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benefit( Xpress <br />Employer agrees to pay BE the rates listed in Exhibit D, according <br />to the terms of BE's standard invoice. <br />6.6 Travel Expenses — Employer shall pay or reimburse BE for any <br />expense incurred for travel in connection with BE's performance <br />of the Services provided under this Agreement. Employer must <br />authorize the travel costs in advance. <br />6.7 Other fees — If BE is to incur any additional fees or expenses that <br />are not within the scope of the Services, BE shall notify Employer <br />in advance for approval, and Employer shall pay the approved <br />additional fees or expenses within the terms of the invoice. BE <br />will not be required to provide additional services or implement <br />any material changes, requested by the Employer, until the new <br />terms and pricing have been agreed upon. <br />6.8 <br />6.9 Without affecting the Employer's obligations, described in this <br />Agreement, Employer may utilize a third -party to facilitate <br />payment to BE for the services set forth in the SOW, attached <br />herein. <br />6.10 The Fees shown in SOW shall remain in effect for the duration of <br />the terms specified in Section 1.3 (the initial 5 -year term). BE <br />reserves the right to increase its Fees for any Renewal Period of <br />this Agreement to current prevailing rates. <br />6.11 Any payment or late payment shall follow the Florida Local <br />Government Prompt Payment Act.= <br />6.12 Employer has agreed to recompense BE for Services and <br />Software provided in SOW. Without affecting Employer's <br />obligations described in this section, Section 6.2 and Section 6.3. <br />7.0 Discounts/Commission Splits <br />7.1 Employer has discounts available when using a BE carrier <br />partner. <br />7.2 Discount is not available if Employer's contract is in conflict with <br />BE's contract with the same carrier where discount is being <br />provided. <br />7.3 To receive discount, initial enrollment period needs to have a <br />minimum of 20% participation in the product offering that <br />triggers the discount to be in place. For every 1% below the <br />minimum participation, 10% will be reduced from the discount <br />provided. <br />7.4 All discounts to be applied after the initial open enrollment <br />closes and verification that participation numbers have been <br />met. <br />7.5 Discounts are able to continue in if new products are offered in <br />subsequent years along with the same participation <br />requirements as in section 7.3. <br />7.6 Review of Discounts, commission splits, overrides and PEPM fees <br />received will take place annually. BE reserves the right to remove <br />any discounts or offerings at the sole discretion of BE. <br />8.0 Termination <br />8.1 BE may terminate this Agreement upon any of the following <br />events; <br />8.1.1 If Employer fails to pay any amounts due to BE within thirty <br />(30) business days after Employer's receipt of written notice of <br />such nonpayment from BE; <br />8.1.2 If the third -party fails to pay any amounts due to BE, based on <br />Employer exercising its options in Section 6.9, within thirty (30) <br />business days after Employer's and third -party's receipt of <br />written notice of such nonpayment from BE; <br />8.1.3 If Employer breaches any Intellectual Property Rights of BE or <br />its suppliers in the Software; <br />8.1.4 If Employer attempts to manipulate the number of Employee <br />Records on the last day of the month. <br />8.1.5 If Employer breaches its confidentiality obligations under this <br />Agreement; <br />8.1.6 If Employer breaches any of the other terms, covenants, <br />restrictions or conditions of this Agreement or its License to the <br />Software and fails to cure the breach within thirty (30) days after <br />Employer's receipt of written notice of such breach from BE; <br />8.1.7 If Employer becomes insolvent or admits a general inability to <br />pay its debts as they become due; <br />Benefit Express Services, LLC <br />Technology and Services Agreement <br />8.1.8 If Employer makes a general assignment for the benefit of <br />creditors; or <br />8.1.9 If Employer files a petition in bankruptcy or is the subject of <br />an involuntary petition in bankruptcy that is not dismissed within <br />sixty (60) days after the filing date. <br />8.2 Employer may terminate this Agreement and the rights and <br />licenses granted upon any of the following events: <br />8.2.1 If BE breaches any of its obligations under this Agreement and <br />fails to cure the breach within thirty (30) days after receipt of <br />written notice of such breach from Employer; <br />8.2.2 If BE becomes insolvent or admits a general inability to pay its <br />debts as they become due; <br />8.2.3 If BE makes a general assignment for the benefit of creditors; <br />or <br />8.2.4 If BE files a petition in bankruptcy or is the subject of an <br />involuntary petition in bankruptcy that is not dismissed within <br />sixty (60) days after the filing date. <br />8.3 In the event of the expiration or termination of this Agreement, <br />under Section 8.1 or 8.2 herein, BE may discontinue the Services <br />and Employer's access to, and use of the Software, provided <br />however, at the expense of the party causing the breach and <br />upon request from Employer, within thirty (30) days following <br />said termination or expiration, BE will deliver to Employer all <br />Employer data stored by the Software on BE's or third -party <br />equipment, as of the date of termination or expiration. <br />9.0 Warranties and Limitations of Liability <br />9.1 BENEFIT EXPRESS SERVICES WARRANTS THAT DURING THE <br />TERM IT SHALL PERFORM THE SERVICES UNDER THIS <br />AGREEMENT USING COMMERCIALLY REASONABLE EFFORT. <br />BENEFIT EXPRESS SERVICES SPECIFICALLY DISCLAIMS ALL OTHER <br />WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT <br />LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY <br />AND FITNESS FOR A PARTICULAR PURPOSE. <br />9.2 EMPLOYER UNDERSTANDS AND AGREES THAT BENEFIT EXPRESS <br />SERVICES' LIABLITY FOR ANY DAMAGES SUFFERED BY <br />EMPLOYER, WHETHER IN CONTRACT, IN TORT, UNDER ANY <br />WARRANTY THEORY, IN NEGLIGENCE, OR OTHERWISE, SHALL <br />NOT EXCEED THE GREATER OF 1) THE AMOUNT PAID TO BENEFIT <br />EXPRESS SERVICES BY EMPLOYER PURSUANT TO THIS <br />AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRIOR TO <br />THE DATE UPON WHICH EMPLOYER'S CLAIM OR CAUSE OF <br />ACTION AROSE OR 2) FIFTY THOUSAND ($50,000) DOLLARS. <br />NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, BE <br />SHALL NOT BE LIABLE TO EMPLOYER OR OTHERS FOR PUNITTIVE <br />OR EXEMPLARY DAMAGERS OR ANY SPECIAL, INDIRECT OR <br />CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OR <br />EMPLOYER, EVEN IF BENEFIT EXPRESS SERVICES HAS BEEN <br />PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. <br />9.3 FURTHER, EMPLOYER UNDERSTANDS AND AGREES THAT THE <br />USE OF THE SOFTWARE MAY FROM TIME TO TIME BE <br />INTERRUPTED, AND BENEFIT EXPRESS SERVICES MAKES NO <br />WARRANTY OR REPRESENTATION TO EMPLOYER THAT THE <br />SOFTWARE WILL BE FUNCTIONAL AND AVAILABLE AT ALL TIMES. <br />EMPLOYER SHALL NOT BE ENTITLED TO RECOVER FOR ANY <br />LOSSES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, <br />WHICH MAY RESULT FROM SUCH INTERRUPTION OF <br />AVAILABILITY OF THE SOFTWARE. NOTWITHSTANDING ANY <br />OTHER LIMITATION OF LIABILITY IN THIS AGREEMENT, IN THE <br />EVENTTHAT USE OF THE SOFTWARE IS INTERRUPTED FOR MORE <br />THAN A 24 HOURS PERIOD, BENEFIT EXPRESS SERVICES AGREES <br />TO CREDIT EMPLOYER IN AN AMOUNT EQUAL TO THE <br />PRORATED PEPM FEES (AS SET FORTH IN EXHIBIT D) OTHERWISE <br />DUE FROM THE EMPLOYER FOR EACH DAY THATTHE SOFTWARE <br />IS NOT FUNCTIONAL OR OTHERWISE UNAVAILABLE. <br />10.0 Indemnification <br />10.1 In the event any suit or claim is brought against Employer based <br />on a claim that the authorized use of the Software under this <br />Agreement infringes any existing Intellectual Property Rights of <br />a third party, BE agrees that: <br />