HomeMy WebLinkAboutService AgreementService Agreement
This Service Agreement ("Agreement') is made this 29th day of August, 2011, by and among Paychex Benefit Technologies, Inc.
dba BeneTrac, (PBT), Willis Insurance Services of California, Inc. (Consultant) and City of National City (Client). PBT, Consultant
and Client are sometimes hereinafter referred to individually as "party" and collectively as 'parties".
RECITALS
A. PBT has developed and owns a proprietary service commonly known as the BeneTrac Service, which is an
Internet deployed electronic enrollment and administrative system for group employee benefits ('BeneTrac
Service").
B. Client desires to utilize the BeneTrac Service for its group employee benefits enrollment and administration.
C. Consultant is a broker providing insurance brokerage services to Client.
D. Consultant agrees to distribute, PBT agrees to implement and administer and the Client agrees to use the
BeneTrac Service on the terms and conditions set forth in this Agreement.
OPERATIVE PROVISIONS
1. Incorporation of Recitals
The Recitals are incorporated by this reference as though fully set forth herein.
2. BeneTrac Service
The BeneTrac Service is deployed via the Internet and is categorized as an electronic enrollment and administration system for
group employee benefits. The following features constitute the BeneTrac Service in accordance with the employee benefit plans as
provided by Client or authorized representative: (a) Employee, spouse and dependent demographic information, as provided by
such persons or the Client authorized representative; (b) Employee eligibility tracking; (c) Secure employee access for self service;
(d) Open enrollment transactions; (e) New hire enrollment transactions; (f) Life event enrollment transactions; (g) Online benefit
descriptions; (h) Monthly enrollment transaction comparison of insurance carrier list bills with PBT's database of online enrollments;
(i) If requested by Client or Consultant, PBT will provide data to third -party administrators such as: (1) Payroll Services; (2) Human
Resource Information Systems; (3) COBRA Administrators; and (4) Consolidated billing record -keepers. For integration of existing
data feeds, we provide specifications for input and output and up to 8 hours of technical support. Additional support will be billed at
$150.00 per hour; (I) Custom reports including comprehensive data extracts; and (k) Attempt to establish electronic transmission of
enrollment transactions to the Client's insurance carriers or service providers. For purposes of Section 2(k), PBT will make
reasonable efforts to provide a file feed to any insurance carrier or service provider that agrees to receive one and supports a re-
usable file format. PBT shall bear no financial responsibility for any insurance carrier or service provider that is unable to establish
or maintain a reliable and re -usable data exchange process. PBT will seek Consultant's assistance to encourage insurance carriers
or service providers to engage in re -usable data exchange process if not available.
3. PBT Responsibilities
PBT shall have the following responsibilities in connection with the BeneTrac Service: (a) Initial population and Plan setup; (b)
Reconciliation of initial demographic and enrollment data; (c) Delivery of eligibility and enrollment data to the Client's insurance carriers
and service providers as authorized by the Parties, in accordance with the capabilities and approval of the Client's, carriers and/or service
providers. PBT shall inform Client if a data transmission to one of the above mentioned providers in 3(c) is terminated due to the
discovery of an unreliable data exchange process; (d) Teleconference training of primary users of the BeneTrac Service; (e)
Maintenance of an on-line Help system; (f) Monthly comparison of PBT's database of online enrollment transactions with the
insurance carriers' list bills. Identified discrepancies will be communicated promptly to Client and/or Consultant for informational
purposes only. Resolution of any discrepancies is the sole responsibility of Client and/or Consultant; (g) Compliance with PBT's
Data Privacy Policy (Exhibit A); and (h) Maintaining continuous access to the BeneTrac Service as defined in Section 16 of this
document.
CLIENT AND CONSULTANT UNDERSTAND AND ACKNOWLEDGE THAT PBT IS NOT AN ADMINISTRATOR OF CLIENTS
PLAN UNDER THE CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985 ("COBRA"). CLIENT AND/OR
CONSULTANT ACKNOWLEDGE(S) THAT THE BENETRAC SERVICE AND THE PERFORMANCE OF THE BENETRAC
SERVICES BY PBT DOES NOT AND IS NOT INTENDED TO MAKE PBT THE "PLAN ADMINISTRATOR", "PLAN SPONSOR' OR
OTHER "FIDUCIARY" UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT ("ERISA") OF 1974, AS AMENDED, OR
OTHERWISE OF ANY PLAN, AND CLIENT SHALL NOT IDENTIFY OR REFER TO PBT OR ANY OF ITS AFFILIATES AS SUCH.
PBT HAS NO DISCRETIONARY AUTHORITY OR DISCRETIONARY RESPONSIBILITIES IN THE ADMINISTRATION OF
CLIENT'S COBRA PLANS.
PBT does not own any data, information or material that Client/Consultant submits to Benetrac in the course of using the Benetrac
Service. As such, PBT shall not have any obligation to verify or determine the accuracy, validity or completeness of information
provided by Client or Client's plan administrator, including the hire and termination date of any of Clients employees, and shall not
be responsible for errors, delays or additional costs resulting from the receipt of inaccurate, invalid, incomplete or untimely
information or information provided in an unacceptable format or media.
PBT is not required, under the terns of this Agreement, to review Clients actions orthose of Client's plan administrator(s).
Furthermore, PBT will not incur any liability by taking or permitting any actions on the basis of any of Clients actions or those of
Client's plan administrator(s) or for carrying out Clients directions or that of Client's plan administrator.
4. Client's Responsibilities
a. Client's designated users shall use the system in accordance with the following guidelines: (a) Provide PBT with initial data in
accordance with PBT's standard data import requirements, including all employee and AeAendent demographic data and current
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Client and Consultant initial here
enrollment elections. If data is not submitted in electronic format, copies of employees' paper enrollment forms will be accepted;
however, there is a nominal fee of Si per enrollment per line of coverage to cover the administrative costs of manual data entry; (b)
Provide all information necessary to assist in initial Client setup in accordance with the PBT implementation schedule; (c) Assign a
trained user(s) to perform administrative enrollment tasks and to resolve all data discrepancies after training to facilitate electronic
data integration; (d) Approve all data changes prior to the next regularly scheduled data transmission; (e) Upon confirmation of an
electronic connection, make all enrollment and demographic changes through the BeneTrac Service only, unless otherwise
instructed; (f) Upon implementation of an Employee Benefit Plan using alternate (non -electronic) methods of submitting enrollments,
Client is responsible for updating PBT with all enrollment and demographic changes, unless changes will be made by PBT, in
accordance with a prior written agreement between PBT and Client, detailing such arrangements; (g) Ensure confidentiality of
Employer I D.. User Names and Passwords; (h) Use only PC or Mac based hardware and Microsoft operating systems; and (i)
Verify that all eligibility restrictions, effective date and premium calculations, and all other specific plan rules are in place and working
correctly after initial implementation, and after any Client directed changes.
Client initial here
b. Client must provide PBT with copies of all of Client's carrier list bills for a minimum of ninety (90) days after each electronic feed is
established and again for 90 days after each connected carrier renewal.
Client initial here
c. Client (or Consultant, if so authorized,) is responsible for all activity occurring on Client's website and shall abide by all applicable
local, state, national and foreign laws and regulations in connection with Client's use of the Benetrac Service, including, without
limitation, those related to COBRA, the Internal Revenue Code of 1986, as amended, ERISA, data privacy, international
communications and the transmission of technical or personal data. Client and/or Consultant shall notify PBT promptly of any
unauthorized use of any password or user name or any other known or suspected breach of security.
Client initial here
5. Consultant's Responsibilities
As the Distributor of the BeneTrac Service to the Client, Consultant's responsibilities include: (a) Arrange for payment of a non-
refundable implementation fee as described in the Fee Schedule Addendum; (b) Provide all information necessary to assist in initial
Client setup in accordance with the PBT implementation schedule; (c) Provide detailed plan descriptions to PBT for posting on
Client's website; (d) Arrange alternate funding, when applicable, from carriers or other sources for Client's use of the BeneTrac
Service; (e) Assist PBT and Client to encourage insurance carriers and/or service providers to send and receive electronic eligibility
data; (f) Never misrepresent the BeneTrac Service or its features, nor provide any warranties or guarantees beyond PBT's
ell,
ties or guarantees; and (g) Adopt PBT Data Privacy Policy or one comparable in scope (Exhibit A).
Consultant initial here
6. Term and Termination
a. Term. The Term of this agreement shall commence when Client's Primary User(s) have been trained and the BeneTrac Service
has been made available for use by Client/Consultant and remain in effect one year therefrom. In the event that the consultant is
paying all or a portion of the cost of the BeneTrac service on behalf of Client, the term shall remain in effect until the consultant's
next renewal date. The Term is automatically renewable unless PBT elects to make changes to the conditions of use. If PBT elects
to make such changes, including but not limited to rate changes, PBT will provide written notice to Client no less than sixty (60)
days before the end of the Term. Any changes and/or additions to funding shall be provided to PBT in writing within ten (10) days of
such change. In the event that the consultant ceases funding, Client has the option to continue the service and provide new funding
instructo PBT or terminate the BeneTrac service immediately.
$ iient and Consultant initial here
b. Automa is Termination. This Agreement will automatically terminate and all rights to the BeneTrac Service shall be automatically
revoked upon any parties' (i) filing of a petition for bankruptcy protection and/or an adjudication of bankruptcy under any bankruptcy
or insolvency law; (ii) commission of a receiver for its business or property, (iii) the making of any general assignment for the benefit
of creditors, or (iv) a change to the Consultant.
c. Effect of a Consultant Change. Upon a change to the Client's Consultant, a new Service Agreement shall be executed by the
parties under the then current pricing schedule for the new Consultant. The new Consultant shall submit a $250 transfer fee to PBT
within ten (10) days of the change, together with the new Service Agreement executed by the parties. If the former Consultant was
responsible for funding the monthly BeneTrac Service Fees on behalf of Client, the Client or new Consultant shall submit the current
month's Service Fee to PBT in order to continue uninterrupted service to Client. PBT reserves the right to temporarily suspend
Client's access to the BeneTrac Service until the conditions set forth in this Section 6(c) are met. If the conditions are satisfied
within twenty (20) days from the date of suspension of Client's access, PBT shall not assess additional fees. If the Consultant
change is accompanied by any billable event, as outlined in the Fee Schedule Addendum, applicable fees will apply. No refund of
PBT fees will be made for any period the Client was denied access to the BeneTrac Service as a result of a failure by the new
Consultant or Client to comply with this Section 6(c). If thirty-one (31) or more days have transpired prior to meeting the conditions
set forth above, Client's data will be purged from the PBT system and any subsequent re -instatement will be subject to
Implementation Fees as generally required by a new Client.
d. Termination for Cause. Except as otherwise set forth herein, this Agreement may be terminated by any party upon thirty (30)
days written notice for the material breach of this Agreement by any other party, which breach has remained uncured for a period of
thirty (30) days from the date of written notice thereof, provided that if the material breach cannot reasonably be cured within thirty
(30) days, the breaching party must commence to cure within the thirty (30) day period and diligently prosecute the cure until the
breach is cured. Upon an alleged material breach, the aggrieved party shall provide written notice to all parties of the alleged
material breach.
e. Nonpayment or Delinquent Payment of Fees. Any invoice delinquent in excess of forty-five (45) days shall be subject to a late fee
of one and a half percent (1.5%) per annum and may be cause for termination of service. PBT shall notify Client at least five (5)
business days before any termination action is taken.
f. Terminatio b Any Party. Notwithstanding any other provision of this Agreement, this Agreement may be terminated by any party
without c- r. .on forty five (45) days prior written notice to the other parties.
I lent and Consultant initial here
g. Effect •f Expiration or Termination. Upon the expiration or termination of this Agreement for any reason, all rights granted
hereunder shall immediately terminate and any fees due to PBT shall be immediately due and payable. Client and/or Consultant
shall promptly (i) remove all the BeneTrac Service components from the Client's web site, (ii) at PBT's discretion, remove any
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references to PBT marks, and (iii) return to PBT any materials and/or documents, regardless of form, provided by PBT to Client
pursuant to this Agreement.
7. Data Authorizations
Enrollment data will be shared when applicable with the Consultant, insurance carriers and third party administrators as authorized
by the Client.
8. Rate Guarantee
This Agreement must be signed by all parties and returned to PBT within thirty (30) days of the date on page one in order to lock in
the current quoted rates. After thirty (30) days, if PBT has made any changes to pricing, the new terms will apply. Monthly fees
may be adjusted upon annual renewal of this Agreement.
9. Confidentiality
a. Confidential Information. Each party (the "Disclosing Party") may from time to time during the Term of this Agreement disclose to
the other party(ies) (the "Receiving Party(ies)") certain non-public information regarding the Disclosing Party's business, including
technical, marketing, financial, personnel, planning, and other information (the "Confidential Information"). The Disclosing Party shall
mark all such Confidential Information in tangible form with the legend 'confidential', 'proprietary', or with similar legend. With
respect to Confidential information disclosed orally, the Disclosing Party shall describe such Confidential Information as such at the
time of disclosure. The parties shall comply with the Health Insurance Portability and Accountability Act (HIPAA) of 1996, and its
implementing regulation, the Standards for Privacy of Individually Identifiable Health Information (45 C.F.R., part 160 and part 164,
subparts A and E), future amendments to the implementing Regulation, (hereinafter the HIPAA Privacy Rule), and the electronic
data interchange requirements of HIPAA and the regulations issued thereunder (45 C.F.R. parts 160 and 162).
b. Protection of Confidential Information. Except as expressly permitted by this Agreement, the Receiving Party(ies) shall not
disclose the Confidential Information of the Disclosing Party and shall use the same degree of care that the Receiving Party(ies)
ordinarily uses to protect its/their own proprietary information, but in no event with less than reasonable care. The Receiving
Party(ies) shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this
Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the
Receiving Party(ies) who have a need to know such Confidential Information for purposes of this Agreement, and with respect to
agents who are recipients of the Confidential Information of the Disclosing Party, who are bound in writing by confidentiality terms no
less restrictive than those contained herein. The Receiving Party(ies) shall provide copies of such written agreements to the
Disclosing Party upon request; provided, however, that such agreement copies shall themselves be deemed the Confidential
Information of the Receiving Party(ies).
c. Exceptions. Notwithstanding anything contained herein to the contrary, Confidential Information shall not be deemed to include
any information that: (a) was already lawfully known to the Receiving Party(ies) at the time of disclosure by the Disclosing Party as
reflected in the written records of the Receiving Party(ies); (b) was or has been disclosed by the Disclosing Party to a third party
without obligation of confidence; (c) was or becomes lawfully known to the general public without breach of this Agreement; (d) is
independently developed by the Receiving Party(ies) without access to, or use of, the Confidential Information; (e) is approved in
writing by the Disclosing Party for disclosure by the Receiving Party(ies); (f) is required to be disclosed in order for the Receiving
Party(ies) to enforce its/their rights under this Agreement; or (g) is required to be disclosed by law or by the order of a court or
similar judicial or administrative body, including as part of any filing with the Securities Exchange Commission; provided, however,
that the Receiving Party(ies) shall notify fhe Disclosing Party of such requirement promptly and in writing, and shall cooperate
reasonably with the Disclosing Party, at the Disclosing Party's expense, in obtaining of a protective or similar order with respect
thereto.
d. Return of Confidential Information. The Receiving Party(ies) shall return to the Disclosing Party, destroy or erase all Confidential
Information of the Disclosing Party in tangible form: (a) upon the written request of the Disclosing Party; or (b) upon the expiration or
termination of this Agreement, whichever comes first, and in both cases, the Receiving Party(ies) shall, upon request of the
Disclosing Party, certify promptly and in writing that it/they has/have done so.
e. Enrollment Data and History. In the event that PBT ceases doing business, Client is entitled to all enrollment data and history
collected by PBT under this Agreement.
10. Warranties
Each Party represents and warrants to the other that: (i) It has full power and legal right to execute and deliver this Agreement and
to perform its obligations under this Agreement; (ii) The execution, delivery and performance of this Agreement have been
authorized by all required action(s), corporate or otherwise, and do not violate or conflict with any provisions of its charter, bylaws or
other organizational documents, or any of its contractual obligations or requirements of law binding on it; (iii) This Agreement
constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms and conditions; and (iv) it has,
and shall maintain in full force and effect throughout the term of this Agreement, all governmental permits, licenses and
authorizations required on its part to perform its obligations under this Agreement. EACH PARTY UNDERSTANDS AND AGREES
THAT ALL INFORMATION, TECHNOLOGY AND SERVICES ARE PROVIDED AS -IS AND, EXCEPT AS SPECIFICALLY SET
FORTH HEREIN AND IN THE SCHEDULES ATTACHED HERETO, EACH PARTY DISCLAIMS ALL WARRANTIES AND
CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
TITLE, NON -INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges
that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein
and in the Schedules hereto. PBT makes no representation or warranty that the BeneTrac Service is free from any infringement of
any patent or proprietary rights of others, except that PBT is not aware, as of the PBT signature date of any claim or charge of any
such infringement.
11. Remedies
All parties acknowledge that any breach by any party other than the failure by Client and/or Consultant to pay PBT any fees due
hereunder, may cause irreparable harm for which there is no adequate remedy at law and, in the, event of such breach, the non -
breaching party shall be entitled to seek injunctive and/or other equitable relief.
12. Limitation of Liability
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Client and Consultant initial here
LIMITATION OF PBT'S LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE AND EXCEPTING
HEREFROM DAMAGES INCURRED BY PBT ARISING OUT OF THE INFRINGEMENT OF PBT'S INTELLECTUAL PROPERTY,
NO PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR FOR ANY
MATTERS BEYOND ITS REASONABLE CONTROL (HOWEVER ARISING, INCLUDING NEGLIGENCE, STRICT LIABILITY OR
ANY OTHER LEGAL OR EQUITABLE THEORY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES AGAINST PBT ARISING OUT OF OR IN
CONNECTION WITH THE LOSS OF DATA, THE PERFORMANCE OF PBT'S PROPERTY AND/OR TECHNOLOGY OR ANY
OTHER MATTERS RELATED TO THE BENETRAC SERVICE, THE CLIENT'S SITE OR ANY OTHER PRODUCTS OR SERVICES
PROVIDED BY PBT PURSUANT TO THIS AGREEMENT. IN ANY EVENT, PBT SHALL NOT BE LIABLE TO CLIENT AND/OR
CONSULTANT IN AN AMOUNT GREATER THAN THE AMOUNTS ACTUALLY PAID BY CLIENT AND/OR CONSULTANT TO
PBT FOR SERVICES RENDERED FOR THE THEN PREVIOUS TWO (2) MONTHS HEREUNDER. NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 12 DOES NOT
APPLY TO DAMAGES SUFFERED BY PBT AS A RESULT OF CLIENT OR CONSULTANT BREACH OF SECTION 9 ABOVE OR
ANY OTHER INFRINGEMENT OF PBT'S INTELLECTUAL PROPERTY.
13. indemnity
a. PBT shall, at its own expense, defend or settle any claim, action or allegation brought against the other party(ies), and its
employees, officers, directors, contractors or agents (the Indemnified Party(ies)) to the extent it is based on a claim that Indemnified
Party's use of the BeneTrac Service in accordance with the terms of this Agreement infringes or violates any United States patent,
copyright, trademark or trade secret of any third party and shall pay any final. judgments awarded or settlements entered into;.
provided that the Indemnified Party provides PBT with (i) prompt written notice of such claim or action, (ii) sole control and authority
over the defense or settlement of such claim or action and (iii) information and reasonable assistance, at the Indemnified Party's
expense, to defend and/or settle any such claim or action. The foregoing obligation does not apply to PBT with respect to the
BeneTrac Service or portions or components thereof or services (i) not supplied by PBT (e.g. third party software, services,
telecommunications or technology); or (ii) that are combined with other products, processes or materials not supplied by PBT where
the alleged infringement relates to such combination. PBT shall also not have any obligation with respect to further damages arising
from Client's and/or Consultant's continued use of infringing intellectual property after PBT has provided and implemented
modifications to the BeneTrac Service, as applicable, that do not continue to infringe upon or misappropriate the third party's
claimed rights, and PBT has notified Client and Consultant in writing that the purpose of the modification is to avoid further
infringement or misappropriation.
THIS SECTION 13(a) STATES PBT'S SOLE OBLIGATION AND THE INDEMNIFIED PARTY'S EXCLUSIVE REMEDY WITH
RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET
OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE BENETREC SERVICE OR ANY PART OR COMPONENT THEREOF.
b. Client and Consultant each agrees to indemnify and hold PBT and its employees, officers, directors, contractors or agents (the
Indemnified Party(ies)), harmless from and against all losses, damages and expenses, including reasonable attorneys fees, in
connection with (a) Client or Consultant's acts, omissions or misrepresentations (b) any breach of any covenant or agreement to be
performed by Client or Consultant under this Agreement, provided that PBT provides the Client or Consultant with (i) prompt written
notice of such claim or action, (ii) sole control and authority over the defense or settlement of such claim or action and (iii) proper
and full information and reasonable assistance to defend and/or settle any such claim or action.
c. Client and Consultant agree to defend, indemnify and hold harmless PBT, its affiliates and their directors, officers, employees,
legal representatives, agents, successors, and assigns from and against all claims, losses, liabilities, damages, demands, lawsuits,
causes of action, costs and expenses (including reasonable attorneys' fees and costs) (collectively 'Losses") as a result of Client's
or Consultant's failure to comply with the requirements under COBRA.
14. Proprietary Rights
PBT retains all of its rights, title to, and ownership of all copyrights, trade secrets, and all other intellectual property relating or
applying to the BeneTrac Service and any improvements or enhancements. Unless otherwise expressly set forth in this Agreement,
Client or Consultant have no right, title, or ownership interest in the BeneTrac Service, and shall not copy, reproduce, reverse
engineer, decompile, disassemble or otherwise use all or part of the BeneTrac Service. Upon termination of this Agreement, Client
and Consultant shall immediately cease use of any of PBT's copyrights, trade secrets, and all other intellectual property related or
applying to the BeneTrac Service and any improvements or enhancements thereto. Client or Consultant may not alter, modify, or
change the BeneTrac Service without the prior written consent of PBT. Client or Consultant may use the trademarks or trade names
as expressly permitted in writing by PBT and subject to compliance to PBT's trademark/tradename use policies. Client and
Consultant acknowledge the validity of the trademarks and trade names and PBT's ownership of the trademarks and trade names
and agree not to challenge PBT's rights to use the trademarks and trade names that PBT uses in connection with the BeneTrac
Service and to indicate by the proper symbol that all such trademarks or trade names are proprietary in nature to PBT. Upon
termination of this Agreement, Client and Consultant shall immediately cease use of any of PBT's trademarks and/or tradenames.
Client and Consultant agree not to use the trademark, trade names, or other marketing of PBT or any confusingly similar work or
symbol, as part of their own name or the names of the products they market without PBT's consent, which may be withheld at PBT's
absolute discretion.
15. Taxes
Any fees due to PBT pursuant to this Agreement are exclusive of, and Client and Consultant shall pay and shall indemnify and hold
PBT harmless against, any liability for any sales, use, property, license, value added, withholding, excise or similar tax, whether
federal, state, or local, that may be imposed or assessed in connection with the BeneTrac Service, its delivery, use or possession.
16. Service Level Agreement
a. Service Level Standards. PBT guarantees ninety-nine percent (99%) uptime of the BeneTrac system. Uptime is defined as
available use of the BeneTrac system.
b. Report. When Client is not able to access the BeneTrac system, Client must notify PBT and open a ticket with PBT reporting such
non-compliance of the system (Report). In order to receive a credit for the non-compliance of the BeneTrac system, in the amount
detailed in subparagraph c in this Section 16, Client must report the non-compliance by calling Customer Support or e-mailing PET at
support@benetrac.com and making a request in writing for a credit from PBT within five (5) days of completing the report. Upon
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receiving Client's request in writing, PBT will determine, in its reasonable commercial judgment, whether the BeneTrac Service was
unavailable, and make an appropriate credit in accordance with subparagraph c in this Section 16.
c. Credit. In the event PBT is unable to achieve the Service Level Standard, as set forth in subparagraph a of this Section 16, for
any one month, PBT will provide a credit, subject to subparagraph b of this Section 16, based on the downtime experienced by
Client, equal to the following: each hour of downtime in excess of the guarantee shall constitute an hour of credit. All credits will
appear as a line item on the monthly invoice following the non-compliance. •
d. Events Beyond Control of PBT. The Service Level Standard measurements outlined in subparagraph a of this Section 16 does
not include downtime resulting in whole or in part from one or more of the following causes: (i) Any act or omission on the part of
Client or Consultant or their respective officers, directors, employees, contractors insurance carriers, or other agents; (ii) Client or
Consultant's applications, equipment, or facilities including any third party equipment; (iii) PBT or Client scheduled maintenance; (iv)
Labor strikes; (v) Force majeure events beyond reasonable control of PBT, including, but not limited to, acts of God, government
regulation and national emergency; and (vi) Service outages attributable to PBT's Internet service providers or any other
circumstance outside of PBT's reasonable control.
17. General Provisions
a. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California. All parties
consent to the exclusive jurisdiction and venue of the state and federal courts located in San Diego County, CA, USA for the
adjudication of any disputes arising from, related to or regarding the subject matter of this agreement.
b. Alternate Dispute Resolution. In the event that any dispute arises between the parties relating to this Agreement, the parties
agree that their dispute will be submitted to binding arbitration to be administered by the American Arbitration Association (A.A.A.)
pursuant to the A.A.A.'s Commercial Arbitration Rules and the venue of the arbitration shall be California. The parties agree that a
single arbitrator shall either be selected by the joint agreement of the parties within twenty-one (21) days or shall be appointed by
the AAA after the twenty-one (21) day period has expired. Any award issued by the arbitrator shall be binding and may be entered
as a judgment in any court of competent jurisdiction.
c. Severability: Headings. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way.
d. Force Maleure. If performance hereunder is prevented, restricted or interfered with by any act or condition whatsoever beyond
the reasonable control of a party, the party so affected, upon giving prompt notice to the other party, shall be excused from such
performance to the extent of such prevention, restriction or interference. Each party acknowledges that the operation of the other
party's website and services may be interfered with by numerous factors outside of a party's control, and neither party guarantees
continuous or uninterrupted availability of its services or products.
e. No Joint Venture. The parties are independent contractors, and no agency, partnership, joint venture, employee -employer or
franchisor -franchisee relationship is intended or created by this Agreement. Neither party shall make any warranties or
representations on behalf of the other party(ies).
f. Compliance with Laws. At its own expense, each party shall comply with all applicable laws, regulations, rules, ordinances and
orders regarding the marketing, promotion and performance of its obligations hereunder.
g. Notice. Any notices hereunder shall be given to the appropriate party at the address the party specifies in writing. Notice shall be
deemed given: upon personal delivery; if sent by fax or email, upon confirmation of receipt; or if sent by certified or registered mail,
postage prepaid, five (5) days after the date of mailing.
h. Entire Agreement; Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes
any and all oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. It may be
changed only by a writing signed by Client, Consultant and PBT. The waiver of a breach of any provision of this Agreement will not
operate or be interpreted as a waiver of any other or subsequent breach.
i. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of
which shall be taken together and deemed to be one instrument.
j. Assignment; Obligations of Successors. This is Agreement shall not be assigned by a party without the prior written consent of
the other parties, which consent shall not be unreasonably withheld; provided, however, that a party may.assign this Agreement and
its rights and obligations hereunder without any other party's consent (a) in connection with the transfer or sale of all or substantially
all of the business of such party to which this Agreement relates to a third party, whether by merger, sale of stock, sale of assets or
otherwise, or (b) to any affiliate. Except as provided in Section 6(b), the provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, or to their heirs, personal representatives, successors and assigns respectively.
CtCljent1 and Consultant initial here
fN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
Client
City of National City
Client Data Authorization
Paychex Benefit Technologies, Inc. dba BeneTrac is authorized to collect and store enrollment and demographic data
online on our behalf. We have instructed PBT to share the enrollment data, as needed, with all our insurance carriers and
service providers.
Authorized Representative
Consultant
Willis Insurance Services of California, Inc.
Print Name & Title Date
Consultant Data Authorization
Paychex Benefit Technologies, Inc. dba BeneTrac is authorized to collect and store enrollment and demographic data
online on our Client's behalf. We have instructed PBT to share the enrollment data, as needed, with the Client's
insurance carriey id service providers.
i ski e
Authorized Representative Print Name & Title
Paychex Benefit Technologies, Inc., dim BeneTrac
2385 Northside Drive, Suite 100
San Diego, CA 92108
Toll free: (877) 645-4342
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A'tt orized y presentative
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Brian Daley, VP of Operations
Print Name & Title
Date
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1 "Client and Consultant initial here
Fee Schedule Addendum to the BeneTrac Service Agreement
The fee schedule for the first term of service shall be as follows:
Item
Funding Source(s)
Covered
Employees
Funding Period
One time
Implementation fee
(2xPE*)
Recurring
PEEPM**
f
Willis Insurance Services of
California, Inc.
All enrolled
Training Date —
12 Months
$7.50
$3.75
Total
$7.50
$3.75
* PE - Per Employee
** PEEPM - Per Enrolled Employee Per Month
Payment of fees
PBT shall be responsible for monthly invoices, including any one-time fees, to each funding source of the Client and the collection of
any outstanding fees.
a. Carrier subsidies. Carrier subsidies may be revoked or modified at any time at the discretion of the funding carrier. In the event
that a carrier ceases funding, Client has the option to continue the service and provide new funding instructions to PBT or terminate
the system immediately. If Client opts to continue the service, new funding instructions must be provided within ten (10) days of
termination of the carrier subsidy.
b. The payment of fees shall be due in advance for any employee who is enrolled in at least one benefit plan on the first day of each
month, subject to a $250 per month minimum. Payments shall be due within fifteen (15) days after Client's receipt of invoice from
PBT, detailing such amounts. Service fees commence when Client's Primary User(s) have been trained and the BeneTrac Service
has been m-de available for use by Client/Consultant. Billing of service fees will commence prior to the establishment of electronic
data fee.-- ./ s independent of plan effective dates.
/ lient and Consultant initial here
c. 'mole entation fee. The non-refundable implementation fee is an amount equal to two times the estimated number of total
employees at the time of order, at PEEPM service fees, subject to a minimum fee of $500 and a maximum of 12 plans. Actual count
must be within ten percent (10%) of estimate, otherwise the implementation fee will be recalculated based on the actual number of
employees enrolled in at least one benefit plan for the first month of the BeneTrac Service. Implementation will commence upon
receipt of the completed order form, implementation fee and the fully executed Service Agreement.
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Client and Consultant initial here
Memorandum of Understanding Addendum to the BeneTrac Service Agreement
1. Client and Consultant understand that the BeneTrac service fees begin once the site is delivered, all data is imported into
the system and administrative users are trained. No electronic data integrations will be delivered before this point. HR or
other administrative users will be responsible for helping to reconcile discrepancies to facilitate the electronic data
integration process.
2. Client and Consultant understand that BeneTrac service fees are based on any employee with at least one approved
(Active or COBRA) enrollment, regardless of effective date on the 1a of the month.
3. Client and Consultant understand that Payroll and COBRA vendor integration will not be started until all data is reconciled
and all other electronic data integrations are completed.
4. Client and Consultant understand that the electronic data integrations that have been presented as available are based on
historical projects and current relationships. BeneTrac does not control the insurance carriers or service providers and
cannot guarantee the existence or the continued availability of any electronic data integration with them.
5. Client and Consultant understand that the time needed to integrate ail of my insurance carriers, payroll and COBRA
vendors is variable. The process is potentially impacted by events outside the control of BeneTrac and can not be
predicted with certainty. BeneTrac's commitment is to diligently pursue integrating each insurance carrier or service
provider regardless of timeframe.
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A
1Client and'Consultant initial here
Exhibit A — PBT Data Privacy Policy
Your privacy and the security of your data are of the utmost importance to us. This notice is provided to explain our online
information practices and the choices you can make about the way your data is collected and used. To make this notice easy to find,
it is available on our homepage and at every point where personally identifiable information may be requested.
The Information We Collect
This notice applies to all information collected or submitted to the system bearing the name of BeneTrac. From time to time a
Broker/Consultant distributor may give the system another name, but as long as the underlying system has the copyright and
Security provisions of BeneTrac this Data Privacy Policy shall pertain in its entirety. The bottom of all pages will be marked to
indicate the BeneTrac system's authenticity. The information collected in the system is for the sole purpose of supporting the
management of an employee's benefits online.
Information collected: Name, Addresses, Email Address, Phone Number, Social Security Number, Date of Birth, Date of Hire,
Salary, Group Benefit Plan Choices, Carrier Information, Group Number(s), Employee Classification, Spouse Name, Work Location,
Job Title, Premium Amounts, Provider Codes, Dependent Names, Termination Date, Employee Contribution of Premium, User
Name, Password, Effective Dates of Insurance Coverage. Reenrollment Date, Security Access Level.
Most of the information identified above will be common to all users. Data field selections are customizable and are determined by
the Authorized Senior User for each implementation.
The Way We Use Information
Ali data belongs to the Employer Group andlor their Human Resources Department (The Data Owner). The data collected and any
access by any individual or group to the data is always with the authorization of the Data Owner. Each site is configured to allow
varying levels and means of access according to the instructions given by the Data Owner. The Data Owner identifies the Carriers
that provide the Group's benefit plans. Additionally, any outside Administrators providing services to the Group may be given
permission to make enrollment changes on behalf of the group if directed by the Data Owner. The system is designed to deliver
data to the Carrier or Administrator electronically and in an encrypted format. If a data recipient is unable to receive electronic data
files, BeneTrac will deliver data in the format acceptable to the recipient. If approved by the Data Owner, the group's
Broker/Consultant will be given access to the data to provide more timely service through timely information. A Broker/Consultant's
level of access can be regulated. Employees may be given access if authorized by the Data Owner. The level of access and data
fields visible to the employee may be regulated. The system is designed to allow employees access only to their own records for
enrollment, demographic changes, or limited to view only, Finally, we never use or share the data provided to us online in ways
unrelated to those described above or without the written approval of the Data Owner. Our Data Privacy Policy describes only our
use of your data and is not intended to represent the Privacy Policy of others given access to the data by the Data Owner and it is
strongly recommended that all users ask those to whom they authorize access provide a Data Privacy Policy.
Our Commitment to Data Security
BeneTrac has implemented a comprehensive information security program which contains administrative, technical and physical
safeguards that are appropriate to safeguard Confidential Information. This is consistent with any applicable federal and/or state
statutes or regulations. To prevent unauthorized access, maintain data accuracy, and ensure the correct use of information, we
have put in place appropriate physical, electronic and managerial procedures to safeguard and secure the information we collect
online. Within the system, data security measures include 128 Bit Encryption of any data that is transmitted over the Internet,
Secure Socket Layers (SSL), User Name & Password access, each page user verification, and firewall technology. Security begins
before you enter your User Name and Password keeping the data secure from start to finish.
Our Commitment to Children's Privacy
The system and use of the system are not intended for access to children. The system is for the use of Human Resources,
Employees, Broker/Consultant, Carrier and benefit Administrators. It is the direction of the Data Owner that allows access to the
system and it is unlikely that children will be given access. Finally, all dependent data is only as needed for the enrollment criteria,
and is customarily provided by the employee/guardian and kept secure as indicated above.
How You Can Access Or Correct Your Information
The Data Owner can access all personally identifiable information at any time to make changes in the system. Additionally the Data
Owner can allow the employee access to make changes or to read only and report back to the Data Owner to make any necessary
changes. To protect the privacy of the data, we will take reasonable steps to verify user identity before and during use of the system
to make changes.
How To Contact Us
Should you have any questions or concerns about these privacy policies, please call us at out toll free number (877) 645-4342 or
send us an email at feedback(@BeneTrac.com .
Client and Consultant initial here