Service Agreement
This
Agreement is made on the Date Signed below by
and between The Alcohol & Drug Testing
Service, Inc. (hereinafter TADTS ), a Texas corporation with its
principal place of business located at 411 Lantern
Bend Dr., Ste 210,
Houston, Texas 77090 and Company Name designated above (hereinafter CLIENT ) to retain TADTS for the administration of a drug
(and/or) alcohol testing program, as outlined in the Policy & Procedures
Manual, for CLIENT employees who are enrolled in the Program. Now, therefore for good and valuable
consideration, the parties agree as follows:
I. Program Term: This Agreement will become
effective on the date this Agreement
is signed by a representative of CLIENT. However, TADTS reserves the right to
approve any proposed changes to the terms of this Agreement before providing
any services to CLIENT. This
Agreement will remain in effect for a period ending on December 31st
of the third year of this Agreement. The
Agreement will be automatically renewed
for the same time period unless client submits written
30 days notice.
II. Program Services: include the following
and/or other services
as required.
o Computer Generated Random Selections
o
Management of random testing pool including addition
or deletion of employees
o
Statistical Data Reporting to CLIENT including
MIS Report
o
Administrative Support for compliance audits
o
Substance Abuse Professional Referrals
o
Collection Site Selection (Nationwide)
o
Drug Testing includes specimen collection, initial lab test and GC/MS Confirmation
o
Alcohol Screen includes
confirmation test (if required)
o
Customized Chain of Custody Forms
o
Transportation of Specimen (included in bundled pricing per urine drug test)
o
Test Results Reporting
via secure fax, email or Web Results
o
MRO Services provided by TADTS appointed
sub-contractor
o
DHHS Certified Laboratory (TADTS appointed sub-contractor)
o
Certification & Verification
o
On-Site Testing Services
o
Drug & Alcohol
Testing Policy for mandated and non-mandated programs
o
Medical Physical Examinations for mandated and non-mandated programs
o
Employee Record Administration
o
Five Year Storage & Documentation of Positive
Specimens
o
Motor Carrier Representative in accordance with TRC Section
643.064
o
Reporting of Positive
Alcohol and/or Drug Tests in the FMCSA Clearinghouse (if applicable)
o
Refusal to Tests
for Owner Operator
clients that do not report
for Random tests
when notified are reported to FMCSA Clearinghouse for FMCSA covered employers
III. Program Administration: TADTS objective is to
provide consistent, objective, fair and manageable procedures for drug (and/or) alcohol
testing of CLIENT employees. TADTS drug
and alcohol testing program will be administered as follows:
A. CLIENT will
provide TADTS with a complete list, in MS Excel format, of all its locations
and employees who will participate in the program.
B.
CLIENT agrees to abide by Federal and/or State
Guidelines and to make TADTS information available to all employees.
C.
TADTS will maintain information regarding the status
of employees on its secure database and make such information available to
clients in good standing.
D.
TADTS will establish selection protocols and conduct
employee drug (and/or) alcohol testing to include the following:
1. Pre-Employment 4.
Post-Accident
2. Reasonable Suspicion 5. Return to Duty (Positive results)
3. Random 6. Follow up (Positive results)
E.
TADTS will provide CLIENT with a list of approved
specimen collection centers for collection of
biological specimens TADTS will review collection center procedures and replace
specimen collection centers if deemed necessary and advise our clients
immediately of any such replacements.
F.
TADTS will utilize laboratories certified by the Department
of Health and Human Services for the testing of biological specimens when
required by Mandated Federal Testing Programs. Laboratories certified by either
the Department of Health and Human
Services, or the College American Pathologists will perform testing not
mandated by Federal Department of Transportation Regulations.
G.
TADTS will provide review and reporting of positive
and questionable negative, drug test results performed by an authorized Medical
Review Officer (MRO) contracted or employed by TADTS.
H.
TADTS and our appointed sub-contract will report any positive verified
drug and/or alcohol tests to the FMCSA Clearinghouse as part 49 Code of Federal
Regulations, Parts 40 and 382.
(1) TADTS must report Owner
Operator clients that do not report for Random
tests, when notified, to FMCSA
Clearinghouse for FMCSA covered employers
I.
TADTS will provide federal and company reporting
and certification (when required) of
CLIENT
J.
CLIENT agrees to pay TADTS for their services as
set forth in Section II above, at the rate set forth on the Implementation
Worksheet attached hereto as Exhibit A and incorporated into this Agreement.
IV. Coordination of Activities: TADTS will coordinate the activities, described in Paragraphs II and III, through
designated persons known as "DER" or Designated Employer
Representative within the herein named CLIENT.
CLIENT must designate in writing to TADTS a
"DER" and a Back-up DER and notify TADTS of any subsequent
designations or changes.
V. Indemnification: TADTS is an independent contractor providing its clients
with the administration of mandated and non-mandated substance abuse programs
described herein. TADTS and CLIENT mutually agree to indemnify, defend and hold
harmless its officers, members, directors, shareholders, employees, agents and
representatives, from and against any and all claims,
demands, actions, causes of actions, damages, costs and expenses (including
attorneys' fees and court costs) directly or indirectly arising out of the
performance or non-performance of TADTS obligations under this service
Agreement. TADTS does not have any control over nor assume any liability for the enforcement of policies or the
actions of CLIENT personnel. As an
independent contractor, TADTS shall not be deemed to be engaged either directly
or indirectly in the business of nor deemed to be an agent of said CLIENT, the
Department of Transportation, the Health and Human Services regulations or
corporate contract testing mandates. Notwithstanding the foregoing, in no event
shall either party be liable to the other party for any indirect, incidental,
punitive, exemplary or consequential damages asserted by any party.
VI. Confidentiality: TADTS
acknowledges that during the engagement TADTS will have access to and become
acquainted with confidential or proprietary information owned, licensed or used
by the Customer, whether furnished
before or after the Effective Date, including, without limitation, business
plans, marketing plans, Protected Data (as defined below), trade secrets,
technical data, financial data, test or evaluation results, system concepts,
drawings, models, product designs, product specifications, product performance
data, information pertaining to Customer s shareholders or representatives and
other commercial information whether or not patented or copyrighted
( Confidential Information ). TADTS
agrees that it will not disclose Confidential Information to any third party or
use the Confidential Information in any manner, either during or after the term
of this Agreement, except as permitted pursuant to this Agreement. All files,
records, documents, blueprints, specifications, information, letters, notes,
media lists, original artwork/creative, notebooks, and similar items relating
to the business of the Customer, whether prepared by the TADTS or otherwise
coming into TADTS possession, remain the exclusive property of Customer. Upon termination of this Agreement, or at
the request of Customer at any time, the TADTS will immediately deliver to the
Customer all such files, records, documents, specifications, information, and other items in TADTS possession or under TADTS control. TADTS may not
publish or permit the publication of, in any manner or media, the existence or
terms of this Agreement, any actual or potential business relationship between
Customer and TADTS, or the logos or any other intellectual property of
Customer, its affiliates or its customers.
VII.
Protected Data: Protected Data means any data or information accessible by TADTS as a
result of its business relationship with Customer that can be used to identify
or locate a natural person, including but not limited to:
name, address, telephone number, e-mail address, social security number or
driver s license number. Protected
Data also includes any other data, such as, but not limited to, identifiers,
demographic or behavioral data, when such data is linked or has the capacity to
be linked to a specific person. Protected
Data also includes non-public personal information as that term is defined
under Title V of the Federal Gramm-Leach-Bliley Act and any state statutes
adopted to comply therewith, the regulations promulgated pursuant thereto,
including 16 CFR Parts 313 and 314 and 12 CFR Parts 332 and 364, any state
regulations promulgated under such state statutes or in compliance with the
Federal Gramm- Leach-Bliley Act. Protected
Data shall also include health information and personally identifiable health
information as defined
by HIPAA, 42 U.S.C. 1320d
(4) and 1320d
(6).
VIII. General Obligations to
Safeguard Confidential Information. TADTS shall implement and maintain appropriate
measures designed to meet the
following objectives: (i) to ensure security and confidentiality of Confidential
Information; (ii) to protect against any anticipated threats or hazards to the
security or integrity of Confidential Information; and (iii) to protect against
unauthorized access to or use of Confidential Information. TADTS shall maintain physical, electronic
and procedural controls and safeguards in compliance with the law and Customer
policies, to protect the Confidential Information from unwarranted disclosure. These controls shall include the
maintenance of appropriate safeguards to restrict access to the Confidential
Information to those employees, agents or service providers of TADTS and its
sub-contractors who need such information to carry out the purpose of providing
the testing services. Upon request,
Customer shall have the right to conduct an audit or require TADTS to have an
independent audit conducted by a mutually acceptable auditor and make available
to Customer copies of audits and test result information sufficient to assure
Customer that TADTS and its sub-contractors have implemented information
security measures that are consistent with its obligations under this
Agreement. Upon termination of this
Agreement, or at the request of Customer at any time, the TADTS will
immediately deliver to the Customer all such files, records, documents,
specifications, information, and other items in TADTS possession or under
TADTS control that contain or include Confidential Information.
IX. Notification of Loss or
Unauthorized Access. TADTS agrees to immediately notify Customer in the event that TADTS reasonably suspects that
Confidential Information has been, or may have been, lost or subject to
unauthorized internal or external access. To
the extent Customer seeks the assistance of TADTS, TADTS agrees to reasonably
cooperate with Customer at TADTS expense to:
(i) determine the scope and severity of any
such loss or unauthorized access; and (ii) give notice to individuals whose
Confidential Information is the subject of such unauthorized access, to the
extent required by law or Customer policy. Unless
TADTS is required by law to provide
notice, TADTS shall
not give notice
to individuals except with
the prior approval of Client.
X. Compliance with Laws. TADTS certifies that (a)
TADTS holds and will maintain the applicable licenses to perform the specified
testing services, (b) TADTS will comply with all local, state and federal laws,
(c) TADTS and its employees are not persons or entities identified at www.ustreas.gov/offices/enforcement/ofac, (d) TADTS employees who
perform the testing services under this Agreement are authorized to be employed
in the United States and have undergone a national background check and have
not been convicted of any crimes of moral turpitude, and (e) TADTS will comply
with the Gramm-Leach-Bliley Act of 1999 to the extent that TADTS receives or
has access to non-public personal information, as defined therein and the
Health Insurance Portability and Accountability Act to the extent that TADTS
receives or has access to health information and personally identifiable health
information, as defined therein. TADTS
further certifies that all of its employees who
perform testing services under this Agreement are in a random drug screen program
and any TADTS
employee who has tested
positive for illegal substance shall not be assigned to work on testing
services for Customer. TADTS utilizes outside agencies for some of the services
performed under the Agreement. TADTS is only certifying that it and its
employees are subject to the terms stated in Paragraph X Compliance with Laws.
XI. Notice. Any notices under this
Agreement will be given in writing by overnight courier or Certified U.S. mail
to Customer at CLIENT address listed above or such other address as may be
designated in writing by Customer from time to time, and to TADTS at the address
listed on the seventh page attached hereto. Notices
are effective when received.
XII. Assignment. TADTS may not assign this
Agreement without the prior written consent of Customer.
XIII. Survival. Sections
V, VI, VII, VIII, IX, X and XI will survive termination or expiration of this Agreement.
XIV. Force Majeure: TADTS will not be
responsible for, nor liable to, the herein named business, for failure or delay
in performance which results from, or is due to, directly or indirectly, in
whole or in part, any cause or circumstance beyond the reasonable control of TADTS.
XV.
Payment Terms: Payment terms are net Thirty (30) days after the date of any invoice
by TADTS. All overdue payments shall be subject to an additional interest and
service charge calculated at the rate of one and one half
percent (1.5%) per month from the due date until the date of payment. TADTS may suspend or terminate this
Agreement if CLIENT:
A. Does not pay any invoice within
30 days after the date of the invoice.
B. Fails to remain DOT compliance with its random
program, as per 49 CFR Part 40.
XVI.
Termination: Should either party, for any reason, breach the terms of this
Agreement, the non- breaching party shall have the right to suspend or terminate this Agreement, upon THIRTY
(30) days written notice to the breaching party, if the breaching party
does not correct the violation, by the expiration of the thirty (30) day notice
period, to the satisfaction of the non- breaching party. In the event of such termination under this Section, the
non-breaching party shall notify the appropriate contracting or regulating
agencies of the suspension or termination of this Agreement.
If this
Agreement is suspended or terminated for any reason, the herein named business
entity, CLIENT, shall assume full
responsibility for administration of its corporate and/or federally mandated
drug and alcohol testing programs including but not limited to:
(1) Reporting,
(2) Records maintenance and
(3) Ensuring confidentiality, and security of any confidential information
TADTS will
provide CLIENT with the necessary information for transfer of this
responsibility. TADTS may refuse to transfer information relating the services
provided under this Agreement until such time as TADTS has received payment in
full for all outstanding obligations by said CLIENT
XVII. Applicable Law: This Agreement
will be construed under the laws of the State of Texas.
XVIII. FMCSA Drug & Alcohol
Clearinghouse: The Clearinghouse is a secure online database that contains
records of violations of drug and alcohol prohibitions in 49 CFR Part 382, Subpart
B, including positive drug or alcohol test results and test refusals. When a
driver completes the return-to-duty (RTD) process and follow-up testing plan,
this information is also recorded in the
Clearinghouse.
The Clearinghouse is a centralized database that employers use to conduct
queries, which check that current or prospective
employees are not prohibited from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV),
due to an unresolved drug and
alcohol program violation that is, a violation for which the driver has not
completed the return-to-duty (RTD) process. Queries must be conducted as part
of a pre-employment driver investigation, and at least annually for current
employees.
In
addition, employers may designate a C/TPA who can report violations and/or
conduct queries on their behalf. An owner-operator an employer
that employs himself
or herself as a
CDL driver, typically a single-driver operation must designate the C/TPA in the
Clearinghouse.
EXHIBIT B
ORAL FLUID STANDING ORDER
DOT Authorized the use of oral fluid testing effective June 1, 2023,
under DOT Rule 49 CFR, part 40. The regulation requires the
employer covered under this part to have a clear Standing Order of when to
perform Oral Fluid testing. CLIENT agrees to have the standing ordered outlined
below be in place for our testing.
Oral Fluid Standing Order:
Pre-Employment, Random, Follow-up, and Return to Duty testing:
o Initial testing
should be attempted
using Urine as the specimen.
o Shy bladder, insufficient specimen, cold specimen
initial attempts should
be followed by an immediate Oral Fluid second collection.
Post-Accident and Reasonable Suspicion
testing:
o Initial testing
should be attempted
using Oral Fluid as the specimen.
o Any dry-mouth incidences should be followed up with a Urine collection
o If the additional Urine is a shy bladder
or cold/hot specimen
then urine collection guidelines must be followed
according to 49 CFR, Part 40.
Shy bladder 49 CFR, Part 40.193(b)
Cold/Hot specimen 49CFR, Part 40.65 (b) and 40.67
Urine
Specimens showing signs of tampering:
o
Any urine specimens collected for the
above reasons that the collector suspects signs of tampering, as outlined in 49 CFR, Part 40.65 (c) should be immediately
followed by an oral fluid collection.
Required
oral fluid collection:
o
For direct observation collections involving transgender or nonbinary individuals, an oral fluid
collection must be conducted.
o
Any circumstance where a qualified urine collector is not available, and a qualified oral fluid collector is available.
