Loading...
HomeMy WebLinkAbout2021-089ACLARITY BENEFIT SOLUTIONS SERVICES AGREEMENT Si - On this . l day of O C +b6b— ®o"z I is hereby contracting with BeneFlex, Inc. DBA Clarity Benefit Solutions ("Clarity") to provide Client with TPA services as set forth in this Agreement. Clarity and Client are the °Parties" hereto. This Agreement encompasses the following General Terms and Conditions as well as the specific Terms and Conditions for the Services selected in the Services section below, all of which are incorporated as a material portion of the Agreement. TERMS AND CONDITIONS 1. SERVICES The Clarity sales representative has initialed in the spaces provided below the "Services" which the Client has selected, as confirmed by the signature of the Client's authorized represented on this Agreement. Client warrants that it has full power and authority to execute this Agreement; that it has chosen the Services initialed; and has ad and agreed to the Terms and Conditions for those Services contained in this Agreement. © Retiree Billing Administration Client authorizes Clarity to provide Retiree Billing administrative services in accordance with Schedule A of this Agreement. 2. FEE STRUCTURE AND PAYMENTS 2.1 Fees. The fees included in Schedule B will be effective for a period of three years from the date of execution of this Agreement (the 'Initial Period"). 2.2 Change in Fees & Due Date. After the Initial Period, fees are subject to change upon ninety (90) days written notice to Client for general price increases. Any such price increases shall not exceed more than three percent (3%) in any twelve (12) month period. Client hereby authorizes Clarity to debit from Client's account(s) on the due date any and all fees due to Clarity under this Agreement. 3. CLIENT'S RESPONSIBILITIES 3.1 Timely Submission of Accurate Information Client will timely furnish to Clarity the complete and wholly accurate information deemed necessary by Clarity for Clarity to perform its obligations under this Agreement. Such information will be furnished in the time and manner requested by Clarity. The Client understands that Clarity cannot accurately perform -its duties under this Agreement without accurate and timely information. 3.2 Clarity; Limitations of Obligations/Liabilities Clarity shall have no liability to Client or any Plan participant as a consequence of inaccurate and/or untimely information provided to Clarity by Client, its designee or a former service provider. Clarity shall have no obligation to credit the Client for claims paid or service fees incurred as a consequence of Clarity receiving inaccurate or untimely information. Clarity shall have ,no obligation to independently verify any information provided to it in the performance of its services under this Agreement. 3.3 Review & Corrections of Reports. The Client shall promptly review any reports or other information provided to it by Clarity and shall notify Clarity Immediately upon the discovery of any error or omission. Any report or other information provided by Clarity to Client shall be deemed to be accurate unless Clarity is advised by Client to the contrary in writing within Twenty (20) days after delivery of the report to Client. 860520 11.2.2016 4. CLARITY RESPONSIBILITIES 4.1 Processing of Participant Data Clarity will process updated participant data from Client in relation to enrollment, deposits and certain demographic information. 4.2 Reports on Plan Activitj+_ Clarity will provide Client with periodic reports reflecting plan activity. 4.3 . Enroliment/Re-Enrollment Materials. When requested by Client, Clarity will provide Plan enrollment/re-enrollment materials as offered by Clarity. Final approval and distribution of Plan enrollment materials are the responsibility of Client. 5. ACCOUNT FUNDING OPTIONS 5.1 Electronic Funds Transfers. In regard to electronic funds transfers, Client shall comply with and be subject to the Operating Rules of the National Automating Clearing House (NACHA) governing these methods of payment, as such rules shall, from time to time, be in effect among banks that participate in NACHA. Client also acknowledges that, In order to implement the Services which include ACH transactions, Client will be the Originator of the ACH transactions and will follow and be bound by the rules for ACH Originators as adopted from time to time by the NACHA. Client agrees that it has assumed the responsibilities of an Originator under the ACH Rules and acknowledges that entries may not be initiated in violation of the laws of the United States. Client agrees to indemnify and hold Clarity harmless from any claim incident to the operation of this plan arising from an act or omission of Client with respect to ACH transactions. Clients liability shall be limited to the amounts set forth in section 768.28, Florida Statutes. 6. DESIGNATION OF REPRESENTATIVE Client shall appoint one (1) representative who shall act as its liaison with Clarity. Clarity shall be entitled to rely on the representations and statements of Client's liaison as binding on Client, without having to confirm them with any of Client's other employees, principals, executives or any other representatives. Clarity shall make a similar appointment. 7. TERM This Agreement shall become effective as of the date set forth above, and will continue in effect until it is terminated as provided herein. 8. TERMINATION OF SERVICES 8.1 Notice of Termination. Client is to notify Clarity in writing at least sixty (60) days in advance of termination. After the first year of the Term hereof, Clarity will assess a termination fee equivalent to two (2) months of the average billed amount if Client terminates service without sixty (60) days advance notice. Clarity may also terminate this Agreement for cause upon sixty (60) days written notice to Client. 9. Confidentiality 9.1 Definition of Confidential Information The term "Confidential Information" includes all non- public information about the Parties operating and performing under this Agreement; and all information about the Parties which each, respectively, considers confidential or proprietary, even if not designated as such, and including the Materials, Work Product, and Documents (as defined herein), and whether or not labeled as "Confidential Information". Such Confidential Information shall also include, but is not limited to, all the Parties list of clients, employees and participants, as applicable to the Party, and sources of referrals; 860520 11.2.2016 2 marketing/advertising methodologies and fee arrangements; leasing agreement/ arrangements, and all other contracts, agreements and business arrangements; all methods and meansof operations and providing services; computer software or programs and licensing agreements and/or other arrangements related to them; and all Intellectual Property, as defined herein. Confidential Information also includes all non-public information about the Parties respective owners, directors, officers, executives, managers, employees, representatives, agents, vendors and suppliers. 9.2 Ownership of Confidential Information The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party's Confidential Information, or Confidential Information of third parties, that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party. EachParty shall use the same degree of care, but not less than a reasonable degree of care, which it uses to protect its own Confidential Information, in each Party's protection of the confidentiality of the other Party's Confidential Information. 9.3 Mutual, Confidentiality Obligations., Each Party agrees as follows: (I) to use the Confidential Information only for the purposes described herein; (11) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access for purposes of performing such Party's obligations hereunder, and who have been advised of, and have agreed in writing to, treat suchinformation in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Partyin its possession upon termination or expiration of this Agreement. 9.4 Confidentiality Exceptions Notwithstanding the foregoing, these provisions for confidentiality shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient's possession free of any confidentialityobligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; (vi) is approved for release or disclosure bythe disclosing Party without restriction; (vii) is disclosed in response to an order of a court or othergovemmental body; provided that, the Party making the disclosure pursuant to the order shall first havegiven notice to the other Party and has made a reasonable effort to obtain a protective order; (viii) is otherwise required by law or regulation to be disclosed; or (ix) is disclosed to establish a Party's rights under this Agreement, including to make such court filings as it deems necessaryto protect its rights. 10. OWNERSHIP 10.1 Clarity Proprietary Rights. Clarity owns or licenses all rights, title and interest in and to its processes, methods, applications and contents, Including the software and documentation, Clarity's trademarks, and all intellectual property rights in the foregoing (excluding under this Agreement, portions of the Services provided by third parties). Software and Services are made available only for Client's internal business use only for the purposes addressed in this Agreement, and they are not transferable; furthermore, any right of use ceases when Clarity no longer performs it's Services for Client. 10.2 Clarity's Intellectual Prooertv Clarity shall also retain sole ownership of all methods, strategies, means, plans or procedures relating to its operations and all other aspects of its business, and all materials, templates, methodologies, processes, computer programs and other software, and any other systems or technologies of Clarity, including but not limited to, those which Clarity uses, or permits the Client to use, under this Agreement (Collectively "Intellectual Property").The Client acknowledges that all such Intellectual Property is unique and proprietary to Clarity and that the Client shall have no rights, Interests or entitlements to same. Client shall only havethe limited right (license) to use some during the term of this Agreement and only as necessary under it. 860520 10.3 "Materials" & "Work Product." All information, data, records and any other items (collectively 11.2.2016 3 "Materials") which Clarity receives, sends, accesses, collects, or formats in providing the Services under this Agreement, and.all items which Clarity prepares, creates, analyses, or processes in providing the Services (collectively 'Work Product") shall be, and shall always remain, exclusively the property of Clarity. 10.4 Client's Restricted Use of "Work Product." Client shall have Clarity's Work Product made available to it for Client's use only as necessary under this Agreement. Client shall not use or disclose Clarity's Work Product for any other purpose nor for the purposes of any other person or entity, unless required by law. 11. RETENTION OF RECORDS/DOCUMENTATION Clarity shall maintain all the Materials and Work Product (collectively "Records") for whatever period of time is required by applicable law, but in no event less than seven (7) years. Client shall have reasonable access to the Records as necessary under this Agreement or otherwise for its legitimate business purposes. Client shall pay all reasonable costs which Clarity incurs in providing this access to Client. Client shall have the same responsibility to maintain any information, data or other documentation (collectively 'Documentation") which it sends, receives, collects, maintains, prepares or creates that relates to Clarity's administration of the plans and otherwise providing the Services under this Agreement. Client shall have the same obligation to providing Clarity with access to Client's Documentation as necessary under this Agreement or otherwise for Clarity's legitimate business purposes. 12. FIDUCIARY STATUS & RESPONSIBILITIES/LIABILITIES 12.1 Clarlty NOT A Fiduciary. Client acknowledges that, in providing the Services for any plan administration under this Agreement, Clarity is not assuming any fiduciary duties, responsibilities, obligations,nor any liabilities as a fiduciary of Client or of any of its employees, or their dependents who are participants in any of the benefit plans Clarity is administrating under this Agreement. 12.2 Client's Fiduciary Resaonsibilities/Liabilities All discretionary decisions which may arise in Clarity's providing any of the Services in administering any plans shall be referred by Clarity to Client for a final decision. Such discretionary decisions, for which Client shall have the ultimate responsibility and liability,shall include, but are not limited to, decisions on plan participation eligibility, funding, and benefits eligibility and payments of benefits, and legal compliance. 12.3 Limitations of Claritv's Responsibilities/Liabilities Clarity's responsibilities and liabilities. under this Agreement shall be limited to providing administrative functions in connection with the various benefit plans which Client selects under this Agreement. 12.4 Client as Plan Administrator & Fiducia Client shall be designated as the Plan Administrator inany plan document and shall be the plan's Named Fiduciary (as these terms are defined in ERISA). Client shall also have all other statutory and common law fiduciary responsibilities, obligations and liabilities for the plans. 12.5 Clarity; No Assumption of Certain Resi onsibilities/Liabilities Clarity is not assuming any of the functions, duties, or tasks, nor any of the legal obligations, responsibilities or liabilities of a Plan Administratoror Normal Fiduciary, nor any other fiduciary status imposed by any federal or state laws or regulations, or by common law. 13.AUDITS In the event that any of the plans administrated by Clarity through its services under this Agreement are audited by the U.S. Department of Labor, the IRS, or by any otherfederal or state administrative agencies, Client shall pay Clarity all the fees and expenses, including any attorney, accountant, consultant, or any other expert fees, which Clarity incurs as a result of any such audit. 860520 11.2.2016 14. INDEMNIFICATION; LIMITATIONS OF LIABILITY Clarity's Indemnification & Limits of Liabilities Clarity will indemnify, defend, and hold Client harmless from and against any and all claims or liabilities arising or resulting from Clarity negligent failure to comply with its obligations and responsibilities hereunder. THE MAXIMUM TOTAL LIABILITY OF CLARITY TO CLIENT SHALL BE LIMITED TO MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED Twenty Five Thousand ($25,000.00) Dollars. THIS REMEDY IS CLIENT'S SOLE AND EXCLUSIVE REMEDY. CLARITY SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENTAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY ATTORNEYS FEES, OTHER RELATED COSTS AND EXPENSES, FINES, PENALTIES, ASSESSMENTS, LIENS, AND INVESTIGATION COSTS AND INTERESTS, EVEN IF CLARITY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. 15. INDEPENDENT CONTRACTOR This Agreement is between Clarity and the Client as independent entities and is not intended, and shall not be construed, as creating any partnership, joint venture or any other legal relationship between the Parties except that of Clarity being an independent contractor of Client. 16. NO BINDING AUTHORITY Neither Clarity nor Client, nor any of their respective agents, representatives or employees shall haveany right, power or authority to bind or to create any legally binding obligations on the other Party, and/or to enter into any agreements, obligations or understandings, nor to incur any liabilities, on behalf of the other Party. 17. RIGHT TO SUBCONTRACT Clarltv Subcontractors & Vendors. Clarity, at its option, shall have the right to provide the Services under this Agreement through one or more third parties (i.e. subcontractors or vendors) engaged byClarity. 18. EXCLUSIVE/NON-EXCLUSIVE ARRANGEMENT Clarity shall be the exclusive provider for Client of all the Services described in this Agreement which Client selects. Client shall not have any other TPA service provider provide any of the Services described in this Agreement for Client during the term of this Agreement. During the term Client may select additional Services for Clarity to provide which are in addition to those the Client selects at the time this Agreement is executed. 19. SURVIVING PROVISIONS Those Sections, which by the nature of their terms, survive the expiration/termination of this Agreement, and, specifically, Sections 4, 9, 11, 12, 13, 15, 16, 17, 18, 23 and Schedule C , shall survive thetermination or expiration of this Agreement. 28. ARBITRATIONfWAIVER OF JURY TRIAL 860520 11.2.2016 a. Scope of Arbitrator's Authority The arbitrator shall also have the sole authority to resolve any and all issues over the arbitrability of any Claim, or any other issues relating to the enforceability and application of this arbitration process to any claim, including the applicability of any statute of limitations, and shall decide any and all other issues relating to the use of this arbitration process by the Parties as the exclusive means to resolve any and all Claims between them. Waiver of Ji,ry Trim The Parties voluntarily and knowingly acknowledge their understanding that under this provision for arbitration they are waiving (i.e., giving up) their right to bring a law suit in a court of law and to have a judge and a trial by a jury to resolve any of the Claimsbetween them. b. Costs of Arbitration. Each Party shall bear its own costs for attorneys' fees, experts, and all other (} (PYq on CCC fnr mm—A— a.....a.:a-.a:__ 5 the costs of the arbitration Process and the arbitrator. The arbitration shall occur in Indian River County,Florida. 21. GENERAL PROVISIONS Notice. All notices sent specifically under this Agreement shall be in writing, and may be given by electronic mail or by pre -paid post, to the following email and streetaddress: Clarity Christine Kingsbury Companv Representative (Print/Type Name)' Date: Client Company Representative (Printlfvoe Name)- 5 -'1i(' -2-o. ✓ MP_ 1�• ��y j � �yreu�/�SWLaEs �i✓, Companv Representative ffiKm e). t � . o ® a ? *� '3+ a e1' B l okc�eyeln R to'd-� f--e- Date: (A a. Govemin4 Law and Jurisdiction. This Agreement shall be governed and Clarity and Client agree to the exclusive.iurisdiction of the State Courts of Florida, except with respect to those issues for which arbitration is required pursuant to Section 23 hereof. b. Entire Agreement. This Agreement contains the entire understanding between Clarity and Client With respect to the transactions contemplated hereby and supersedes all prior agreements between them, written or oral. c. Severability. In the event that any term or provision of this Agreement is held to be illegal, invalidor unenforceable under any applicable law, rule or regulation, such term or provision shall be deemed severedfrom this Agreement, and the remaining terms and provisions shall remain unaffected thereby; provided that, theinvalid term does not materially alter the basic purpose or intent of this Agreement. d. Assignment. Nothing in this Agreement shall permit assignment by Clarity or Client without the express prior written consent of the other Party. 22. Entire Agreement; Amendments. 860520 This Agreement constitutes the entire arrangement and understanding between Clarity and Client as it 11.2.2016 relates to the subject matters addressed herein, and it supersedesany and all prior arrangements, agreements or understandings between them. This Agreement shall not be changed or modified except by an instrument in writing executed by Clarity and Client. Without limiting any otherprovision herein, in the event that rules, policies, directives and/or orders of any applicable federal, state, or local agency, necessitate modifications or amendments to this Agreement, the Parties agree to so modify or amendthis Agreement to conform with such rules, policies, directive and/or orders; provided that, they do not materially affect the rights, duties and obligations of Clarity and Client hereunder. 23 -Attorney's Fees and Costs Except as specifically provided in this Agreement, if any action at law or in equity, or any arbitration, is brought by Clarity and Client against the other, each Party shall be responsible for its own attomeys' fees, costs and any other disbursements expended in such action. 24. Limitations Period No action/obligation arising under or in connection with this Agreement maybe brought by Client or Clarity more than three (3) years after either Party becomes, or should reasonably havebecome, aware of the occurrence of events giving rise to the cause of action. [SIGNATURES] Clarice Company Representative (Print/Type Name): Christine Kingsbury Company Representative (Signature): Date: 7/21/2021 Client Company Representative (Pdnt/Type Name): Company Representative (Signature): Date: July 12, 2021 Y �OV�4.iS Y C O,i�,�is ••. E. Flescher, Chairman' l �'��`� Attest Jeffrey R. Smith, Clerk of Circuit Court and Comi"1101' 8D: - Depuv credo 860520 11.2.2016 c9COUf1fA!Y �O��pP,.. AP Prl(.)VF�D AIS TO FORM 00 L'{CITYA3'T0F NE SCHEDULE C FEE SCHEDULE One -Time Implementation Fees • Plan Documents & Summary Plan Descriptions • Enrollment Materials • Plan Installation • Implementation of Clarity Quick Claim • Web Based Enrollment Service Implementation Fee Debit Card per Participant Administration Services • Process Debit Card Transactions • Review and Process Claims • Integrate with insurance Carriers • Process Reimbursement Checks and Direct Deposit • Provide Plan Reports • Provide Mobile, Online and Text communication of Plan Data Annually • Annual Renewal Fee (Consumer Benefits Only) Monthly Fees Retiree Billing Per Participant Fee Optional Services Next Day Delivery Banking/Misc. Fees NSF Fee Stop Payment ACH Rejects 860520 11.2.2016 $0.00 NIA Waived $2.50 $35.00 $50.00 $25.00 $25.00