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1538 Benefitfocusvv OFFICE OF HUMAN RESOURCES AND RISK MANAGEMENT TRANSMITTAL, MEMORANDUM To: City Clerk RE: Request for Services The item(s) noted below is /are attached and forwarded to your office for the following action(s): ❑ Development Order ❑ Mayor's signature ❑ Final Plat (original mylars) ❑ Recording ❑ Letter of Credit ❑ Rendering ❑ Maintenance Bond ❑ Safe keeping (Vault) ❑ Ordinance ❑ Record Custodian ❑ Performance Bond r ❑ Resolution ve- Once completed, please: Er Return original ❑ Return copy ❑ Special Instructions: Please advise if you have any questions regarding the above. Thank you! From Date l' ku T:\Dept_forms \City Clerk Transmittal Memo - 2009.doc BENEFITF o CUS® CLIENT SERVICES AGREEMENT This CLIENT SERVICE AGREEMENT and the exhibits attached hereto (collectively, the "Agreement ") are entered into on October 10, 2012 (the "Effective Date "), by and between Benefitfocus.com, Inc. ( "Benefitfocus "), with a principal place of business at 100 Benefitfocus Way, Charleston, SC 29492, and City of Sanford, Florida with a principal place of business at 300 N Park Avenue, Sanford, FL 32771 (hereinafter the "Client ") individually each a "Party' and collectively the "Parties." Recitals A. Benefitfocus provides certain services for employee benefit administration, and makes available Benefiffocus proprietary software, databases, business rules, connectivity to third parties, and data transmission, developed and hosted by the Benefiffocus, and which Client accesses over the Internet (the "Software Services "), and certain professional services (the "Professional Services ") related to the Software Services; and B. Client desires to use the Software Services, as described in the then current Software Services documentation, for itself, and for designated users of the Software Services (the "Authorized Users "), under the terms and conditions of this Agreement; and C. In consideration of the mutual covenants contained herein, the payment of the fees as required hereunder, and other good and valuable consideration, the sufficiency of which is acknowledged, and intended to be legally bound the Parties agree as follows. ARTICLE I. SCOPE OF SERVICES 1.1 Software Services. Benefitfocus shall provide the functionality described within the then current Software Services documentation, and as further described in the applicable Agreement to Purchase (the "ATP "). 1.2 Professional Services. From time to time, Benefiffocus may make certain Professional Services available to the Client at Benefitfocus' then current rate. Services and deliverables related to Professional Services shall be described within a separate ATP. ARTICLE II. USE AND OWNERSHIP 2.1 Grant of License(s) Subject to the terms and conditions of this Agreement, Benefitfocus hereby grants to Client and Client's Authorized Users during the term of this Agreement and pursuant only to the applicable ATP (or for certain Authorized Users, the Order Form (OF)), a limited, non- exclusive, non - transferable, license for Client and Authorized Users to utilize the Software Services (through established Internet protocols and telecommunications channels) to use the Software Services to enter, modify, view, display, download, transmit, reproduce and otherwise process Client's and Authorized User's data and the results thereof and to perform the other functions described within the Software Services documentation. Except for the limited license granted herein, no other right, title, interest or license is granted, and Benefiffocus reserves all other rights. 2.2 Website Terms of Use. Client agrees to require Authorized Users to comply with the Terms of Use contained at the Benefitfocus Software Services Internet site as posted, and as may be amended from time to time. 2.3 Restrictions Client and Authorized Users shall not: (a) reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Software Services or disclose the results of Software Services performance, statistics, or tests to any third party without Benefiffocus' prior written consent; (b) lease, rent, resell, transfer, assign, lend or sublicense, or permit the unauthorized use of the Software Services to any other third party; or use the Software Services to provide service bureau, time sharing, rental, application services providing, hosting, or other computer services to unauthorized third parties without Benefiffocus' prior written consent; (c) create or attempt to create derivative works from the Software Services; (d) remove or modify any markings or notices of Benefitfocus' proprietary rights; (e) make the Software Services available for use by any unauthorized third party, or permit unauthorized access or use: (f) train unauthorized users to use the Software; or (g) otherwise use the Software Services except as permitted in this Agreement, the applicable ATP, OF, or the website Terms of Use. 2.4 Title. Benefiffocus shall retain all right, title and interest (including, without limitation, all copyrights and registrations, patents and applications, service marks, trademarks, trade secrets and all other intellectual property rights) in and to Software Services and Professional Services (including all modifications and enhancements thereto) and all confidential and proprietary support and training methods and materials provided by Benefiffocus. Except for the license(s) granted pursuant to this Agreement, Client shall not acquire any interest in or to any of the aforementioned items. 2.5 Third Party Software & Content Providers The right to use third party software or third party content included in the Software Services may be subject to terms required by the licensor of that software or content, and such terms may be presented as "click- through" agreements. Client acknowledges that acceptance of such terms may be a condition of use of such software or content. Benefitfocus will manage all Benefitfocus third party contractors and licensors of third party software and content using commercially reasonable efforts to cause all of such parties to perform their obligations under the applicable license or other agreement between Benefiffocus and the third party in order to provide the Software Services as described within the applicable ATP. Notwithstanding the foregoing. Benefitfocus shall have no obligation to warrant or otherwise provide such P party software or content, except on commercially reasonable terms and conditions. 2.6 Client Ownership of Client Data Any Client or Authorized User data provided by Client or Authorized Users (the "Client Data ") to Benefitfocus in the use of the Software Services, in any format, is and shall remain Client's property. Client, and Client on Authorized Users behalf hereby grants to Benefitfocus a royalty -free license to use, copy, reproduce, display, translate, re- arrange and transmit Client Data only as required for Benefiffocus to provide the Software Services. 2.7 System /Usage Audit Client hereby grants permission for Benefitfocus to conduct system audits and usage audits of, and conduct maintenance on, the Software Services, during which time Benefiffocus is entitled to access the Client Data. 2.8 Availability/Throughput Benefitfocus shall use reasonable efforts to provide reasonable service /response times and to minimize unavailability of the Software Services and access to Client Data. Benefiffocus shall have no liability for any failures of any telecommunications connections or other delays beyond the control of Benefiffocus. ARTICLE III. INSTRUCTIONS & DATA TRANSMISSION 3.1 Instructions. Benefiffocus is authorized to rely and act upon instructions provided by Client's and Authorized ©2010 -2011. Benefitfocus.com, Inc. Page 1 of 5 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v2.9 CLIENT SERVICES AGREEMENT User's data entry system, or any other instructions provided by Client to Benefitfocus. Benefitfocus is authorized to rely and act upon instructions received by Benefitfocus via telephone, U.S. Mail, or other similar carrier /delivery service, or email, or a facsimile transmission, or any other communication protocol or device which Benefitfocus believes to be from Client or Authorized Users. Benefitfocus shall be under no obligation to offset fees for Client's failure to communicate changes. 3.2 Data Exchange. Client, and Client on behalf of Authorized Users, does hereby authorize Benefitfocus to provide and exchange Client Data and other information with the Client's and Authorized User's payroll provider(s), insurance provider(s), employee benefit plan(s), financial institution(s), auditor(s), legal counsel or other representative (s) for the purpose of providing the Software Services as contemplated and permitted by this Agreement, or as otherwise permitted by law. ARTICLE IV. PAYMENT 4.1 Payment. Client shall pay to Benefitfocus the fees and expenses specified within an applicable ATP. Except as otherwise set forth within an applicable ATP, undisputed amounts payable by Client are due "net 30," non - refundable, and not subject to set -off. Past due amounts shall accrue interest at the greater of 1.5% per month, or the maximum rate permitted by law, whichever is lower. Client shall pay the reasonable costs of any collection action, including reasonable attorney's fees incurred by Benefitfocus. Client's or Authorized User's failure to utilize the Services shall in no way relieve the Client of any obligation to pay applicable fees. 4.2 Taxes. To the extent required by law, Client shall be responsible for, and promptly pay all taxes and duties (including but not limited to sales, use, and withholding taxes) associated with the Agreement, or any ATP, except for taxes based on Benefitfocus income. 4.3 Disputed Amounts. Client shall pay all undisputed amounts when due. If Client disputes in good faith any invoiced amount, Client may withhold such disputed amount, up to the most recent month's invoice, if Client provides written notice of such disputed amount including the basis therefor. If Benefitfocus does not agree, the Parties shall meet and confer to resolve the dispute. The prevailing Party shall be entitled to a credit or payment, plus interest as applicable per Section 4.1. ARTICLE V. CONFIDENTIALITY 5.1 Confidentiality Each Party agrees that the Client Data (referred to herein as the "Client Confidential Information ") is the confidential property of Client and Authorized User respectively; and that, to the extent and in the amounts permitted by FL State Statute and the FL Sunshine Law, all nonpublic information, documentation and material incorporated in, related or referring to the Software Services and Professional Services (including trade secrets) or the terms of this Agreement (referred to herein as the "Benefitfocus Confidential Information ") whether created by Benefitfocus, Client or any third party, is the confidential and proprietary property of Benefitfocus (Client Confidential Information and Benefitfocus Confidential Information referred to hereinafter collectively as the "Confidential Information "). The Party receiving the Confidential Information, including such Party's employees, officers, directors and agents (the "Receiving Party"), to the extent and in the amounts permitted by FL State Statute and the FL Sunshine Law, shall hold in strict confidence all Confidential Information and shall not use or disclose the Confidential Information except to its employees, accountants, or attorney (collectively the "Agents ") who have a bona fide need to know such Confidential Information for the purposes of performing under the Agreement, or for the management of administration of Client, Authorized User, or Benefitfocus, or as required by valid legal process, provided such Agent is bound by a confidentiality obligation (in writing or at law); or if disclosure is required by law, the disclosing Party provides notice to the other Party(ies) in order to enable the other Party to contest or limit such disclosure. Confidential Information under this Section shall not include information that: (i) is or has become publicly available without restriction through no fault of the Receiving Party; (ii) has been received without restriction from a third party lawfully in possession of such information; (iii) does not identify Client or Client Data; or (iv) was in the possession of the Receiving Party before receiving it from the disclosing Party; or (v) as required by law to be disclosed. 5.2 Return or Destruction of Confidential Information Upon termination of this Agreement, each Party agrees to promptly return the other Party's Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information. In the event that return or destruction of Confidential Information is not possible or not feasible or as legally permitted, the Parties shall extend the protections of this Article to the retained Confidential Information, and which protections and provisions shall survive the termination of this Agreement. The Parties acknowledge and agree that any return of Client Data, or Confidential Information will only occur upon the payment of all fees due and payable by Client to Benefitfocus. ARTICLE VI. TERM AND TERMINATION 6.1 Term The term of this Agreement shall begin on the Effective Date and shall continue thereafter until: (i) Benefitfocus no longer provides any services to the Client pursuant to this Agreement or an applicable ATP; or (ii) terminated by a non - breaching party due to a material breach or default under this Agreement, which breach continues for thirty (30) days after a written notice to cure such breach, or if cure is not possible within said thirty (30) day period, the breaching party has not commenced reasonable steps to cure such breach. 6.2 Termination by Insolvency Either Party may terminate this Agreement by providing written notice to the other Party if the other Party becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy, permits a petition in bankruptcy to be filed against it, or admits in writing its inability to pay its debts as they mature, or if a receiver is appointed for a substantial part of its assets. In the event that this Agreement is terminated or rejected by a Party or its receiver or trustee under applicable bankruptcy laws due to such Party's bankruptcy, the Parties agree that this is a services agreement, and that there are no rights and licenses granted under or pursuant to this Agreement by such Party to the other Party which shall be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code and any similar Laws in any other country in the Territory, licenses of rights to "intellectual property" as defined under Section 101 (52) of the U.S. Bankruptcy Code. 6.3 Special Termination Rights. Client shall have the right to terminate this Agreement without penalty upon the occurrence of the following: (a) Upon ninety (90) days' notice in the event of a change in law causing Client's authorization to operate being revoked, or a material alteration in in the programs administered by Client. (b) Upon at least sixty (60) days notice and effective September 30 of the current fiscal year provided that ©2010 -2011. Benefitfocus.com, Inc. Page 2 of 5 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v2.9 CLIENT SERVICES AGREEMENT funds are not appropriated to Client for the Software and Professional Services. (c) Termination for Convenience. After the Initial Term as defined in the applicable ATP, either Party may terminate this Agreement and the applicable ATP, without penalty by providing sixty (60) days written notice to the other Party, except that following the termination upon notice, Benefitfocus shall be entitled to compensation, upon submission of invoice and proper proof of claim, for the Services provided under the applicable Agreement to Purchase up to and including the date of termination. ARTICLE VII.INDEMNIFICATION 7.1 To the extent and in the amounts permitted by law, each Party at its own cost & expense, will defend (the "Indemnifying Party ") any claim or judicial action brought against the other Party (the "Indemnitee "), and indemnify and hold harmless the Indemnitee against any liability for damages awarded in any such action, which liability is the result of the Indemnifying Party's (or its directors, officers, employees, agents, affiliates, or Authorized Users) gross negligence, recklessness, or willful misconduct; or in connection with the Indemnifying Party's obligations under this Agreement. 7.2 If during the term of this Agreement or any ATP, the Benefitfocus proprietary software or any aspect of the Software Services is, or in Benefitfocus' opinion is likely to be, enjoined due to infringement of a third party's intellectual property rights, Benefitfocus will at its own expense and option do any one or more of the following: (a) procure the right for Client to continue using the infringing item; (b) replace at no charge to Client the infringing item with a non - infringing item that is reasonably equivalent in functionality; (c) modify the infringing item to be non - infringing and reasonably equivalent in functionality; or (d) terminate Client's rights to access or use the infringing item and equitably adjust the fees for any Software Services impacted by such termination. 7.3 The obligations under the foregoing indemnities are subject to the condition that the Party seeking indemnification give the other: (1) prompt written notice of any claim or action for which indemnity is sought; (2) complete control of the defense and settlement thereof by the Indemnifying Party, provided all settlements adverse to the interests of the indemnified Party shall be approved by that Party; and (3) cooperation in the defense of the indemnified matter. 7.4 Nothing herein shall be construed as a waiver of the sovereign immunity of Client. ARTICLE VIII. WARRANTIES & REPRESENTATIONS 8.1 Warranties and Representations of Benefitfocus. Benefitfocus represents and warrants that the Software Services will be provided substantially in compliance with the then current Software Services documentation. Benefitfocus represents and warrants that the Professional Services hereunder shall be performed in a good and workmanlike manner consistent with generally accepted industry standards. Notwithstanding anything else within this Agreement, the Software Services documentation, or any ATP, Benefitfocus is not warranting any future functionality or services other than that currently available and as described within the applicable ATP. 8.2 Representations and Warranties of Client. Client represents and warrants that Client will possess all necessary and required authority and permissions to allow Authorized Users to use the Software Services, and to otherwise perform all the obligations under this Agreement. Client further represents and warrants that Client shall not permit any third party to access the Software Services, nor to allow any Authorized Users to utilize the Software Services, except under terms and conditions substantially similar to the terms and conditions contained within this Agreement, or any applicable ATP, and that Client will indemnify and hold Benefitfocus harmless due to any action of an Authorized User. ARTICLE IX.DISCLAIMERS & LIMITATION OF LIABILITY 9.1 Beneficiary Documents. It is the sole responsibility of the Client to maintain all Client benefit plan documents. The Client will also be responsible for maintaining certain documents regarding employee eligibility for insurance coverage as required by the Client or Authorized User. Benefitfocus will at no time be held liable for discrepancies in the Client Data. 9.2 Data. All Client Data provided to Benefitfocus by the Client or Authorized Users or their employees, payroll provider(s), insurance provider(s), auditor(s), legal counsel or other representative (s) shall be either in writing or in one or more electronic /digital formats acceptable to Benefitfocus. Benefitfocus may deem all such information as true and correct. Subject to any mutually agreed upon data validation procedures, Benefitfocus shall have no responsibility to inquire into the correctness or accuracy of any such data, and will not be responsible for any losses or expenses that arise due to the submission of incorrect or incomplete Data, or Data transmitted to Benefitfocus in an improper format. 9.3 DISCLAIMER OF WARRANTIES. EXCEPT AS WARRANTED ELSEWHERE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BENEFITFOCUS SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE SERVICES AND PROFESSIONAL SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, UNINTERRUPTED SERVICE, DATA LOSS, OR FITNESS FOR A PARTICULAR PURPOSE. BENEFITFOCUS SPECIFICALLY DISCLAIMS AND DENIES THAT BENEFITFOCUS IS IN ANY MANNER ACTING AS, OR AGREES TO WARRANT ANY COMPLIANCE WITH EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 OR OTHERWISE THAT BENEFITFOCUS IS A FIDUCIARY, TRUSTEE, `ADMINISTRATOR' OR 'NAMED FIDUCIARY' UNDER ANY CLIENT OR CLIENT ADMINISTERED OR AUTHORIZED USER EMPLOYEE BENEFIT PLAN. 9.4 LIMITATION OF LIABILITY EXCEPT FOR CLAIMS FOR INDEMNIFICATION UNDER ARTICLE VII, OR BREACH OF A PARTY S OBLIGATIONS UNDER ARTICLE V, OR CLIENT'S INFRINGEMENT OF BENEFITFOCUS INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY OR DUE FROM CLIENT FOR THE AGGREGATE OF PAYMENTS MADE FOR SERVICES DURING THE TERM OF THE APPLICABLE ATP UNDER WHICH THE CAUSE OF ACTION AROSE. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, REVENUES OR OTHER FINANCIAL LOSSES,) ARISING UNDER OR RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF THE PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, NEGLIGENCE, ©2010 -2011. Benefitfocus.com, Inc. Page 3 of 5 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v2.9 CLIENT SERVICES AGREEMENT TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. 9.5 Client Acknowledgment. Notwithstanding any obligations or commitments of Benefitfocus hereunder, Client acknowledges and agrees that Benefitfocus has no duty or liability in connection with the retention of Client Data for any reasons or purposes including, but not limited to, Client's compliance with federal, state, administrative or local laws or regulations that may apply to retention of such records Furthermore, Client agrees to accept full responsibility for immediately notifying Benefitfocus when Client desires to discontinue access by an Authorized User and Client understands that, unless it provides such immediate notification, there is potential for unauthorized access to and use of the System. ARTICLE X.GENERAL PROVISIONS 10.1 Publicity Benefitfocus may use Client's name and logo to identify Client as a Benefitfocus customer, or subject to the Client's prior consent, to issue a press release regarding the Parties' relationship, such consent shall not be unreasonably delayed or conditioned or withheld.. Except as provided herein, or as required by Law, neither party will use the other's name, customers or trademarks in any advertisement, news release or other public communication except as provided herein. 10.2 Assignment of Agreement. Except as otherwise provided for in this Section, neither Party shall assign (whether by operation of law or otherwise) this Agreement or any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Benefitfocus may assign this Agreement without the written consent of Client to a successor entity or purchaser acquiring all or substantially all of its assets of Benefitfocus, provided, however, that such successor entity or purchaser agrees to assume in writing all of the rights, duties and obligations of Benefitfocus under this Agreement for the term hereof. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. 10.3 Entire Agreement; Precedence. This Agreement contains the entire understanding between the Parties and supersedes and replaces any prior or contemporaneous agreement or understanding between the Parties with respect to the subject matter hereof. No amendment or modification of the Agreement shall be valid, unless made in writing and signed by both Parties hereto. Each of the ATPs, Order Forms, Amendments, Addenda, Website Terms of Use, or Privacy Statement, which may be attached hereto are incorporated by reference into this Agreement as if fully stated herein. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any term or condition of any exhibit hereto or any transactional or other document issued in connection herewith the terms and conditions of this Agreement shall, in all instances, govern and control. 10.4 Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of Florida. Venue shall be in Seminole County, Florida. The parties agree to use mediation to the maximum extent practicable to resolve any disputes. The prevailing party in any proceeding shall be entitled to the award of reasonable attorney's fees, to include, but not be limited to, attorney's fees at the appellate level. 10.5 Notices. Any notices required or permitted hereunder shall be in writing and shall be delivered in person, by nationally recognized overnight courier service, or by certified U.S. mail, postage prepaid, return receipt requested, addressed to the Party to be notified to the attention of such Party's legal department or, in the case of Client, to President/Owner at the address for such Party first set forth above or such address as either Party may hereafter specify in accordance herewith. 10.6 Intentionally Left Blank. 10.7 Force Maieure. Neither Party hereto shall be in breach or default of any provision of this Agreement by reason of its delay or failure to meet any of its obligations hereunder due to any event, circumstance, or cause beyond its control such as, but not limited to, acts of God, strikes, lock- outs, general governmental orders or restrictions, war, threat of war, hostilities, revolution, riots, epidemics, fire, earthquake, failures of internet infrastructure, or flood. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected Party from performing its obligations under this Agreement. 10.8 No Third Party Beneficiaries. Nothing herein shall confer, upon any person other than Benefitfocus, Client and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever. 10.9 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, then such provision shall be construed as being enforceable to the extent allowed thereunder. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the Parties shall be deemed to have waived any of its rights, powers or remedies hereunder except in writing by the waiving Party. 10.10 Survival of Terms. Notwithstanding the expiration or earlier termination of this Agreement for any reason, the provisions of Articles II, IV, V, and VII of this Agreement shall remain in full force and effect. <<Signature Page Follows>> ©2010 -2011. Benefitfocus.com, Inc. Page 4 of 5 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v2.9 CLIENT SERVICES AGREEMENT IN WITNESS THEREOF, the Parties have caused this Agreement to be executed by their respective authorized representatives, in multiple counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement. BENEFITFOCUS.COM I By: Print: Andrew I - Howaii Title: Chief Operating Office Date: (,)rr // 20 Qenefitfocus.com, Inc_ F$vi�wed By Legal/ Dater 1 +� Initials I CITY OF SANFORD, FLORIDA By: Jeff Triplett, Mayor Date: /'a /f ` Attest. &— i< Janet Wugherty, City Cler Approved as to legality. William L. Colbert, Cit / ey (Signature Page to Client Service Agreement dated October 10, 2012) ©2010 -2011. Benefitfocus.com, Inc. Page 5 of 5 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v2.9 BENEFITF o CUS City of Sanford, Florida Agreement to Purchase No. 1 This Agreement to Purchase ( "ATP ") and attached Appendix A are valid only for projects for City of Sanford, Florida (hereafter referred to as "Client ") pursuant to, and subject to the terms and conditions of the Client Service Agreement (the "Agreement ") dated October 10, 2012 between the Client and Benefitfocus.com, Inc. (hereafter referred to as "Benefitfocus "). This ATP is a supplement to, and incorporates herein by reference all the terms and conditions of the Agreement. Ct BENEFITFOCUS HRINTOUCHO A. Employee Portal October 10, 2012 T _. INITIAL TERM: October 10, 2012 — February 28, 2014 At the conclusion of the initial term, and any renewal term thereof, this ATP shall automatically renew for additional one year terms unless either party provides notice of intent to not renew not less than ninety (90) days prior to end of the then current term T��t 130:1 096" 120 Days from 2 Signature Date of this ATP No. 1 (defined as "Deployment" within the Implementation Project Plan) 4 t Ae,r. Lynne Clark �tIIRi� e. Configurable communication components including Frequently Asked Questions lkmi of emplOyees 500 I. Product Descri tion - BENEFITFOCUS HRINTOUCH® ©2011. Benefitfocus.com, Inc. Page 1 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 Descri A. Employee Portal 1. An online, Client- branded benefits management and Human Resources (HR) portal for employees: a. A content management system built specifically to support benefit and HR content b. Online tools for administrators to manage and update content C. Capability for personalizing online content to categories of employees d. Capability to create a personalized "look and feel ", including logos, font types, styles, and images to include on the site and a custom URL for your employees to access from the Internet e. Configurable communication components including Frequently Asked Questions (FAQ), RSS feeds, to -do lists, and training libraries f. Incorporation of HRINTOUCH content libraries and tools into the employee portal 2. HRINTOUCH content libraries providing informational articles and videos on a range of benefits and HR topics a. A video library explaining more than 200 items on a wide variety of topics, including benefits terms, health and wellness, and human resources b. Healthwise Knowledgebase to provide employees with informational content, including symptom checker, drug contra indicator tool and a heart score calculator B. Online 1. Online enrollment for the Client's benefits (listed in Appendix A), which includes: Enrollment a. A user - friendly, "one- thought -per- screen" employee self - service role that allows an employee to perform the following tasks: ©2011. Benefitfocus.com, Inc. Page 1 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 II. Professional Services Descri !ion - BENEFITFOCUS So ftware Service A. Software 1) Project coordination and discovery Implementation a) Conduct pre - implementation coordination and scheduling Services b) Hold a discovery kickoff call to initiate implementation project, including providing Client with templates for gathering benefits, plan, and rule information c) Create, review, and finalize project plan for Client implementation d) Review and finalize enrollment configuration documentation (including implementation ©2011. Benefitfocus.com, Inc. Page 2 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 i. Enter or change personal information such as address and date of birth ii. Make benefit elections during initial or open enrollment iii. Initiate life event changes to benefit elections throughout the year iv. Print a personalized, detail benefit enrollment report b. An online HR Role that allows benefits administrators to perform the following: i. Add /terminate /rehire employees ii. Change employee and dependent demographic information iii. Make employee benefit elections on behalf of new hires iv. Initiate benefit changes and /or cancellations due to a life event V. Add, change, or cancel COBRA elections vi. Approve benefit elections and changes made by employees vii. Access a set of more than fifty one (51) standard reports providing access to benefit, census, administrative, payroll and transaction history data and 1 Training Manager report viii. Manage employee login accounts ix. Configure HR Toolbox solutions to replace paper -based processes, including gathering W4, paycheck direct deposit, emergency contact and military information X. Enforce eligibility and business rules at the time of enrollment, including rules governing new hire enrollment, Open Enrollment, COBRA enrollment and employment terminations xi. Provide integrated videos and communication tools, such as HR Notes and employee surveys 2. Infrastructure for capture or transmission of benefit elections to the multiple benefit providers, utilizing standard Benefitfocus file formats and schedules. 3. Infrastructure for interfacing with Client HR /payroll system, utilizing Benefitfocus payMax file format and including the following: a. Receiving files containing eligibility updates including new hires, terminations and category changes from a payroll system and importing into HRINTOUCH b. Extracting and transmitting outbound deduction files containing payroll deduction amounts or codes for importing into Client payroll system. 4. The Benefitfocus Video Library, which provides videos explaining more than 200 terms on a wide variety of topics, including benefits, health and wellness, and human resources C. BenefitStoreTM 1. Real time connection to Voluntary Benefit Provider for benefits identified within Appendix (API) A or as may be subsequently modified by eLink change order: II. Professional Services Descri !ion - BENEFITFOCUS So ftware Service A. Software 1) Project coordination and discovery Implementation a) Conduct pre - implementation coordination and scheduling Services b) Hold a discovery kickoff call to initiate implementation project, including providing Client with templates for gathering benefits, plan, and rule information c) Create, review, and finalize project plan for Client implementation d) Review and finalize enrollment configuration documentation (including implementation ©2011. Benefitfocus.com, Inc. Page 2 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 Ste' M 4 profile, change reason profile, and client- specific rules) e) Hold HRINTOUCH employee portal discovery session, including definition of Client corporate style, URL, and content library configuration f) Create a training plan for delivering online training to Client administrators g) Assist the Client in requesting group data files from each benefits carrier or vendor to be incorporated into the online enrollment application and transmitting those data files to Benefitfocus via one of the following Benefitfocus standard formats: HIPAA 834 or Max h) For those benefits specified as "Data Transmission" within the "Data Links" (Section B) of this ATP, provide client with standard Benefitfocus format specifications ( HIPAA 834 and Max) to be used for Benefitfocus -to- carrier electronic data interchange ( "EDI "), and participate in discovery calls with Client and their benefit carrier and /or vendor account managers to plan Benefitfocus-to- carrier data exchange processes. i) Discovery sessions for data exchange planning will define schedules, file naming conventions, transmission details (e.g. URLs for Secure FTP), and exception handling procedures for transmitting Client benefit transaction data to carriers i) Create a document mapping client specific categories to carrier - specific numbers and identifiers for group, member, and plan IDs 2) Configuration of enrollment application a) Configuration of enrollment application with Client's plans, offerings, and designated carrier contract rules. b) Configure open enrollment dates and enablements c) Once group data files are received from Client and carriers, load employee and benefits data into the online enrollment application d) Perform internal quality assurance of loaded data 3) Configure HRINTOUCH employee portal site a) Activate portal site with Client- specific URL b) Configure user IDs and passwords for Client administrator users c) Configure client- specific branding, logos, and styles /themes d) Display pre- authored HRINTOUCH content per Client's specifications e) Initial configuration of quick links to Client's benefits carriers and vendors as specified; and training of Client HR administrators for subsequent quick link configurations f) Configure initial set of Frequently Asked Questions (FAQs) 4) Conduct Client acceptance testing a) Provide Client access to test system configured with Client- specific settings b) Schedule and conduct walkthrough of enrollment system with Client to review business rules and plan configurations c) Verify data load, review exceptions with Client, and determine strategy for resolving data exceptions d) Schedule and conduct walkthrough of HRINTOUCH employee portal e) Provide templates for Client signoff on acceptance of employer and rate information 5) Provide HR administrator training via a webinar session B. Data Exchange Implement and test the facilities for data capture or data transmission of benefit elections to Implementation Client's benefit providers, as identified within in Appendix A, and utilizing Benefitfocus standard Services file formats and schedules. 1 Data Ca ture is defined as a process through which Benefitfocus collects Client data within ©2011. Benefitfocus.com, Inc. Page 3 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 ©2011. Benefitfocus.com, Inc. Page 4 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 t ; the Benefitfocus online enrollment system and is made available to the Client through standard online enrollment reports generated by the Client, and subsequently transmitted by the Client to the Client's benefit providers 2) Data Transmission Links: a) A Data Transmission link is defined as an EDI connection through which Benefitfocus collects Client data within the Benefitfocus Online Enrollment system and transmits it to the appropriate benefits carrier /provider on behalf of the Client. b) Benefitfocus shall transmit the Client data to the benefits carrier /provider using Benefitfocus standard file formats and schedules Client has been advised and understands that Data Transmission Links to carriers and benefit providers who do not accept the Benefitfocus standard data formats require the cooperation and consent of those carriers, which those carriers may grant or withhold in their sole discretion, and which are further subject to the Benefitfocus integration schedule. Benefitfocus shall utilize commercially reasonable efforts to make such connections, but shall not be liable for any failure by the carrier or benefit provider to grant such connection, and unless specifically stated herein Benefitfocus does not warrant any date or availability for such connections. 3) Outbound Data Exchange configuration and testing services a) Configure outbound data extraction jobs for each of Client's data transmission links b) Create one (1) test file for each data transmission link and provide to the respective carrier /vendor via the documented transmission method. Client shall require Carrier /vendor to validate transmission within 2 days of receipt. c) Participate with Client on carrier /vendor testing calls to review and validate file extract C. Payroll 1) Implement one (1) file -based data exchange interface with weekly transmission to Client's Connect HR /payroll system using the Benefitfocus payMax file format. Implementation Services a) Submit files containing eligibility updates including new hires, terminations and category changes from the Client payroll system to HRINTOUCH b) Receive outbound deduction files containing payroll deduction amounts or codes for importing data into the Client payroll system. c) Payroll Connect Implementation Services requires technical discovery and configuration. This service will occur after configuration of the HRINTOUCH portal. 2) Conduct discovery call with Client's payroll system subject matter expert a) Provide guidance and specifications to Client on the Benefitfocus payMax format and required data elements b) Document schedule and connection (Secure FTP) specifications for regular payroll file exchange c) Review Benefitfocus job and exception reports and define error resolution procedures d) Determine and document schedule for payroll implementation, testing, and deployment 3) Create inbound payroll file processor for Client's payroll to Benefitfocus payMax extract file 4) Conduct payroll file processing testing a) Configure payroll file processor in test environment b) Conduct up to three (3) test cycles in which test payMax extract file is received from Client and processed into Benefitfocus online enrollment application. c) Conduct up to three (3) test cycles in which test payMax is extracted from Benefitfocus online enrollment application, and imported into Client HR /payroll system d) Complete Client acceptance signoff of payroll processors and deploy to production environment ©2011. Benefitfocus.com, Inc. Page 4 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 III. Fee Schedule x . , ~ 4 k A. BENEFITFOCUS HRINTOUCHO $1.50 ** Minimum of $750 per month (based on a minimum of 500 employees) B. Payroll Connect Included in PEPM Included in total monthly fee in III.A C. Data Links Included in PEPM Included in total monthly fee in III.A *The monthly PEPM fees stated above are monthly minimum fees. Benefitfocus shall each month invoice for the greater of (i) the monthly minimum fee stated above; or (ii) for the actual population of employees within the HRINTOUCH Software Service at the then current PEPM. There are no fees for the enrollment or disenrollment of employees or groups. * *The rate for the Benefitfocus HR INTOUCH solution quoted above is preferred pricing for Clients who obtain medical major insurance through a Benefitfocus partner carrier. In the event that Client moves to a non - partner carrier, the PEPM rate shall be at Benefitfocus then current rates for Clients utilizing non - partner carriers. D. HR INTOUCH Im lementation l ip For the Professional Services defined in Articles ILA — B herein $0 (The $2,500 fee is waived) ©2011. Benefitfocus.com, Inc. Page 5 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 Due to the custom nature of payroll systems integrations, Payroll Connect implementation is scheduled according to the Benefitfocus software release schedule. Anticipated dates for Payroll Connect will be determined during the payroll technical discovery. D. Ongoing 1) Technical managed services (24 hours a day, 7 days a week) for all infrastructure associated Support with hosted software services purchased, including capacity management, change Services management, security management and incident management. 2) Managed data exchange support: a) Manage and monitor data transmissions between Benefitfocus and Client's carriers b) Deliver enrollment data in accordance with the standard Benefitfocus method and schedule as to time and frequency. More frequent or set time data transmissions may be subject to additional fees. Each transmission successfully sent or received shall count as one data transmission. c) Research and resolve data conflicts with Carrier 3) Benefit administrator and employee user call center support 8:30 a.m. to 5:30 p.m. local time, in the contiguous U.S. and subject to Daylight Savings Time rules, Monday through Friday (excluding Benefitfocus holidays): a) Answering application- and navigation - related questions b) Set up of employee access to online benefits c) Login account and password management d) Online automated training e) Issue resolution and management f) Open enrollment and renewal support g) Communication of release announcements III. Fee Schedule x . , ~ 4 k A. BENEFITFOCUS HRINTOUCHO $1.50 ** Minimum of $750 per month (based on a minimum of 500 employees) B. Payroll Connect Included in PEPM Included in total monthly fee in III.A C. Data Links Included in PEPM Included in total monthly fee in III.A *The monthly PEPM fees stated above are monthly minimum fees. Benefitfocus shall each month invoice for the greater of (i) the monthly minimum fee stated above; or (ii) for the actual population of employees within the HRINTOUCH Software Service at the then current PEPM. There are no fees for the enrollment or disenrollment of employees or groups. * *The rate for the Benefitfocus HR INTOUCH solution quoted above is preferred pricing for Clients who obtain medical major insurance through a Benefitfocus partner carrier. In the event that Client moves to a non - partner carrier, the PEPM rate shall be at Benefitfocus then current rates for Clients utilizing non - partner carriers. D. HR INTOUCH Im lementation l ip For the Professional Services defined in Articles ILA — B herein $0 (The $2,500 fee is waived) ©2011. Benefitfocus.com, Inc. Page 5 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 IV. Payment Schedule A. One Time Fees are due and payable upon execution of this ATP B. Per Employee Per Month (PEPM) fees shall be billed on a monthly basis. Invoicing shall commence and be due within that month when the Software Services are accepted per § V.A. V. Terms and Conditions A. Acceptance of HRINTOUCH Software and Services. HRINTOUCH shall deemed accepted upon the completion of "Deployment" within the Implementation Project Plan, and the earlier of one of the following: (i) Client uses the Software Service or deliverable under essentially normal operating conditions, or (ii) Customer fails to reject Software Service within TEN (10) business days of Benefitfocus notice that Deployment has been completed. Any rejection must be accompanied by an explanation for the reasons for the rejection including specific references to those portions of any relevant schedule, milestone, deliverable, acceptance criteria, or product documentation, which is the basis for the rejection, including identifying those deficiencies that must be corrected in order for the deliverable to be accepted. Client shall not offer as the basis for any rejection, and Benefitfocus shall not be required to correct: (i) any minor imperfections or defects that do not materially impair the operation or utility of any deliverable or the BENEFITFOCUS HRINTOUCH Software; or (ii) lack of data transmission to any non - integrated or carriers; or (iii) any other delays caused by Client or Client's carriers or vendors. B. After the Initial Term, and not more frequently than once annually, Benefitfocus reserves the right to increase fees for the services herein provided that such increases do not to exceed the increase in the Consumer Price Index for all Urban (CPI -U) as published by the US Dept. of Labor for the Software Services described herein. Any such fee increase shall be effective for the subsequent renewal term which is at least ninety (90) days after written notice of any increase C. This ATP may be amended only in writing and signed by both Benefitfocus and Client. D. The Client agrees to reimburse Benefitfocus for reasonable travel expenses approved in advance by Client for services during the implementation and support of this ATP and understands that travel is not included within the fees presented herein and is an additional charge, which shall be invoiced at cost to the Client. Benefitfocus shall not invoice Client for sales, marketing or account management travel expenses. E. The Client agrees to assist Benefitfocus as needed with any communication and /or issue resolution with any required parties and Authorized Users. VI. Signatures of Acceptance Accepted and Agreed to by: By: ( Z By: Print: Jeff Triplett, Mayor Andrew L. Howe: Title: Chief Operating Oftrc.e Date: y Date: Benefitfoc::z.co,:. Reviewed By Legal Initials:_ a ©2011. Benefitfocus.com, Inc. Page 6 of 6 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 BENEFITF o CUS® Appendix A City of Sanford, Florida Implementation Order Form Subject to the terms and conditions of the Client Service Agreement and ATP between City of Sanford, Florida and Benefitfocus.com, Inc. Account Executive: Lynne Clark Date: October 10, 2012 Number of Employees (From ATP 500 Section I: Client Contact for Implementation* sable about benefit plan design and elWbift rules, Name: Joyce McCo Title: Sr. Human Resource Analyst Email Address: mcco sanfordfl. ov Telephone number: 407 - 688 -5134 Currently with Partner Carrier for enrollment Y/N ? Y Section II: Client Contact for Accounts Payable Section III: Payroll & Benefit Providers : r Payroll Details Payroll Connect? (Y/N) Name: Cynthia Lindsa Title: Finance Director Physical Address 300 N. Park Avenue, Sanford, FL 32771 Email Address: lindsa c sanfordfl. ov Telephone number: 407 - 688 -5022 Client's County for tax ur oses : Seminole Duplicate Invoice (Y/N) N If yes, send to: From ATP Implementation contact phone number Section III: Payroll & Benefit Providers : r Payroll Details Payroll Connect? (Y/N) Y Payroll system administered by client or 3rd party? Client Payroll s stem name and version AS400, version 6.1 a Max Standard (Y/N) Y 2-way integration required? (Y/N) Y Fee if non - standard N/A Payroll system implementation contact and organization: Christopher McDeed Implementation contact email Christo her.mcdeed sanfordfl. ov Implementation contact phone number 407 - 688 -5024 ©2011. Benefitfocus.corn, Inc. Page 1 of 3 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 ©2011. Benefitfocus.com, Inc. All rights reserved Page 2 of 3 CONFIDENTIAL & PROPRIETARY (07/11) v3.4 Insurance Carrier BCBSFL Carrier Contact (Name, Phone, Email) Pamela Ross Pamela. Ross @bcbsfl.com] 407.833.7735 Group Number(s Renewal Date (Mo. /Da) 01/01 Transmission or Data Capture or API Transmission Is this a new carrier? (Y/N) N Vision Insurance Carrier Humana Carrier Contact Name, Phone, Email Luz Martinez Lmartinez8 humana.com 407.342.5889 Group Number(s Renewal Date Mo. /Da 01/01 Transmission or Data Capture or API Transmission Is this a new carrier? Y /N) N Dental Insurance Carrier Florida Combined Life Carrier Contact (Name, Phone, Email) Irene Spencer (ispencer fclife.com) 1.904.866.4109 Group Number(s Renewal Date Mo. /Da 01/01 Transmission or Data Capture or API Transmission Is this a new carrier? Y/N N Beneft T Life Insurance Carrier Florida Combined Life Carrier Contact Name, Phone, Email Linda Blount Iblount fclife.com 1.800.333.3256 Ext. 5866 Group Number(s) Renewal Date (Mo. /Da) 01/01 Transmission or Data Capture or API Capture Is this a new carrier? (Y /N) N fit FSA Insurance Carrier Employee Benefits Corp Carrier Contact Name, Phone, Email Diana Nelson Diana. Nelson ebcflex.com 608.829.8319 Group Number(s Renewal Date Mo. /Da 01/01 Transmission or Data Capture or API Capture Is this a new carrier? Y/N N Benefit T , Group Critical Mhow Insurance Carrier Allstate Carrier Contact (Name, Phone, Email) Doug Murdoch; (dou robenefit lans.com); 407 - 366 -4252 Group Number(s) Renewal Date (Mo. /Da) 01/01 Transmission or Data Capture or API API Is this a new carrier? (Y /N) N ©2011. Benefitfocus.com, Inc. All rights reserved Page 2 of 3 CONFIDENTIAL & PROPRIETARY (07/11) v3.4 CITY OF SANFORD, FLORIDA By: Jeff Triplett, Mayor Title: Uuef Ope m oy Offloor Date: Date: C- v Benefitfocus.com, IT. p Ravi wed By Legal/. Attes /\ . Date: tG1 o Initials: ( Janet ugherty, City Clerk 1 proved as to legalit . illiarn L. Colbert, Ci orney , rl /9G/9 (Signature Page to Appendix A — Implementation Order Form) ©2011. Benefitfocus.com, Inc. Page 3 of 3 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4 Group r Insurance Carrier Allstate Carrier Contact (Name, Phone, Email) Doug Murdoch; (dou robenefit lans.com ); 407 - 366 -4252 Group Number(s Renewal Date Mo. /Da) 01/01 Transmission or Data Capture or API API Is this a new carrier? (Y/N N -' Group Volunta Accident Insurance Carrier Allstate Carrier Contact Name, Phone, Email Doug Murdoch; dou robenefit lans.com ; 407 - 366 -4252 Group Number (s Renewal Date Mo. /Da 01/01 Transmission or Data Capture or API API Is this a new carrier? (Y /N) N CITY OF SANFORD, FLORIDA By: Jeff Triplett, Mayor Title: Uuef Ope m oy Offloor Date: Date: C- v Benefitfocus.com, IT. p Ravi wed By Legal/. Attes /\ . Date: tG1 o Initials: ( Janet ugherty, City Clerk 1 proved as to legalit . illiarn L. Colbert, Ci orney , rl /9G/9 (Signature Page to Appendix A — Implementation Order Form) ©2011. Benefitfocus.com, Inc. Page 3 of 3 CONFIDENTIAL & PROPRIETARY All rights reserved (07/11) v3.4