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<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
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