsible for the quality of the Screening Services and the Subprocessors’ compliance with the Privacy Laws applicable to data processors; (b) at Client’s request, SASS shall provide Client with reasonable information as to (i) the identity of the Subprocessors and the applicable main data flows, and (ii) the actions and measures SASS has undertaken to comply and monitor compliance with the provisions of the Privacy Laws applicable to the Subprocessors; and (c) where required by Privacy Laws and in consultation with Client, SASS and Client shall take the necessary measures to allow lawful transfers of personal information to Subprocessors, including by using agreements containing standard contractual clauses or other documents or mechanisms approved by the relevant data protection authorities. SASS shall provide Client with all reasonable information necessary to allow Client to obtain any applicable data transfer authorization in connection with the Screening Services. Client, as Data Controller, shall cooperate with SASS to ensure a timely dep loyment of the documentation necessary to ensure the lawful processing of the personal information in all countries where the Screening Services are, or are requested to be, provided. SASS shall be entitled to suspend the relevant Screening Services and be excused from performance, if the adequate documentation for lawful data processing is not complete. In order to enable Client to fulfil its duties under the applicable Privacy Law, SASS will, within a reasonable time of receipt, notify Client of any comp laint, inquiry or request (including access requests made pursuant to Privacy Laws) related to Client’s or SASS’ obligations under applicable Privacy Laws. SASS will provide Client, at Client cost, with reasonable cooperation and assistance and provide such information as may be reasonably required for the purpose of responding to Data Subjects or otherwise in order to enable Client to comp ly with its duties under Privacy Law in relation to such complaints, inquires and/or access requests. B. Additional Terms. i. SASS will abide by all of the provisions of the FCRA as they pertain to the obligations of SASS acting as a consumer reporting agency. The Screening Services are being provided solely at Client’s request and instruction and Client acknowledges that neither TotalSource nor SASS are acting as an agent of Client nor making any hiring decisions for or on behalf of Client. Client acknowledges and agrees that ADP receives its information directly from certain furnishers (“Sources”). Further, at times, Sourc es will require Client to complete specific documents (“Source Documents”) prior to providing the end user, Client, with their services (ultimately, the Sources’ information). ii. SASS will follow reasonable quality assurance procedures with respect to obtaining Reports hereunder. However, Client recognizes that information within such Reports is obtained and managed by fallible sources and neither TotalSource nor SASS guarantees nor ensu res the accuracy or depth of information provided. iii. Prior to the commencement of the Screening Services, Client shall designate in writing to TotalSource the name or names of one or more persons wh o shall serve as SASS’ designated contact for the Screening Services (the “Client Contact”). Client hereby represents and warrants to TotalSource and SASS that the Client Contact has, and shall at all times have, the requisite authority to (i) transmit information, directions and instructions on behalf of Client and (ii) issue, execute, grant, or provide any approvals (other than amendme nts to this Agreement), requests, notices, or other communications required or permitted under this Agreement or requested by TotalSource or SASS in connection with the Screening Services. iv. Client will have access to the Reports for at least one year from the order date (unless such shorter period is otherwise communicated by ADP, TotalSource or SASS). Client is solely responsible for main taining Reports sufficient to comply with Client’s hiring and/or document retention policies. Neither ADP, TotalSource nor SASS will deliver copies of Reports to Client once such Reports are no longer available within the SASS background screening site or after termination of this Agreement, excep t as required by law. v. Within 10 days following either TotalSource’s or SASS’ request, Client shall make available for review such records as either TotalSource or SASS deem necessary to determine that Client is in compliance with applicable laws and regulations relating to the Screening Services (“Compliance Review”), which records may include, among other things, Consumer (as such term is defined below) and vendor consents, but shall not include Client's financial records. Client’s cooperating with this Compliance Review is essential to continued provision of the Screening Services. If either (i) Client fails to cooperate with TotalSource and SASS in the conduct of a Compliance Review or (ii) if as part of a Compliance Review, TotalSource or SASS determine that Client has failed to comply with any applicable laws and regulations applicable to the Screening Services, TotalSource and/or SASS may, in its sole discretion and upon notice to Client, immediately suspend or terminate the Screening Services. vi. The Screening Services may be performed by ADP affiliates located in other countries, and ADP may transfer or permit access to Client’s Confidential Information (as such term is defined below) for the purposes of performing the Screening Services outside of the United States of America. Notwithstanding the foregoing, ADP will remain responsible for any unauthorized disclosure or access of Client’s employees’ or applicant’s personal information by any ADP affiliate in the performance of any such Screening Services. vii. Client and not TotalSource nor SASS will be responsible for (i) how it uses the Screening Services to comply with its legal and regulatory requirements and (ii) the consequences of any instructions that it gives to TotalSource and/or SASS, including as part of the initial set-up and implementation of the Screening Services, any samples of forms, whether provided in paper form or through a screening data collection tool, are samples only and Client is responsible for the content, provided TotalSource and SASS follows such instructions. viii. The liability of ADP, TotalSource and SASS under this Agreement for damages under any circumstances for claims of any type or character arising from or related to the Screening Services will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of ADP, TotalSource and SASS during any calendar, as it relates to liability arising from or related to the Screening Services, exceed twelve (12) times the average monthly fee paid by Client for the Screening Services during such calendar year. In accordance with Part 2, Section 17.N, in no event will either party be responsible for special, indirect, incidental, consequential or other similar damages in connection with the Screening Services, even if it has been advised. ix. Client acknowledges that ADP, TotalSource, SASS and their respective affiliates are relying on the representations and warranties made by Client, as set forth in this Part 2, Section 5, in order to provide Client with access to the Screening Services. The suppliers and vendors of ADP, TotalSource, and SASS who assist in providing Client with the Screening Services are intended to be third party beneficiaries, and as such, may also rely on the same representations and warranties made by Client and may also enforce the same disclaimers and limitations against Client as ADP, TotalSource, and SASS may under this Agreement. 6. Time and Labor Management. A. Use of Time and Labor Management. i. Client agrees that it will use Time and Labor Management and any related hardware in accordance with the terms of this Agreement and any online or shrink-wrap terms or license, or other accompanying docu mentation made available to Client by TotalSource, its affiliates, agents, or its licensors. ii. Client will use Time and Labor Management solely for its own internal and proper business purposes and will not sell, lease, allow access to or otherwise provide Time and Labor Management or any portion thereof, to any third party, including any competitor of TotalSource and TotalSource’s affiliates and licensors. iii. Client may access Time and Labor Management through the Site (as such term is defined in Part 2, Section 13.B) in order to input information relating to the Worksite Employees’ time and attendance and related information. TotalSource does not review the accuracy or completeness of any submissions to the Site made by Client or the Worksite Employees. Client is solely responsible for the submission of information relating to the use of Time and Labor Management and for verifying the accuracy and completeness of such information submitted by Client or the Worksite Employees. iv. Client will be responsible for any use Client may make of Time and Labor Management and any related hardware to assist Client in complying with applicable laws and regulations affecting Client’s business. v. Time and Labor Management is intended for use by Worksite Employees based in the United States and to permit the transmission of data from within the United States. Time and Labor Management may not be used or accessed from outside the United States or in any way that violates any applicable international, federal, state or local laws and/or regulations. B. Biometric Services. i. Definitions: a) “Biometric Data” includes the information collected by timeclocks and software that use finger and/or hand scan technology, which potentially may include Biometric Identifiers and Biometric Information. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 10 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM destruction, alteration or unauthorized disclosure or access. Such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of implementation. In order to perform the Screening Services, personal information may be processed (including access and hosting) by SASS, its Affiliates or its subcontractors (collectively, “Subprocessors”) in countries that do not have laws that have been deemed adequ ate by the European Commission, including USA, Australia, Tunisia, the Philippines and India, provided SASS and its Affiliates have implemented reasonable safeguards to protect personal information with regard to all such processing, and provided further that: (a) SASS shall exercise appropriate due diligence in selecting Subprocessors and remain responsible for the quality of the Screening Services and the Subprocessors’ compliance with the Privacy Laws applicable to data processors; (b) at Client’s request, SASS shall provide Client with reasonable information as to (i) the identity of the Subprocessors and the applicable main data flows, and (ii) the actions and measures SASS has undertaken to comply and monitor compliance with the provisions of the Privacy Laws applicable to the Subprocessors; and (c) where required by Privacy Laws and in consultation with Client, SASS and Client shall take the necessary measures to allow lawful transfers of personal information to Subprocessors, including by using agreements containing standard contractual clauses or other documents or mechanisms approved by the relevant data protection authorities. SASS shall provide Client with all reasonable information necessary to allow Client to obtain any applicable data transfer authorization in connection with the Screening Services. Client, as Data Controller, shall cooperate with SASS to ensure a timely dep loyment of the documentation necessary to ensure the lawful processing of the personal information in all countries where the Screening Services are, or are requested to be, provided. SASS shall be entitled to suspend the relevant Screening Services and be excused from performance, if the adequate documentation for lawful data processing is not complete. In order to enable Client to fulfil its duties under the applicable Privacy Law, SASS will, within a reasonable time of receipt, notify Client of any comp laint, inquiry or request (including access requests made pursuant to Privacy Laws) related to Client’s or SASS’ obligations under applicable Privacy Laws. SASS will provide Client, at Client cost, with reasonable cooperation and assistance and provide such information as may be reasonably required for the purpose of responding to Data Subjects or otherwise in order to enable Client to comp ly with its duties under Privacy Law in relation to such complaints, inquires and/or access requests. B. Additional Terms. i. SASS will abide by all of the provisions of the FCRA as they pertain to the obligations of SASS acting as a consumer reporting agency. The Screening Services are being provided solely at Client’s request and instruction and Client acknowledges that neither TotalSource nor SASS are acting as an agent of Client nor making any hiring decisions for or on behalf of Client. Client acknowledges and agrees that ADP receives its information directly from certain furnishers (“Sources”). Further, at times, Sourc es will require Client to complete specific documents (“Source Documents”) prior to providing the end user, Client, with their services (ultimately, the Sources’ information). ii. SASS will follow reasonable quality assurance procedures with respect to obtaining Reports hereunder. However, Client recognizes that information within such Reports is obtained and managed by fallible sources and neither TotalSource nor SASS guarantees nor ensu res the accuracy or depth of information provided. iii. Prior to the commencement of the Screening Services, Client shall designate in writing to TotalSource the name or names of one or more persons wh o shall serve as SASS’ designated contact for the Screening Services (the “Client Contact”). Client hereby represents and warrants to TotalSource and SASS that the Client Contact has, and shall at all times have, the requisite authority to (i) transmit information, directions and instructions on behalf of Client and (ii) issue, execute, grant, or provide any approvals (other than amendme nts to this Agreement), requests, notices, or other communications required or permitted under this Agreement or requested by TotalSource or SASS in connection with the Screening Services. iv. Client will have access to the Reports for at least one year from the order date (unless such shorter period is otherwise communicated by ADP, TotalSource or SASS). Client is solely responsible for main taining Reports sufficient to comply with Client’s hiring and/or document retention policies. Neither ADP, TotalSource nor SASS will deliver copies of Reports to Client once such Reports are no longer available within the SASS background screening site or after termination of this Agreement, excep t as required by law. v. Within 10 days following either TotalSource’s or SASS’ request, Client shall make available for review such records as either TotalSource or SASS deem necessary to determine that Client is in compliance with applicable laws and regulations relating to the Screening Services (“Compliance Review”), which records may include, among other things, Consumer (as such term is defined below) and vendor consents, but shall not include Client's financial records. Client’s cooperating with this Compliance Review is essential to continued provision of the Screening Services. If either (i) Client fails to cooperate with TotalSource and SASS in the conduct of a Compliance Review or (ii) if as part of a Compliance Review, TotalSource or SASS determine that Client has failed to comply with any applicable laws and regulations applicable to the Screening Services, TotalSource and/or SASS may, in its sole discretion and upon notice to Client, immediately suspend or terminate the Screening Services. vi. The Screening Services may be performed by ADP affiliates located in other countries, and ADP may transfer or permit access to Client’s Confidential Information (as such term is defined below) for the purposes of performing the Screening Services outside of the United States of America. Notwithstanding the foregoing, ADP will remain responsible for any unauthorized disclosure or access of Client’s employees’ or applicant’s personal information by any ADP affiliate in the performance of any such Screening Services. vii. Client and not TotalSource nor SASS will be responsible for (i) how it uses the Screening Services to comply with its legal and regulatory requirements and (ii) the consequences of any instructions that it gives to TotalSource and/or SASS, including as part of the initial set-up and implementation of the Screening Services, any samples of forms, whether provided in paper form or through a screening data collection tool, are samples only and Client is responsible for the content, provided TotalSource and SASS follows such instructions. viii. The liability of ADP, TotalSource and SASS under this Agreement for damages under any circumstances for claims of any type or character arising from or related to the Screening Services will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of ADP, TotalSource and SASS during any calendar, as it relates to liability arising from or related to the Screening Services, exceed twelve (12) times the average monthly fee paid by Client for the Screening Services during such calendar year. In accordance with Part 2, Section 17.N, in no event will either party be responsible for special, indirect, incidental, consequential or other similar damages in connection with the Screening Services, even if it has been advised. ix. Client acknowledges that ADP, TotalSource, SASS and their respective affiliates are relying on the representations and warranties made by Client, as set forth in this Part 2, Section 5, in order to provide Client with access to the Screening Services. The suppliers and vendors of ADP, TotalSource, and SASS who assist in providing Client with the Screening Services are intended to be third party beneficiaries, and as such, may also rely on the same representations and warranties made by Client and may also enforce the same disclaimers and limitations against Client as ADP, TotalSource, and SASS may under this Agreement. 6. Time and Labor Management. A. Use of Time and Labor Management. i. Client agrees that it will use Time and Labor Management and any related hardware in accordance with the terms of this Agreement and any online or shrink-wrap terms or license, or other accompanying docu mentation made available to Client by TotalSource, its affiliates, agents, or its licensors. ii. Client will use Time and Labor Management solely for its own internal and proper business purposes and will not sell, lease, allow access to or otherwise provide Time and Labor Management or any portion thereof, to any third party, including any competitor of TotalSource and TotalSource’s affiliates and licensors. iii. Client may access Time and Labor Management through the Site (as such term is defined in Part 2, Section 13.B) in order to input information relating to the Worksite Employees’ time and attendance and related information. TotalSource does not review the accuracy or completeness of any submissions to the Site made by Client or the Worksite Employees. Client is solely responsible for the submission of information relating to the use of Time and Labor Management and for verifying the accuracy and completeness of such information submitted by Client or the Worksite Employees. iv. Client will be responsible for any use Client may make of Time and Labor Management and any related hardware to assist Client in complying with applicable laws and regulations affecting Client’s business. v. Time and Labor Management is intended for use by Worksite Employees based in the United States and to permit the transmission of data from within the United States. Time and Labor Management may not be used or accessed from outside the United States or in any way that violates any applicable international, federal, state or local laws and/or regulations. B. Biometric Services. i. Definitions: a) “Biometric Data” includes the information collected by timeclocks and software that use finger and/or hand scan technology, which potentially may include Biometric Identifiers and Biometric Information. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 10 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 b) “Biometric Identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. c) “Biometric Information” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual. “Biometric Services” means services provided by TotalSource to Client via the use of timeclocks and software in connection with TotalSource’s provision of Time and Labor Management, to the extent such timeclocks or software collect, store or use Biometric Data. d) “Biometric User” means Client’s employees or independent contractors who use Biometric Services to record their attendance, hours worked or other work-related data. ii. Biometric Services are optional. In certain jurisdictions, there are laws and regulations that govern the collection, use, and retention of biometric information, which potentially may apply to Client’s use of Biometric Services. To the extent Client elects to use Biometric Services, Client agrees to comply with all such potentially applicable laws and regulations and acknowledges receipt of the ADP “Employer Toolkit; Biometric Time Clocks – What You Need to know” which is available at https://www.adp.com/-/media/adp/no-cache/tos/adp-client-biometrics- toolkit.pdf. In the event Client is unwilling to comply with laws and regulations potentially applicable to Biometric Services, Client will be able to continue to use Time and Labor Management without Biometric Services. The following terms and conditions apply to Biometric Services to the extent Biometric Services are part of the scope of Services: a) Requirements for Receipt of Biometric Services. Before any Client or Biometric User is permitted to use any Biometric Services in a jurisdiction where laws and regulations potentially govern such use, Client will comply with the following requirements, in addition to any other requirements imposed by potentially applicable law (to the extent there is a conflict between the requirements below and the requirements of potentially applicable law, Client will comply with potentially applicable law): 1. Client Biometric Information Policy. Client will implement, distribute and make available to the public, a written policy establishing Client’s policy with respect to the use of Biometric Data. Such policy will include: A. a retention schedule and guidelines for permanently destroying Biometric Data; B. a commitment to destroy Biometric Data when the initial purpose for collecting or obtaining such Biometric Data has been satisfied or within 3 years of the individual's last interaction with Client, whichever occurs first; and C. any additional requirements as required by potentially applicable law. 2. Biometric User Notice and Consent. Client will provide notice to and procure and retain appropriate consents or releases from Biometric Users in the manner and to extent the same are required by potentially applicable law, including: A. Retention and Purging of Biometric Data. Client will work with TotalSource to ensure that Biometric Data is retained and purged in accordance with potentially applicable law. To the extent necessary for the purging or deletion of such Biometric Data, Client agrees to provide timely notification to TotalSource of the termination of the employment, or the satisfaction of the purpose for which Biometric Data was collected with respect to any given Biometric User. TotalSource is not responsible for Client’s failure to provide timely notification of the termination of the employment, or the satisfaction of the purpose for which Biometric Data was collected with respect to any given Biometric User. B. Storage of Biometric Data in Timeclocks. Client agrees that it shall use a reasonable standard of care consistent with potentially applicable law to store, transmit and protect from disclosure any Biometric Data. Such storage, transmission, and protection from disclosure shall be performed in a manner that is the same as or more protective than the manner in which Client stores, transmits and protects from disclosure other confidential and sensitive information, including personal information that can be used to uniquely identify an individual or an individual’s account or property, such as genetic markers, genetic testing information, account numbers, PINs, driver’s license numbers and social security numbers. b) Third Party Beneficiary: Notwithstanding anything to the contrary in the Agreement, Client agrees that TotalSource and licensor of any applicable Biometric Services (and their respective successors and assigns) are third party beneficiaries of this Agreement solely as it relates to Biometric Services. c) Additional Termination Provisions for Biometric Services. If TotalSource determines that Client has failed to comply with any potentially applicable laws and regulations applicable to the Biometric Services, TotalSource may, in its sole discretion and upon notice to Client, immediately suspend or terminate the Biometric Services. C. Pricing; Taxes i. The fees and costs for Time and Labor Management are provided in the Pricing Addendum and shall not be adjusted by TotalSource during the Initial Term. Following the Initial Term, TotalSource reserves the right to adjust such fees and costs in accordance with Part 2, Section 2.A. ii. In addition to the fees and costs for Time and Labor Management, Client will be invoiced for any applicable taxes (e.g., sales tax). D. Limitation of Liability. The liability of TotalSource under this Agreement for damages under any circumstances for claims of any type or character arising from or related to Time and Labor Management (including, use of any hardware) will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of TotalSource during any calendar year, as it relates to liability arising from or related to Time and Labor Management, exceed twelve (12) times the average monthly fee paid by Client for Time and Labor Management during such calendar year. As provided in Part 2, Section 17.N, in no event will TotalSource be liable or responsible for special, indirect, incidental, consequential or other similar damages in connection with the Time and Labor Management. 7. Enhanced Talent Suite. In the event Client elects to use Enhanced Talent Suite then in addition to the terms set forth in this Agreement, the provisions provided in this Part 2, Section 7 shall apply. A. Use of Enhanced Talent Suite. i. Client will use Enhanced Talent Suite solely for its own internal and proper business purposes and will not sell, lease, allow access to or otherwise provide Enhanced Talent Suite or any portion thereof, to any third party, including any competitor of TotalSource. ii. TotalSource will not be deemed to be involved with any evaluation of job candidates or compensation decisions in connection with Client’s use of Enhanced Talent Suite. iii. Client is responsible for compliance with all state and federal laws applicable to its use of Talent Suite. B. Pricing; Taxes i. The fees and costs for Enhanced Talent Suite are provided in the Pricing Addendum and shall not be adjusted by TotalSource during the Initial Term. Following the Initial Term, TotalSource reserves the right to adjust such fees and costs in accordance with Part 2, Section 2.A. ii. In addition to the fees and costs for Enhanced Talent Suite, Client will be invoiced for any applicable taxes (e.g., sales tax). C. Limitation of Liability. The liability of TotalSource under this Agreement for damages under any circumstances for claims of any type or character arising from or related to Enhanced Talent Suite will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of TotalSource during any calendar year, as it relates to liability arising from or related to Enhanced Talent Suite, exceed twelve (12) times the average monthly fee paid by Client for Talent Suite during such calendar year. As provided in Part 2, Section 17.N, in no event will TotalSource be liable or responsible for special, indirect, incidental, consequential or other similar damages in connection with the Enhanced Talent Suite. 8. Application Programming Interface. In the event Client elects to use API then in addition to the terms set forth in this Agreement, the following provisions shall apply. A. Use of API. i. For Client to be eligible to use API, Client must have developer resources who are familiar with HTTP, REST, JSON and OAuth and who can utilize the API(s) once made available to Client. Further, Client must CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 11 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM b) “Biometric Identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. c) “Biometric Information” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual. “Biometric Services” means services provided by TotalSource to Client via the use of timeclocks and software in connection with TotalSource’s provision of Time and Labor Management, to the extent such timeclocks or software collect, store or use Biometric Data. d) “Biometric User” means Client’s employees or independent contractors who use Biometric Services to record their attendance, hours worked or other work-related data. ii. Biometric Services are optional. In certain jurisdictions, there are laws and regulations that govern the collection, use, and retention of biometric information, which potentially may apply to Client’s use of Biometric Services. To the extent Client elects to use Biometric Services, Client agrees to comply with all such potentially applicable laws and regulations and acknowledges receipt of the ADP “Employer Toolkit; Biometric Time Clocks – What You Need to know” which is available at https://www.adp.com/-/media/adp/no-cache/tos/adp-client-biometrics- toolkit.pdf. In the event Client is unwilling to comply with laws and regulations potentially applicable to Biometric Services, Client will be able to continue to use Time and Labor Management without Biometric Services. The following terms and conditions apply to Biometric Services to the extent Biometric Services are part of the scope of Services: a) Requirements for Receipt of Biometric Services. Before any Client or Biometric User is permitted to use any Biometric Services in a jurisdiction where laws and regulations potentially govern such use, Client will comply with the following requirements, in addition to any other requirements imposed by potentially applicable law (to the extent there is a conflict between the requirements below and the requirements of potentially applicable law, Client will comply with potentially applicable law): 1. Client Biometric Information Policy. Client will implement, distribute and make available to the public, a written policy establishing Client’s policy with respect to the use of Biometric Data. Such policy will include: A. a retention schedule and guidelines for permanently destroying Biometric Data; B. a commitment to destroy Biometric Data when the initial purpose for collecting or obtaining such Biometric Data has been satisfied or within 3 years of the individual's last interaction with Client, whichever occurs first; and C. any additional requirements as required by potentially applicable law. 2. Biometric User Notice and Consent. Client will provide notice to and procure and retain appropriate consents or releases from Biometric Users in the manner and to extent the same are required by potentially applicable law, including: A. Retention and Purging of Biometric Data. Client will work with TotalSource to ensure that Biometric Data is retained and purged in accordance with potentially applicable law. To the extent necessary for the purging or deletion of such Biometric Data, Client agrees to provide timely notification to TotalSource of the termination of the employment, or the satisfaction of the purpose for which Biometric Data was collected with respect to any given Biometric User. TotalSource is not responsible for Client’s failure to provide timely notification of the termination of the employment, or the satisfaction of the purpose for which Biometric Data was collected with respect to any given Biometric User. B. Storage of Biometric Data in Timeclocks. Client agrees that it shall use a reasonable standard of care consistent with potentially applicable law to store, transmit and protect from disclosure any Biometric Data. Such storage, transmission, and protection from disclosure shall be performed in a manner that is the same as or more protective than the manner in which Client stores, transmits and protects from disclosure other confidential and sensitive information, including personal information that can be used to uniquely identify an individual or an individual’s account or property, such as genetic markers, genetic testing information, account numbers, PINs, driver’s license numbers and social security numbers. b) Third Party Beneficiary: Notwithstanding anything to the contrary in the Agreement, Client agrees that TotalSource and licensor of any applicable Biometric Services (and their respective successors and assigns) are third party beneficiaries of this Agreement solely as it relates to Biometric Services. c) Additional Termination Provisions for Biometric Services. If TotalSource determines that Client has failed to comply with any potentially applicable laws and regulations applicable to the Biometric Services, TotalSource may, in its sole discretion and upon notice to Client, immediately suspend or terminate the Biometric Services. C. Pricing; Taxes i. The fees and costs for Time and Labor Management are provided in the Pricing Addendum and shall not be adjusted by TotalSource during the Initial Term. Following the Initial Term, TotalSource reserves the right to adjust such fees and costs in accordance with Part 2, Section 2.A. ii. In addition to the fees and costs for Time and Labor Management, Client will be invoiced for any applicable taxes (e.g., sales tax). D. Limitation of Liability. The liability of TotalSource under this Agreement for damages under any circumstances for claims of any type or character arising from or related to Time and Labor Management (including, use of any hardware) will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of TotalSource during any calendar year, as it relates to liability arising from or related to Time and Labor Management, exceed twelve (12) times the average monthly fee paid by Client for Time and Labor Management during such calendar year. As provided in Part 2, Section 17.N, in no event will TotalSource be liable or responsible for special, indirect, incidental, consequential or other similar damages in connection with the Time and Labor Management. 7. Enhanced Talent Suite. In the event Client elects to use Enhanced Talent Suite then in addition to the terms set forth in this Agreement, the provisions provided in this Part 2, Section 7 shall apply. A. Use of Enhanced Talent Suite. i. Client will use Enhanced Talent Suite solely for its own internal and proper business purposes and will not sell, lease, allow access to or otherwise provide Enhanced Talent Suite or any portion thereof, to any third party, including any competitor of TotalSource. ii. TotalSource will not be deemed to be involved with any evaluation of job candidates or compensation decisions in connection with Client’s use of Enhanced Talent Suite. iii. Client is responsible for compliance with all state and federal laws applicable to its use of Talent Suite. B. Pricing; Taxes i. The fees and costs for Enhanced Talent Suite are provided in the Pricing Addendum and shall not be adjusted by TotalSource during the Initial Term. Following the Initial Term, TotalSource reserves the right to adjust such fees and costs in accordance with Part 2, Section 2.A. ii. In addition to the fees and costs for Enhanced Talent Suite, Client will be invoiced for any applicable taxes (e.g., sales tax). C. Limitation of Liability. The liability of TotalSource under this Agreement for damages under any circumstances for claims of any type or character arising from or related to Enhanced Talent Suite will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of TotalSource during any calendar year, as it relates to liability arising from or related to Enhanced Talent Suite, exceed twelve (12) times the average monthly fee paid by Client for Talent Suite during such calendar year. As provided in Part 2, Section 17.N, in no event will TotalSource be liable or responsible for special, indirect, incidental, consequential or other similar damages in connection with the Enhanced Talent Suite. 8. Application Programming Interface. In the event Client elects to use API then in addition to the terms set forth in this Agreement, the following provisions shall apply. A. Use of API. i. For Client to be eligible to use API, Client must have developer resources who are familiar with HTTP, REST, JSON and OAuth and who can utilize the API(s) once made available to Client. Further, Client must CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 11 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 provide certificate signing request to TotalSource and create middleware utilizing TotalSource’s custom API access. ii. Client will use the API(s) to access its information only. iii. Client is only authorized to access the API(s) provided to Client in connection with this Agreement. iv. Client agrees that it will not (a) use the API(s) to transmit spam or other unsolicited email; (b) take any action that may impose an unreasonable or disproportionately large load on the TotalSource infrastructure, as determined by TotalSource; or (c) use the API(s) in any way that threatens the integrity, performance or reliability of the TotalSource services or TotalSource infrastructure. v. TotalSource may limit the number of requests that Client can make to the ADP API Gateway to protect its system or to enforce reasonable limits on Client’s use of the API(s). vi. Specific throttling limits may be imposed and modified from time to time by TotalSource. B. Limitation of Liability. The liability of TotalSource under this Agreement for damages under any circumstances for claims of any type or character arising from or related to API will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of TotalSource exceed the fee paid by Client for API during the three (3) months prior to the time at which the damages arose. As provided in Part 2, Section 17.N, in no event will TotalSource be liable or responsible for special, indirect, incidental, consequential or other similar damages in connection API. 9. EMPLOYMENT VERIFICATION SERVICES A. Employment Verification Services; Employee Authorized Disclosure. To the extent that Client is utilizing Employment Verification Services the following additional terms and conditions apply to the Employment Verification Services and Employee Authorized Disclosure: i. Employment Verification Services. Client authorizes ADP and its subcontractors through which Employment Verification Services are performed (“Verification Agents”) to disclose, on Client’s behalf, employment, job, and income information and personal information (“Verification Data”), to commercial, private, non-profit and governmental entities and their agents (collectively, “Verifiers”), who wish to obtain or verify any of Client’s current or former employees Verification Data. Verification Data will be disclosed to Verifiers who certify they are entitled to receive such data (as described below) pursuant to the Fair Credit Reporting Act (“FCRA”), and , in the case of income information requests, who additionally certify they have a re cord of the individual’s consent to such disclosure or who utilize a salary key (“Employee Verification Services”). In accordance with FCRA, Verification Data may be provided to Verifiers where (i) the individual has applied for a benefit (such as credit, employment or social services assistance); (ii) the individual has obtained a benefit and the Verifier is seeking to (a) determine whether the individual is qualified to continue to receive the benefit; and/or (b) collect a debt or enfor ce other obligations undertaken by the individual in connection with the benefit; or (c) the Verifier is otherwise entitled under FCRA to obtain Verification Data. In certifying they have a record of the individual’s consent, Verifiers generally rely on the individual’s signature on the original application as authorization for the Verifier to access the individual’s income data at the time of the application and throughout the life of the obligation. Client understands that Verifiers are charged for commercial verifications processed through ADP or its Verification Agents. a. Data Quality. If requested by ADP, Client agrees to work with ADP during implementation to produce a test file and validate Verification Data using validation reports made available by ADP or its Verification Agents. ADP will update its system with the applicable Verification Data available in ADP’s payroll processing system. b. Notice to Furnishers of Information: Obligations of Furnishers of Information (“Notice to Furnishers”). Client certifies that it has read the Notice to Furnishers provided to Client at the following URL: https://files.consumerfinance.gov/f/201504_cfpb_summary_your-rights- under-fcra.pdf. Client understands its obligations as a data furnisher set forth in such notice and under FCRA which include duties regarding dat a accuracy and investigation of disputes and certifies it will comply with all such obligations. Client further understands that if it does not comply with such obligations, ADP may correct incorrect Verification Data on behalf of Client or terminate the Employment Verification Services upon 90 days prior written notice to Client. c. Archival Copies. Notwithstanding anything to the contrary in the Agreement, Client agrees that, after the termination of these Employment Verification Services, ADP and its Verification Agents may maintain archival copies of the Verification Data as needed to show the discharge and fulfillment of obligations to Client’s current and former employees . If ADP and its Verification Agents maintain archival copies of the Verification Data then the Verification Data will be maintained consistent with the Confidentiality provision of the Client Service Agreement. iii. Employee Authorized Disclosure. ADP may use or disclose personal information of a Client’s current or former employee or where such individual requests or consents to such use or disclosure (e.g., to verify the individual’s identity in connection with a bank account application) (“Employee Authorized Disclosures”). iv. Continuation of Services. Client understands and agrees that Verification Data and/or personal information provided by Client or its vendors in connection with the Services may be used, subject to the terms and conditions of this section, to provide Employment Verification Services and, at the individual’s request, Employee Authorized Disclosures after this Agreement expires or is terminated. 10. Work Opportunity Tax Credit Services. A. Provision of WOTC Services. Upon request from an eligible client, ADP, Inc. (“ADP”), an affiliate of TotalSource, will provide Client with screening and processing services designed to help Client identify and capture tax credits for which it may be eligible pursuant to the United States fed eral Work Opportunity Tax Credit (“WOTC”) program, as more fully described in this section (the “WOTC Services”). The WOTC Services will be provided by ADP through an environment hosted by or on behalf of ADP in the United States. All WOTC screening and related activities will occur and be provided exclusively through ADP’s integrated, electronic screening method, and unless otherwise specified by ADP, all WOTC-related forms will be electronically signed by or on behalf of Client and its applicants and employees, as applicable. For the avoidance of doubt, and notwithstanding anything to the contrary contained herein, the WOTC Services do not include any audit assistance, audit defense or audit support services. B. Client Obligations. i. Client acknowledges that WOTC is a voluntary program, and job applicants are not required to complete the WOTC screening as a condition to job application or employment. Client further acknowledges that participating job applicants who agree to complete the screening must be screened for eligibility on or before the day the applicant is offered employment. Client is solely responsible for causing its participating job applicants to screen for WOTC eligibility on or before the day the applicant is offered employment with Client. ii. Client will provide its job applicants with secure electronic access to the applicable ADP Application Program(s) made available by ADP to enable the screening of such job applicants for WOTC eligibility. Client will use and access (and cause its job applicants and employees to use and access) the WOTC Services and related ADP Application Program(s) solely from and within the United States unless ADP otherwise consents in writing in its sole discretion. iii. Client will assist its job applicants and employees, as app licable, in completing all required WOTC forms. iv. To the extent necessary or appropriate for the proper provision of the WOTC Services, Client will: (a) cooperate with ADP upon request; (b) timely provide ADP with all requested data, information and documentation; (c) timely execute and deliver all documents, instruments and forms required by ADP in connection with procuring qualification for any tax credits for Client under the WOTC program for the duration of the WOTC Services and any applicable post-termination period described herein; and (d) use the WOTC Services in accordance with all reasonable instructions and policies established and communicated by ADP from time to time. In furtherance of and not in limitation of the foregoing, Client will: (1) upon ADP’s request, timely execute and deliver to ADP appropriate powers of attorney in favor of ADP (and/or ADP’s designated employees) or similar instruments as required by applicable governmental agencies or authorities; (2) provide all required forms to ADP for submission to the applicable governmental agencies on behalf of Client promptly upon hiring an eligible applicant; and (3) ensure that ADP receives all required payroll and other applicable data for Client’s eligible employees. C. ADP Obligations. i. ADP will provide Client with non-exclusive, secure electronic access to the applicable ADP Application Program(s) that will (a) assist Client in screening its job applicants for WOTC eligibility and (b) allow Client’s job applicants to upload and provide certain eligibility and/or supporting documentation directly to ADP during their completion of the WOTC pre- screening questionnaire. ii. ADP will submit the following to the applicable governmental agencies on Client’s behalf: (a) those completed WOTC forms for eligible employees that are timely received by ADP; and (b) any applicable eligibility and/or supporting documentation for such eligible employees received by ADP, but only if and to the extent such eligible employees submitted the same directly CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 12 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM provide certificate signing request to TotalSource and create middleware utilizing TotalSource’s custom API access. ii. Client will use the API(s) to access its information only. iii. Client is only authorized to access the API(s) provided to Client in connection with this Agreement. iv. Client agrees that it will not (a) use the API(s) to transmit spam or other unsolicited email; (b) take any action that may impose an unreasonable or disproportionately large load on the TotalSource infrastructure, as determined by TotalSource; or (c) use the API(s) in any way that threatens the integrity, performance or reliability of the TotalSource services or TotalSource infrastructure. v. TotalSource may limit the number of requests that Client can make to the ADP API Gateway to protect its system or to enforce reasonable limits on Client’s use of the API(s). vi. Specific throttling limits may be imposed and modified from time to time by TotalSource. B. Limitation of Liability. The liability of TotalSource under this Agreement for damages under any circumstances for claims of any type or character arising from or related to API will be limited in each instance to the amount of actual damages incurred by Client, provided however, that in no event will the aggregate liability hereunder of TotalSource exceed the fee paid by Client for API during the three (3) months prior to the time at which the damages arose. As provided in Part 2, Section 17.N, in no event will TotalSource be liable or responsible for special, indirect, incidental, consequential or other similar damages in connection API. 9. EMPLOYMENT VERIFICATION SERVICES A. Employment Verification Services; Employee Authorized Disclosure. To the extent that Client is utilizing Employment Verification Services the following additional terms and conditions apply to the Employment Verification Services and Employee Authorized Disclosure: i. Employment Verification Services. Client authorizes ADP and its subcontractors through which Employment Verification Services are performed (“Verification Agents”) to disclose, on Client’s behalf, employment, job, and income information and personal information (“Verification Data”), to commercial, private, non-profit and governmental entities and their agents (collectively, “Verifiers”), who wish to obtain or verify any of Client’s current or former employees Verification Data. Verification Data will be disclosed to Verifiers who certify they are entitled to receive such data (as described below) pursuant to the Fair Credit Reporting Act (“FCRA”), and , in the case of income information requests, who additionally certify they have a re cord of the individual’s consent to such disclosure or who utilize a salary key (“Employee Verification Services”). In accordance with FCRA, Verification Data may be provided to Verifiers where (i) the individual has applied for a benefit (such as credit, employment or social services assistance); (ii) the individual has obtained a benefit and the Verifier is seeking to (a) determine whether the individual is qualified to continue to receive the benefit; and/or (b) collect a debt or enfor ce other obligations undertaken by the individual in connection with the benefit; or (c) the Verifier is otherwise entitled under FCRA to obtain Verification Data. In certifying they have a record of the individual’s consent, Verifiers generally rely on the individual’s signature on the original application as authorization for the Verifier to access the individual’s income data at the time of the application and throughout the life of the obligation. Client understands that Verifiers are charged for commercial verifications processed through ADP or its Verification Agents. a. Data Quality. If requested by ADP, Client agrees to work with ADP during implementation to produce a test file and validate Verification Data using validation reports made available by ADP or its Verification Agents. ADP will update its system with the applicable Verification Data available in ADP’s payroll processing system. b. Notice to Furnishers of Information: Obligations of Furnishers of Information (“Notice to Furnishers”). Client certifies that it has read the Notice to Furnishers provided to Client at the following URL: https://files.consumerfinance.gov/f/201504_cfpb_summary_your-rights- under-fcra.pdf. Client understands its obligations as a data furnisher set forth in such notice and under FCRA which include duties regarding dat a accuracy and investigation of disputes and certifies it will comply with all such obligations. Client further understands that if it does not comply with such obligations, ADP may correct incorrect Verification Data on behalf of Client or terminate the Employment Verification Services upon 90 days prior written notice to Client. c. Archival Copies. Notwithstanding anything to the contrary in the Agreement, Client agrees that, after the termination of these Employment Verification Services, ADP and its Verification Agents may maintain archival copies of the Verification Data as needed to show the discharge and fulfillment of obligations to Client’s current and former employees . If ADP and its Verification Agents maintain archival copies of the Verification Data then the Verification Data will be maintained consistent with the Confidentiality provision of the Client Service Agreement. iii. Employee Authorized Disclosure. ADP may use or disclose personal information of a Client’s current or former employee or where such individual requests or consents to such use or disclosure (e.g., to verify the individual’s identity in connection with a bank account application) (“Employee Authorized Disclosures”). iv. Continuation of Services. Client understands and agrees that Verification Data and/or personal information provided by Client or its vendors in connection with the Services may be used, subject to the terms and conditions of this section, to provide Employment Verification Services and, at the individual’s request, Employee Authorized Disclosures after this Agreement expires or is terminated. 10. Work Opportunity Tax Credit Services. A. Provision of WOTC Services. Upon request from an eligible client, ADP, Inc. (“ADP”), an affiliate of TotalSource, will provide Client with screening and processing services designed to help Client identify and capture tax credits for which it may be eligible pursuant to the United States fed eral Work Opportunity Tax Credit (“WOTC”) program, as more fully described in this section (the “WOTC Services”). The WOTC Services will be provided by ADP through an environment hosted by or on behalf of ADP in the United States. All WOTC screening and related activities will occur and be provided exclusively through ADP’s integrated, electronic screening method, and unless otherwise specified by ADP, all WOTC-related forms will be electronically signed by or on behalf of Client and its applicants and employees, as applicable. For the avoidance of doubt, and notwithstanding anything to the contrary contained herein, the WOTC Services do not include any audit assistance, audit defense or audit support services. B. Client Obligations. i. Client acknowledges that WOTC is a voluntary program, and job applicants are not required to complete the WOTC screening as a condition to job application or employment. Client further acknowledges that participating job applicants who agree to complete the screening must be screened for eligibility on or before the day the applicant is offered employment. Client is solely responsible for causing its participating job applicants to screen for WOTC eligibility on or before the day the applicant is offered employment with Client. ii. Client will provide its job applicants with secure electronic access to the applicable ADP Application Program(s) made available by ADP to enable the screening of such job applicants for WOTC eligibility. Client will use and access (and cause its job applicants and employees to use and access) the WOTC Services and related ADP Application Program(s) solely from and within the United States unless ADP otherwise consents in writing in its sole discretion. iii. Client will assist its job applicants and employees, as app licable, in completing all required WOTC forms. iv. To the extent necessary or appropriate for the proper provision of the WOTC Services, Client will: (a) cooperate with ADP upon request; (b) timely provide ADP with all requested data, information and documentation; (c) timely execute and deliver all documents, instruments and forms required by ADP in connection with procuring qualification for any tax credits for Client under the WOTC program for the duration of the WOTC Services and any applicable post-termination period described herein; and (d) use the WOTC Services in accordance with all reasonable instructions and policies established and communicated by ADP from time to time. In furtherance of and not in limitation of the foregoing, Client will: (1) upon ADP’s request, timely execute and deliver to ADP appropriate powers of attorney in favor of ADP (and/or ADP’s designated employees) or similar instruments as required by applicable governmental agencies or authorities; (2) provide all required forms to ADP for submission to the applicable governmental agencies on behalf of Client promptly upon hiring an eligible applicant; and (3) ensure that ADP receives all required payroll and other applicable data for Client’s eligible employees. C. ADP Obligations. i. ADP will provide Client with non-exclusive, secure electronic access to the applicable ADP Application Program(s) that will (a) assist Client in screening its job applicants for WOTC eligibility and (b) allow Client’s job applicants to upload and provide certain eligibility and/or supporting documentation directly to ADP during their completion of the WOTC pre- screening questionnaire. ii. ADP will submit the following to the applicable governmental agencies on Client’s behalf: (a) those completed WOTC forms for eligible employees that are timely received by ADP; and (b) any applicable eligibility and/or supporting documentation for such eligible employees received by ADP, but only if and to the extent such eligible employees submitted the same directly CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 12 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 to ADP through the ADP Application Program while completing the WOTC pre-screening questionnaire as part of Client’s job application/recruiting process. For the avoidance of doubt, and notwithstanding anything the foregoing or anything to the contrary contained herein, ADP will not be required to respond to, forward to or notify Client about, or otherwise pro cess or handle any need or document follow-up requests, denials, or other similar correspondence received by ADP on Client’s behalf from any governmental agency in connection with the WOTC Services. iii. ADP will calculate the applicable WOTC tax credit amounts based upon eligible wages of eligible employees as reported to ADP by or on behalf of Client. iv. ADP will provide Client with one or more reports summarizing the WOTC tax credits realized by Client in connection with the WOTC Services. D. Flash Signature. ADP intends to offer to Client and its job applicants, as a prerequisite to Client’s receipt and continued use of the WOTC Services, the ability to digitally or electronically sign (“Flash Signature”) certain WOTC- related forms and documents. Client will cooperate with ADP as reasonably requested to implement and utilize Flash Signature (including, without limitation, providing one or more duly authorized Client signatu res for use). ADP may, at any time upon notice to Client, terminate, suspend or limit Flash Signature if ADP determines in its reasonable discretion that all or any portion of Flash Signature is not permitted, o r is reasonably likely to be limited or prohibited, by the United States Internal Revenue Service, Department of Labor, any state workforce agency, or other applicable governmental agency or regulatory authority. E. Disclaimer. ADP does not guarantee that any tax credits or other savings or benefits will be obtained by Client as a result of the WOTC Services. Further, ADP is not a tax preparer and is not responsible or liable fo r Client’s federal, state or local tax returns, and the WOTC Services do not constitute or include legal, accounting, tax or financial advice. F. Pricing. ADP’s fees for the WOTC Services are included in the Service Fee set forth in the Pricing Addendum. In addition, Client will be invoiced for any applicable taxes (e.g., sales tax), and Client will also pay ADP directly, or will reimburse ADP for, any fees and other costs required by any governmental or other agency in connection with applying for or obtaining tax credits or other benefits pursuant to the WOTC Services (if applicable). G. Limitation of Liability. The liability of ADP under this Agreement for damages under any circumstances for claims of any type or character arising from or related to the WOTC Services will be limited in each instance to the amount of actual damages incurred by Client, prov ided however, that in no event will the aggregate liability hereunder of ADP, as it relates to liability arising from or related to the WOTC Services, exceed Two Thousand Five Hundred U.S. Dollars ($2,500.00) per calendar year. In accordance with Part 2, Section 17.N, in no event will TotalSource, ADP, or Client be responsible for special, indirect, incidental, consequential or other similar damages in connection with the WOTC Services, even if it has been advised of the possibility thereof. H. Post-Termination Services and Fees. Client acknowledges that it may receive WOTC certifications from governmental agencies subsequent to the termination or expiration of the Agreement and/or the WOTC Services. Unless the Agreement and/or WOTC Services are terminated by ADP for cause, ADP agrees to provide Clien t access to the applicable ADP system or portal fo r a one (1) year period following the termination or expiration of the Agreement and/or WOTC Services (the “Post-Termination Period”) for the sole purpose of allowing Client to obtain information regarding such WOTC certifications received post-termination by ADP on Client’s behalf. Upon expiration of such one (1) year post-termination period, ADP will have no further obligation to make any WOTC certification information, or any other information, available to Client in connection with the WOTC Services. Client is not authorized to, and represents and agrees that it will not, utilize any ADP Application Program or other ADP system or portal to screen job applicants for WOTC eligibility post-termination. Further, Client acknowledges and agrees that, notwithstanding anything to the contrary contained herein, following any termination or expiration of the Agreement and/or the WOTC Services, Client will be solely responsible (to the exclusion of ADP) for calculating applicable WOTC tax credit amounts. ADP may, in its discretion, charge Client a one-time administration fee in the amount of $150.00 for the post-termination services described in this paragraph. Any such post- termination services provided by ADP will b e subject to the terms and conditions of the Agreement as if the Agreement had no t terminated or expired. 11. CONFIDENTIALITY. The parties agree that each will treat as confidential, proprietary and trade secret any information identified by the other as confidential, including all Client information and data and Worksite Employee information (“Confidential Information”). The parties will also cause their employees, officers, directors, owners, advisors, agents and affiliates that receive Confidential Information to comply with this confidentiality provision and applicable federal, state and local information security and privacy laws. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party to the extent necessary to comply with any law, rule, regulation or ruling applicable to it; as appropriate to respond to any summons, court order or subpoena or in connection with any litigation; and to its attorneys, accountants, and other representatives with a need-to-know, provided that the disclosing party will cause the third party to comply with the confidentiality obligations contained in this Agreement. The parties agree that this Agreement and all TotalSource materials (including all TotalSource Products, as defined below, and any sales proposals) used to perform the duties of this Agreement are Confidential Information. Each party agrees to implement and maintain commercially reasonable measures and policies to physically and electronically protect Confidential Information. Upon termination of this Agreement, TotalSource and Client agree to promptly return Confidential Information and intellectual property of the other. Notwithstanding the foregoing, TotalSource may retain information for regulatory purposes or in back-up files, provided that TotalSource’s confidentiality obligations hereunder continue to apply. Client agrees that TotalSource may use Client’s and/or Client’s Worksite Employees’ and participants’ information for purposes other than performance of the Services, but only in an aggregated, anonymized form, such that neither Client nor Client’s Worksite Employees or participants may be identified. Client further agrees that it shall have no ownership interest in the foregoing aggregated, anonymized data. Confidential Information does not include information in the public domain. The parties specifically acknowledge that money damages alone may not be an adequate remedy for any damage suffered as a result of a breach of this provision and, therefore, an injunction or similar relief in law or equity may be appropriate to enforce this provision. The obligations of this Section shall survive for a period of two (2) years from the effective date of termination of this Agreement. 12. PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY. A. Client’s Intellectual Property; Content. i. The parties acknowledge that Client is the owner of intellectual property created by Worksite Employees during the term of this Agreement relating to Client’s business. Client, as owner of the intellectual property, is solely responsible for ensuring its intellectual property is protected and for the payment of any associated costs and fees. TotalSource is not responsible for, and will have no liability for, any costs, fees, damages, or losses relating to Client’s intellectual property or any failure by Client to protect or exploit Client’s intellectual property. ii. "Client Content" shall mean (i) all payroll, human resource and similar information provided by Client or its agents or Worksite Employees, including transactional information, (ii) Client's trademarks, trade names, service marks, logos and designs and (iii) any other information or materials provided by Client, regardless of form (e.g., images, graphics, text, etc.). The following provisions shall apply with respect to Client Content: a. Client shall be solely responsible for updating and maintaining the completeness and accuracy of all Client Content. b. Client shall be responsible for obtaining all required rights and licenses to use and display all Client Content in connection with the Services. Client hereby grants and represents that it has the right to grant to TotalSource a non-exclusive, non-transferable license to use, edit, modify, adapt, translate, exhibit, publish, reproduce, copy (including backup copies) and display the Client Content as reasonably necessary to provide its Services. c. Client and the Worksite Employees shall not include or provide to TotalSource for inclusion in any website provided by TotalSource (including, the TotalSource Front End Payroll Processing Platform a/k/a My TotalSource) any Client Content which is obscene, offensive, inappropriate, threatening, malicious, which violates any applicable law or regulation or any contract, privacy or other third party right or which otherwise exposes TotalSource to civil or criminal liability. TotalSource reserves the right to exclude or immediately remove from any website it provides Client access to any Client Content which it determines in its sole discretion violates the previous sentence, provided that TotalSource has no obligation to review or monitor the Client Content. d. Client shall only provide TotalSource with Client Content that is required to perform the Services. To the extent Client elects to provide TotalSource with Client Content beyond that which is required to perform the Services, Client will be solely responsible for the collection and processing of such data. B. TotalSource’s Intellectual Property. All TotalSource Products, as defined below, licensed or provided to Client, are the licensed and/or owned property of, and embody the proprietary trade secret technology of, TotalSource, its parent company, its affiliates and/or its licensor(s). The TotalSource Products are protected by copyright laws, international copyright treaties, as well as any Intellectual Property Rights CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 13 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM to ADP through the ADP Application Program while completing the WOTC pre-screening questionnaire as part of Client’s job application/recruiting process. For the avoidance of doubt, and notwithstanding anything the foregoing or anything to the contrary contained herein, ADP will not be required to respond to, forward to or notify Client about, or otherwise pro cess or handle any need or document follow-up requests, denials, or other similar correspondence received by ADP on Client’s behalf from any governmental agency in connection with the WOTC Services. iii. ADP will calculate the applicable WOTC tax credit amounts based upon eligible wages of eligible employees as reported to ADP by or on behalf of Client. iv. ADP will provide Client with one or more reports summarizing the WOTC tax credits realized by Client in connection with the WOTC Services. D. Flash Signature. ADP intends to offer to Client and its job applicants, as a prerequisite to Client’s receipt and continued use of the WOTC Services, the ability to digitally or electronically sign (“Flash Signature”) certain WOTC- related forms and documents. Client will cooperate with ADP as reasonably requested to implement and utilize Flash Signature (including, without limitation, providing one or more duly authorized Client signatu res for use). ADP may, at any time upon notice to Client, terminate, suspend or limit Flash Signature if ADP determines in its reasonable discretion that all or any portion of Flash Signature is not permitted, o r is reasonably likely to be limited or prohibited, by the United States Internal Revenue Service, Department of Labor, any state workforce agency, or other applicable governmental agency or regulatory authority. E. Disclaimer. ADP does not guarantee that any tax credits or other savings or benefits will be obtained by Client as a result of the WOTC Services. Further, ADP is not a tax preparer and is not responsible or liable fo r Client’s federal, state or local tax returns, and the WOTC Services do not constitute or include legal, accounting, tax or financial advice. F. Pricing. ADP’s fees for the WOTC Services are included in the Service Fee set forth in the Pricing Addendum. In addition, Client will be invoiced for any applicable taxes (e.g., sales tax), and Client will also pay ADP directly, or will reimburse ADP for, any fees and other costs required by any governmental or other agency in connection with applying for or obtaining tax credits or other benefits pursuant to the WOTC Services (if applicable). G. Limitation of Liability. The liability of ADP under this Agreement for damages under any circumstances for claims of any type or character arising from or related to the WOTC Services will be limited in each instance to the amount of actual damages incurred by Client, prov ided however, that in no event will the aggregate liability hereunder of ADP, as it relates to liability arising from or related to the WOTC Services, exceed Two Thousand Five Hundred U.S. Dollars ($2,500.00) per calendar year. In accordance with Part 2, Section 17.N, in no event will TotalSource, ADP, or Client be responsible for special, indirect, incidental, consequential or other similar damages in connection with the WOTC Services, even if it has been advised of the possibility thereof. H. Post-Termination Services and Fees. Client acknowledges that it may receive WOTC certifications from governmental agencies subsequent to the termination or expiration of the Agreement and/or the WOTC Services. Unless the Agreement and/or WOTC Services are terminated by ADP for cause, ADP agrees to provide Clien t access to the applicable ADP system or portal fo r a one (1) year period following the termination or expiration of the Agreement and/or WOTC Services (the “Post-Termination Period”) for the sole purpose of allowing Client to obtain information regarding such WOTC certifications received post-termination by ADP on Client’s behalf. Upon expiration of such one (1) year post-termination period, ADP will have no further obligation to make any WOTC certification information, or any other information, available to Client in connection with the WOTC Services. Client is not authorized to, and represents and agrees that it will not, utilize any ADP Application Program or other ADP system or portal to screen job applicants for WOTC eligibility post-termination. Further, Client acknowledges and agrees that, notwithstanding anything to the contrary contained herein, following any termination or expiration of the Agreement and/or the WOTC Services, Client will be solely responsible (to the exclusion of ADP) for calculating applicable WOTC tax credit amounts. ADP may, in its discretion, charge Client a one-time administration fee in the amount of $150.00 for the post-termination services described in this paragraph. Any such post- termination services provided by ADP will b e subject to the terms and conditions of the Agreement as if the Agreement had no t terminated or expired. 11. CONFIDENTIALITY. The parties agree that each will treat as confidential, proprietary and trade secret any information identified by the other as confidential, including all Client information and data and Worksite Employee information (“Confidential Information”). The parties will also cause their employees, officers, directors, owners, advisors, agents and affiliates that receive Confidential Information to comply with this confidentiality provision and applicable federal, state and local information security and privacy laws. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party to the extent necessary to comply with any law, rule, regulation or ruling applicable to it; as appropriate to respond to any summons, court order or subpoena or in connection with any litigation; and to its attorneys, accountants, and other representatives with a need-to-know, provided that the disclosing party will cause the third party to comply with the confidentiality obligations contained in this Agreement. The parties agree that this Agreement and all TotalSource materials (including all TotalSource Products, as defined below, and any sales proposals) used to perform the duties of this Agreement are Confidential Information. Each party agrees to implement and maintain commercially reasonable measures and policies to physically and electronically protect Confidential Information. Upon termination of this Agreement, TotalSource and Client agree to promptly return Confidential Information and intellectual property of the other. Notwithstanding the foregoing, TotalSource may retain information for regulatory purposes or in back-up files, provided that TotalSource’s confidentiality obligations hereunder continue to apply. Client agrees that TotalSource may use Client’s and/or Client’s Worksite Employees’ and participants’ information for purposes other than performance of the Services, but only in an aggregated, anonymized form, such that neither Client nor Client’s Worksite Employees or participants may be identified. Client further agrees that it shall have no ownership interest in the foregoing aggregated, anonymized data. Confidential Information does not include information in the public domain. The parties specifically acknowledge that money damages alone may not be an adequate remedy for any damage suffered as a result of a breach of this provision and, therefore, an injunction or similar relief in law or equity may be appropriate to enforce this provision. The obligations of this Section shall survive for a period of two (2) years from the effective date of termination of this Agreement. 12. PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY. A. Client’s Intellectual Property; Content. i. The parties acknowledge that Client is the owner of intellectual property created by Worksite Employees during the term of this Agreement relating to Client’s business. Client, as owner of the intellectual property, is solely responsible for ensuring its intellectual property is protected and for the payment of any associated costs and fees. TotalSource is not responsible for, and will have no liability for, any costs, fees, damages, or losses relating to Client’s intellectual property or any failure by Client to protect or exploit Client’s intellectual property. ii. "Client Content" shall mean (i) all payroll, human resource and similar information provided by Client or its agents or Worksite Employees, including transactional information, (ii) Client's trademarks, trade names, service marks, logos and designs and (iii) any other information or materials provided by Client, regardless of form (e.g., images, graphics, text, etc.). The following provisions shall apply with respect to Client Content: a. Client shall be solely responsible for updating and maintaining the completeness and accuracy of all Client Content. b. Client shall be responsible for obtaining all required rights and licenses to use and display all Client Content in connection with the Services. Client hereby grants and represents that it has the right to grant to TotalSource a non-exclusive, non-transferable license to use, edit, modify, adapt, translate, exhibit, publish, reproduce, copy (including backup copies) and display the Client Content as reasonably necessary to provide its Services. c. Client and the Worksite Employees shall not include or provide to TotalSource for inclusion in any website provided by TotalSource (including, the TotalSource Front End Payroll Processing Platform a/k/a My TotalSource) any Client Content which is obscene, offensive, inappropriate, threatening, malicious, which violates any applicable law or regulation or any contract, privacy or other third party right or which otherwise exposes TotalSource to civil or criminal liability. TotalSource reserves the right to exclude or immediately remove from any website it provides Client access to any Client Content which it determines in its sole discretion violates the previous sentence, provided that TotalSource has no obligation to review or monitor the Client Content. d. Client shall only provide TotalSource with Client Content that is required to perform the Services. To the extent Client elects to provide TotalSource with Client Content beyond that which is required to perform the Services, Client will be solely responsible for the collection and processing of such data. B. TotalSource’s Intellectual Property. All TotalSource Products, as defined below, licensed or provided to Client, are the licensed and/or owned property of, and embody the proprietary trade secret technology of, TotalSource, its parent company, its affiliates and/or its licensor(s). The TotalSource Products are protected by copyright laws, international copyright treaties, as well as any Intellectual Property Rights CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 13 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 TotalSource may have, including those that prohibit the unauthorized use and copying of any TotalSource Products. “Intellectual Property Rights” means all (i) trademarks, service marks and names, including all trademark and service mark registrations; (ii) copyrights, copyright registrations and copyright applications; (iii) patent rights, including issued patents, applications, divisions, continuations, continuations-in-part, reissues, patents of additions, utility models and inventors’ certificates; (iv) trade secrets, proprietary information, know-how, processes, inventions, inventor’s notes, drawings and designs; (v) domain names, and (vi) goodwill associated with any of the foregoing. Client receives no rights to any TotalSource Products or any intellectual property of TotalSource, its parent company, its affiliates or its licensors, except as expressly stated herein. For purposes of this Agreement, “TotalSource Products” is defined as all computer programs, software, hardware, including time clocks, P.C. entry systems, and related documentation, such as tutorials and training man uals (whether online or in-person training), made available to Client by TotalSource, ADP, Inc, their affiliates or their licensor(s). Under this Agreement, TotalSource’s license to Client for use of the TotalSource Products, including any Application Programs, is a personal, non- exclusive, non-transferable license for the term of this Agreement, provided that it is only used for Client’s business, only for the term of this Agreement, and only for the purposes of this Agreement. At no additional cost unless otherwise indicated in this Agreement or any attachments, and subject to the license described in this Section, TotalSource will provide Client with improvements, enhancements, modifications, and updates to the Application Programs if and as they are made generally available by TotalSource. Client agrees to use the current release of the TotalSource Products on the hardware indicated by TotalSource. Client agrees not to make any alteration, change, or modification to any of the TotalSource Products or Application Programs. Client agrees not to recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work, related to, the TotalSource Products or Application Programs. Client may make a single archival copy of the TotalSource Products for back-up purposes only, provided that TotalSource’s copyright and other intellectual property rights are noticed. 13. INFORMATION SECURITY; DATA ACCESS; PRIVACY. A. Information Security. TotalSource and its parent company, ADP, Inc, maintain information security and safeguarding policies and employ commercially reasonable storage (including backup, archive and redundant data storage, on-site and off-site) and reasonable precautions to prevent the disclosure to an unauthorized third party, loss or alteration of Client’s information, data and/or Worksite Employee information in TotalSource’s possession, but TotalSource does not undertake to guarantee against any such loss or alteration. In the event that Client requests that TotalSource provide any Client or Worksite Employee or plan participant information to any third party or to any non-U.S. Client location, Client represents that it has acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable international, federal, state or local laws and/or regulations. TotalSource reserves the right to request additional consents or docu mentation regarding any release of Client or Worksite Employee information to a third party or to any non-U.S. Client location. B. Data Access, Transmissions, and Information Security Breaches. Certain TotalSource Products and Services may be provided through and accessed by Client and Worksite Employees through the Internet at a website provided by TotalSource (including, without limitation, the TotalSource Front End Payroll Processing Platform), including those hosted by TotalSource on behalf of Client (“Site”). To the extent any Services are provided through the Internet, such Services are referred to as “Internet Professional Employer Services.” Client acknowledges that TotalSource is not responsible for information submitted by Client or Worksite Employees through the Site and absolves TotalSource of any liability for any claims arising from Client or Worksite Employee information submitted through the Site. Client and its Users are responsible for maintaining the security and confidentiality of any password, User ID, or other form of user authentication involved in obtaining access to the Application Programs, and Client and it’s Users shall not disclose any confidential account access credentials or related information to Unauthorized Third Parties. “Unauthorized Third Party” means any third party that seeks to access or accesses TotalSource Application Programs using the account credentials (e.g., username and password) of a User even if such User has provided consent. In the event TotalSource suspects any unauthorized access to, or use of, the Services or TotalSource Application Programs, TotalSource may suspend access to the Services to the extent TotalSource deems necessary to preserve the security of TotalSource, Client or User’s data. In addition, Client acknowledges that security of transmissions over the Internet cannot be guaranteed. TotalSource is not responsible for (i) Client’s or Worksite Employees’ access to the Internet; (ii) interception or interruptions of communications through the Internet; or (iii) changes or losses of data through the Internet. Each party will be responsible for complying with all requirements of applicable law or regulation regarding information security including information security breaches involving Client’s information, data files and Worksite Employees’ information that is stored on the computer systems of such party or its affiliates or vendors. C. Links to Third Party Sites. The Site(s) may contain links to other Internet sites. Links to and from the Site to other third party sites do not constitute an endorsement by TotalSource, ADP, Inc or any of their subsidiaries or affiliates of such third party sites or the acceptance of responsibility for the content on such sites. D. Privacy. TotalSource and Client agree to abide by all applicable federal, state and local privacy laws with respect to information regarding Worksite Employees and information and data of each other, which is subject to such privacy laws, including information not deemed to be Confidential Information. 14. INDEMNIFICATION A. General Provisions. The parties agree that the indemnification provisions contained in this Section apply to claims, expenses (including cost of investigation, court costs and reasonable attorneys’ fees), or liabilities for which one of the parties is solely liable and/or for which the parties are both liable. In the event one party pays funds in connection with a claim, expense, or liability in excess of its obligation (“Paying Party”), such obligation being determined by the parties’ written agreement or by a court’s adjudication or other legally binding decision, the other party will indemnify and promptly pay the Paying Party for the excess amount. Further, if one party intends to make a settlement offer on a claim or lawsuit for which it also intends to seek indemnification from the other party, that party agrees to provide the other party with at least ten (10) business days’ written notice prior to making such offer. In accordance with Part 2, Section 17.N, neither party will be liable to the other party for special, incidental, consequential, or punitive damages. Each party’s indemnification provision survives the termination or expiration of this Agreement. B. TotalSource’s Indemnification. TotalSource agrees to indemnify, protect, defend, release, and hold harmless Client, its parent(s), subsidiaries, affiliates, directors, officers, and agents from and against any and all liability, expenses, losses, and claims for damages arising from or in connection with: (i) any actions or inactions of Worksite Employees, TotalSource Corporate Employees, TotalSource officers, directors, agents or independent contractors, in each case, while under TotalSource’s direction, supervision, or control; (ii) TotalSource’s breach of this Agreement; or (iii) TotalSource’s negligent, fraudulent, willful, or reckless performance or non- performance of any of its responsibilities described in this Agreement. C. Client’s Indemnification. Client agrees to indemnify, protect, defend, release, and hold harmless TotalSource, its parents, subsidiaries, affiliates, directors, officers, benefit plans and agents from and against any and all liability, expenses, losses, and claims for damages arising from or in connection with: (i) any actions or inactions of Worksite Employees, Client’s officers, SEI’s, directors, agents, or independent contracto rs, in each case, while under Client’s direction, supervision, or control; (ii) Client’s breach of this Agreement; or (iii) Client’s negligent, fraudulent, willful, or reckless performance or non-performance of any of the responsibilities described in this Agreement. 15. TERMINATION; DEFAULT; REMEDIES UPON DEFAULT. A. Termination; Default. Client or TotalSource may terminate this Agreement at any time, including during the Initial Term, for any reason upon at least thirty (30) days prior written notice. Either party may terminate this Agreement immediately and without prior notice for Cause, as defined below. Cause as it relates to the right of either party to terminate this Agreement immediately and without prior notice includes the following: (i) the other party’s material violation of law; (ii) the other party’s material breach of this Agreement; or (iii) the other party filing for relief under the Bankruptcy Code, seeking the appointment of a receiver or trustee, or dissolving the entity. Cause as it relates solely to the right of TotalSource to terminate this Agreement, immediately and without prior notice to Client, includes the following: (i) Client’s non-payment of any amount due to TotalSource; (ii) Client’s material adverse change in financial position or operations; (iii) Client’s inability to pay debts as they become due in the ordinary course of business; (iv) Client’s assignment of Worksite Employees to operations which contain a workers’ compensation code different from that disclosed to TotalSource prior to the execution of this Agreement without TotalSource’s prior consent; (v) TotalSource receives notification from the bank from which TotalSource debits Client’s account that such bank is no longer willing, for any reason, to originate debits and credits; (vi) Client’s termination of its authorization to allow TotalSource to debit Client’s account; or (vii) failure of Client to pay the EPLI deductibles (retention). The effective date of termination of this Agreement shall be the last day of the last payroll period for which TotalSource received full payment from Client in the event TotalSource terminates this Agreement for any of the following reasons: (i) Client’s non-payment of any amount due to TotalSource, including receipt of full payment as set forth in Section 2 herein; (ii) Client’s material adverse change in financial position or operations; or (iii) Client’s inability to pay debts as they become due in the ordinary course of business. Client understands that failure to give the required notice of termination is a breach of this Agreement and Client is responsible to pay TotalSource the Service Fee that would have been due to TotalSource for the number of days remaining in the notice period. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 14 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM TotalSource may have, including those that prohibit the unauthorized use and copying of any TotalSource Products. “Intellectual Property Rights” means all (i) trademarks, service marks and names, including all trademark and service mark registrations; (ii) copyrights, copyright registrations and copyright applications; (iii) patent rights, including issued patents, applications, divisions, continuations, continuations-in-part, reissues, patents of additions, utility models and inventors’ certificates; (iv) trade secrets, proprietary information, know-how, processes, inventions, inventor’s notes, drawings and designs; (v) domain names, and (vi) goodwill associated with any of the foregoing. Client receives no rights to any TotalSource Products or any intellectual property of TotalSource, its parent company, its affiliates or its licensors, except as expressly stated herein. For purposes of this Agreement, “TotalSource Products” is defined as all computer programs, software, hardware, including time clocks, P.C. entry systems, and related documentation, such as tutorials and training man uals (whether online or in-person training), made available to Client by TotalSource, ADP, Inc, their affiliates or their licensor(s). Under this Agreement, TotalSource’s license to Client for use of the TotalSource Products, including any Application Programs, is a personal, non- exclusive, non-transferable license for the term of this Agreement, provided that it is only used for Client’s business, only for the term of this Agreement, and only for the purposes of this Agreement. At no additional cost unless otherwise indicated in this Agreement or any attachments, and subject to the license described in this Section, TotalSource will provide Client with improvements, enhancements, modifications, and updates to the Application Programs if and as they are made generally available by TotalSource. Client agrees to use the current release of the TotalSource Products on the hardware indicated by TotalSource. Client agrees not to make any alteration, change, or modification to any of the TotalSource Products or Application Programs. Client agrees not to recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work, related to, the TotalSource Products or Application Programs. Client may make a single archival copy of the TotalSource Products for back-up purposes only, provided that TotalSource’s copyright and other intellectual property rights are noticed. 13. INFORMATION SECURITY; DATA ACCESS; PRIVACY. A. Information Security. TotalSource and its parent company, ADP, Inc, maintain information security and safeguarding policies and employ commercially reasonable storage (including backup, archive and redundant data storage, on-site and off-site) and reasonable precautions to prevent the disclosure to an unauthorized third party, loss or alteration of Client’s information, data and/or Worksite Employee information in TotalSource’s possession, but TotalSource does not undertake to guarantee against any such loss or alteration. In the event that Client requests that TotalSource provide any Client or Worksite Employee or plan participant information to any third party or to any non-U.S. Client location, Client represents that it has acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable international, federal, state or local laws and/or regulations. TotalSource reserves the right to request additional consents or docu mentation regarding any release of Client or Worksite Employee information to a third party or to any non-U.S. Client location. B. Data Access, Transmissions, and Information Security Breaches. Certain TotalSource Products and Services may be provided through and accessed by Client and Worksite Employees through the Internet at a website provided by TotalSource (including, without limitation, the TotalSource Front End Payroll Processing Platform), including those hosted by TotalSource on behalf of Client (“Site”). To the extent any Services are provided through the Internet, such Services are referred to as “Internet Professional Employer Services.” Client acknowledges that TotalSource is not responsible for information submitted by Client or Worksite Employees through the Site and absolves TotalSource of any liability for any claims arising from Client or Worksite Employee information submitted through the Site. Client and its Users are responsible for maintaining the security and confidentiality of any password, User ID, or other form of user authentication involved in obtaining access to the Application Programs, and Client and it’s Users shall not disclose any confidential account access credentials or related information to Unauthorized Third Parties. “Unauthorized Third Party” means any third party that seeks to access or accesses TotalSource Application Programs using the account credentials (e.g., username and password) of a User even if such User has provided consent. In the event TotalSource suspects any unauthorized access to, or use of, the Services or TotalSource Application Programs, TotalSource may suspend access to the Services to the extent TotalSource deems necessary to preserve the security of TotalSource, Client or User’s data. In addition, Client acknowledges that security of transmissions over the Internet cannot be guaranteed. TotalSource is not responsible for (i) Client’s or Worksite Employees’ access to the Internet; (ii) interception or interruptions of communications through the Internet; or (iii) changes or losses of data through the Internet. Each party will be responsible for complying with all requirements of applicable law or regulation regarding information security including information security breaches involving Client’s information, data files and Worksite Employees’ information that is stored on the computer systems of such party or its affiliates or vendors. C. Links to Third Party Sites. The Site(s) may contain links to other Internet sites. Links to and from the Site to other third party sites do not constitute an endorsement by TotalSource, ADP, Inc or any of their subsidiaries or affiliates of such third party sites or the acceptance of responsibility for the content on such sites. D. Privacy. TotalSource and Client agree to abide by all applicable federal, state and local privacy laws with respect to information regarding Worksite Employees and information and data of each other, which is subject to such privacy laws, including information not deemed to be Confidential Information. 14. INDEMNIFICATION A. General Provisions. The parties agree that the indemnification provisions contained in this Section apply to claims, expenses (including cost of investigation, court costs and reasonable attorneys’ fees), or liabilities for which one of the parties is solely liable and/or for which the parties are both liable. In the event one party pays funds in connection with a claim, expense, or liability in excess of its obligation (“Paying Party”), such obligation being determined by the parties’ written agreement or by a court’s adjudication or other legally binding decision, the other party will indemnify and promptly pay the Paying Party for the excess amount. Further, if one party intends to make a settlement offer on a claim or lawsuit for which it also intends to seek indemnification from the other party, that party agrees to provide the other party with at least ten (10) business days’ written notice prior to making such offer. In accordance with Part 2, Section 17.N, neither party will be liable to the other party for special, incidental, consequential, or punitive damages. Each party’s indemnification provision survives the termination or expiration of this Agreement. B. TotalSource’s Indemnification. TotalSource agrees to indemnify, protect, defend, release, and hold harmless Client, its parent(s), subsidiaries, affiliates, directors, officers, and agents from and against any and all liability, expenses, losses, and claims for damages arising from or in connection with: (i) any actions or inactions of Worksite Employees, TotalSource Corporate Employees, TotalSource officers, directors, agents or independent contractors, in each case, while under TotalSource’s direction, supervision, or control; (ii) TotalSource’s breach of this Agreement; or (iii) TotalSource’s negligent, fraudulent, willful, or reckless performance or non- performance of any of its responsibilities described in this Agreement. C. Client’s Indemnification. Client agrees to indemnify, protect, defend, release, and hold harmless TotalSource, its parents, subsidiaries, affiliates, directors, officers, benefit plans and agents from and against any and all liability, expenses, losses, and claims for damages arising from or in connection with: (i) any actions or inactions of Worksite Employees, Client’s officers, SEI’s, directors, agents, or independent contracto rs, in each case, while under Client’s direction, supervision, or control; (ii) Client’s breach of this Agreement; or (iii) Client’s negligent, fraudulent, willful, or reckless performance or non-performance of any of the responsibilities described in this Agreement. 15. TERMINATION; DEFAULT; REMEDIES UPON DEFAULT. A. Termination; Default. Client or TotalSource may terminate this Agreement at any time, including during the Initial Term, for any reason upon at least thirty (30) days prior written notice. Either party may terminate this Agreement immediately and without prior notice for Cause, as defined below. Cause as it relates to the right of either party to terminate this Agreement immediately and without prior notice includes the following: (i) the other party’s material violation of law; (ii) the other party’s material breach of this Agreement; or (iii) the other party filing for relief under the Bankruptcy Code, seeking the appointment of a receiver or trustee, or dissolving the entity. Cause as it relates solely to the right of TotalSource to terminate this Agreement, immediately and without prior notice to Client, includes the following: (i) Client’s non-payment of any amount due to TotalSource; (ii) Client’s material adverse change in financial position or operations; (iii) Client’s inability to pay debts as they become due in the ordinary course of business; (iv) Client’s assignment of Worksite Employees to operations which contain a workers’ compensation code different from that disclosed to TotalSource prior to the execution of this Agreement without TotalSource’s prior consent; (v) TotalSource receives notification from the bank from which TotalSource debits Client’s account that such bank is no longer willing, for any reason, to originate debits and credits; (vi) Client’s termination of its authorization to allow TotalSource to debit Client’s account; or (vii) failure of Client to pay the EPLI deductibles (retention). The effective date of termination of this Agreement shall be the last day of the last payroll period for which TotalSource received full payment from Client in the event TotalSource terminates this Agreement for any of the following reasons: (i) Client’s non-payment of any amount due to TotalSource, including receipt of full payment as set forth in Section 2 herein; (ii) Client’s material adverse change in financial position or operations; or (iii) Client’s inability to pay debts as they become due in the ordinary course of business. Client understands that failure to give the required notice of termination is a breach of this Agreement and Client is responsible to pay TotalSource the Service Fee that would have been due to TotalSource for the number of days remaining in the notice period. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 14 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 B. Remedies. Upon termination of this Agreement, both parties have all rights and remedies available under law, whether in law or in equity. Upon either parties’ notice to terminate this Agreement and without further notice or demand to Client, TotalSource may: (i) accelerate all obligations, together with all accrued, unpaid charges, so that they are immediately due and payable and may be collected immediately regardless of the due date; and (ii) set off and deduct any amount due from any account or deposit that Client may have with TotalSource or other monies to which TotalSource may be entitled from Client (including a letter of credit). Termination of this Agreement shall not relieve Client of its obligations, including its payment obligation to TotalSource. 16. PROFESSIONAL EMPLOYER SERVICES POST-TERMINATION. Upon the effective date of termination of this Agreement, all Services will cease and the CPEO relationship between TotalSource, Client and Worksite Employees will end. TotalSource will cease to be an employer of the Worksite Employees. TotalSource will cause all insurance policies and/or endorsements covering Client and Worksite Employees, including workers’ compensation insurance, to terminate as of the effective date of termination except that health insurance will continue to the end of the month of termination if Client has paid the benefits invoice for that month. On the effective date of termination of this Agreement, Client becomes immediately responsible for all employer obligations including payroll, workers’ compensation insurance, accrued vacation, sick leave, and employee benefits and TotalSource will provide Client with access to the information necessary to resume full employer responsibility, but only to the extent in which such information is in TotalSource’s possession and control. Except as required by state law, TotalSource is not obligated to provide access to the foregoing information if the termination of this Agreement is due to Client’s non-payment. Client agrees to notify the former Worksite Employees in writing about the termination of this Agreement and its effect, including the change in employment status and the fact that the Worksite Employees are no longer covered by TotalSource insurance. 17. MISCELLANEOUS. A. Assignment; Acquisition by Client. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. However, TotalSource may assign its rights and obligations under this Agreement to an affiliate of TotalSource or ADP, Inc without the prior written notice or consent of Client, provided that no such assignment will relieve ADP TotalSource, Inc. of its obligations under this Agreement. If Client merges with another entity, is acquired by another company, or undergoes a change of ownership or control, such action shall constitute an assignment and Client shall provide prior notice to TotalSource. In such case, TotalSource may terminate this Agreement immediately or may continue providing Services pursuant to this Agreement. In its determination of whether to continue providing Services, TotalSource may require the new entity (ies), as applicable, to undergo an evaluation process, including creditworthiness. If TotalSource decides to continue to provide its Services to Client under the new corporate structure of Client, TotalSource may require the new entity (ies), as applicable, to sign a new Client Services Agreement and/or guarantee payment to TotalSource. In the ev ent Client determines not to continue its relationship with TotalSource, notwithstanding anything in this Agreement to the contrary, Client will continue to be obligated under Part 2, Section 15 to provide TotalSource with the proper notice of its intent to terminate. B. Entire Agreement; Modification. Client has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement and all Exhibits and Addenda contain the entire agreement of the parties with respect to its subject matter and supersede all prior writings. This Agreement shall not be modified except by a writing signed by TotalSource and Client. C. Third-Party Beneficiaries. With respect to the Services and TotalSource Products, TotalSource suppliers, vendors and referral partners may enforce the same disclaimers and limitations against Client as TotalSource may under this Agreement. Other than TotalSource suppliers, vendors, and referral partners who are intended third party beneficiaries of this Agreement, nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. TotalSource has no obligation to any third party by virtue of this Agreement. D. Force Majeure. Excluding any payment obligations to TotalSource as provided hereunder, an y party hereto will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God , war, utility or communication failures, or other cause beyond the party’s reasonable control. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. E. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach of failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party. F. Severability. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Client and TotalSource shall be construed and enforced accordingly. G. Governing Law; Waiver of Jury Trial. This Agreement is governed by the laws of the State of New York without giving effect to its conflict of law provisions. The parties agree to waive all rights or claims to a trial by jury. H. Use of Agents. TotalSource may designate any agent or subcontractor, without notice to, or the consent of, Client, to perform such tasks and functions to complete any Services covered under this Agreement. However, nothing in the preceding sentence shall relieve TotalSource from responsibility for performance of its duties under the terms of this Agreement. I. Notices. All communications or notices required to be sent or given under this Agreement will be in writing and will be effective immediately if delivered in person or upon confirmation of signature recording delivery by overnight courier. In addition to the foregoing, TotalSource may also send all communications or notices required to be sent or given under this Agreement to Client by way of electronic mail (“E-mail”). A copy of all notices required under this Agreement must be sent to ADP TotalSource, Inc. at 10200 Sunset Drive, Miami, Florida 33173 Attention: Vice President – Assistant General Counsel. Notices required to be sent to Client under this Agreement that are not sent by E-mail will be sent to the address for Client indicated in the signature block of this Agreement. In the event no address for Client is indicated, the address of Client at which the professional employer services are delivered by TotalSource may be substituted. J. Non-Hire. Client agrees not to solicit or hire for employment, directly or indirectly, any TotalSource Corporate Employee involved in the provision of services hereunder during the term of this Agreement and for a period of one (1) year subsequent to the termination or expiration of this Agreement. TotalSource agrees not to solicit for employment, directly or indirectly, Client’s Worksite Employees to become TotalSource Corporate Employees during the term of this Agreement and for a period of one (1) year subsequent to the termination or expiration of this Agreement (other than general solicitations). K. Scope of Authority. The parties acknowledge that neither is an agent of the other. Each agrees that it will not hold itself out as an agent of the other, directly or indirectly. Neither party is authorized to bind the other in any fashion (either through representations or actions) unless such act is specifically authorized and ratified by the other in writing. Client acknowledges that TotalSource may act on the behalf of Client as contemplated by this Agreement. L. Legal Entity. Each party represents that it is a legal entity authorized to conduct business in the states where this Agreement will be performed and that the officers who sign on behalf of such party are duly authorized to enter into this Agreement. M. Attorney’s Fees and Costs. In the event of any litigation arising out of or related to this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs incurred at all trial and appellate levels. N. NO CONSEQUENTIAL DAMAGES. NEITHER TOTALSOURCE NOR CLIENT WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF INFORMATION OR HARM TO REPUTATION) THAT THE OTHER PARTY OR ITS RESPECTIVE AFFILIATES MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR TOTALSOURCE PRODUCTS, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. O. Survival. No termination or expiration of this Agreement affects or impairs any obligations, duties, indemnities, and liabilities of either party that, by their nature, continue beyond termination, or the rights of TotalSource relating to any unpaid obligations. Such obligations, duties, indemnities, and liabilities shall not terminate or expire, but rather survive such termination or expiration and continue in full force and effect until the longer of (i) such time as all the obligations have been paid in full or (ii) such time as is expressly provided in this Agreement. P. Rules of Construction. In this Agreement, unless the context requires otherwise, the words “including,” “include”, “includes”, or “included” shall be deemed to be followed by the words “without limitation”. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 15 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM B. Remedies. Upon termination of this Agreement, both parties have all rights and remedies available under law, whether in law or in equity. Upon either parties’ notice to terminate this Agreement and without further notice or demand to Client, TotalSource may: (i) accelerate all obligations, together with all accrued, unpaid charges, so that they are immediately due and payable and may be collected immediately regardless of the due date; and (ii) set off and deduct any amount due from any account or deposit that Client may have with TotalSource or other monies to which TotalSource may be entitled from Client (including a letter of credit). Termination of this Agreement shall not relieve Client of its obligations, including its payment obligation to TotalSource. 16. PROFESSIONAL EMPLOYER SERVICES POST-TERMINATION. Upon the effective date of termination of this Agreement, all Services will cease and the CPEO relationship between TotalSource, Client and Worksite Employees will end. TotalSource will cease to be an employer of the Worksite Employees. TotalSource will cause all insurance policies and/or endorsements covering Client and Worksite Employees, including workers’ compensation insurance, to terminate as of the effective date of termination except that health insurance will continue to the end of the month of termination if Client has paid the benefits invoice for that month. On the effective date of termination of this Agreement, Client becomes immediately responsible for all employer obligations including payroll, workers’ compensation insurance, accrued vacation, sick leave, and employee benefits and TotalSource will provide Client with access to the information necessary to resume full employer responsibility, but only to the extent in which such information is in TotalSource’s possession and control. Except as required by state law, TotalSource is not obligated to provide access to the foregoing information if the termination of this Agreement is due to Client’s non-payment. Client agrees to notify the former Worksite Employees in writing about the termination of this Agreement and its effect, including the change in employment status and the fact that the Worksite Employees are no longer covered by TotalSource insurance. 17. MISCELLANEOUS. A. Assignment; Acquisition by Client. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. However, TotalSource may assign its rights and obligations under this Agreement to an affiliate of TotalSource or ADP, Inc without the prior written notice or consent of Client, provided that no such assignment will relieve ADP TotalSource, Inc. of its obligations under this Agreement. If Client merges with another entity, is acquired by another company, or undergoes a change of ownership or control, such action shall constitute an assignment and Client shall provide prior notice to TotalSource. In such case, TotalSource may terminate this Agreement immediately or may continue providing Services pursuant to this Agreement. In its determination of whether to continue providing Services, TotalSource may require the new entity (ies), as applicable, to undergo an evaluation process, including creditworthiness. If TotalSource decides to continue to provide its Services to Client under the new corporate structure of Client, TotalSource may require the new entity (ies), as applicable, to sign a new Client Services Agreement and/or guarantee payment to TotalSource. In the ev ent Client determines not to continue its relationship with TotalSource, notwithstanding anything in this Agreement to the contrary, Client will continue to be obligated under Part 2, Section 15 to provide TotalSource with the proper notice of its intent to terminate. B. Entire Agreement; Modification. Client has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement and all Exhibits and Addenda contain the entire agreement of the parties with respect to its subject matter and supersede all prior writings. This Agreement shall not be modified except by a writing signed by TotalSource and Client. C. Third-Party Beneficiaries. With respect to the Services and TotalSource Products, TotalSource suppliers, vendors and referral partners may enforce the same disclaimers and limitations against Client as TotalSource may under this Agreement. Other than TotalSource suppliers, vendors, and referral partners who are intended third party beneficiaries of this Agreement, nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. TotalSource has no obligation to any third party by virtue of this Agreement. D. Force Majeure. Excluding any payment obligations to TotalSource as provided hereunder, an y party hereto will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God , war, utility or communication failures, or other cause beyond the party’s reasonable control. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. E. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach of failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party. F. Severability. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Client and TotalSource shall be construed and enforced accordingly. G. Governing Law; Waiver of Jury Trial. This Agreement is governed by the laws of the State of New York without giving effect to its conflict of law provisions. The parties agree to waive all rights or claims to a trial by jury. H. Use of Agents. TotalSource may designate any agent or subcontractor, without notice to, or the consent of, Client, to perform such tasks and functions to complete any Services covered under this Agreement. However, nothing in the preceding sentence shall relieve TotalSource from responsibility for performance of its duties under the terms of this Agreement. I. Notices. All communications or notices required to be sent or given under this Agreement will be in writing and will be effective immediately if delivered in person or upon confirmation of signature recording delivery by overnight courier. In addition to the foregoing, TotalSource may also send all communications or notices required to be sent or given under this Agreement to Client by way of electronic mail (“E-mail”). A copy of all notices required under this Agreement must be sent to ADP TotalSource, Inc. at 10200 Sunset Drive, Miami, Florida 33173 Attention: Vice President – Assistant General Counsel. Notices required to be sent to Client under this Agreement that are not sent by E-mail will be sent to the address for Client indicated in the signature block of this Agreement. In the event no address for Client is indicated, the address of Client at which the professional employer services are delivered by TotalSource may be substituted. J. Non-Hire. Client agrees not to solicit or hire for employment, directly or indirectly, any TotalSource Corporate Employee involved in the provision of services hereunder during the term of this Agreement and for a period of one (1) year subsequent to the termination or expiration of this Agreement. TotalSource agrees not to solicit for employment, directly or indirectly, Client’s Worksite Employees to become TotalSource Corporate Employees during the term of this Agreement and for a period of one (1) year subsequent to the termination or expiration of this Agreement (other than general solicitations). K. Scope of Authority. The parties acknowledge that neither is an agent of the other. Each agrees that it will not hold itself out as an agent of the other, directly or indirectly. Neither party is authorized to bind the other in any fashion (either through representations or actions) unless such act is specifically authorized and ratified by the other in writing. Client acknowledges that TotalSource may act on the behalf of Client as contemplated by this Agreement. L. Legal Entity. Each party represents that it is a legal entity authorized to conduct business in the states where this Agreement will be performed and that the officers who sign on behalf of such party are duly authorized to enter into this Agreement. M. Attorney’s Fees and Costs. In the event of any litigation arising out of or related to this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs incurred at all trial and appellate levels. N. NO CONSEQUENTIAL DAMAGES. NEITHER TOTALSOURCE NOR CLIENT WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF INFORMATION OR HARM TO REPUTATION) THAT THE OTHER PARTY OR ITS RESPECTIVE AFFILIATES MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR TOTALSOURCE PRODUCTS, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. O. Survival. No termination or expiration of this Agreement affects or impairs any obligations, duties, indemnities, and liabilities of either party that, by their nature, continue beyond termination, or the rights of TotalSource relating to any unpaid obligations. Such obligations, duties, indemnities, and liabilities shall not terminate or expire, but rather survive such termination or expiration and continue in full force and effect until the longer of (i) such time as all the obligations have been paid in full or (ii) such time as is expressly provided in this Agreement. P. Rules of Construction. In this Agreement, unless the context requires otherwise, the words “including,” “include”, “includes”, or “included” shall be deemed to be followed by the words “without limitation”. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 2 Page 15 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 This Federal and State Addendum applies to the extent Client has, or may have in the future , Worksite Employees in the applicable jurisdictions listed below. The language indicated under each jurisdiction below is specifically required by law to be included in this Agreement and shall only apply with respect to Worksite Employees within the applicable jurisdiction. To the extent provisions in this Addendum conflict another provision in this Agreement, the applicable language in this Addendum shall control for the applicable jurisdiction. UNITED STATES FEDERAL LAW TotalSource agrees to be treated as a CPEO for purposes of 26 U.S.C. § 3511 with respect to the Worksite Employees and TotalSource shall: (a) assume responsibility for payment of wages to the Worksite Employees, without regard to the receipt or adequacy of payment from Client for such services, (b) assume responsibility for reporting, withholding, and paying any applicable taxes under subtitle C of the Code, with respect to Worksite Employees’ wages, without regard to the receipt or adequacy of payment from Client for such services, (c) assume responsibility for any employee benefits which this Agreement may require TotalSource to provide, without regard to the receipt or adequacy of payment from Client for such benefits, (d) assume responsibility for recruiting, hiring, and firing workers in addition to Client’s responsibility for recruiting, hiring, and firing workers, and (e) maintain employee records relating to Worksite Employees. TotalSource will also (i) notify Client if this Agreement is transferred to another person (or if another person will report, withhold, or pay, under such other person’s Employer Identification Number (“EIN”)) any applicable federal employment taxes with respect to the wages of any individuals covered by this Agreement and provide Client with the name and EIN of such other person; (ii) notify Client if TotalSource’s CPEO certification is suspended or revoked as described in 26 CFR § 301.7705-2T(n); (iii) notify Client that if any employees covered under this Agreement are not or cease to be “work site employees” (as defined in the Code) because they perform services at a location at which the 85 percent threshold described in 26 CFR § 301.7705 -1(b)(17) is not met then Client may also be liable for federal employment taxes imposed on remuneration remitted by TotalSource to such employees, as described in 26 CFR § 31.3511 -1(a)(3); and (iv) provide Client with the information necessary for Client to claim the following credits: (A) credit for increasing research activity (26 U.S.C. § 41); (B) Indian employment credit (26 U.S.C. § 45A); (C) credit for portion of employer social security taxes paid with respect to employee cash tips (26 U.S.C. § 45B); (D) clinical testing expenses for certain drugs for rare diseases or conditions (26 U.S.C. § 45C); (E) employee health insurance expenses for small employers (26 U.S.C. § 45R); (F) work opportunity credit (26 U.S.C. § 51); (G) empowerment zone employment credit (26 U.S.C. § 1396); and (H) any other credits specified by the Commissioner of the Internal Revenue Service. Such information may include applicant/employee data and characteristics and payroll data. Nothing contained under this heading United States Federal Law shall be construed to create any inference with respect to the determination of who is an employee or employer (1) for Federal tax purposes (other than Federal employment tax purposes) or (2) for purposes of any other provision of law. Remuneration paid by TotalSource to any SEI is not covered by 26 U.S.C. § 3511. ALABAMA TotalSource will maintain authority to resolve and decide Worksite Employee grievances and disputes, subject to the terms of any collective bargaining agreement which may exist. The parties agree that the term “Worksite Employee” includes officers, directors, shareholders, partners and managers of Client that are participating in the CPEO relationship. TotalSource assumes responsibility to pay wages to Worksite Employees, withhold, collect, report and remit payroll-related and unemployment taxes to the extent that Client has funded the obligations. TotalSource and Client both have the right to hire, terminate, and discipline the Worksite Employees subject to the terms of any collective bargaining agreement which may exist. TotalSource shall maintain and provide to Client at Client’s request, at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. ARIZONA TotalSource shall maintain and provide to Client at Client’s request at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. ARKANSAS TotalSource will maintain records regarding the premium and loss experience related to workers’ compensation insurance provided to Worksite Employees. TotalSource shall maintain and provide to Client at Client’s request at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. As provided by Arkansas Professional Employer Organization Recognition and Licensing Act, Section 23-92-411(a)(3), Client shall ensure, with the assistance of a licensed insurance producer, that any subcontractor of Client has workers’ compensation coverage as required by law. CALIFORNIA Client hereby retains and/or assumes all civil legal responsibility and civil liability under Section 2810.3 of the Labor Code for the payment of wages to Worksite Employees, under Section 6300 of the Labor Code - the California Safety and Health Act, under California’s Fair Employment and Housing Act for unlawful employment practices, and for the failure to secure workers’ compensation coverage. TotalSource has the obligation pursuant to Rule 4 of Section V of the California Workers’ Compensation Experience Rating Plan to provide workers’ compensation coverage for all Worksite Employees. The workers’ compensation coverage provided to Client in accordance with the terms of this Agreement does not include coverage or defense for Serious and Willful Misconducts claims. DISTRICT OF COLUMBIA As of the Effective Date of the Agreement, should Client have any outstanding amounts owed to the District of Columbia’s Department of Employment Services – Unemployment Compensation Office (DES), TotalSource agrees to remit to the DES Client’s outstanding balance as evidenced by a Statement of Account. However, Client further acknowledges that it shall reimburse TotalSource for the total amount paid by TotalSource including, but not limited to, any owed contributions, administrative assessments, penalties and/or interest imposed by the DES against Client’s UI account. FLORIDA Client understands that pursuant to Florida law, it may not enter into a professional employer organization (sometimes referred to as employee leasing) agreement with TotalSource if Client owes a current or prior professional employer organization any money pursuant to any service agreement which existed between the current or prior professional employer organization and Client, or if Client owes a current or prior insurer any premium for workers’ compensation insurance. Client represents that it has met any and all prior premium and fee obligations with regard to workers’ compensation premiums and professional employer organization payments. This representation is in addition to any representation contained in the Client Services Agreement. Under the penalty of perjury, I the undersigned to the Agreement, declare that I have read this provision and that the facts in it are true. In addition, I agree to the terms and conditions of this provision. TotalSource reserves a right of direction and control over leased employees assigned to Client’s location. However, Client may retain such sufficient direction and control over the leased employees as is necessary to conduct its business, discharge any fiduciary responsibility it may have, or comply with any applicable licensure, regulatory, or statutory requirement of the Client. TotalSource also assumes full responsibility for payment of payroll taxes and collection of taxes from payroll on leased employees. TotalSource retains a right of direction and control over the management of safety, risk, and hazard control at the Worksite affecting the Worksite Employees, including responsibility for performing safety inspections of Client equipment and premises and for the promulgation and administration of employment and safety policies. TotalSource and its assigns may conduct an annual onsite physical examination of Client’s Worksite. TotalSource assumes responsibility for the payment of wages to the leased employees without regard to payments by the Client. TotalSource retains the authority to hire, terminate, discipline and reassign the leased employees. However, Client may have the right to accept or cancel the assignment of any leased employee. As between the parties, Client shall remain solely responsible for compliance with F.S. Section 448.095 as it relates to employment verification and certification, including any mandatory use of E-Verify. GEORGIA In the proposal process and during the term of the Agreement, TotalSource and Client have and will continue to negotiate, as necessary, over matters of time, place, type of work, working conditions, quality and price of Services. TotalSource has the right to determine and set the rate of pay for the Worksite Employee whether or not through negotiations with Client. IDAHO TotalSource retains the authority to hire, terminate, discipline and reassign Worksite Employees. However, Client, if it accepts the responsibility for its action, may have the right to accept or cancel the assignment of any Worksite Employee. Upon the Effective Date of the Agreement, should Client have any outstanding amounts owed to the State’s unemployment compensation agency, TotalSource agrees to remit to said agency Client’s outstanding balance as evidenced by any applicable invoice or statement of account. However, Client further acknowledges that it shall reimburse TotalSource for the total amount paid by TotalSource including, but not limited to, any owed contributions, administrative assessments, penalties and/or interest imposed by the agency against Client’s UI account. INDIANA TotalSource shall maintain and provide to Client at Client’s request at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. TotalSource has the right to determine and set the rate of pay for the Worksite Employee whether or not through negotiations with Client. TotalSource assumes responsibilities for unemployment insurance coverage under both state and federal law on behalf of Client. KANSAS TotalSource and Client assume the responsibilities required by the provisions of section 1 through 11, and amendments thereto, of the State of Kansas Professional Employer Organization Registration Act (“Act”). In addition to Client’s right to hire, discipline and terminate a Worksite Employee, TotalSource shall have a right to hire, discipline and terminate a Worksite Employee only as may be necessary to fulfill TotalSource’s responsibilities under the provisions of the Act or this Agreement. TotalSource shall have the CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 16 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM This Federal and State Addendum applies to the extent Client has, or may have in the future , Worksite Employees in the applicable jurisdictions listed below. The language indicated under each jurisdiction below is specifically required by law to be included in this Agreement and shall only apply with respect to Worksite Employees within the applicable jurisdiction. To the extent provisions in this Addendum conflict another provision in this Agreement, the applicable language in this Addendum shall control for the applicable jurisdiction. UNITED STATES FEDERAL LAW TotalSource agrees to be treated as a CPEO for purposes of 26 U.S.C. § 3511 with respect to the Worksite Employees and TotalSource shall: (a) assume responsibility for payment of wages to the Worksite Employees, without regard to the receipt or adequacy of payment from Client for such services, (b) assume responsibility for reporting, withholding, and paying any applicable taxes under subtitle C of the Code, with respect to Worksite Employees’ wages, without regard to the receipt or adequacy of payment from Client for such services, (c) assume responsibility for any employee benefits which this Agreement may require TotalSource to provide, without regard to the receipt or adequacy of payment from Client for such benefits, (d) assume responsibility for recruiting, hiring, and firing workers in addition to Client’s responsibility for recruiting, hiring, and firing workers, and (e) maintain employee records relating to Worksite Employees. TotalSource will also (i) notify Client if this Agreement is transferred to another person (or if another person will report, withhold, or pay, under such other person’s Employer Identification Number (“EIN”)) any applicable federal employment taxes with respect to the wages of any individuals covered by this Agreement and provide Client with the name and EIN of such other person; (ii) notify Client if TotalSource’s CPEO certification is suspended or revoked as described in 26 CFR § 301.7705-2T(n); (iii) notify Client that if any employees covered under this Agreement are not or cease to be “work site employees” (as defined in the Code) because they perform services at a location at which the 85 percent threshold described in 26 CFR § 301.7705 -1(b)(17) is not met then Client may also be liable for federal employment taxes imposed on remuneration remitted by TotalSource to such employees, as described in 26 CFR § 31.3511 -1(a)(3); and (iv) provide Client with the information necessary for Client to claim the following credits: (A) credit for increasing research activity (26 U.S.C. § 41); (B) Indian employment credit (26 U.S.C. § 45A); (C) credit for portion of employer social security taxes paid with respect to employee cash tips (26 U.S.C. § 45B); (D) clinical testing expenses for certain drugs for rare diseases or conditions (26 U.S.C. § 45C); (E) employee health insurance expenses for small employers (26 U.S.C. § 45R); (F) work opportunity credit (26 U.S.C. § 51); (G) empowerment zone employment credit (26 U.S.C. § 1396); and (H) any other credits specified by the Commissioner of the Internal Revenue Service. Such information may include applicant/employee data and characteristics and payroll data. Nothing contained under this heading United States Federal Law shall be construed to create any inference with respect to the determination of who is an employee or employer (1) for Federal tax purposes (other than Federal employment tax purposes) or (2) for purposes of any other provision of law. Remuneration paid by TotalSource to any SEI is not covered by 26 U.S.C. § 3511. ALABAMA TotalSource will maintain authority to resolve and decide Worksite Employee grievances and disputes, subject to the terms of any collective bargaining agreement which may exist. The parties agree that the term “Worksite Employee” includes officers, directors, shareholders, partners and managers of Client that are participating in the CPEO relationship. TotalSource assumes responsibility to pay wages to Worksite Employees, withhold, collect, report and remit payroll-related and unemployment taxes to the extent that Client has funded the obligations. TotalSource and Client both have the right to hire, terminate, and discipline the Worksite Employees subject to the terms of any collective bargaining agreement which may exist. TotalSource shall maintain and provide to Client at Client’s request, at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. ARIZONA TotalSource shall maintain and provide to Client at Client’s request at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. ARKANSAS TotalSource will maintain records regarding the premium and loss experience related to workers’ compensation insurance provided to Worksite Employees. TotalSource shall maintain and provide to Client at Client’s request at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. As provided by Arkansas Professional Employer Organization Recognition and Licensing Act, Section 23-92-411(a)(3), Client shall ensure, with the assistance of a licensed insurance producer, that any subcontractor of Client has workers’ compensation coverage as required by law. CALIFORNIA Client hereby retains and/or assumes all civil legal responsibility and civil liability under Section 2810.3 of the Labor Code for the payment of wages to Worksite Employees, under Section 6300 of the Labor Code - the California Safety and Health Act, under California’s Fair Employment and Housing Act for unlawful employment practices, and for the failure to secure workers’ compensation coverage. TotalSource has the obligation pursuant to Rule 4 of Section V of the California Workers’ Compensation Experience Rating Plan to provide workers’ compensation coverage for all Worksite Employees. The workers’ compensation coverage provided to Client in accordance with the terms of this Agreement does not include coverage or defense for Serious and Willful Misconducts claims. DISTRICT OF COLUMBIA As of the Effective Date of the Agreement, should Client have any outstanding amounts owed to the District of Columbia’s Department of Employment Services – Unemployment Compensation Office (DES), TotalSource agrees to remit to the DES Client’s outstanding balance as evidenced by a Statement of Account. However, Client further acknowledges that it shall reimburse TotalSource for the total amount paid by TotalSource including, but not limited to, any owed contributions, administrative assessments, penalties and/or interest imposed by the DES against Client’s UI account. FLORIDA Client understands that pursuant to Florida law, it may not enter into a professional employer organization (sometimes referred to as employee leasing) agreement with TotalSource if Client owes a current or prior professional employer organization any money pursuant to any service agreement which existed between the current or prior professional employer organization and Client, or if Client owes a current or prior insurer any premium for workers’ compensation insurance. Client represents that it has met any and all prior premium and fee obligations with regard to workers’ compensation premiums and professional employer organization payments. This representation is in addition to any representation contained in the Client Services Agreement. Under the penalty of perjury, I the undersigned to the Agreement, declare that I have read this provision and that the facts in it are true. In addition, I agree to the terms and conditions of this provision. TotalSource reserves a right of direction and control over leased employees assigned to Client’s location. However, Client may retain such sufficient direction and control over the leased employees as is necessary to conduct its business, discharge any fiduciary responsibility it may have, or comply with any applicable licensure, regulatory, or statutory requirement of the Client. TotalSource also assumes full responsibility for payment of payroll taxes and collection of taxes from payroll on leased employees. TotalSource retains a right of direction and control over the management of safety, risk, and hazard control at the Worksite affecting the Worksite Employees, including responsibility for performing safety inspections of Client equipment and premises and for the promulgation and administration of employment and safety policies. TotalSource and its assigns may conduct an annual onsite physical examination of Client’s Worksite. TotalSource assumes responsibility for the payment of wages to the leased employees without regard to payments by the Client. TotalSource retains the authority to hire, terminate, discipline and reassign the leased employees. However, Client may have the right to accept or cancel the assignment of any leased employee. As between the parties, Client shall remain solely responsible for compliance with F.S. Section 448.095 as it relates to employment verification and certification, including any mandatory use of E-Verify. GEORGIA In the proposal process and during the term of the Agreement, TotalSource and Client have and will continue to negotiate, as necessary, over matters of time, place, type of work, working conditions, quality and price of Services. TotalSource has the right to determine and set the rate of pay for the Worksite Employee whether or not through negotiations with Client. IDAHO TotalSource retains the authority to hire, terminate, discipline and reassign Worksite Employees. However, Client, if it accepts the responsibility for its action, may have the right to accept or cancel the assignment of any Worksite Employee. Upon the Effective Date of the Agreement, should Client have any outstanding amounts owed to the State’s unemployment compensation agency, TotalSource agrees to remit to said agency Client’s outstanding balance as evidenced by any applicable invoice or statement of account. However, Client further acknowledges that it shall reimburse TotalSource for the total amount paid by TotalSource including, but not limited to, any owed contributions, administrative assessments, penalties and/or interest imposed by the agency against Client’s UI account. INDIANA TotalSource shall maintain and provide to Client at Client’s request at the time of termination of the Agreement, records regarding loss experience related to workers’ compensation coverage provided by TotalSource. TotalSource has the right to determine and set the rate of pay for the Worksite Employee whether or not through negotiations with Client. TotalSource assumes responsibilities for unemployment insurance coverage under both state and federal law on behalf of Client. KANSAS TotalSource and Client assume the responsibilities required by the provisions of section 1 through 11, and amendments thereto, of the State of Kansas Professional Employer Organization Registration Act (“Act”). In addition to Client’s right to hire, discipline and terminate a Worksite Employee, TotalSource shall have a right to hire, discipline and terminate a Worksite Employee only as may be necessary to fulfill TotalSource’s responsibilities under the provisions of the Act or this Agreement. TotalSource shall have the CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 16 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 responsibility to pay wages to Worksite Employees, to withhold, collect, report and remit payroll-related and unemployment taxes and, to the extent TotalSource has assumed such responsibility in this Agreement, to make payments for employee benefits for Worksite Employees. Wages do not include any obligation between Client and a Worksite Employee for payments beyond, or in addition to, the Worksite Employee’s salary, draw or regular rate of pay, such as bonuses commissions, severance pay, deferred compensation, profit sharing or vacation, sick or other paid time off, unless TotalSource has expressly agreed to assume liability for such payments in this Agreement. LOUISIANA Client retains control over its business enterprise and exercises direction and control over the Worksite Employees as to the manner and method of work done in furtherance of the Client’s business, but authority and responsibility as to other employment matters, including but not limited to hiring, firing, discipline, and compensation, are allocated to and shall be between TotalSource and Client. This Agreement is executed between the parties subject to the provisions of sections 1741 through 1751, Louisiana Revised Statutes (Part XXV -E, The Louisiana Professional Employer Act) and sections 23:1761 through 23:1768, Louisiana Revised Statutes (Part XII, Professional Employer Organization). This Agreement is intended to be ongoing rather than temporary. MAINE Should Client have any complaints regarding TotalSource then Client may report such complaints to the Superintendent of Consumer Credit Protection. MARYLAND A professional employer organization is an employing unit which places all or part of a Client’s employees on its payroll and by written agreement assigns or leases the workers to the Client. Upon the Effective Date of the Agreement, should Client have any outstanding amounts owed to the State’s unemployment compensation agency, TotalSource agrees to remit to said agency Client’s outstanding balance as evidenced by any applicable invoice or statement of account. However, Client further acknowledges that it shall reimburse TotalSource for the total amount paid by TotalSource including, but not limited to, any owed contributions, administrative assessments, penalties and/or interest imposed by the agency against Client’s UI account. MASSACHUSETTS Both TotalSource and Client are employers of the Worksite Employees and intend for both TotalSource and Client to receive exclusive remedy protection under the Massachusetts General Laws. By contracting with TotalSource Client is fulfilling its obligation to obtain workers’ compensation insurance for the Worksite Employees. TotalSource represents that it is in compliance with the applicable provisions of the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00) as of the effective date of such regulations. MICHIGAN Mortgage brokers and/or lenders retain the ability to direct and control the activities of a professional employer organization employee for purposes of their Licensing Act (Section 2(d) (i) and (ii)). TotalSource has the right to hire, promote, reassign, discipline and terminate Worksite Employees. MONTANA TotalSource assumes responsibility for payment of employee wages, workers’ compensation premiums, payroll related taxes and employee benefits from its own accounts without regard to payments by the client company. TotalSource retains the authority to hire, terminate, discipline and reassign Worksite Employees and Client has the right to accept or cancel the assignment of a Worksite Employee. With respect to a worker supplied to Client by TotalSource, Client shares joint and several liability for any wages, workers’ compensation premiums, payroll related taxes and for any benefits left unpaid by TotalSource, and that in the event that TotalSource’s license is suspended or revoked, this liability is retroactive to Client. TotalSource assumes responsibility for the payments of workers’ compensation premiums, and employee benefits from its own accounts without regard to payments by Client. Client is responsible for compliance with the Montana Safety Culture Act, Title 39, Chapter 71, part 15. NEBRASKA TotalSource and Client assume the responsibilities required by the Professional Employer Organization Act (sections 48-2701 to 48-2711 of the Nebraska Revised Statutes). Employer responsibilities for Worksite Employees, including those of hiring, firing and disciplining, are shared between TotalSource and Client. TotalSource shall have the right to hire, discipline and terminate a Worksite Employee as may be necessary to fulfill TotalSource’s responsibilities under the Professional Employer Organization Act, any state regulations, and this Agreement. Client is liable for the payment of unpaid combined tax penalties and interest owed upon wages to Worksite Employees. Worksite Employees shall be considered employees of Client for purposes of Employment Security Law. Client shall not be relieved of its obligations for workers’ compensation in the event TotalSource fails to obtain workers’ compensation insurance for which it has assumed responsibility. This Agreement is intended to be ongoing rather than temporary. NEVADA TotalSource will place all of the regular full-time employees of Client on its payroll and, for a fee, lease them to Client company on a regular basis without any limitation on the duration of employment or lease to Client five (5) or more part-time or full-time employees or 10% or more of the total number of employees within a classification of risk. Coverage for workers’ compensation does not take effect until the Effective Date of the Agreement. TotalSource will pay all premiums required by the workers’ compensation policy, including without limitation, any adjustments or assessments, and will be entitled to any refunds of premiums. The loss experience of Client will continue to be reported in the name of the Client to the Commissioner of the Nevada Department of Business and Industry and will be available to subsequent insurers upon request. Upon request Client must provide TotalSource’s workers’ compensation insurer satisfactory evidence of workers’ compensation coverage for Non- Worksite Employees. NEW HAMPSHIRE TotalSource is the rated employer for unemployment compensation purposes at the time Client enters into this Agreement. Upon request, Client must provide TotalSource’s workers’ compensation insurer satisfactory evidence, as determined by the insurer, of workers’ compensation coverage for Non-Worksite Employees. Upon termination of the arrangement, Client shall return to its previous rate and account balance, if applicable, and shall assume a new wage base. NEW JERSEY TotalSource assumes responsibility for the payment of wages to each Worksite Employee without regard to payments by Client, except this requirement shall not affect the Client’s obligations with respect to the payment of wages to Worksite Employees. TotalSource assumes responsibility for the payment of payroll taxes and the collection of taxes from payroll on each Worksite Employee. TotalSource retains the authority to reassign a Worksite Employee. No Worksite Employee shall be reassigned to another Client company without that Worksite Employee’s consent and Client may have the right to accept or cancel the assignment of any Worksite Employee. TotalSource shall, except for newly established business entities, hire its initial employee complement from among employees of the Client at the time of execution of the Agreement at comparable terms and conditions of employment as are in existence at the Client’s jobsite at the time of execution of the Agreement and as designated by the Client. Throughout the term of the Agreement, the Worksite Employees shall be considered employees of TotalSource and Client and upon the termination of the Agreement, the former Worksite Employees shall be considered employees of the Client. Clients with collective bargaining agreements in place shall continue to honor and abide by the terms of any applicable collective bargaining agreements, and upon expiration thereof, any obligations of Client to bargain in good faith in connection with such collective bargaining agreements shall not be affected in any manner by this Agreement. TotalSource and Client shall each retain a right of direction and control over management of safety, risk and hazard control at the work site or sites affecting each Worksite Employee including: responsibility for performing safety inspections of Client equipment and premises; responsibility for the promulgation and administration of employment and safety policies; and responsibility for the management of workers’ compensation claims, the filings thereof, and procedures related thereto. Upon termination of the CSA, Client shall retain the experience balance, liabilities, and wage credits for the Client’s employing unit account; Client’s federal employer identification number (FEIN) shall become the primary FEIN on the employing unit’s account. NEW YORK TotalSource assumes responsibility for the withholding and remittance of payroll related taxes and employee benefits for which TotalSource has contractually assumed responsibility from its own account. TotalSource expressly assumes the rights and responsibilities required by 31 - 922, Laws of New York which require a Professional Employer Organization’s (PEO) contract to set forth the responsibilities and duties of the professional employer organization and of the client company; describe the type of services to be rendered by the professional employer organization and the respective rights and obligations of the professional employer organization and the client company; and that the professional employer organization reserves a right of direction and control over the Worksite Employees. TotalSource expressly agrees to co-employ Client’s Worksite Employees. This Agreement is intended to be ongoing rather than temporary. NORTH CAROLINA TotalSource agrees not access or request from Client any confidential information belonging to a client of Client and TotalSource will implement policies to prevent such access or disclosures. Nothing in this Agreement shall be construed to require conduct that is contrary to North Carolina accountancy laws and rules. Employment responsibilities not allocated to TotalSource by Client or Section 58-89A-100 of the North Carolina Professional Employer Organization Act, remain with Client. Client retains a rig ht of direction and control over the adoption of employment policies. Client understands that pursuant to North Carolina law, it may not enter into a professional employer organization (sometimes referred to as employee CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 17 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM responsibility to pay wages to Worksite Employees, to withhold, collect, report and remit payroll-related and unemployment taxes and, to the extent TotalSource has assumed such responsibility in this Agreement, to make payments for employee benefits for Worksite Employees. Wages do not include any obligation between Client and a Worksite Employee for payments beyond, or in addition to, the Worksite Employee’s salary, draw or regular rate of pay, such as bonuses commissions, severance pay, deferred compensation, profit sharing or vacation, sick or other paid time off, unless TotalSource has expressly agreed to assume liability for such payments in this Agreement. LOUISIANA Client retains control over its business enterprise and exercises direction and control over the Worksite Employees as to the manner and method of work done in furtherance of the Client’s business, but authority and responsibility as to other employment matters, including but not limited to hiring, firing, discipline, and compensation, are allocated to and shall be between TotalSource and Client. This Agreement is executed between the parties subject to the provisions of sections 1741 through 1751, Louisiana Revised Statutes (Part XXV -E, The Louisiana Professional Employer Act) and sections 23:1761 through 23:1768, Louisiana Revised Statutes (Part XII, Professional Employer Organization). This Agreement is intended to be ongoing rather than temporary. MAINE Should Client have any complaints regarding TotalSource then Client may report such complaints to the Superintendent of Consumer Credit Protection. MARYLAND A professional employer organization is an employing unit which places all or part of a Client’s employees on its payroll and by written agreement assigns or leases the workers to the Client. Upon the Effective Date of the Agreement, should Client have any outstanding amounts owed to the State’s unemployment compensation agency, TotalSource agrees to remit to said agency Client’s outstanding balance as evidenced by any applicable invoice or statement of account. However, Client further acknowledges that it shall reimburse TotalSource for the total amount paid by TotalSource including, but not limited to, any owed contributions, administrative assessments, penalties and/or interest imposed by the agency against Client’s UI account. MASSACHUSETTS Both TotalSource and Client are employers of the Worksite Employees and intend for both TotalSource and Client to receive exclusive remedy protection under the Massachusetts General Laws. By contracting with TotalSource Client is fulfilling its obligation to obtain workers’ compensation insurance for the Worksite Employees. TotalSource represents that it is in compliance with the applicable provisions of the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00) as of the effective date of such regulations. MICHIGAN Mortgage brokers and/or lenders retain the ability to direct and control the activities of a professional employer organization employee for purposes of their Licensing Act (Section 2(d) (i) and (ii)). TotalSource has the right to hire, promote, reassign, discipline and terminate Worksite Employees. MONTANA TotalSource assumes responsibility for payment of employee wages, workers’ compensation premiums, payroll related taxes and employee benefits from its own accounts without regard to payments by the client company. TotalSource retains the authority to hire, terminate, discipline and reassign Worksite Employees and Client has the right to accept or cancel the assignment of a Worksite Employee. With respect to a worker supplied to Client by TotalSource, Client shares joint and several liability for any wages, workers’ compensation premiums, payroll related taxes and for any benefits left unpaid by TotalSource, and that in the event that TotalSource’s license is suspended or revoked, this liability is retroactive to Client. TotalSource assumes responsibility for the payments of workers’ compensation premiums, and employee benefits from its own accounts without regard to payments by Client. Client is responsible for compliance with the Montana Safety Culture Act, Title 39, Chapter 71, part 15. NEBRASKA TotalSource and Client assume the responsibilities required by the Professional Employer Organization Act (sections 48-2701 to 48-2711 of the Nebraska Revised Statutes). Employer responsibilities for Worksite Employees, including those of hiring, firing and disciplining, are shared between TotalSource and Client. TotalSource shall have the right to hire, discipline and terminate a Worksite Employee as may be necessary to fulfill TotalSource’s responsibilities under the Professional Employer Organization Act, any state regulations, and this Agreement. Client is liable for the payment of unpaid combined tax penalties and interest owed upon wages to Worksite Employees. Worksite Employees shall be considered employees of Client for purposes of Employment Security Law. Client shall not be relieved of its obligations for workers’ compensation in the event TotalSource fails to obtain workers’ compensation insurance for which it has assumed responsibility. This Agreement is intended to be ongoing rather than temporary. NEVADA TotalSource will place all of the regular full-time employees of Client on its payroll and, for a fee, lease them to Client company on a regular basis without any limitation on the duration of employment or lease to Client five (5) or more part-time or full-time employees or 10% or more of the total number of employees within a classification of risk. Coverage for workers’ compensation does not take effect until the Effective Date of the Agreement. TotalSource will pay all premiums required by the workers’ compensation policy, including without limitation, any adjustments or assessments, and will be entitled to any refunds of premiums. The loss experience of Client will continue to be reported in the name of the Client to the Commissioner of the Nevada Department of Business and Industry and will be available to subsequent insurers upon request. Upon request Client must provide TotalSource’s workers’ compensation insurer satisfactory evidence of workers’ compensation coverage for Non- Worksite Employees. NEW HAMPSHIRE TotalSource is the rated employer for unemployment compensation purposes at the time Client enters into this Agreement. Upon request, Client must provide TotalSource’s workers’ compensation insurer satisfactory evidence, as determined by the insurer, of workers’ compensation coverage for Non-Worksite Employees. Upon termination of the arrangement, Client shall return to its previous rate and account balance, if applicable, and shall assume a new wage base. NEW JERSEY TotalSource assumes responsibility for the payment of wages to each Worksite Employee without regard to payments by Client, except this requirement shall not affect the Client’s obligations with respect to the payment of wages to Worksite Employees. TotalSource assumes responsibility for the payment of payroll taxes and the collection of taxes from payroll on each Worksite Employee. TotalSource retains the authority to reassign a Worksite Employee. No Worksite Employee shall be reassigned to another Client company without that Worksite Employee’s consent and Client may have the right to accept or cancel the assignment of any Worksite Employee. TotalSource shall, except for newly established business entities, hire its initial employee complement from among employees of the Client at the time of execution of the Agreement at comparable terms and conditions of employment as are in existence at the Client’s jobsite at the time of execution of the Agreement and as designated by the Client. Throughout the term of the Agreement, the Worksite Employees shall be considered employees of TotalSource and Client and upon the termination of the Agreement, the former Worksite Employees shall be considered employees of the Client. Clients with collective bargaining agreements in place shall continue to honor and abide by the terms of any applicable collective bargaining agreements, and upon expiration thereof, any obligations of Client to bargain in good faith in connection with such collective bargaining agreements shall not be affected in any manner by this Agreement. TotalSource and Client shall each retain a right of direction and control over management of safety, risk and hazard control at the work site or sites affecting each Worksite Employee including: responsibility for performing safety inspections of Client equipment and premises; responsibility for the promulgation and administration of employment and safety policies; and responsibility for the management of workers’ compensation claims, the filings thereof, and procedures related thereto. Upon termination of the CSA, Client shall retain the experience balance, liabilities, and wage credits for the Client’s employing unit account; Client’s federal employer identification number (FEIN) shall become the primary FEIN on the employing unit’s account. NEW YORK TotalSource assumes responsibility for the withholding and remittance of payroll related taxes and employee benefits for which TotalSource has contractually assumed responsibility from its own account. TotalSource expressly assumes the rights and responsibilities required by 31 - 922, Laws of New York which require a Professional Employer Organization’s (PEO) contract to set forth the responsibilities and duties of the professional employer organization and of the client company; describe the type of services to be rendered by the professional employer organization and the respective rights and obligations of the professional employer organization and the client company; and that the professional employer organization reserves a right of direction and control over the Worksite Employees. TotalSource expressly agrees to co-employ Client’s Worksite Employees. This Agreement is intended to be ongoing rather than temporary. NORTH CAROLINA TotalSource agrees not access or request from Client any confidential information belonging to a client of Client and TotalSource will implement policies to prevent such access or disclosures. Nothing in this Agreement shall be construed to require conduct that is contrary to North Carolina accountancy laws and rules. Employment responsibilities not allocated to TotalSource by Client or Section 58-89A-100 of the North Carolina Professional Employer Organization Act, remain with Client. Client retains a rig ht of direction and control over the adoption of employment policies. Client understands that pursuant to North Carolina law, it may not enter into a professional employer organization (sometimes referred to as employee CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 17 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 leasing) agreement with TotalSource if Client owes a current or prior professional employer organization any money pursuant to any service agreement which existed between the current or prior professional employer organization and Client, or if Client owes a current or prior insurer any premium for workers’ compensation insurance. Client represents that it has met any and all prior premium and fee obligations with regard to workers’ compensation premiums and professional employer organization payments. This representation is in addition to any representation contained in the Client Services Agreement. Under the penalty of perjury, I the undersigned, declare that I have read this provision and that the facts in it are true. In addition, I agree to the terms and conditions of this provision. Upon termination of the Agreement, if requested by Client, TotalSource will provide records regarding the loss experience related to workers’ compensation insurance if provided to Worksite Employees pursuant to the Agreement. Employment responsibilities not allocated to TotalSource by this Agreement or Article 89A (the professional employer organization licensing statute) remain with the Client. NORTH DAKOTA TotalSource has the right to hire, discipline, and terminate a Worksite Employee as may be necessary to fulfill its responsibilities under the Agreement. OHIO The Client Services Agreement may not terminate without cause prior to the one (1) year anniversary of the Effective Date of the Client Services Agreement. This Agreement is intended to be ongoing rather than temporary in nature and Worksite Employees are intended to be assigned to Client on a permanent basis. Client affirms that within thirty (30) days of the effective date of hiring its first Worksite Employee who works in Ohio, Client will submit an application to obtain an Ohio workers compensation policy and provide TotalSource with the Certificate of Ohio Workers’ Compensation issued by the Ohio Bureau of Workers’ Compensation (OH BWC) upon receipt. Client will be responsible for any non-coverage penalties issued by the OH BWC as a result of a delayed application. OKLAHOMA TotalSource shall make payments for employee benefits for covered Worksite Employees to the extent TotalSource has assumed responsibility in the Client Services Agreement. At termination, if requested, TotalSource will provide Client with records regarding the experience related to worker’s compensation insurance provided to covered Worksite Employees. PENNSYLVANIA TotalSource and Client assume the responsibilities required by the State of Pennsylvania Professional Employer Organization Act (“Act”). Client shall be entitled to exercise all rights, and shall be obligated to perform all duties and responsibilities, otherwise applicable to an employer in an employment relationship. Unless otherwise expressly agreed to in this Agreement, Client shall retain the exclusive right to direct and control the Worksite Employees as necessary to conduct its business, to discharge its responsibilities or to comply with licensure requirements applicable to Client or the Worksite Employees. TotalSource shall be entitled to exercise only those rights, and obligated to perform only those duties and responsibilities, specifically required by the Act or set forth in this Agreement. The rights, duties and obligations of TotalSource as a co -employer with respect to any Worksite Employee shall be limited to those arising pursuant to this Agreement and the Act during the term of co-employment by TotalSource of the Worksite Employee. TotalSource shall have the responsibility to pay wages to Worksite Employees, to withhold, collect, report, and remit payroll-related taxes and unemployment taxes; and, to the extent TotalSource has assumed such responsibility, to make payments for employee benefits for the Worksite Employees. As used in this paragraph, the term "wages" does not include any obligation between Client and a Worksite Employee for payments beyond or in addition to the Worksite Employee’s salary, draw or regular rate of pay, such as bonuses, commissions, severance pay, deferred compensation, profit sharing or vacation, sick or other paid time off pay, unless TotalSource has expressly agreed to assume liability for these payments in this Agreement. Nothing in the Act or in this Agreement shall relieve Client from compliance with the Commonwealth’s wage and labors laws, including the act of May 13, 1915 (P.L.286, No.177), known as the Child Labor Law, the act of August 15, 1961 (P.L.987, No.442), known as the Pennsylvania Prevailing Wage Act, the act of July 14, 1961 (P.L.637, No.329), known as the Wage Payment and Collection Law, and the act of January 17, 1968 (P.L.11, No.5), known as The Minimum Wage Act of 1968. If Client is a health care facility as defined in section 2 of the act of October 9, 2008 (P.L.1376, No.102), known as the Prohibition of Excessive Overtime in Health Care Act, Client shall comply with that act. TotalSource shall not knowingly engage in or assist in the violation of the statutes referenced herein. TotalSource shall have a right to hire, discipline and terminate a Worksite Employee as necessary to fulfill its responsibilities under the Act and this Agreement. SOUTH CAROLINA TotalSource and Client agree that for the purposes of the South Carolina Code of Laws, Title 42, Workers’ Compensation, the jurisdiction of the Client is the jurisdiction of TotalSource and its workers’ compensation insurer. TotalSource agrees that TotalSource and its workers’ compensation insurer are bound by and subject to the awards, judgments, or decrees rendered against them under the provisions of South Carolina Code of Laws, Title 42, Workers’ Compensation. TotalSource and Client agree that insolvency, bankruptcy, or discharge in bankruptcy of TotalSource or Client does not relieve TotalSource, Client, and their respective workers’ compensation insurers from payment of compensation for disability or death sustained by an employee during the life of a workers’ compensation insurance policy. Notice to or acknowledgement of the occurrence of an injury on the part of Client is notice to or knowledge on the part of the licensee and its workers’ compensation insurer. TotalSource assumes the responsibility to pay wages without regard to payments by Client. TotalSource reserves the right to reassign Worksite Employees. TotalSource retains a right of direction and control over the adoption of employment and safety policies and the management of workers’ compensation claims, claim filings, and related procedures. TotalSource is in a co - employment relationship with Client and is licensed and regulated by the South Carolina Department of Consumer Affairs. Any questions or complaints regarding ADP TotalSource should be directed to the Department at P.O. Box 5757; Columbia, SC 29250-5757; www.consumer.sc.gov; 1-800-922-1594 or (803) 734-4200. SOUTH DAKOTA TotalSource assumes the responsibilities provided in §64:06:02:89 of the Administrative Rules of South Dakota, including the payment of wages, salaries, payroll taxes, payroll deductions, workers compensation costs, insurance premiums, welfare benefits, and retirement benefits, and preparing and filing necessary tax returns and other documents as required by state or federal law. Client represents that prior to entering into the Agreement, Client was the employer of its existing workforce. If the Agreement is terminated, TotalSource’s employment of the Worksite Employees will also terminate. If a Worksite Employee terminates with Client, the Worksite Employees employment with TotalSource will also terminate. Client retains primary control over the hiring, firing, wage rates, salary increases, training, directing the day-to-day activities of the Worksite Employees. TotalSource will not manage or direct the operation of Client’s business. TENNESSEE TotalSource and Client assume the responsibilities required by the Tennessee Professional Employer Organization Act as provided in Title 62, Chapter 43 of the Tennessee Code Annotated. TotalSource assumes responsibility for the payment of wages, payroll related taxes and employee benefits from its own accounts without regard to payments by Client. TotalSource retains the authority to reassign Worksite Employees and Client has the right to accept or cancel the assignment of any Worksite Employee. TEXAS PURSUANT TO §91.032(C) OF THE TEXAS LABOR CODE, CLIENT IS SOLELY OBLIGATED TO PAY ANY WAGES FOR WHICH THE OBLIGATION TO PAY IS CREATED BY AN AGREEMENT, CONTRACT, PLAN, OR POLICY BETWEEN THE CLIENT COMPANY AND WORKSITE EMPLOYEE, AND THAT TOTALSOURCE HAS NOT CONTRACTED TO PAY. THIS DOES NOT HINDER TOTALSOURCE’S ABILITY TO PROCESS PAYMENTS FOR SUCH WAGES AT THE REQUEST OR DIRECTION OF THE CLIENT. UNRESOLVED COMPLAINTS INVOLVING TOTALSOURCE OR QUESTIONS CONCERNING THE REGULATION OF STAFF LEASING SERVICES MAY BE ADDRESSED TO THE TEXAS DEPARTMENT OF LICENSING AND REGULATION AT P.O. BOX 12157, AUSTIN, TX 78711 (512) 463-6599 OR (800) 803- 9202 (TEXAS). TotalSource and Client share the right of direction and control over the Worksite Employees, the right to hire, fire, discipline and reassign Worksite Employees, the right of direction and control over the adoption of employment and safety policies and the management of workers’ compensation claims, claims flings, and related procedures. Client retains sole responsibility for the direction and control of Worksite Employees as necessary to conduct Client’s business, discharge any applicable fiduciary duty, or comply with any licensure, regulatory, or statutory requirements. TotalSource assumes the responsibility for the payment of wages to the Worksite Employees without regard to payment by the Client to TotalSource. UTAH The responsibility to obtain workers’ compensation coverage for covered employees, from a carrier licensed to do business in Utah shall be allocated to Client. TotalSource shall arrange for workers’ compensation coverage for Client and covered employees through an umbrella policy providing a separate endorsement for each Client company pursuant to R612-5-3. VIRGINIA Client acknowledges that it is obligated to comply with the insuring requirement of §65.2 -801 of the Code of Virginia with respect to Client employees who are not Worksite Employees covered under the TotalSource workers’ compensation policy. Client agrees to obtain workers compensation coverage for those employees, in accordance with Virginia law. WASHINGTON TotalSource retains the right to control the Worksite Employees’ physical conduct in the performance of his/her duties. Both TotalSource and Client are co-employers of the Worksite Employees and intend for both TotalSource (the general employer) and Client (the special employer) to receive exclusive remedy protection under the Washington's Industrial Insurance Act, Title 51 RCW. Notwithstanding Part 1, Section VI.A, TotalSource will not maintain CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 18 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM leasing) agreement with TotalSource if Client owes a current or prior professional employer organization any money pursuant to any service agreement which existed between the current or prior professional employer organization and Client, or if Client owes a current or prior insurer any premium for workers’ compensation insurance. Client represents that it has met any and all prior premium and fee obligations with regard to workers’ compensation premiums and professional employer organization payments. This representation is in addition to any representation contained in the Client Services Agreement. Under the penalty of perjury, I the undersigned, declare that I have read this provision and that the facts in it are true. In addition, I agree to the terms and conditions of this provision. Upon termination of the Agreement, if requested by Client, TotalSource will provide records regarding the loss experience related to workers’ compensation insurance if provided to Worksite Employees pursuant to the Agreement. Employment responsibilities not allocated to TotalSource by this Agreement or Article 89A (the professional employer organization licensing statute) remain with the Client. NORTH DAKOTA TotalSource has the right to hire, discipline, and terminate a Worksite Employee as may be necessary to fulfill its responsibilities under the Agreement. OHIO The Client Services Agreement may not terminate without cause prior to the one (1) year anniversary of the Effective Date of the Client Services Agreement. This Agreement is intended to be ongoing rather than temporary in nature and Worksite Employees are intended to be assigned to Client on a permanent basis. Client affirms that within thirty (30) days of the effective date of hiring its first Worksite Employee who works in Ohio, Client will submit an application to obtain an Ohio workers compensation policy and provide TotalSource with the Certificate of Ohio Workers’ Compensation issued by the Ohio Bureau of Workers’ Compensation (OH BWC) upon receipt. Client will be responsible for any non-coverage penalties issued by the OH BWC as a result of a delayed application. OKLAHOMA TotalSource shall make payments for employee benefits for covered Worksite Employees to the extent TotalSource has assumed responsibility in the Client Services Agreement. At termination, if requested, TotalSource will provide Client with records regarding the experience related to worker’s compensation insurance provided to covered Worksite Employees. PENNSYLVANIA TotalSource and Client assume the responsibilities required by the State of Pennsylvania Professional Employer Organization Act (“Act”). Client shall be entitled to exercise all rights, and shall be obligated to perform all duties and responsibilities, otherwise applicable to an employer in an employment relationship. Unless otherwise expressly agreed to in this Agreement, Client shall retain the exclusive right to direct and control the Worksite Employees as necessary to conduct its business, to discharge its responsibilities or to comply with licensure requirements applicable to Client or the Worksite Employees. TotalSource shall be entitled to exercise only those rights, and obligated to perform only those duties and responsibilities, specifically required by the Act or set forth in this Agreement. The rights, duties and obligations of TotalSource as a co -employer with respect to any Worksite Employee shall be limited to those arising pursuant to this Agreement and the Act during the term of co-employment by TotalSource of the Worksite Employee. TotalSource shall have the responsibility to pay wages to Worksite Employees, to withhold, collect, report, and remit payroll-related taxes and unemployment taxes; and, to the extent TotalSource has assumed such responsibility, to make payments for employee benefits for the Worksite Employees. As used in this paragraph, the term "wages" does not include any obligation between Client and a Worksite Employee for payments beyond or in addition to the Worksite Employee’s salary, draw or regular rate of pay, such as bonuses, commissions, severance pay, deferred compensation, profit sharing or vacation, sick or other paid time off pay, unless TotalSource has expressly agreed to assume liability for these payments in this Agreement. Nothing in the Act or in this Agreement shall relieve Client from compliance with the Commonwealth’s wage and labors laws, including the act of May 13, 1915 (P.L.286, No.177), known as the Child Labor Law, the act of August 15, 1961 (P.L.987, No.442), known as the Pennsylvania Prevailing Wage Act, the act of July 14, 1961 (P.L.637, No.329), known as the Wage Payment and Collection Law, and the act of January 17, 1968 (P.L.11, No.5), known as The Minimum Wage Act of 1968. If Client is a health care facility as defined in section 2 of the act of October 9, 2008 (P.L.1376, No.102), known as the Prohibition of Excessive Overtime in Health Care Act, Client shall comply with that act. TotalSource shall not knowingly engage in or assist in the violation of the statutes referenced herein. TotalSource shall have a right to hire, discipline and terminate a Worksite Employee as necessary to fulfill its responsibilities under the Act and this Agreement. SOUTH CAROLINA TotalSource and Client agree that for the purposes of the South Carolina Code of Laws, Title 42, Workers’ Compensation, the jurisdiction of the Client is the jurisdiction of TotalSource and its workers’ compensation insurer. TotalSource agrees that TotalSource and its workers’ compensation insurer are bound by and subject to the awards, judgments, or decrees rendered against them under the provisions of South Carolina Code of Laws, Title 42, Workers’ Compensation. TotalSource and Client agree that insolvency, bankruptcy, or discharge in bankruptcy of TotalSource or Client does not relieve TotalSource, Client, and their respective workers’ compensation insurers from payment of compensation for disability or death sustained by an employee during the life of a workers’ compensation insurance policy. Notice to or acknowledgement of the occurrence of an injury on the part of Client is notice to or knowledge on the part of the licensee and its workers’ compensation insurer. TotalSource assumes the responsibility to pay wages without regard to payments by Client. TotalSource reserves the right to reassign Worksite Employees. TotalSource retains a right of direction and control over the adoption of employment and safety policies and the management of workers’ compensation claims, claim filings, and related procedures. TotalSource is in a co - employment relationship with Client and is licensed and regulated by the South Carolina Department of Consumer Affairs. Any questions or complaints regarding ADP TotalSource should be directed to the Department at P.O. Box 5757; Columbia, SC 29250-5757; www.consumer.sc.gov; 1-800-922-1594 or (803) 734-4200. SOUTH DAKOTA TotalSource assumes the responsibilities provided in §64:06:02:89 of the Administrative Rules of South Dakota, including the payment of wages, salaries, payroll taxes, payroll deductions, workers compensation costs, insurance premiums, welfare benefits, and retirement benefits, and preparing and filing necessary tax returns and other documents as required by state or federal law. Client represents that prior to entering into the Agreement, Client was the employer of its existing workforce. If the Agreement is terminated, TotalSource’s employment of the Worksite Employees will also terminate. If a Worksite Employee terminates with Client, the Worksite Employees employment with TotalSource will also terminate. Client retains primary control over the hiring, firing, wage rates, salary increases, training, directing the day-to-day activities of the Worksite Employees. TotalSource will not manage or direct the operation of Client’s business. TENNESSEE TotalSource and Client assume the responsibilities required by the Tennessee Professional Employer Organization Act as provided in Title 62, Chapter 43 of the Tennessee Code Annotated. TotalSource assumes responsibility for the payment of wages, payroll related taxes and employee benefits from its own accounts without regard to payments by Client. TotalSource retains the authority to reassign Worksite Employees and Client has the right to accept or cancel the assignment of any Worksite Employee. TEXAS PURSUANT TO §91.032(C) OF THE TEXAS LABOR CODE, CLIENT IS SOLELY OBLIGATED TO PAY ANY WAGES FOR WHICH THE OBLIGATION TO PAY IS CREATED BY AN AGREEMENT, CONTRACT, PLAN, OR POLICY BETWEEN THE CLIENT COMPANY AND WORKSITE EMPLOYEE, AND THAT TOTALSOURCE HAS NOT CONTRACTED TO PAY. THIS DOES NOT HINDER TOTALSOURCE’S ABILITY TO PROCESS PAYMENTS FOR SUCH WAGES AT THE REQUEST OR DIRECTION OF THE CLIENT. UNRESOLVED COMPLAINTS INVOLVING TOTALSOURCE OR QUESTIONS CONCERNING THE REGULATION OF STAFF LEASING SERVICES MAY BE ADDRESSED TO THE TEXAS DEPARTMENT OF LICENSING AND REGULATION AT P.O. BOX 12157, AUSTIN, TX 78711 (512) 463-6599 OR (800) 803- 9202 (TEXAS). TotalSource and Client share the right of direction and control over the Worksite Employees, the right to hire, fire, discipline and reassign Worksite Employees, the right of direction and control over the adoption of employment and safety policies and the management of workers’ compensation claims, claims flings, and related procedures. Client retains sole responsibility for the direction and control of Worksite Employees as necessary to conduct Client’s business, discharge any applicable fiduciary duty, or comply with any licensure, regulatory, or statutory requirements. TotalSource assumes the responsibility for the payment of wages to the Worksite Employees without regard to payment by the Client to TotalSource. UTAH The responsibility to obtain workers’ compensation coverage for covered employees, from a carrier licensed to do business in Utah shall be allocated to Client. TotalSource shall arrange for workers’ compensation coverage for Client and covered employees through an umbrella policy providing a separate endorsement for each Client company pursuant to R612-5-3. VIRGINIA Client acknowledges that it is obligated to comply with the insuring requirement of §65.2 -801 of the Code of Virginia with respect to Client employees who are not Worksite Employees covered under the TotalSource workers’ compensation policy. Client agrees to obtain workers compensation coverage for those employees, in accordance with Virginia law. WASHINGTON TotalSource retains the right to control the Worksite Employees’ physical conduct in the performance of his/her duties. Both TotalSource and Client are co-employers of the Worksite Employees and intend for both TotalSource (the general employer) and Client (the special employer) to receive exclusive remedy protection under the Washington's Industrial Insurance Act, Title 51 RCW. Notwithstanding Part 1, Section VI.A, TotalSource will not maintain CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 18 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 workers’ compensation coverage for those certain Worksite Employees whose primary worksites are located within the State of Washington. Client shall purchase and maintain workers’ compensation coverage through the Washington State Department of Labor & Industries (“WSDLI”) for such Worksite Employees, owner(s) and those persons identified by Client as self-employed individuals (as such term is described in Part 1, Section II.C). TotalSource will assist Client with the maintenance of such coverage by reporting the information and submitting the payments (on behalf of Client) to the WSDLI that is required by the WSDLI to purchase and maintain workers’ compensation coverage. However, the foregoing assistance provided by TotalSource is dependent upon the accurate and timely submission of information and payment by Client to TotalSource. Further, the worker’s compensation claims administration described in Part 1, Section IV.K, shall not be available to claims that are subject to the workers’ compensation coverage maintained by Client through the WSDLI. Client will notify TotalSource of any such claims and will also be the responsible party for reporting such claims directly to the WSDLI. WEST VIRGINIA Client shall retain the right to hire, discipline, and terminate Worksite Employees provided TotalSource has the right to terminate the Agreement if Client refuses without good cause a request from TotalSource that the Client discipline or terminate a Worksite Employee as may be necessary to fulfill TotalSource’s statutory and or contractual responsibilities. TotalSource shall maintain and provide workers’ compensation coverage for the Worksite Employees from a carrier authorized to do business in West Virginia. WISCONSIN Client assumes all obligations and responsibilities as provided under Chapter 202 (Professional Employer Organizations) of the Wisconsin State Statutes. WYOMING In accordance with § 27-3-501(a)(viii)(B) of the Wyoming Employment Security Law, TotalSource has the right to determine and set the rate of pay for the Worksite Employee whether or not through negotiations with Client. Client is responsible for submitting to TotalSource the recommended rate of pay for each Worksite Employee. TotalSource will review the rates of pay for each Worksite Employee and accept, reject, or negotiate with Client the rate of pay, to be mutually agreed upon with Client. TotalSource has the right to determine the assignment of a Worksite Employee even though the Worksite Employee retains the right to refuse a specific assignment. A Worksite Employee will not be assigned to a Client’s worksite until after the individual has satisfactorily completed TotalSource pre-employment paperwork and background screens as necessary. TotalSource has the right to terminate or suspend the assignment of a Worksite Employee to a particular worksite for reasons relating to the suitability of the Worksite Employee or the suitability and safety of the Worksite, and at any time TotalSource concludes it is necessary to terminate or suspend the assignment of a Worksite Employee for reasons relating to TotalSource’s compliance with applicable laws or regulations. In the proposal process and during the term of the Agreement, TotalSource and Client have and will continue to negotiate, as necessary, over matters of time, place, type of work, working conditions, quality and price of services. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 19 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM workers’ compensation coverage for those certain Worksite Employees whose primary worksites are located within the State of Washington. Client shall purchase and maintain workers’ compensation coverage through the Washington State Department of Labor & Industries (“WSDLI”) for such Worksite Employees, owner(s) and those persons identified by Client as self-employed individuals (as such term is described in Part 1, Section II.C). TotalSource will assist Client with the maintenance of such coverage by reporting the information and submitting the payments (on behalf of Client) to the WSDLI that is required by the WSDLI to purchase and maintain workers’ compensation coverage. However, the foregoing assistance provided by TotalSource is dependent upon the accurate and timely submission of information and payment by Client to TotalSource. Further, the worker’s compensation claims administration described in Part 1, Section IV.K, shall not be available to claims that are subject to the workers’ compensation coverage maintained by Client through the WSDLI. Client will notify TotalSource of any such claims and will also be the responsible party for reporting such claims directly to the WSDLI. WEST VIRGINIA Client shall retain the right to hire, discipline, and terminate Worksite Employees provided TotalSource has the right to terminate the Agreement if Client refuses without good cause a request from TotalSource that the Client discipline or terminate a Worksite Employee as may be necessary to fulfill TotalSource’s statutory and or contractual responsibilities. TotalSource shall maintain and provide workers’ compensation coverage for the Worksite Employees from a carrier authorized to do business in West Virginia. WISCONSIN Client assumes all obligations and responsibilities as provided under Chapter 202 (Professional Employer Organizations) of the Wisconsin State Statutes. WYOMING In accordance with § 27-3-501(a)(viii)(B) of the Wyoming Employment Security Law, TotalSource has the right to determine and set the rate of pay for the Worksite Employee whether or not through negotiations with Client. Client is responsible for submitting to TotalSource the recommended rate of pay for each Worksite Employee. TotalSource will review the rates of pay for each Worksite Employee and accept, reject, or negotiate with Client the rate of pay, to be mutually agreed upon with Client. TotalSource has the right to determine the assignment of a Worksite Employee even though the Worksite Employee retains the right to refuse a specific assignment. A Worksite Employee will not be assigned to a Client’s worksite until after the individual has satisfactorily completed TotalSource pre-employment paperwork and background screens as necessary. TotalSource has the right to terminate or suspend the assignment of a Worksite Employee to a particular worksite for reasons relating to the suitability of the Worksite Employee or the suitability and safety of the Worksite, and at any time TotalSource concludes it is necessary to terminate or suspend the assignment of a Worksite Employee for reasons relating to TotalSource’s compliance with applicable laws or regulations. In the proposal process and during the term of the Agreement, TotalSource and Client have and will continue to negotiate, as necessary, over matters of time, place, type of work, working conditions, quality and price of services. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 3 Page 19 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 This Data Privacy Appendix is a data processing agreement under Applicable Law and supplements the Agreement, between ADP TotalSource, Inc. and Client. Capitalized terms throughout this Data Privacy Appendix not defined in the Agreement are defined in the ADP Privacy Glossary at www.adp.com/-/media/adp/privacy/pdf/glossary_en.pdf, provided, however, that the relevant definitions (or equivalent terms) under Applicable Law will supersede both the Agreement and ADP Privacy Glossary terms in the event of a conflict . PART I - GENERAL 1. Client Obligations. Client shall only provide ADP with Client Personal Data that: (a) is required to perform the Services; (b) has been collected in accordance with Applicable Law, including obtaining any needed consent from Client Employees, where applicable; and (c) Client has and will maintain authority to provide such data under Applicable Law. 2. ADP Obligations. Client is disclosing Client Personal Data to ADP only for the limited and specified business purposes as set forth in the Agreement, associated statements of work and/or any subsequent amendments. ADP, as a Data Processor (or equivalent term under Applicable Law), will comply with Applicable Law for Processing Client Personal Data pursuant to the Agreement. ADP will not: (a) “sell” or “share” Client Personal Data; (b) retain, use, disclose or otherwise Process Client Personal Data outside of ADP’s direct business relationship with Client or for any commercial or other purpose other than the business purposes specified in the agreement(s) between Client and ADP, except as permitted by Applicable Law; or (c) combine Client Personal Data with personal data that ADP receives from, or on behalf of, other persons, or collects from ADP’s own interaction with a consumer, except as permitted under Applicable Law. ADP will provide the same level of privacy protection for Client Personal Data as required of Client under Applicable Law. ADP has the right to Process Client Personal Data in order to comply with ADP’s legal obligations (e.g., compliance with sanction laws) or in order to prevent, detect or investigate fraud. ADP employees, contingent workers and Subprocessors are authorized to Process Client Personal Data to the extent necessary to provide the Services and as permitted under the Agreement and by Applicable Law. 3. Anonymization and Aggregation. In addition to any rights granted to ADP in Section 4 of in the Agreement to use aggregated or anonymized data, ADP will not attempt to, and will not, re -identify any Client Personal Data that has been “anonymized.” For the purposes of this Data Privacy Appendix and Agreement, anonymized data (which includes de-identified data under applicable US Privacy Law(s)) means data that cannot be used to identify an individual, directly or indirectly, by any means reasonably likely to be used in accordance with Applicable Law. The process of “de-identification” under applicable US Privacy Law(s) has the same effect on Client Personal Data as anonymization. ADP will implement reasonable measures to ensure that anonymized or aggregated data has no reasonably foreseeable risk of being re-identified and associated with Client or any individual . 4. Transfers to Subprocessors. ADP may transfer Client Personal Data to ADP Subprocessors and Third Party Subprocessors located outside of the country or region where Client Personal Data was initially collected (collectively “Subprocessors"). ADP will establish appropriate safeguards with Subprocessors to ensure the adequate protection of Client Personal Data. Third Party Subprocessors are bound by written contracts with ADP that impose data protection terms that are not less protective than those imposed by this Data Privacy Appendix. An up-to-date list of ADP Subprocessors and Third Party Subprocessors, including locations, is accessible upon request. Such list may be updated from time to time. 5. Compliance Obligations. ADP will notify Client if ADP makes a determination that it can no longer meet its Processing obligations under Applicable Law. Client may, upon providing written notice to ADP, take reasonable steps to stop and remediate unauthorized Processing of Client Personal Data. 6. Client Instructions. When receiving a Client instruction regarding the Processing of Personal Data, ADP will notify Client if ADP considers such instruction to violate Applicable Law; however, ADP is not obliged to and will not perform a legal examination with respect to a Client instruction. 7. Assistance. ADP will assist Client with Client’s data privacy obligations where required under Applicable Law, including assisting Client in responding to and addressing Client Employee individual rights requests, and complaints concerning Client Personal Data Processed by ADP in connection with the Services. ADP will also provide Client with relevant information for conducting data protection impact or risk assessments, (including transfer impact assessments) and any other assessments or reassessments required by Applicable Law or competent regulatory authorities. ADP reserves the right to charge for such assistance rendered. If ADP receives an individual rights request or complaint directly from a Client Employee, ADP shall promptly forward the Client Employee request to Client. 8. Client Audit. ADP will answer questions asked by Client regarding the Processing of Client Personal Data by ADP. In the event Client reasonably considers that the answers provided by ADP justify further analysis or are necessary to demonstrate compliance with this Data Processing Appendix, ADP will: (a) provide security materials known as ADP’s trust package (which includes security policy and standards overview, password summary, resiliency program summary, disaster recovery program overview, data center and hosting service summary and a third-party risk management executive summary), that details ADP’s business processes and procedures for the Processing of Client Personal Data; and (b) where legally required under applicable Privacy Laws, if Client reasonably considers that the documents provided by ADP justify further analysis, make the facilities ADP uses to Process Client Personal Data available for an audit by a qualified independent third-party assessor reasonably acceptable to ADP, bound by confidentiality obligations satisfactory to ADP and engaged by CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 4 Page 20 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM This Data Privacy Appendix is a data processing agreement under Applicable Law and supplements the Agreement, between ADP TotalSource, Inc. and Client. Capitalized terms throughout this Data Privacy Appendix not defined in the Agreement are defined in the ADP Privacy Glossary at www.adp.com/-/media/adp/privacy/pdf/glossary_en.pdf, provided, however, that the relevant definitions (or equivalent terms) under Applicable Law will supersede both the Agreement and ADP Privacy Glossary terms in the event of a conflict . PART I - GENERAL 1. Client Obligations. Client shall only provide ADP with Client Personal Data that: (a) is required to perform the Services; (b) has been collected in accordance with Applicable Law, including obtaining any needed consent from Client Employees, where applicable; and (c) Client has and will maintain authority to provide such data under Applicable Law. 2. ADP Obligations. Client is disclosing Client Personal Data to ADP only for the limited and specified business purposes as set forth in the Agreement, associated statements of work and/or any subsequent amendments. ADP, as a Data Processor (or equivalent term under Applicable Law), will comply with Applicable Law for Processing Client Personal Data pursuant to the Agreement. ADP will not: (a) “sell” or “share” Client Personal Data; (b) retain, use, disclose or otherwise Process Client Personal Data outside of ADP’s direct business relationship with Client or for any commercial or other purpose other than the business purposes specified in the agreement(s) between Client and ADP, except as permitted by Applicable Law; or (c) combine Client Personal Data with personal data that ADP receives from, or on behalf of, other persons, or collects from ADP’s own interaction with a consumer, except as permitted under Applicable Law. ADP will provide the same level of privacy protection for Client Personal Data as required of Client under Applicable Law. ADP has the right to Process Client Personal Data in order to comply with ADP’s legal obligations (e.g., compliance with sanction laws) or in order to prevent, detect or investigate fraud. ADP employees, contingent workers and Subprocessors are authorized to Process Client Personal Data to the extent necessary to provide the Services and as permitted under the Agreement and by Applicable Law. 3. Anonymization and Aggregation. In addition to any rights granted to ADP in Section 4 of in the Agreement to use aggregated or anonymized data, ADP will not attempt to, and will not, re -identify any Client Personal Data that has been “anonymized.” For the purposes of this Data Privacy Appendix and Agreement, anonymized data (which includes de-identified data under applicable US Privacy Law(s)) means data that cannot be used to identify an individual, directly or indirectly, by any means reasonably likely to be used in accordance with Applicable Law. The process of “de-identification” under applicable US Privacy Law(s) has the same effect on Client Personal Data as anonymization. ADP will implement reasonable measures to ensure that anonymized or aggregated data has no reasonably foreseeable risk of being re-identified and associated with Client or any individual . 4. Transfers to Subprocessors. ADP may transfer Client Personal Data to ADP Subprocessors and Third Party Subprocessors located outside of the country or region where Client Personal Data was initially collected (collectively “Subprocessors"). ADP will establish appropriate safeguards with Subprocessors to ensure the adequate protection of Client Personal Data. Third Party Subprocessors are bound by written contracts with ADP that impose data protection terms that are not less protective than those imposed by this Data Privacy Appendix. An up-to-date list of ADP Subprocessors and Third Party Subprocessors, including locations, is accessible upon request. Such list may be updated from time to time. 5. Compliance Obligations. ADP will notify Client if ADP makes a determination that it can no longer meet its Processing obligations under Applicable Law. Client may, upon providing written notice to ADP, take reasonable steps to stop and remediate unauthorized Processing of Client Personal Data. 6. Client Instructions. When receiving a Client instruction regarding the Processing of Personal Data, ADP will notify Client if ADP considers such instruction to violate Applicable Law; however, ADP is not obliged to and will not perform a legal examination with respect to a Client instruction. 7. Assistance. ADP will assist Client with Client’s data privacy obligations where required under Applicable Law, including assisting Client in responding to and addressing Client Employee individual rights requests, and complaints concerning Client Personal Data Processed by ADP in connection with the Services. ADP will also provide Client with relevant information for conducting data protection impact or risk assessments, (including transfer impact assessments) and any other assessments or reassessments required by Applicable Law or competent regulatory authorities. ADP reserves the right to charge for such assistance rendered. If ADP receives an individual rights request or complaint directly from a Client Employee, ADP shall promptly forward the Client Employee request to Client. 8. Client Audit. ADP will answer questions asked by Client regarding the Processing of Client Personal Data by ADP. In the event Client reasonably considers that the answers provided by ADP justify further analysis or are necessary to demonstrate compliance with this Data Processing Appendix, ADP will: (a) provide security materials known as ADP’s trust package (which includes security policy and standards overview, password summary, resiliency program summary, disaster recovery program overview, data center and hosting service summary and a third-party risk management executive summary), that details ADP’s business processes and procedures for the Processing of Client Personal Data; and (b) where legally required under applicable Privacy Laws, if Client reasonably considers that the documents provided by ADP justify further analysis, make the facilities ADP uses to Process Client Personal Data available for an audit by a qualified independent third-party assessor reasonably acceptable to ADP, bound by confidentiality obligations satisfactory to ADP and engaged by CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 4 Page 20 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493 Client. Client will provide a copy of the audit report to ADP’s Global Chief Privacy Officer which will be ADP Confidential Information. Audits shall be conducted no more than once per year during the term of the Agreement during regular business hours and will be subject to (i) a written request submitted to ADP at least 45 days in advance of the proposed audit date; (ii) a detailed written audit plan reviewed and approved in advance by ADP’s security organization; and (iii) ADP’s on-site security policies. Such audits will take place only in the presence of a representative of ADP’s global security office, ADP’s global data privacy & governance team, or such person designated by the appropriate ADP representative. The audits shall not be permitted to disrupt ADP’s Processing activities or compromise the security and confidentiality of Personal Data pertaining to other ADP Clients. ADP will charge Client a reasonable fee for such audit. 9. Personal Data Return and Deletion. Upon termination of the Agreement, ADP shall comply with its contractual obligations regarding the return of Client Personal Data (if Client Personal Data has not been previously returned to Client, or is not otherwise accessible to Client through the relevant product functionality or features for the Services, such as the ability to download the Client Personal Data) and shall delete Client Personal Data in accordance with ADP’s then current applicable records retention schedule. ADP shall address Client’s request to delete Client Personal Data before the records retention period has ended to the extent feasible and at a reasonable cost to Client . ADP may maintain Archive copies of Client Personal Data, to the extent required under Applicable Law, as authorized by Client in writing, or as needed for dispute resolution purposes. PART II – GDPR 10. Scope. This Part II applies solely with respect to Client Personal Data subject to Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (“General Data Protection Regulations” or “GDPR”) and as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (“UK GDPR”). With respect to ADP’s processing of Client Personal Data subject to GDPR and/or UK GDPR, the EU and UK Binding Corporate Rules (“BCR”) for Client Data Processing Services (the “ADP Privacy Code(s)”), located at https://www.adp.com/privacy.aspx and https://www.adp.com/-/media/adp/privacy/pdf/ukbcrpc_en.pdf, govern(s) as applicable. ADP has obtained EU and UK authorization of its ADP Privacy Code(s). 11. International Transfers. For transfers outside of the EEA, Switzerland and United Kingdom, the ADP Privacy Code(s) serve(s) as the legal basis for the data transfer to an ADP Group Company or between ADP and an ADP Subprocessor, which Client acknowledges and accepts. ADP shall enter into appropriate contractual agreements, such as standard contractual clauses, or rely upon any other lawful transfer mechanism prior to transferring Client Personal Data to a Third Party Subprocessor or to an ADP company when the ADP Privacy Code(s) do(es) not apply. 12. Additional Subprocessor Obligations. Within 30 days of a written update (including electronic notice) by ADP to Client adding a new Subprocessor, Client may object to such new Subprocessor by providing written notice to ADP alleging objective justifiable grounds that such Subprocessor is unable to protect Client Personal Data. If the parties cannot reach a mutually acceptable solution, ADP shall, at its option, either: (a) not allow the Subprocessor to access Client Personal Data; or (b) allow Client to terminate the relevant Services in accordance with the terms of the Agreement. 13. ADP Privacy Code(s) EU and UK Authorization. ADP will make commercially reasonable efforts to maintain the EU and the UK authorization of its ADP Privacy Code(s) for the duration of the Agreement and will promptly notify Client of any subsequent material changes in the EU or UK authorization of its ADP Privacy Code(s). PART III - Miscellaneous 14. Order of Precedence. In the event of a conflict between the Agreement, this Data Privacy Appendix, the ADP Privacy Code(s) and Applicable Law, then the conflict will be resolved by giving effect to such in the following order of precedence: (a) Applicable Law; (b) the ADP Privacy Code(s); (c) this Data Privacy Appendix; and (d) the Agreement. 15. Scope. This Data Privacy Appendix provides no additional rights to a Client Employee that are not already provided under the Applicable Law to which the Client Employee is subject. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 4 Page 21 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Client. Client will provide a copy of the audit report to ADP’s Global Chief Privacy Officer which will be ADP Confidential Information. Audits shall be conducted no more than once per year during the term of the Agreement during regular business hours and will be subject to (i) a written request submitted to ADP at least 45 days in advance of the proposed audit date; (ii) a detailed written audit plan reviewed and approved in advance by ADP’s security organization; and (iii) ADP’s on-site security policies. Such audits will take place only in the presence of a representative of ADP’s global security office, ADP’s global data privacy & governance team, or such person designated by the appropriate ADP representative. The audits shall not be permitted to disrupt ADP’s Processing activities or compromise the security and confidentiality of Personal Data pertaining to other ADP Clients. ADP will charge Client a reasonable fee for such audit. 9. Personal Data Return and Deletion. Upon termination of the Agreement, ADP shall comply with its contractual obligations regarding the return of Client Personal Data (if Client Personal Data has not been previously returned to Client, or is not otherwise accessible to Client through the relevant product functionality or features for the Services, such as the ability to download the Client Personal Data) and shall delete Client Personal Data in accordance with ADP’s then current applicable records retention schedule. ADP shall address Client’s request to delete Client Personal Data before the records retention period has ended to the extent feasible and at a reasonable cost to Client . ADP may maintain Archive copies of Client Personal Data, to the extent required under Applicable Law, as authorized by Client in writing, or as needed for dispute resolution purposes. PART II – GDPR 10. Scope. This Part II applies solely with respect to Client Personal Data subject to Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (“General Data Protection Regulations” or “GDPR”) and as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (“UK GDPR”). With respect to ADP’s processing of Client Personal Data subject to GDPR and/or UK GDPR, the EU and UK Binding Corporate Rules (“BCR”) for Client Data Processing Services (the “ADP Privacy Code(s)”), located at https://www.adp.com/privacy.aspx and https://www.adp.com/-/media/adp/privacy/pdf/ukbcrpc_en.pdf, govern(s) as applicable. ADP has obtained EU and UK authorization of its ADP Privacy Code(s). 11. International Transfers. For transfers outside of the EEA, Switzerland and United Kingdom, the ADP Privacy Code(s) serve(s) as the legal basis for the data transfer to an ADP Group Company or between ADP and an ADP Subprocessor, which Client acknowledges and accepts. ADP shall enter into appropriate contractual agreements, such as standard contractual clauses, or rely upon any other lawful transfer mechanism prior to transferring Client Personal Data to a Third Party Subprocessor or to an ADP company when the ADP Privacy Code(s) do(es) not apply. 12. Additional Subprocessor Obligations. Within 30 days of a written update (including electronic notice) by ADP to Client adding a new Subprocessor, Client may object to such new Subprocessor by providing written notice to ADP alleging objective justifiable grounds that such Subprocessor is unable to protect Client Personal Data. If the parties cannot reach a mutually acceptable solution, ADP shall, at its option, either: (a) not allow the Subprocessor to access Client Personal Data; or (b) allow Client to terminate the relevant Services in accordance with the terms of the Agreement. 13. ADP Privacy Code(s) EU and UK Authorization. ADP will make commercially reasonable efforts to maintain the EU and the UK authorization of its ADP Privacy Code(s) for the duration of the Agreement and will promptly notify Client of any subsequent material changes in the EU or UK authorization of its ADP Privacy Code(s). PART III - Miscellaneous 14. Order of Precedence. In the event of a conflict between the Agreement, this Data Privacy Appendix, the ADP Privacy Code(s) and Applicable Law, then the conflict will be resolved by giving effect to such in the following order of precedence: (a) Applicable Law; (b) the ADP Privacy Code(s); (c) this Data Privacy Appendix; and (d) the Agreement. 15. Scope. This Data Privacy Appendix provides no additional rights to a Client Employee that are not already provided under the Applicable Law to which the Client Employee is subject. CLIENT SERVICES AGREEMENT For THE SWIMMING SWAN, LLC PART 4 Page 21 of 21201-Version 08/08/2024 Prepared 11/25/2024 at 14:41 PM Docusign Envelope ID: EB388E12-9A23-423D-8D4A-7F6565499493