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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 />
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