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<br />3.18 "Software" means the benefitsCONNECT° and/or
<br />agencyMANAGER or My Benefit Express application program
<br />installed in Object Code format, any updates, revisions, new
<br />versions, supplements, all permitted copies of the foregoing
<br />supplied by BE to Employer, related documentation, and media,
<br />whether in machine readable or printed form; for the purpose of
<br />Employer's enrollment and administration of employee benefits
<br />and/or agency management.
<br />3.19 "Statement of Work" means the BE standard document that sets
<br />forth a description and agreed upon pricing of the Professional
<br />and Shared Services to be provided by BE to Employer. Such SOW
<br />shall be attached hereto as Exhibit D.
<br />3.20 "Support" means the services provided by BE which include
<br />providing Employer telephone and e-mail support during BE's
<br />normal business hours for the purpose of enabling Employer to
<br />obtain information or resolve questions pertaining to the use of
<br />the Software.
<br />3.21 "Term" means the Initial Period and any successive Renewal
<br />3.22 "Training" means the phone or classroom training sessions made
<br />available to Employer by BE, which are designed to educate and
<br />train on the step-by-step processes of configuring and
<br />3.23 "User Manual" means the user documentation for the Software
<br />provided by BE to Employer in printed or in electronic format and
<br />which may be amended from time to time by BE.
<br />3.24 The singular and plural shall each include the other, and this
<br />Agreement shall be read accordingly when required by the facts.
<br />4.0 Obligations
<br />4.1 All of the obligations of BE or its designee to provide Services
<br />under this Agreement are conditioned upon Employer's
<br />provision and maintenance, at Employer's sole expense, of
<br />Employer's hardware, third -party software products, operating
<br />systems, database systems and communications equipment
<br />required to connect to, access and use the Software.
<br />4.2 Employer shall not copy, transfer, modify, translate, reverse
<br />engineer, decompile or disassemble the Software and shall take
<br />all measures necessary to prevent other within its control from
<br />doing or attempting the same.
<br />4.3 Employer shall not remove, attempt to remove, modify or
<br />obscure any copyright, trademark, patent or other proprietary
<br />notices from the Software, User Manual or any portion thereof,
<br />including without limitation, any component of the Software
<br />code of any kind or form which may be provided to Employer to
<br />enable Employer to access and/or use the Software.
<br />4.4 If BE determines that a service issue reported by Employer is (i)
<br />due to modification of the Software by Employer, (ii) a result of
<br />Employer's failure to comply with the operating instructions set
<br />forth in the current version of the User Manuals, (iii) due to
<br />Employer's failure to comply with the terms of this Agreement,
<br />then all of BE's time and expenses associated with providing
<br />support relating to or correcting such problem, shall be invoiced
<br />to Employer subject to the provisions of this Agreement
<br />4.5 BE does not guarantee the ability of the Employer to exchange
<br />data electronically with benefit providers or other third -party
<br />systems. BE is not responsible for the integrity of the data
<br />transmitted electronically between Employer, benefit providers
<br />and third -party systems. BE reservices the right, in its sole
<br />discretion, to charge Fulfillment service fees to Employer for
<br />providing electronic data exchange capabilities between
<br />Employer and third -party system or benefit provider.
<br />4.6 Employer shall be solely responsible for all third -party use of the
<br />Software and Professional or Shared Services including, but not
<br />limited to, insurance brokers, subcontractors, or any other party
<br />5.0 Ownership and Confidentiality
<br />5.1 Employer understands and agrees that it has no right, title,
<br />interest or ownership in, or to, the Software, User Manuals, or
<br />any of its components, programming code or data structures, or
<br />any other materials provided to Employer related to the use of
<br />Benefit Express Services, LLC
<br />Technology and Services Agreement
<br />the Software, or any copies or modifications of the Software,
<br />User Manuals, or any components, code or data structures
<br />thereof or in the Software or any other materials provided to
<br />Employer related to the use of the Software, except to the extent
<br />that BE grants Employer the right to use the Software, User
<br />Manual and related materials.
<br />5.2 Employer understands and agrees that the Software, User
<br />Manuals, related materials and all security information and
<br />passwords issued for access to the Software (collectively BE
<br />Confidential Information") constitutes confidential and
<br />proprietary information and trade secrets of BE or its suppliers.
<br />Employer shall maintain all BE Confidential Information in strict
<br />confidence and shall not publish, communicate, disclose or
<br />permit to be disclosed such information in any way to third
<br />parties. Employer agrees to take all appropriate steps to ensure
<br />that all persons having access to the Software or User Manuals
<br />shall refrain from any unauthorized reproduction or disclosure
<br />of BE's Confidential Information. Notwithstanding anything to
<br />the contrary herein, BE's Confidential Information shall not
<br />include information that: (i) is known or available through other
<br />lawful sources not bound by a confidentiality obligation to BE, (ii)
<br />is or becomes publicly known through no fault of the receiving
<br />party or its agents, (iii) is required to be disclosed pursuant to
<br />law or court order, provided that the discloser provides BE with
<br />reasonable prior notice of any such compulsory disclosure and
<br />permits BE to object, intervene or appeal such order.
<br />5.3 BE understands and agrees that any Employer data generated
<br />and stored by the software on behalf of Employer by or through
<br />Employer's use of the Software constitute confidential and
<br />proprietary information and trade secrets of Employer and shall
<br />remain Employer sole and exclusive property.
<br />6.0 Fees
<br />6.1 All amounts due under this Agreement shall be paid in United
<br />States Dollars (USD).
<br />6.2 Per -Employee -Per -Month ("PEPM") Fees — In consideration for
<br />any Software and Services provided hereunderthat are specified
<br />in Exhibit D as being provided on a PEPM basis, Employer agrees
<br />to pay BE, commencing with the Effective Date of this
<br />Agreement, a PEPM fee, computed by multiplying the number of
<br />Employer Records (classified as Active, COBRA, FMLA, or Retired)
<br />by the PEPM rate listed in Exhibit D, according to the terms of
<br />BE's standard monthly invoice and Florida's local prompt
<br />payment act. Employer further agrees that the number and
<br />classification of Employee Records stored in the Software
<br />database when the census report is run shall be a bona fide and
<br />accurate representation of the number and classification of
<br />Employee Records stored in the Software database over the
<br />course of the month. Setup and implementation fees shall be
<br />invoiced, through a Project Authorization Form, upon the earlier
<br />of, execution of this Agreement or the initial transfer of data
<br />from Employer to BE to commence work.
<br />6.3 Per -Person -Per -Year ("PPPY") Fees — In consideration for any
<br />Software and Services provided hereunder that are specified in
<br />Exhibit D as being provided on a PPPY basis, Employer agrees to
<br />pay BE, commencing with the Effective Date of this Agreement,
<br />a PPPY fee, computed by multiply the number of person (defined
<br />as personnel record required by the IRS to be reported on an
<br />annual basis for ACA) by the PPPY rate listed in Exhibit D,
<br />according to the terms of BE's standard invoice. Setup and
<br />implementation fees shall be invoiced, through a Project
<br />Authorization Form, upon the earlier of, execution of this
<br />Agreement or the initial transfer of data from Employer to BE to
<br />commence work.
<br />6.5 Non-PEPM Fees — In consideration for any software and services
<br />provided hereunder that are not included as PEPM services
<br />(including, but not limited to one-time EDI setup fees, one-time
<br />account setup fees, per -occurrence training fees, prospecting
<br />fees, monthly data management fees, outside expenses etc.),