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Ile <br />benefitc'.l' prc ss <br />10.1.1 To the extent that the claims or proof of the suit involve <br />claims or factual allegations that the Software infringes any <br />existing Intellectual Property Rights of a third party, expense <br />and hold Employer harmless thereof, provided however that <br />Employer promptly notifies BE in writing and gives BE complete <br />authority and the information required to defend or settle the <br />suit; <br />10.1.2 BE shall pay any settlement of the suit or claim agreed to <br />by BE and to the extent that any judgment in any such suit is <br />based on proof that the Software infringes any existing <br />Intellectual Property rights of a third -party, BE shall pay all <br />damages and costs awarded against Employer related thereto; <br />provided however that BE shall not be responsible for any cost, <br />expense or compromise made or incurred by Employer without <br />BE's prior written consent; <br />10.1.3 BE shall allow Employer to participate in the defense of the <br />suit at Employer's own expense, if Employer so elects; and <br />10.1.4 Notwithstanding anything to the contrary in this <br />Agreement, BE shall have no obligation of indemnity with <br />regard to any modifications of any kind by Employer, regardless <br />of whether such changes were authorized. <br />10.2 <br />11.0 Protected Health Information <br />11.1 Employer and BE agree to comply and modify the Agreement <br />as necessary to comply with the Administrative <br />Simplification requirements of the Health Insurance Portability <br />and Accountability Act of 1996 ("HIPPA"), as set forth in Title <br />45, Parts 160 and 164 of the Code of Federal Regulations (the <br />„CFR"). <br />11.2 Capitalized terms not otherwise defined in the Agreement <br />shall have the meanings given to them in Title 45, Parts 160 <br />and 164 of the CFR and are incorporated herein by reference. <br />11.3 Employer shall use and/or disclose PHI only to the extent <br />necessary to satisfy Employer's obligations under the <br />Agreement. BE shall use and/or disclose PHI only to the extent <br />necessary to satisfy BE's obligations under the Agreement. To <br />the extent that the parties can limit uses and/or disclosures of <br />PHI to a Limited Data Set (as defined in the HIPAA Regulations), <br />each party agrees to do so. If use of a Limited Data Set is <br />impracticable, the party using and/or disclosing PHI will <br />document the necessity for use of additional PHI. <br />11.4 Neither party shall use or disclose any PHI received from or on <br />behalf of a Covered Entity or Individual, except as permitted or <br />required by the Agreement, as required by law or as otherwise <br />authorized in writing by the respective parry, a Covered Entity <br />or an Individual. <br />11.5 BE and Employer shall ensure that any employee or <br />subcontractor to whom it provides PHI agrees to the same <br />restrictions and conditions that apply through this Agreement <br />with respect to PHI. <br />11.6 All other terms and conditions covering the definition, <br />notification, and remediation regarding the protection of PHI, <br />shall be set forth in Exhibit C, Business Associate Addendum <br />12.0 Miscellaneous <br />12.1 Assignment. Neither party shall assign this Agreement or <br />transfer, by operation of law or otherwise, any of its respective <br />rights or obligations under this Agreement without the prior <br />written consent of the other party, such consent shall not be <br />unreasonably withheld. Except that, either party may assign <br />the Agreement without such consent in connection with any <br />merger, consolidation, any sale of all or substantially all of the <br />party's assets or any other transaction in which more than fifty <br />percent (50%) of the party's voting securities are transferred <br />provided that the successor or assignee assumes all of such <br />party's obligations hereunder. Any assignment or transfer in <br />violation of this section shall be void. <br />12.2 Waiver. No term or provision of this Agreement shall be <br />deemed waived and no breach shall be deemed excused, <br />unless such waiver is in writing and signed by the Party who is <br />alleged to have waived the term or provision. <br />Benefit Express Services, LLC <br />Technology and Services Agreement <br />12.3 Excusable Delay. Neither BE nor Employer shall be deemed to <br />be in default of any provision of this Agreement or for any <br />failure in performance, resulting from acts or events beyond <br />the reasonable control of BE or Employer, as the case may be. <br />For purposes of this Agreement, such acts shall include, but <br />not be limited to, acts of God, civil or military authority, civil <br />disturbance, war, strikes, fires, other catastrophes or other <br />such major events beyond BE's or Employer's reasonable <br />control. This section shall not excuse Employer's payment <br />obligations. <br />12.4 Governing Law and Dispute Resolution. This Agreement is <br />governed by and construed in accordance with the laws of the <br />State of Florida, without giving effect to any choice or conflict <br />of law provisions, principles or rules (whether of the State of <br />Florida or any other jurisdiction) that would cause the <br />application of any laws of any jurisdiction other than the State <br />of Illinois. The parties agree that all claims, actions, suits and <br />proceedings between them relating to this Agreement will be <br />filed, tried and litigated only in the Circuit or District Courts of <br />Indian River County. In connection with the foregoing, the <br />parties consent to the jurisdiction and venue of those courts <br />and expressly waive any claims or defenses of lack of <br />jurisdiction of or proper venue by those courts. <br />12.5. <br />12.6 Independent Contractor. BE is providing the Services under <br />this Agreement as an independent contractor, and its <br />personnel shall not be considered employees or agents of <br />Employer. <br />12.7 Severance and Interpretation. If any provision of this <br />Agreement is found to be unenforceable, such provision shall <br />be deemed to be deleted or narrowly construed to such extent <br />as is necessary to make it enforceable and this Agreement shall <br />otherwise remain in full force and effect. If any ambiguity or <br />question of intent arises, this Agreement shall be construed as <br />if drafted jointly by the Parties and no presumption or burden <br />of proof shall arise favoring or disfavoring either Party by virtue <br />of authorship of any of the provisions of this Agreement. <br />12.8 Time Limitations. Except for actions for non-payment or for <br />breach of BE's or its third -parties Intellectual Property Rights, <br />no action arising out of or relating to this Agreement may be <br />brought later than two (2) years after the cause of action <br />became known to the injured Party. <br />12.9 Notices. All notices required or permitted under this <br />Agreement and all requests for approvals, consents, and <br />waivers must be delivered by a method providing for proof of <br />deliver. Any notice or request will be deemed to have been <br />given on the date of delivery. Notices and requests must be <br />delivered to the Parties at the addresses on the first page of <br />this Agreement until a different address has been designated <br />by notice to the other Party. <br />12.10 Non -Solicitation of Employees. Neither Party shall directly <br />solicit the services or employment of any employee of the <br />other Party during the Term. The soliciting Party, who violates <br />this section, shall pay to the other Party any amount equal to <br />one (1) year's salary for any solicited employee of the other <br />Party, as liquidated damages and not as a penalty. The amount <br />of annual salary shall be the annual salary in effect at the date <br />the employee was solicited. For purposes of this section, the <br />term "employee" means current or former employees of the <br />other Party who were employed by the other Party within <br />three (3) months before solicitation occurred. <br />12.11 Public Reference and Press Releases. Employer consents to <br />the verbal public use of its name as a client of BE. Employer <br />hereby grants BE permission to distribute press releases upon <br />contract signature. Such publicity may appear in BE <br />publications and/or on BE's website. Employer will provide BE <br />with a company logo only for use in such published materials. <br />Any published materials will be subject to Employer's consent <br />to both content and timing, such consent not to be <br />unreasonably withheld or delayed; provided, however, that <br />