1.1 "ACA" means the Patient Protection and Affordable Care Act of 2010, as amended, and regulations promulgated thereunder.
1.2 “Client” means [COMPANY NAME]
1.3 "Client Information" means all data or information (in whatever form or media) that is owned by Client or licensed by third parties to Client, and that either (i) is supplied to Sureco or its service providers by, or on behalf of, Client or any Employee or Participant, or (ii) Client or any Employee or Participant makes accessible to Sureco or its service providers in connection with this SOW, including:
(a) Text, software, music, sound, photographs, graphics, videos or other images;
(b) Client name, logo, any trade name or trademark, and any service marks or service names;
(c) Client's standard materials and derivations thereof and other material related thereto;
(d) Client's practices, tools, methodologies, techniques, processes, inventions, trade secrets, methods, formulae, technical information, specifications and know-how, regardless of whether developed in connection with the Services;
(e) Client's other intellectual property rights not addressed specifically above. Client Information does not constitute Sureco Information or Sureco Confidential Information; and
(f) Personal Information.
1.4 "Client Party" or "Client Parties" means Client and its affiliates and their respective officers, directors, and employees.
1.5 "COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended, and regulations promulgated thereunder.
1.6 "Confidential Information" means (a) business or technical information of any Party, including, without limitation, information relating to a Party's software, documentation, source code, object code, modifications to the foregoing; (b) designs, costs, finances, marketing plans, business opportunities, personnel, research, development, know-how; (c) any information designated "confidential" or "proprietary" or which, under the circumstances, should reasonably have been understood to be confidential, proprietary or trade secret information of the disclosing party; and (d) the terms and conditions of this Agreement. Confidential Information specifically includes reports and documents produced or delivered by Sureco. Notwithstanding the foregoing, Confidential Information does not include information that the receiving Party can demonstrate: (i) is in the public domain or is generally publicly known through no improper action or inaction by the receiving Party; (ii) was rightfully known by or in the receiving Party's possession prior to receipt from the disclosing Party; (iii) is rightfully disclosed without restriction to the receiving Party by a third party without violation of obligation to the disclosing Party.
1.7 "Employee" means those individuals who are eligible to receive services (regardless of whether they actually receive or use the services) under this SOW, and may include, without limitation, individuals recognized by Client as employees for federal tax reporting and withholding purposes.
1.8 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and regulations promulgated thereunder.
1.9 "HIPAA" Health Insurance Portability and Accountability Act of 1996, as amended, and regulations issued thereunder.
1.11 "Intellectual Property Rights" means in whatever form, format, or medium, paper, electronic, digital or otherwise any (a) copyrights and copyright applications, (b) issued patents, patent applications, and patentable processes, methodologies, and procedures, ( (c) trademarks or service marks and related applications, (d) all trade secrets, trade practices, confidential information, and all other information, documents, and materials, whether copyrightable or patentable, developed, acquired, licensed, or used in the operation of any or all of the Client Parties’ businesses including, without limitation, materials relating to sales and marketing programs, clients, users, and customers, revenue management programs, brand and pricing strategies, business and technology plans, and research and development reports, (e) associated goodwill, if any (f) all programs and software, including, without limitation, the data and information processed or stored thereby, useful in the operation of any or all of the Client Parties’ businesses, and (g) all manuals, brochures, directives, policies, and other information issued by the Client Parties with respect to any or all of the Client Parties’ businesses.
1.12 "Losses" means damages, claims, liabilities, losses, awards, judgments, penalties, third party claims, interest, costs and expenses, including reasonable attorneys' fees, whether arising under any legal theory including, but not limited to claims sounding in tort (such as for negligence, misrepresentation or otherwise), contract (whether expenses or implied), by statute or otherwise, claims seeking any kind of damages and claims seeking to apply any standard of liability such as negligence, statutory violation or otherwise. For the avoidance of doubt, multiple claims arising out or based upon the same act, error or omission or services of interrelated or repeated acts, errors or omissions shall be considered a single Loss.
1.13 "Sureco Information" means all data or information (in whatever form or media) that is owned by Sureco or licensed by third parties to Sureco, and that either (i) is supplied to Client by, or on behalf of, Sureco hereunder, or (ii) is made accessible to Client by or on behalf of Sureco in connection with this SOW, including:
(a) text, software, music, sound, photographs, graphics, videos or other images;
(b) all software used by Sureco;
(c) the formats of reports provided pursuant to the applicable SOW;
(d) Sureco's standard materials and derivatives thereof and other material related hereto;
(e) Sureco's practices, tools, methodologies, techniques, processes, inventions, trade secrets, methods, formulae, technical information, specifications and know-how, regardless of whether developed in connection with the Services or engagements with other Sureco clients; and
(f) Sureco's other intellectual property rights not addressed specifically above. Sureco Information does not constitute Client Information or Client Confidential Information.
1.14 “Sureco Systems” means any computer, computer network, computer application, imaging device, storage device, mobile computing device or software owned, leased or controlled by Sureco,that processes Personal Information.
1.15 "Sureco Party" or "Sureco Parties" means Surecompanies, Inc., and its respective officers, directors, and employees.
1.16 "Participant" means an Employee who is enrolled in one or more of the Plan(s) as set forth in the SOW.
1.17 "Party" means Sureco or Client. "Parties" means Sureco and Client.
1.18 “Personal Information” means any information relating to an identified or identifiable individual (such as name, postal address, email address, telephone number, date of birth, Social Security number or its equivalent, driver’s license number, account number, credit or debit card number, personal identification number, persistent online identifier that may be used to identify or contact an individual, health or medical information, or any other unique identifier or one or more factors specific to the individual’s physical, physiological, mental, economic or social identity), whether such data is in individual or aggregate form and regardless of the media in which it is contained, which Sureco or any third party acting on behalf of Sureco processes in connection with the Agreement. Nothing in this Agreement shall impose restrictions on Sureco’s ability to disclose aggregated data to government or regulatory entities, to the extent required by this Agreement or applicable legal requirements. Personal Information does not include business contact information. Personal Information includes PHI.
1.19 "PHI" means "protected health information" as that term is used under HIPAA. "Client PHI" means PHI that Sureco receives from or on behalf of Client or creates on behalf of Client.
1.20 "Plan(s)" means those employee welfare benefit plans, voluntary benefit plans and other plans, funds or programs established, maintained, sponsored, made available or endorsed by or on behalf of the Client as set forth in the SOW.
1.21 "Plan Year" has the meaning set forth in ERISA.
1.22 “Services” are the services set forth in Exhibit A – Schedule of Services under this SOW.
1.23 “SOW” shall refer to the Statement of Work executed between Sureco and the Client.
2. Additional Terms.2.0 The following terms and conditions apply to the Agreement, SOW and the Schedules:
2.1 Exchange of Information.
2.1.1 Sureco shall rely on the most recent Client Information supplied by or on behalf of Client in providing the Services.
2.1.2 Client assumes full responsibility for the condition, content, format, usability, or correctness of any Client Information provided to Sureco. Client shall timely perform all data refinement, purification and reformatting as may be reasonably required for Sureco to perform its obligations under this SOW. Each party is, at all times solely responsible for obtaining all legally necessary consents or permissions required to carry out all of such party’s necessary duties under this SOW and shall maintain the confidentiality of the data on behalf of the Employees or other persons or entities to whom the data may pertain or relate.
2.1.3 Client agrees and acknowledges that the failure to provide, or cause to provide, complete, accurate, up-to-date, and timely documentation and information to Sureco, whether intentional or by error, could result in impairment of coverage or service. Sureco shall not be liable for any losses, including loss of an employee’s health insurance coverage, which may result on account, either partially or wholly, of Client’s acts or omissions as described in this Section. Client shall not be liable for losses directly attributable to any act or error of Sureco that renders Client data inaccurate.
2.1.4 Sureco will not be liable to Client for Client's mistakes of judgment or other actions taken by Sureco or a Sureco Party in good faith based on Client's mistakes of judgment. For purposes of this provision only, mistake of judgment relates to Client’s responsibilities under this SOW.
2.1.5 Data transmitted through the Internet by Sureco is encrypted for Client's protection, subject to the Parties agreeing on an applicable encryption protocol. However, the security of transmissions over the Internet is not guaranteed.
2.2 Plan Fiduciary Instruction.
2.2.1 The Services to be performed by Sureco under this SOW shall be ministerial in nature and shall generally be performed in accordance with the terms of the Plans established by Client to the extent copies of the Plan and all amendments thereto have been provided to Sureco and/or at the direction of the Client. In performing the Services, Sureco acts at the direction of Client or its designee. Client agrees to provide direction in a manner reasonably requested by Sureco and any such direction will be effective, whether provided orally, electronically, or in writing by a person who Sureco has received prior written approval that such person authorized to act on behalf of Client. Client agrees that the plan documents and summary plan descriptions for the Plans and all administrative services and procedures to be followed by Sureco which are exercised with the highest standard of care for the industry, as set forth in the SOW, constitutes direction by Client to Sureco.
2.2.2 SURECO IS NEITHER A PLAN ADMINISTRATOR NOR FIDUCIARY AS DEFINED UNDER ERISA. Client acknowledges, agrees and warrants that Client is the named Plan Administrator and/or Fiduciary for the Plan(s) within the meaning of ERISA, and, notwithstanding anything to the contrary contained herein, that Sureco is not a fiduciary and has no discretionary authority or responsibility with respect to the Plan(s) or Plan assets. It is understood and agreed that Client has full and final authority and responsibility for the Plan(s), Plan(s) assets, and Plan(s) operation. Sureco shall have no duty or power to act on behalf of Client or any Participant in connection with the Plan(s) other than as expressly stated in this SOW or upon written instruction from persons authorized by Client.
2.3 Government Fee Payment.
2.3.1 Except in the event of the gross negligence or willful misconduct of Sureco, the Client is responsible to pay any fee or penalty arising from the plans that is assessed by the Internal Revenue Service, the Department of Labor, and/or other federal or state governmental agencies.
2.4.1 Client Intellectual Property Rights. As between Client and Sureco, Client retains all right, title and interest, including all Intellectual Property Rights, in and to all Client Information made available by or on behalf of Client pursuant to the terms of this Agreement for access and use by Sureco Parties to perform the Services.
2.4.2 Sureco Intellectual Property Rights. As between Client and Sureco, Sureco retains all right, title and interest, including all Intellectual Property Rights, in and to all Sureco Information made available by or on behalf of Sureco pursuant to the terms of this Agreement for access and use by Client Parties to receive the Services.
2.5 Restrictions on Use.
2.5.1 Where applicable, Client will not modify or attempt to modify the Services in any manner. Sureco, as applicable will own all rights in any copy, translation, modification, adaptation of the Services or other items of Confidential Information, including any improvement or development thereof. Client shall execute, at Sureco's reasonable request, any instrument that may be appropriate to assign these rights to Sureco or perfect these rights in the name of Sureco, as applicable.
2.5.2 Client shall not download, decompile, disassemble or reverse engineer the Services, the Sureco or Service Provider software (including web sites), or any of their component parts. Except as specifically directed by Sureco or the owner or licensor of any such software, Client shall not remove protection from or make any alterations, revisions, additions, enhancements, or improvements to the software in any manner whatsoever. Except to the extent expressly permitted in this SOW, Client shall not cause or knowingly permit (i) any person other than its own authorized Employees, Participants and Beneficiaries, to use or have access to the Services without the prior written consent of Sureco or (ii) any use of the Services in any unauthorized manner. Client agrees to promptly notify Sureco of all unauthorized uses and users of the Services.
2.5.3 Client shall not use Sureco's name, trademarks or logo without Sureco’s prior written consent except that nothing herein shall prohibit Client from using Sureco's trademark or logo in materials approved by Sureco, as applicable. Client is not authorized to prepare or distribute any promotional or descriptive material relating to this SOW or the Services, without the prior written approval of Sureco. Client shall make no use of the name "Sureco" except as expressly authorized in writing by Sureco.
2.5.4 The obligations set forth in this Section 2.5 shall survive the expiration or termination of this SOW.
2.6 Grant of Rights.
2.6.1 Solely for the purposes of carry out Services under this SOW, Client hereby grants to Sureco a non-exclusive, royalty-free license to use Client's name, logo, any trade name or trademark, and any service marks or service names in connection with Sureco's performance of the Services provided such use shall be subject to the prior written approval of Client as to style, form, context and general content. Client shall not unreasonably delay or withhold its approval.
2.6.2 Except as provided in the applicable business associate agreement, Client hereby grants to Sureco a non-exclusive, royalty-free license to use all Client Information, including but not limited to, data, information, text, software, or other material (in whatever form or media, including Participant data) that is supplied to Sureco by or on behalf of Client hereunder or Client makes accessible to Sureco as a result of the Services contracted for or provided under this SOW. Client is responsible for all of such material provided to Sureco. Client represents and warrants to Sureco that it owns or is lawfully authorized to use all data and Client information that are provided to Sureco in order that Sureco may provide the Services.
2.7 Use of Personal Information Practices.
2.7.1 Sureco shall receive, maintain, use and disclose PHI regarding Participants and Beneficiaries in accordance with the applicable business associate agreement between Client's plan and Sureco, which is incorporated herein by reference and supersedes any inconsistent provisions herein to the extent required by HIPAA.
2.7.2 Client and Sureco shall send Personal Information through a secure transmission application including, without limitation, encrypted WinZip® files, US Mail, or other mutually agreeable means and shall not use any unsecure means to transmit PHI or personal information such as, but not limited to, fax or unencrypted email.
2.7.3 Client will not use the Services to share, store, or in any way distribute Personal Information that is not in accordance with the law.
2.7.4 Sureco shall hold confidential any and all Personal Information.
2.7.5 As between Sureco and Client, Client is the owner of any and all Personal Information, and Sureco shall have no ownership rights or interest in Personal Information.
2.7.6 Sureco shall not process for marketing purposes, sell, aggregate, analyze or anonymize Personal Information unless required in connection with the Agreement or as authorized by Client in writing.
2.7.7 Sureco shall limit access to Personal Information to its personnel that have a need to know the Personal Information as a condition to Sureco’s performance of Services for or on behalf of Client.
2.7.8 Sureco shall, where not legally prohibited from doing so, notify Client as soon as reasonably practicable, and in any event within five (5) business days, of receiving any request or complaint related to any Personal Information. Client shall respond to any request or complaint related to any Personal Information, and Sureco shall cooperate with Client to respond as necessary.
2.7.9 Unless specifically authorized by Client or required pursuant to the Agreement, Sureco shall not process, nor permit any third-party service provider, to process Personal Information across any national borders. In any event, Sureco shall be responsible for ensuring that any processing of Personal Information across national borders (whether performed by itself or a third-party service provider) is in compliance with all applicable laws including but not limited to any cross-border data transfer requirements or prohibitions.
2.8.1 Sureco agrees to maintain and use reasonable and appropriate safeguards to prevent the unauthorized access to or use of Client Information, and to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Client Information that Sureco processes in the course of providing the Services to Client covered within this SOW.
2.8.2 Such safeguards shall include, but are not limited to, (a) security management policies and procedures including incident management procedures to address security events, (b) access controls, including password change controls, to ensure access to information resources is granted on a need to know and least privilege basis, (c) device and software management controls to guard against viruses and other malicious or unauthorized software, (d) industry standard encryption safeguards as appropriate and where required by law, (e) security awareness to ensure Sureco employee understanding of their responsibilities in guarding against security events and unauthorized use or access to information, (f) logging procedures to proactively record user and system activity for routine review, and (g) facility access and protection controls to limit physical access to information resources and guard against environmental hazards (e.g., water or fire damage). Sureco shall also maintain disaster recovery and business continuity plans and/or policies consistent with all applicable laws and industry standards relating to the Services. Sureco will conduct web application security assessments on any website or online applications used by it and that have access to Client Information or to information protected from disclosure under federal or state law, including, but not limited to Social Security Number, Driver's License Number, of financial account numbers. Sureco will (1) report any vulnerabilities identified by the web application assessment to Client (2) present the Client with a remediation plan, and (3) re-test any website or online application with a known vulnerability at least quarterly. Sureco will conduct periodic assessments of its data security practices, procedures, policies, and safeguards (collectively "practices") and will provide Client with a report, at least once a year, indicating any significant deficiencies in data security practices. The assessment required under this paragraph can be conducted by a third-party auditing company. The report required under this paragraph can take the form of an executive summary of the third-party auditing company's findings, however, that summary must include a description of any significant deficiency in the Sureco's data security practices. Sureco will maintain and follow a document and information retention schedule and will irrevocably delete or destroy information. To the extent that any significant deficiency in data security practices are identified, Sureco shall, within thirty (30) business days thereafter, either remediate such deficiencies or provide Client with a plan acceptable to Client for Sureco to remediate such deficiencies. If (i) the significant deficiency is not remediated within such period; or (ii) an acceptable plan for remediating such significant deficiency is not agreed to by the parties during such time period, or (iii) if an acceptable plan is not executed according to the terms of such plan, then Client may, by giving Sureco written notice thereof, immediately terminate the Agreement and/or exercise such rights and remedies it deems appropriate under the circumstances. In connection with such termination, Client may exercise all rights and remedies available to it in the event of breach. Sureco will maintain and follow a document and information retention schedule and will irrevocably delete or destroy Personal Information relating to an individual after that individual has ceased using Sureco's services. Nothing within this paragraph will require Sureco to delete or destroy Personal Information relating to an individual to the extent that the Sureco is required by law to retain that information.
2.8.3 Unless prohibited by law, Sureco, in accordance with applicable privacy laws and regulations, agrees to notify Client within five (5) calendar days upon learning of a Security Incident. Security Incident means an incident in which Sureco knows or should reasonably suspect has resulted in (1) the loss or theft of Personal Information, (2) unauthorized access, use, disclosure and/or acquisition of Personal Information that reasonably may compromise the privacy or confidentiality of Personal Information, or (3) unauthorized access to or use of, inability to access, or malicious infection of, Sureco Systems that reasonably may compromise the privacy or confidentiality of Personal Information. Security Incident shall not include inconsequential incidents that occur on a daily basis, such as scans, "pings" or other unsuccessful attempts to penetrate computer networks or servers containing sensitive information maintained by Sureco. Sureco may make the initial report verbally and shall summarize in reasonable detail the effect on Client, if known, of the Security Incident and the corrective action taken or to be taken by Sureco. Sureco must, within thirty (30) days, after becoming aware of the Security Incident, provide a written report which indicates (1) the cause of the breach, (2) the specific data elements impacted by the breach and (3) the identity of each Client Employee (or individual receiving coverage as a result of his or her relationship with a Client Employee) whose information has been, or is reasonably believed by Sureco to have been, accessed, acquired, or disclosed, (4) any business impact that may result from the Security Incident, and (5) corrective action (if any) taken by Sureco. Sureco shall provide any additional information reasonably requested by Client for purposes of making any notifications required by applicable law of affected individuals, as soon as such information is available to Sureco. If Sureco does not possess the information referenced in this paragraph at the time that the report is required to be delivered, Sureco is required to provide supplemental written reports if, and when, this information becomes known. Sureco shall conduct a reasonable investigation of the reasons for and circumstances of the Security Incident, and take all necessary and advisable actions to rectify, prevent, contain and mitigate the impact of the Security Incident, and remediate the Security Incident. Sureco shall collect, preserve and document all evidence regarding the discovery and cause of, and vulnerabilities, response, remedial actions and impact related to the Security Incident; and provide such documentation to Client upon request. To the extent that a Security Incident involves electronic Client Information, Client may require that the Sureco retain, at its own expense, a third party independent forensic investigator to analyze, and report on, the impact of the Security Incident upon the information provided by Client.
2.8.4 Sureco agrees to keep Client informed of progress and actions taken to resolve the Security Incident. Unless Client in its sole discretion will determine whether to provide explicit notification to Employees, Participants, and/or Beneficiaries concerning Security Incidents involving Client Information. Sureco reserves the right, in its sole discretion, to notify pertinent government authorities of such incidents, such as those involving criminal acts. Sureco and Client shall mutually agree on whether to notify pertinent government authorities of such incidents, law enforcement agencies of a Security Incident, when the decision whether to involve such as those involving criminal acts is discretionary (that is, when no legal obligation, statutory or otherwise, requires one of the parties to contact law enforcement). In the event of a Security Incident, Client may require, by issuing a written demand, that Sureco provide all notices that are required by federal or state law to be made by Sureco and/or by Client to the media, to individuals affected by the Security Incident, or to regulators. Sureco shall bear all costs with providing such notices and will provide Client with advance copies of such notices prior to distribution, publication, or communication. This paragraph will not require Sureco to make a notification on behalf of the Client to the extent that the Sureco is prohibited by law from so doing.
2.8.5 Notwithstanding anything else to the contrary within this SOW, the requirement to notify individuals, applies only to those Security Incidents involving the loss of Client Information or information which was not in an encrypted state at the time of the event, and only in those jurisdictions which have clear statutes for such notification (e.g., United States and Canada).
2.8.6 Client will adhere to the reasonable security procedures prescribed from time to time by Sureco in connection with the use of or access to the Services.
2.9 Security of Systems. Client and Sureco shall maintain any IDs and passwords issued by or on behalf of Sureco in strict confidence and Client shall advise its authorized Employees, Participants and Beneficiaries to maintain such IDs and passwords in strict confidence. Client acknowledges that Sureco may disable any ID or password upon reasonable belief that security has been, or will be, compromised.
2.10 Indemnification; Limitation and Disclaimer of Liability.
2.10.1 Indemnification by Client. Client shall indemnify, defend and hold harmless Sureco, its affiliates and subcontractors, and their respective members, directors, officers and employees (each a "Sureco Indemnified Person") from and against any and all Losses which may be imposed on or incurred by or instituted against any such Sureco Indemnified Person relating to or arising out of: (a) any negligent act, error or omission by Client, including Client's respective directors, officers, employees, agents, subsidiaries and affiliated companies in carrying out Client's duties and obligations under the terms of this SOW; (b) any inaccurate or incomplete data provided or information furnished by or for Client to Sureco; (c) any act or omission by Sureco to a transaction executed at the direction of Client; (d) Client's breach under this Agreement or the SOW; (e) a finding that Sureco is a "Plan Administrator" or "fiduciary" as defined by ERISA, by virtue of its performance of an act or omission at the direction of the Client; or (f) any claims made by third parties related to nonpayment (including insurance premiums or applicable administrative fees) or other failures of performance by Client or its employees; provided, however, that in no event will Client be liable under this Section
2.10.2, to the extent that such Losses are attributable to Sureco's negligence, bad faith, or failure to perform its responsibilities under this SOW or the separate business associate agreement.
2.10.3 Indemnification by Sureco. Subject to any limitations of liability and damages set forth in the Agreement Sureco will indemnify, defend and hold harmless Client, its affiliates and subcontractors, and their respective members, directors, officers and employees (each a “Client Indemnified Person”) from and against any and all claims and Losses that any such Client Indemnified Person may incur by reason of Sureco's negligence or bad faith in connection with its performance under this SOW. Sureco shall not be liable for any resulting Losses, to the extent that such Losses are attributable to Client's negligence, bad faith, or failure to perform its responsibilities under this SOW or Sureco's compliance with Client's direction. Sureco does not assume any responsibility or authority under this SOW for (1) the funding or operation of any Client-sponsored employee welfare benefit plan (as defined in ERISA Section 3(1)) or for compliance of any such plan with ERISA; (2) duties incumbent upon a "plan sponsor" or "covered entity" under the HIPAA privacy and security rules; (3) funding claims for benefits under any HSA or employee welfare benefit plan or the payment of fees to third parties providing services or products to Client or its employees; (4) insuring or underwriting any liability to provide benefits under any employee welfare plan; or (5) the acts or omissions of any Automated Clearing House or other financial institution.
2.10.4 Change in Law. In the event of any change in any federal or state law or regulation or the interpretation or enforcement of any federal or state law or regulation that creates the reasonable possibility of sanction or penalty based on the terms of this SOW, upon the request of a Party, the Parties shall enter into good-faith negotiations concerning the affected provision(s) to remedy such terms or conditions which are necessary to comply with the law.
2.10.5 Indemnification Procedure. A party claiming indemnification pursuant to this Section 2.10 must give the other party prompt written notice of such claim. The parties shall cooperate with each other to assist in the defense of any claim. An indemnified party may assume the defense of such claim, in which case the indemnifying party will not be liable to the indemnified party for the Losses, or any expenses subsequently incurred by the indemnified party in defending such action or claim. No indemnified party may settle any claim without the approval of the indemnified party.
2.10.6 Mitigation of Damages. Both Client and Sureco agree to use commercially reasonable efforts to mitigate their own, as well as each other's liability, damages, and other Losses suffered in connection with the SOW including where any liability, damages, or Losses can be mitigated by lawfully pursuing recovery from other third parties and each of Sureco and Client will conduct diligent efforts to recover.
2.10.7 Limitation on Liability. The aggregate liability of Sureco to Client for any and all Losses arising out of or relating to the provision of Services by Sureco or a Sureco Party or the performance of Sureco's other obligations under this SOW shall not exceed the amount of ongoing compensation paid or to be paid to Sureco on account of the Services giving rise to such Loss for the twelve-month period immediately preceding the events causing the initial Loss. Sureco shall have no liability for the errors or omissions of any third party (other than a Sureco Party). The provisions of this Section 2.10 shall apply to the fullest extent permitted by law. Client hereby acknowledges that the remedies set forth herein are reasonable and will not fail of their essential purpose.
2.10.8 Consequential or Punitive Damages. In no event will a Party or its affiliates be liable to the other Party under this Agreement for incidental, consequential, direct, punitive, special or similar damages (including loss of profits, data, business or goodwill, or government fines, penalties, taxes or filing fees) caused by its acts or omissions under this SOW, regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, and even if such party is advised of the likelihood of such damages.
2.10.9 Neither the limitations of liability clause nor consequential damage disclaimer shall limit Sureco’s liability for any Losses or damages (including without limitation, direct, special or consequential damages) resulting from a Security Incident, which damages include without limitation: (i) expenses to provide notice of the Security Incident to affected individuals; (ii) expenses to investigate, assess or remediate the Security Incident or failure to comply with any applicable laws; (iii) expenses to provide credit monitoring or identity theft protection services; and (vi) expenses to respond or address any investigation by regulators or law enforcement agencies. Sureco shall not be liable for any resulting Losses, to the extent that such Losses are attributable to a Security Incident caused by Client’s act, error, or omission.
2.11 Term and Termination. Notwithstanding any contrary provision of the Agreement, this SOW and/or Schedules, as applicable, may only be terminated as follows:
(i) Mutual Consent. Upon the mutual written consent of the parties.
(ii) Without Cause Termination. Either party may terminate this SOW for any reason upon 90-days advanced written notice. Any undisputed amounts due Sureco under this SOW, including any agreed upon deferred fees, commissions and carrier paid fees earned through the effective date of termination are due to Sureco.
(iii) Loss of License. Sureco may terminate the affected Services immediately upon any termination of Sureco's right to access, use, or resell a Service provided by any applicable third-party service providers in total or solely with respect to Client.
(iv) Broker of Record Change. To the extent applicable under this SOW, if Client substantially alters its consulting engagement or terminates its current broker of record for all or a portion of Client's Plan(s), Sureco may terminate Services under this SOW immediately upon sixty (60) days prior written notice and all fees due or paid for Services rendered through the date of termination hereunder will be deemed earned in full.
2.12 Events Upon and After Termination. Upon and after termination of this SOW, Sureco shall, in an expeditious manner, provide Client with any assistance necessary to ensure a smooth transition of services to an appointed successor. Client shall, subject to the provision of any mutually-agreed transition services, (a) promptly pay Sureco any and all undisputed fees or other amounts set forth in the Compensation and Fee Schedules or this SOW for Services rendered through the date of termination, (b) timely and adequately notify all appropriate parties, including but not limited to Employees and any applicable third party service providers to the Plan(s), that Services with Sureco under this SOW have terminated, and (c) select and appoint a successor to whom Sureco will send appropriate Plan(s) records, or copies thereof, at Client's sole expense. In the absence of an appointed successor, Sureco may forward Plan(s) records, and/or copies thereof, directly to Client or its designee at Client's sole expense (or at Sureco's expense if offered). Any such expense charged by Sureco to Client will be reasonable.
2.13 Records Retention.
2.13 To the extent not otherwise prohibited by applicable laws or this Agreement, Sureco will immediately provide to Client or its designee any and all Client Information in Sureco’s, or its Subcontractor’s, possession, custody or control as of the termination or expiration of this SOW in Sureco's then standard format, and thereafter will have no obligation to maintain such Client Information. Sureco shall provide a certification confirming that all such Personal Information has been returned or securely destroyed within thirty (30) business days of Client’s request.
2.14 Compliance with Law
2.14.1 General Compliance with Law. Sureco will comply in all material respects with the laws applicable to Sureco's performance of the Services, Client Information and its other obligations under this SOW. Client will comply in all material respects with the laws applicable to Client's obligations under this SOW. Client agrees to administer the Plans in accordance with the rules and regulations of such Plan(s). Sureco will have no responsibility for plan disqualification resulting from operation of a Plan in accordance with this SOW, including the direction of Client. Client is responsible for determining the appropriate steps needed to correct any defect of any Plan document, or any operational or demographic failure, that adversely affects the qualification of a Plan. The origination of ACH transactions shall comply with applicable U.S. law including, but not limited to, the sanctions enforced by the Office of Foreign Asset Control.
2.15 Relationship of the Parties. The relationship of Client and Sureco shall be that of independent entities contracting with each other for the sole purpose of carrying out the provisions of this SOW.
2.16 Use of Third Party Service Providers. Client consents to Sureco's use of third party service providers in the course of providing the Services subject to this SOW and further acknowledges and agrees that Sureco may provide such service providers with Client Information on a confidential and a need to know basis for the purposes contemplated by this SOW, provided that no such information shall be maintained outside the United States. Such service providers will be subject to provisions related to Client Information similar to those contained herein, except as required by a business associate agreement. Sureco remains responsible to fulfill the Services subcontracted to any such service provider.
2.17 Representations and Warranties
2.17.1 Client represents and warrants that (i) Client has all necessary authority and approval to enter into this SOW, (ii) the provision and authorized use of all Client Information that is provided to Sureco in connection with this SOW does not violate any applicable law or regulation, and (iii) Client will promptly and accurately perform, or cause to be performed, its obligations under this SOW.
2.17.2 Sureco represents and warrants that it has all necessary authority and approval to enter into this SOW. Sureco further represents and warrants that it will perform the Services in a professional and workmanlike fashion in accordance with prevailing professional standards.
2.18 Disclaimer of Warranties. Sureco does not, in any regard, warrant any sample documents and forms provided as a courtesy to Client. Client understands and acknowledges that it is Client's responsibility to ensure that all plan documents and forms, including any template or sample documents and forms provided to Client by Sureco hereunder, comply with the applicable laws and regulations. EXCEPT AS PROVIDED HEREIN, ALL SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. SURECO MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO SUCH SERVICES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE. SURECO SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING COMPLIANCE WITH ERISA AND SPECIFICALLY DISCLAIMS AND DENIES THAT IT IS ACTING IN ANY MANNER AS A FIDUCIARY, TRUSTEE, PLAN ADMINISTRATOR OR NAMED "FIDUCIARY" UNDER ANY CLIENT OR CLIENT ADMINISTERED PLAN.
2.19 Precedence. In the event of a conflict between the terms of the SOW and the applicable Schedule(s), the terms of the Schedule(s) shall prevail. In the event of a conflict between the terms of this Schedule and another Schedule, the terms of this Schedule will prevail.
2.20 Force Majeure. Each party will not be deemed in default of this SOW, nor held responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control, including, but not limited to, natural disaster, act of God, labor controversy, civil disturbance, disruption of the public markets, terrorism, war or armed conflict, or the inability to obtain sufficient materials or services required in the conduct of its business from third party vendors or other parties, including Internet access, or any change in or the adoption of any law, judgment or decree. This provision shall not apply to Client's obligations to pay Sureco's fees related to this Schedule.
2.21 Confidentiality. Each Party will take reasonable steps and exercise reasonable care to hold any Confidential Information and Personal Information in confidence and not use it or disclose it to any other person or entity, except (i) as permitted under this Agreement; (ii) as agreed in writing by the other Party; (iii) for the Party's proper management and administration (provided that it obtains reasonable assurances from all recipients that they will keep the information confidential and use it only for the purpose of its disclosure); or (iv) as required by law. Neither party shall disclose Confidential Information or Personal Information of the other party to subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information or Personal Information as required of Client under this Agreement.
2.22 Dispute Resolution.
2.22.1 Meet and Confer. In the event of any dispute between the Parties arising out of or relating to this Agreement or the SOW, the parties shall meet and confer and in good faith use all best efforts to resolve the dispute. If the Parties are unable to resolve the dispute within twenty-one (21) days of their initial meeting, then any matters remaining in controversy shall be subject to binding arbitration.
2.22.2 Arbitration. Any controversy, dispute or claim arising out of, in connection with, or related to the interpretation, performance or breach of this Agreement or SOW which is not resolved pursuant to Section
2.22.1 shall be resolved by final and binding arbitration ("Arbitration") at the request of either party. The arbitration shall be administered by the Comprehensive Arbitration Rules of Practice and Procedure of JAMS. Such Arbitration shall occur in Los Angeles, California, unless the parties mutually agree to have such proceeding in some other locale. The arbitrator(s) shall apply Delaware substantive law, or federal substantive law where state law is preempted. Civil discovery for use in such arbitration may be conducted in accordance with the provisions of California law that would apply if the matter were being litigated in the State of California. The arbitrator(s) selected shall have the power to enforce the rights, remedies, duties, liabilities and obligations of discovery by the imposition of the same terms, conditions and penalties as can be imposed in like circumstances in a civil action by a court of competent jurisdiction of the State of California.
2.22.3 Notwithstanding the above, in the event either Party wishes to obtain injunctive relief or a temporary restraining order, such party may initiate an action for such relief in a court of general jurisdiction in the State of California. The decision of the court with respect to the requested injunctive relief or temporary restraining order shall be subject to appeal only as allowed under California law.
2.23 Insurance Obligations. During the term of this SOW, and at its own cost and expense, Sureco shall obtain and maintain Commercial General Liability insurance, including products/complete operations and advertising injury coverage, with a minimum combined single limit of One Million Dollars ($1,000,000) per occurrence and minimum general annual aggregate limit of Two Million Dollars ($2,000,000).
2.24 Fees. Pursuant to Part II of a Client's SOW Letter ("Compensation"), Client will pay Sureco the fees or charges for the Services that are set forth in Exhibit A ("Schedule of Services") of this SOW. Compensation may include implementation fees, consulting fees, service charges or other remuneration as is appropriate. It may be necessary for Sureco to modify the terms of Compensation during the Term of the SOW. If this is necessary, Sureco will provide notice to Client of a change in Compensation terms (a "Change Notice"). Sureco will provide no less than thirty (30) days' advance notice of a change in terms to Client. Client's continued use of Sureco's services under this SOW following Client's receipt of a Change Notice constitutes Client's acceptance of the change; provided, however, that Client may at Client's option terminate these Service Terms for thirty (30) business days following receipt of a Change Notice. Client will reimburse Sureco for any taxes or governmental fees (excluding taxes or fees based on Sureco's net income) applicable to Sureco's services pursuant to this SOW, irrespective of the characterization of the tax or governmental fee.
2.25.1 Sureco does not act on behalf of any insurer or other service provider and does not have the authority to make binding commitments on behalf of any insurer or service provider.
2.25.3 Sureco’s relationship with Client shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, agency or employer-employee relationship between the parties. Except as otherwise provided under the SOW, Sureco is not the agent of Client and is not authorized and shall not have any authority to make any representation, contract or commitment on behalf of Client, or otherwise bind Client in any respect whatsoever. Further, it is not the intention of this Agreement or of the Parties hereto to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement shall be construed to confer upon any third party other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
2.25.4 The waiver by either Party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
2.25.5 Except for the third parties described or named in the Agreement, no provision of the Agreement shall in any way inure to the benefit of any third party so as to make any such third party a third party beneficiary of the Agreement.
2.25.6 Sureco shall cooperate fully with Client and any third party designated by Client that performs services for or provides products to Client and shall disclose such information to Client and third parties related to Sureco, and provide such cooperative assistance and access to systems and facilities, as reasonably requested by Client at no additional cost to Client provided that any such costs are reasonable and related to services provided by Sureco under this SOW. All such disclosures shall be subject to the confidentiality provisions substantially consistent with those of this Agreement.
2.25.7 Except for subcontracting permitted under the terms of this Agreement, neither Party may assign, transfer, or delegate, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld, any of its obligations set forth in this Agreement or any SOW; Subject to all of the other provisions herein contained, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Notwithstanding the foregoing, the assigned Party shall remain liable for the performance of the assigned or delegated obligations hereunder.
2.25.8 All notices shall be in writing and, except as otherwise expressly set forth herein or in any SOW, delivered personally, properly mailed via first class mail, or sent by nationally recognized, private industry express courier service, to Client at ___________, and to Sureco at 201 Sandpointe Ave, Santa Ana, CA 92707. Any notice shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) ten (10) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) five (5) business days after deposit with a private industry express courier, with written confirmation of receipt,
2.25.9 This Agreement in all respects shall be interpreted under, and governed by, the laws of the State of California, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the Parties. Except as otherwise provided herein, any legal action, suit or proceeding brought by a Party in any way arising out of or relating to this Agreement shall be brought solely and exclusively in the state or federal courts located in Los Angeles County, California, and each Party hereto irrevocably submits to the sole and exclusive personal jurisdiction and venue of such courts in person am, generally and unconditionally with respect to any action, suit or proceeding brought by or against it by the other Party.
2.25.10 If the application of any provision of this Agreement to any particular facts or circumstances shall for any reason be held to be invalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties.