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HomeMy WebLinkAboutContract 47185 / GG rr( X(, yNl Idp�j (Prq J "Y OGY 2 �Gli Business Associate Contract Effective on "Contract Effective Date" (the"Effective Date"), EmployeeTech and as plan administrator and City of Fork Worth hereby enter into this business associate contract("BA Contract") as set forth herein. I. Definitions Terms used, but not otherwise defined, in this Agreement shall have the same meaning given those terms under HIPAA. 1.1 Agreement. "Agreement" means the administrative services agreement entered into between Business Associate and Covered Entity pursuant to which Business Associate provides services to the Plan. 1.2 Breach. "Breach" shall have the same meaning as the term "breach" in 45 CFR §164.402. 1.3 Business Associate. "Business Associate" means EmployeeTech. 1.4 Covered Entity. "Covered Entity" means City of Fort Worth. 1.5 Electronic Protected Health Information. "Electronic Protected Health Information" shall have the same meaning as the term "electronic protected health information" in 45 CFR §160.103. 1.6 Electronic Transaction Rule. "Electronic Transaction Rule" means the final regulations issued by HHS concerning standard transactions and code sets under 45 CFR Parts 160 and 162. 1.7 HHS. "HHS" means the United States Department of Health and Human Services. 1.8 HIPAA. "HIPAA" means the Health Insurance Portability and Accountability Act of 1996,as amended, and the accompanying regulations. 1.9 Individual. "Individual" shall have the same meaning as the term "individual" in 45 CFR§ 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g). 1.10 Privacy Rule. "Privacy Rule" means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E. 1.11 Protected Health Information. "Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR § 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity. 1.12 Required By Law. "Required By Law" shall have the same meaning as the term "required bylaw" in 45 CFR § 164.103. 1.13 Secretary. "Secretary" means the Secretary of the Department of Health and Human Services or his designee. 1.14 Security Rule. "Security Rule" means the Security Standards and Implementation Specifications at 45 CFR §§ 164.306, 164.308, 164.310, 164.312, and 164.316. 1.15 Security Incident. "Security Incident" shall have the same meaning as the term "security incident" in 45 CFR § 164.304. Page 1 of 7 Myr r 1.16 Unsecured Protected Health Information. "Unsecured Protected Health Information" shallhave the same meaning as the term "unsecured protected health information" in 45 CFR §164.402. II. Obligations and Activities of Business Associate 2.1 Business Associate agrees not to use or disclose Protected Health Information other than as permitted or required by this BA Contract or as Required by Law. 2.2 Business Associate agrees to develop, implement, maintain and use appropriate administrative, technical and physical safeguards to prevent use or disclosure of the Protected Health Information, other than as provided for by this BA Contract. 2.3 Business Associate will develop, implement, maintain and use administrative, technical and physical safeguards that reasonably and appropriately protect the confidentiality, integrityand availability of Electronic Protected Health Information that Business Associate creates,receives, maintains or transmits on Covered Entity's behalf as required by the Security Rule. 2.4 Business Associate agrees to mitigate, to the extent practicable, any harmful effect that isknown to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this BA Contract. 2.5 Business Associate agrees to report to Covered Entity any use or disclosure of Protected Health Information, including Electronic Protected Health Information, not provided for by this BA Contract of which it becomes aware and/or any Security Incident of which it becomes aware. 2.6 Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information and/or Electronic Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this BA Contract to Business Associatewith respect to such information. Moreover, Business Associate shall ensure that any such subcontractor or agent agrees to implement reasonable and appropriate safeguards to protect Covered Entity's Protected Health Information. 2.7 As of the effective date specified by HHS in final regulations to be issued on this topic,Business Associate shall not directly or indirectly receive remuneration in exchange for any Protected Health Information of an individual unless the Covered Entity or Business Associate obtainsfrom the individual, in accordance with 45 CFR§ 164.508, a valid authorization that includes a specification of whether the Protected Health Information can be further exchanged for remuneration by the entity receiving Protected Health Information of that individual, exceptas otherwise allowed under HIPAA. 2.8 To the extent it maintains a Designated Record Set, Business Associate agrees to provide access, at the request of Covered Entity, as soon as administratively practical and in noevent later than 30 days following the Covered Entity's request, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 CFR § 164.524. 2.9 To the extent it maintains a Designated Record Set, Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR§ 164.526 at the request of Covered Entity or an Individual, as soon as administratively practicable. 2.10 Business Associate agrees to make internal practices, books, and records, including policiesand procedures and Protected Health Information, relating to the use and disclosure of Protected Page 2 of 7 Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary, in a time and manner designated by the Secretary,for purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule. 2.11 Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond toa request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528. 2.12 Business Associate agrees to provide to Covered Entity or an Individual, within 30 days following Covered Entity's request, information collected in accordance with the Agreement and/or this BA Contract, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528. 2.13 If Business Associate conducts in whole or in part electronic transactions on behalf of Covered Entity for which HHS has established standards, Business Associate will comply, and will require any subcontractor to comply, with each applicable requirement of the Electronic Transaction Rule. Business Associate shall also comply with the National Provider Identifier requirements,if and to the extent applicable. 2.14 Business Associate acknowledges that it is subject to civil and criminal enforcement for failureto comply with the Privacy Rule and Security Rule. III. Permitted Uses and Disclosures by Business Associate 3.1 General Use and Disclosure Provisions. (a) Except as otherwise limited in this Agreement, Business Associate may use ordisclose Protected Health Information to perform functions, activities or services for, or on behalf of, Covered Entity as specified in the Agreement, provided that such use ordisclosure would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity. (b) In the event Business Associate and Covered Entity have not entered into a services agreement, Business Associate may use or disclose Protected Health Information on behalf of, or to provide services to, Covered Entity for the following purposes, if such use or disclosure of Protected Health Information would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity: • Business Associate may use PHI to provide Data Aggregation services to Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B) (c) Business Associate will, in its performance of the functions, activities, services and operations specified above, make reasonable efforts to use, to disclose and to request only the minimum amount of Covered Entity's Protected Health Information reasonably necessary to accomplish the intended purpose of the use, disclosure or request,except that Business Associate will not be obligated to comply with this minimum necessary limitation if neither Business Associate nor Covered Entity is required to limit its use, disclosure or request to the minimum necessary. Business Associate and Covered Entity acknowledge that the phrase "minimum necessary" shall be interpreted in accordance with the Health Information Technology for Economic and Clinical Health Act("HITECH") and government guidance on the definition. Page 3 of 7 3.2 Specific Use and Disclosure Provisions. (a) Except as otherwise limited in this BA Contract, Business Associate may use Protected Health Information for the proper management and administration of BusinessAssociate or to carry out the legal responsibilities of Business Associate. (b) Except as otherwise limited in this BA Contract, Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate, provided that disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that itwill remain confidential and used or further disclosed only as Required By Law or forthe purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. (c) Except as otherwise limited in this BA Contract, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B). (d) Business Associate may use Protected Health Information to report violations of lawto appropriate Federal and State authorities, consistent with 45 CFR §164.5020)(1). IV. Obligations of Covered Entity 4.1 Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions. (a) Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR § 164.520, to the extent thatsuch limitation may affect Business Associate's use or disclosure of Protected Health Information. (b) Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to theextent that such changes may affect Business Associate's use or disclosure of Protected Health Information. (c) Covered Entity shall notify Business Associate of any restriction to the use ordisclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR§ 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information. Covered Entity shall not agree to any restrictions without the written consent of Business Associate except with respeci to a restriction where (1) the disclosure is to a health plan for purposes of carrying out payment or health care operations, and (2) the Protected Health Information pertains solely to a health care item or service for which the health care provider involved has been paid in full out of pocket. 4.2 Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity, exceptthat Business Associate may use or disclose Protected Health Information for purposes of data aggregation as stated in section 3.1(b). Page 4of7 V. Breaches and Security Incidents 5.1 Privacy or Security Breach. Business Associate will report to Covered Entity any use or disclosure of Covered Entity's Protected Health Information not permitted by this BAContract along with any Breach of Covered Entity's Unsecured Protected Health Information. Business Associate will treat the Breach as being discovered in accordance with 45 CFR §164.410. Business Associate will make the report to Covered entity's Privacy Official or othercorporate contract within 60 calendar days after Business Associate learns of such non-permitted use or disclosure. If a delay is requested by a law-enforcement official in accordance with 45 CFR§ 164.412, Business Associate may delay notifying Covered Entity for the applicable time period. Business Associate's report will at least: (a) Identify the nature of the breach or other non-permitted use or disclosure, which will include a brief description of what happened, including the date of any Breach and the date of the discovery of any Breach; (b) Identify Covered Entity's Protected Health Information that was subject to the non- permitted use or disclosure or Breach (such as whether full name, social security number, date of birth, home address, account number or other information were involved) on an individual basis; (c) Identify who made the non-permitted use or disclosure and who received the non- permitted disclosure; (d) Identify what corrective or investigational action Business Associate took or will take to prevent further non-permitted uses or disclosures, to mitigate harmful effects and to protect against any further Breaches; (e) Identify what steps the individuals who were subject to a Breach should take to protect themselves; (f) Provide such other information, including a written report, as Covered Entity may reasonably request. 5.2 Security Incidents. Business Associate will report to Covered Entity any successful(A) unauthorized access, use, disclosure, modification, or destruction of Covered Entity's Electronic Protected Health Information or(B) interference with Business Associate's system operations in Business Associate's information systems, of which Business Associate becomes aware. Business Associate will make this report monthly, except that if any such Security Incident resulted in a disclosure not permitted by this BA Contract or Breach of Covered Entity's Unsecured Protected Health Information, Business Associate will make the report in accordance with the provisions set forth in the paragraph above. VI. Term and Termination 6.1 Term. The Term of this BA Contract shall be effective as of Effective Date, and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section. Page 5 of 7 6.2 Termination for Cause. Upon Covered Entity's knowledge of a material breach by Business Associate, Covered Entity shall either: (a) Provide an opportunity for Business Associate to cure the breach or end the violation and terminate the Agreement and/or this BA Contract if Business Associate does not curethe breach or end the violation within the time specified by Covered Entity; (b) Immediately terminate the Agreement and/or this BA Contract if Business Associate has breached a material term of this BA Contract and cure is not possible; or (c) If neither termination nor cure are feasible, Covered Entity shall report the violation to the Secretary. 6.3 Effect of Termination. (a) Except as provided in paragraph (b) of this section, upon termination of this BAContract, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information. (b) In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification in writing of the conditions that make return or destruction infeasible. Upon notifying Covered Entity that return or destruction of Protected Health Information is infeasible, Business Associate shall extend the protections of this BA Contract to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, forso long as Business Associate maintains such Protected Health Information. VII. Miscellaneous 7.1 Regulatory References. A reference in this BA Contract to a section in the Privacy Rule orthe Security Rule means the section as in effect or as amended. 7.2 Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity and/or Business Associate to complywith the requirements of the Privacy Rule, and, the Security Rule and any other provision of HIPAA. 7.3 Survival. The respective rights and obligations of Business Associate under Section 6.3 of this BA Contract shall survive the termination of this BA Contract. 7.4 Interpretation. Any ambiguity in this BA Contract shall be resolved to permit Covered Entity and/or Business Associate to comply with HIPAA. [SIGNATURES FOLLOW ON NEXT PAGE] Page 6 of 7 IN WITNESS WHEREOF, the parties have duly executed this BA Contract effective as of the later date signed below. EmployeeTech City of Fort Worth By: By d . a... :' Name: Michael Weiskirch Name. I ° Title: Principal Title: Assistant City Manager Date Signed: Date Signed: Fly F0-L M kNID LEGALITY I m — M n � r a 4P�riL1[Y/A"'� A1tl O: `�� fee/$ 0 '-'yam'.': �raa�.eww� ,a.:. .m 41� "FGg4,�,110' R +� C11"�wfldy� Ye A' /(� ( l y✓„�(9 J Wf�i Ii YV S4�fB f F1111". „111". W6R71/r1 ;Jtv i f, Page 7 of 7 .. 1tn Make Payment to: Employee Tech,Inc. AO, 1300 Elmwood Ave HC1 Deerfield,IL 60015 847-236-1932 (°°( a)Rifat rrtagt' Tax ID:45-5000666 CUSTOMER INFORMATION BILLING INFORMATION Mona Braniff Attn: Sr. Human Resources Analyst— Benefits City of Fort Worth 1000 Throckmorton Street Fort Worth, Tx 76102 Office Phone: (817) 392-7781 Contract Effective Date: 11/1/2015 QUANTITY DESCRIPTION MONTHLY FEE ANNt1?L One Time Implementation N/A paid annually 3000.00 7000 Employees HCM One Year Software Agreement $80Cv.0i HCM File Implementation—proposal attached This Customer Agreement and the Subscription Services Terms and Conditions attached constitute the entire agreement between<<; laii ties with respect to this order and supersedes all prior communications oral or written. The individual who has signed below has the anti ri r ko place this order on behalf of the company identified above and to commit the company to payment of the associated charges. CITY OF FORT WORTH EMPLOYE H,IN w � 1 gy .... r ,t.,,� By: _ Authorized Customer Signature , I Michael Weiskirch Name(printed) Name(printed) d 4 k Principal Title 4 Title °may U IN 4 r i APPRCeWED S TO PORIM AND LEGALITY � ' $) N 7413685.2 tcs� er VC WO T Amistant C1 AeeeY d ®oc . .�>,.. HEALTH COST MANAGER SUBSCRIPTION SERVICES TERMS AND CONDITIONS These Subscription Services Terms and Conditions and each Customer Agreement submitted .1 `r'0u (the company identified as the "Customer" on the Customer Agreement) and accepted by EMPLOYEE 1 E ::H, Inc. ( Agreement(s)) ("Subscription Services"). p t�''-� 'o�� the Us or We constitute the "Agreement" for Your access to the subscription services desc.rM Customer (" .p 1. Subscription Services. You subscribe to the Subscription Services and We grant to You a non-exclusive, non-trans`r` ' non- assignable license to access and use the Subscription Services solely for Your internal use by Yap}r i users to manage and communicate Your information with Your employees. You are only authorized to acce id use the Subscription Services identified on a fully executed Customer Agreement during the Term id We may update, enhance, or modify the Subscription Services from time to time to include new featwn�c n)prove functionality, and address customer feedback without notice. You shall maintain a copy of afli cr_�rnputer software applications required to access the Subscription Services on computers owned or oper{..t� �)y You. You will not be entitled to receive a copy of the software used to provide the Subscription Servic:da may make available end-user instructions for use and operation of the Subscription Services electronically or otherwise, and You and the individuals you authorize to access the Subscription �rvices ("Users") may use the Documentation only in connection with use of the Subscription Services. 2. Reservation of Rights. All rights granted in this Agreement are a license, not a sale. We reserve all rights not expressly gr d in this Agreement. You may not, and will not permit any third party to, copy, modify, adapt, or create deg i ra ° `works of the Subscription Services or Documentation, remove any copyright or other proprietary right: tires, or disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or reph—,�,._ '. urce code for the Subscription Services. 3. Services. We will make available certain consulting and professional services to You as mutually agreed up ) writing from time to time. We will provide such services pursuant to Our then current rates unless others iAz:t= 3:Wtually agreed upon in writing. 4. Login Information. Each of Your Users will be required to provide password and login identification ("Login lnformati r ') in,,order to access the Subscription Services. You are fully responsible for all uses of the Login Information .,r, 4butable to You and Your Users. You will (i) protect the confidentiality of all Login Information, (ii) Login Information for each User; (iii) notify Us of any breach of the confidentiality of any Login Informa io< ., and (iv) update and maintain current the Login Information in a manner to notify Us if any individua[ „ ionger authorized to use the Login Information or misuses the Login Information. You will not pr,-,>4 Login Information to any person that is not Your User, employee or contractor. Without liability or limitia <qy other remedies available to Us, We reserve the right to suspend or terminate access by any User are,, the Subscription Services under user/login rights granted to You if such use represents a breach of th' +; n`os and conditions of this Agreement or security risk to Our systems. . Your Data. In order to utilize the Subscription Services as intended, You are responsible to provide informattr} ;d data for inclusion in the Subscription Services ("Your Data ) and as otherwise described in this Age ear c, 1T. You grant Us the right to copy, transmit and use Your Data in connection with providing the Subscription -1`3ervices 2443685.2 or other services You order. We acknowledge that Your Data constitutes Your Proprietary Infc.n-r �,"'on. You grant Us a limited license to access, copy, display, reproduce, and transmit Your Data solely for fire }'>. .pose of providing the Subscription Services and performing Our obligations under this Agreement, and You epresent and warrant that You are authorized to provide Your Data to Us for these purposes. Upon comp - of the Subscription Services or termination, We will return Your Data in a format of your choosing. 6. Your Obligations. You represent that (a) You will provide all information reasonably necessary for Our prop= i ,,i of the Subscription Services and to allow You and Your Users to use the Subscription Services as inten(`.�­..;; (b) You and Your Users are authorized to provide all data and information submitted to the Subscription S-,P t;Ws and other of Your Data that may be relevant to Us; (c) You shall fully comply, and be and remain in t ,}=.fiance, with all applicable laws, rules and regulations; (d) You and each of Your Users shall be res , 6Ie for providing Your own Internet access (including all equipment, software and services required to in and maintain such access); and (e) the use of Your Data by Us as contemplated in this Agreement wi( x1 infringe the copyrights, patents, trademarks, service marks, trade secrets, confidential information or privi),111y right of any third party or constitute a defamation, invasion of privacy, or violation of any right of publicity c 101 r third party right. You will use commercially reasonable efforts to implement reasonable physical, ; and administrative safeguards for Your information technology systems as required by law, without limitation preventing any virus, Trojan horse, worm or other disabling code from being transn „�r d to or introduced into the Our systems. 7. Fees and Payment. You will pay Us the fees for the Subscription Services and any other related services as spec iii on any Customer Agreement that You submit and We accept ("Subscription Fees"). Any services for whiiu'0 41he fees are not set forth on a Customer Agreement shall be paid for at Our then-current time and m, rates unless otherwise agreed in writing by the parties. You will not be liable for any additional expenses Jffed by Us not specified by this Agreement unless You first approve such expenses in writing. Except as set forth in a Customer Agreement, all amounts are due 10 days after invoice date and if not paid within. 1­1;ly days of the invoice date will incur interest at 1.0% per month or the maximum rate under applicable Texa,� :=tv law, if less. You will reimburse Us for out-of-pocket expenses reasonably incurred in rendering any serf°= { l'tlered hereunder, including without limitation, reasonable travel and transportation expenses, lodging, :-neals. You will not be responsible to pay for any taxes based solely on Our income. 6. Disclosure of Conflicts. We hereby warrant to You that We have made full disclosure in writing of any existing or potenti-1 >>f'1'cts of interest related to these services under this Agreement. In the event that any conflicts of interest ar i.- 'xfter the Effective Date of this Agreement, We hereby agree to immediately make full disclosure to You ?z writing. 9. Warranty; Disclaimer of Warranties. We warrant to You that the Subscription Services shall materially comply with any spec -{'; a or Documentation We provide to You so long as the Subscription Services are used in accord I;:'Th the Documentation. We warrant to You that the Subscription Services will be of a professional quality :,; <<onforrn to generally prevailing industry standards. You must give written notice of any breach of this w within thirty (30) days from the date that the services are completed. In such event, at Our option, We w'fl = ^r (a). use commercially reasonable efforts to re-perform the services in a manner that conforms to the or (b) refund the fees paid by the You to Us for the nonconforming services. We will repair , cl ide a workaround for any Subscription Services if We receive a written notice from You within the War ` eriod describing the warranty breach. The "Warranty Period" will be through April 1St following the date th i. icable Subscription Service is first made available for Your use for production purposes, which We may ar ,E scribe as the "Go-Live Date". These are Your exclusive remedies and Our sole and complete obligatioi t v.,= .-Spect to the warranty for the Subscription Services. EXCEPT AS DESCRIBED IN THIS AGREEMENT, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SUBSCRIPTION SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SUBSCRIPTION SERVICES. WE DO NOT WARRANT THAT THE SUBSCRIPTION SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS. WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. You acknowledge that transmission of information via the Internet is not secure, and third parties out of Our control provide access to and maintain Internet connectivity for You to access and use the Subscription Services. We are not responsible for any interception or corruption of information or data during any transmission over the Internet or any related telecommunications network or at Your network access point. We expressly disclaim any and all liability related to Your use of such telecommunications services and related networks, including without limitation any erroneous transmissions, corruption or loss of data, or inability to access the Subscription Services as a result of telecommunications or Your equipment failure. No information contained in any of the Subscription Services or any process related thereto constitutes legal or tax advice. You should obtain legal advice to ensure its compliance with laws applicable to its business. 10. Term. This Agreement shall be effective for a one-year (1) period, beginning November 1, 2015, and expiring October 31, 2016 (the `Initial Term"), unless terminated earlier in accordance with Section 11. After the Initial Term, this Agreement may be extended thereafter for up to two (2) one-year extensions, each a "Renewal Term," upon mutual consent of the parties and payment of the applicable annual subscription fee. 11. Termination. Either of us may terminate this Agreement (i) at any time and for any reason by providing the other party with 30 days written notice of termination, (ii) if the other commits a material breach of this Agreement that remains uncured thirty (30) days after written notice of such breach is delivered to the other, or (iii) immediately if the other assigns any of its assets to its creditors, or voluntarily or involuntarily petitions for the protection of bankruptcy court. Rights of termination are in addition to any other remedies available to the parties, at law or in equity. Upon any termination or expiration of this Agreement (i) All license rights shall immediately terminate and You and Your Users shall immediately cease use of the Subscription Services and We may immediately terminate You and Your Users access to the Subscription Services; and (ii) Amounts owed shall be immediately due and payable. (iii) Refunded amounts shall be determined on a case-by-case basis. The sections of this Agreement intended to survive shall continue past any termination of this Agreement. Upon Your failure to pay any amounts owed under this Agreement when due or material breach of this Agreement, You agree that We may prevent You and Your Users' access to the Subscription Services. We will give You at least fifteen (15) days written notice prior to such suspension or termination. You acknowledge and agree that,'= We will have no liability,for any loss of access to the Subscription Services. We may exercise the rights prior to expiration of the thirty (30) day cure period set forth above. 12. Fiscal Funding Limitation. In the event no funds or insufficient funds are appropriated by You in any fiscal period for any payments due hereunder, You will notify Us of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to You of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 13. Confidentiality. Each of us shall protect the non-public proprietary information and trade secrets of the other ("Proprietary Information") with the same standard of protection and care that it uses for its own Proprietary Information, but 2443685.2 in no event less than reasonable care and diligence. Except as authorized in this Agreement or ,3e in writing by the disclosing party, neither of us shall disclose, publish, transmit or make available all v art of such Proprietary Information except in confidence or a need-to-know basis to our own employe:;.. di third party contractors who have undertaken a written obligation of protection and confidentiality -.st as protective as stated above, and shall not duplicate, transform or reproduce such Proprietary Informs xcept as expressly permitted hereunder. Information will not be considered Proprietary Information to th { that such information: (a) is already known to the receiving party free of any confidentiality obligation k,. l-ne it was obtained; (b) is or becomes publicly known through no wrongful act of the receiving party; (c,1, ;`itfullY received from a third party without restriction and without breach of this Agreement; or (d) is re� to be disclosed by law or court order. In the event that either party is required by law or court order �. ;story authority to disclose any Proprietary Information, such disclosure may be made only after the othc }:y has been notified and has had a reasonable opportunity to seek a court order or appropriate agreemew; ; c,ting disclosure of such Proprietary Information. With regard to Trade Secrets, the obligations in this shall continue for so long as such information continues to be a Trade Secret. With regard to ential Information, the obligations in this Section shall continue for the term of this Agreement and for thr-. 'ears thereafter. 14. Our Indemnity Obligations. We agree to defend You and pay any and all amounts payable under any final judgment or verdic: ,ireed to in a written settlement executed by such, resulting from any third party allegation against ` _ �t the Subscription Services directly infringe such third party's U.S. patent, U.S. copyright or U.S. ;k or misappropriate such third party's trade secret. Should Your use of the Subscription Services be del ed to have infringed, or if, in Our judgment, such use is likely to be infringing, We may, at Our sol­_-z n and discretion: (i) procure for You the right to continue using the Subscription Services, or (ii) repla,, :codify them to make their use non-infringing while achieving substantially similar results. If neither o <bove options is or would be available on a basis that We find commercially reasonable, We may te{° Your license to the Subscription Services, You will cease using the Subscription Services and We will r"o the You any pre-paid and unused fees paid for such infringing Subscription Services. Our obligation this section will be subject to Your providing prompt written notice of the claim; giving Us sole c n,­ of the defense and settlement of the claim (including selection of counsel); providing information reasons, : ilable and assistance reasonably necessary to facilitate the settlement or defense of such claim and, tc �. xtent permitted by law, making any of Your defenses available to Us. 15. Limitations of Liability. WE WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEIV+I " OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TIME, =ii`1GS, DATA, OR GOODWILL, DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE SUS s ION SERVICES OR OTHER PRODUCTS OR SERVICES, OR COST OF REPLACEMENT _ OR SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT IN CONNECTION WITH THE SUBSCRIPTION SERVICES, PRODUCTS, SERVICES OR lISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF T "- OF LIABILITY, EVEN IF SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR ANY DIRECT ,GES FOR BODILY INJURIES OR TANGIBLE PROPERTY DAMAGE PROXIMATELY CAUSED <{ THE MAXIMUM AGGREGATE LIABILITY OF US IN ALL EVENTS SHALL BE LIMITED TO TWICE Ti ?UN T OF FEES YOU PAID TO US UNDER THIS AGREEMENT DURING THE TWELVE PRECEDING THE FIRST CLAIM. 16. Insurance. 16.1 We agree to carry the following insurance coverage with a company that is licensed to dr, s in Texas or otherwise approved by the City. .3685.2 16.2 All applicable policies shall name You as an additional insured. We acknowledge the tern- f=ort Worth shall include Your employees, officers, officials, and agents. 16.3 Commercial General (Public) Liability Insurance to include the following types 0; ;cage: Premises/Operations, Independent contractors, Products/Completed Operations, Personal and Contractual Liability. (Combined Single Limit for Bodily Injury and Property Damage $1,v .: 1 per Occurrence and $2,000,000 Aggregate) 16.3.1 Automobile Liability for Non-Owned vehicles and Hired Vehicles (Combined Single Lirn. f odily Injury and Property Damage $1,000,000 per accident) 16.3.2 Cyber Liability (Errors and Omissions) - $1,000,000 per Claim, $1,000,000 Aggregate 16.4 Our failure to request required insurance documentation shall not constitute a waiver of the 'ance requirement. 17. Right to Audit. We agree that You shall, until the expiration of three (3) years after final payment under this Agri., have access to and the right to examine at reasonable times any directly pertinent books, documents, and records We maintain involving transactions relating to this Agreement at no additional cost to You, - agree that You will have access during normal working hours to all necessary facilities we maintain our s and will be provided adequate and appropriate work space in order to conduct audits in compliar, h the provisions of this section and Your City Charter. You must give Us reasonable advance notice of i n d e d audits. 18. Governing Law; Venue. You acknowledge and agree that all actions or proceedings arising directly or indirectly, in connect O l , out of, related to or from this Agreement shall be litigated, in courts having situs within the United Sta1L : '.=r-grant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth Ivy' 19. Compliance with Applicable Laws, Ordinances, Rules and Regulations. We agrees to comply with all applicable federal, state and local laws, ordinances, rules and regula t q You notify Us of any violation of such laws, ordinances, rules or regulations, We will immediately de.r A-4, and correct the violation. 20. Governmental Powers. It is understood and agreed that by execution of this Agreement, You do not waive or surrender Your governmental powers. 21. General. Our relationship with You is as an independent contractor, and this Agreement shall not be constr " i.,reate any employment relationship, partnership, joint venture, or agency relationship or to authorize E of our companies to enter into any commitment or agreement binding on the other. This Agreen-f a ; . 1i be governed by and construed in accordance with the laws of the State of Texas, without regard rules regarding conflict of laws. This Agreement and all rights and obligations may not in any event ba ;r d in whole or in part by either party without the prior written consent of the other, except our rights an(' may be assigned without consent to another entity in connection with a reorganization, merger, co 3685.2 acquisition, or other restructuring involving all or substantially all of our voting securities an However, We will provide notice to You regarding any reorganization, merger, consolidation, `oll, or other restructuring that would adversely change your Subscription Service or require payment c4 ` -s for services to a different contractor. Any attempted assignment in contravention hereof shall be vc , :, of no effect. This Agreement shall be binding upon, and inure to the benefit of the parties, their legal repro ,dives, successors, and assigns as permitted by this Agreement. Except for any payment obligation,- neither party shall be liable for failure to perform any of its respective obligations hereunder if suc.h is caused by an event outside its reasonable control, including but not limited to, an act of God, aural disaster, utility or telecommunications failure, or changes in governmental regulations. No delay {re in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constit - :elver of such right or any other rights hereunder. No consent to a breach of any express or implied r this Agreement shall constitute a consent to any prior or subsequent breach. No modifications, waivc < , is ons, or amendments to this Agreement shall be effective unless made in writing expressly this Agreement and is signed by handwritten signature by duly authorized representatives of the p- f any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be inc only to the extent of such invalidity, so that the remainder of that provision and all remaining provi<;i; ,.;- ,;r this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. All noti; r. ,wired to be given hereunder shall be given in writing and shall be delivered either by hand, by certify °' with proper postage affixed thereto, or by overnight courier addressed to the signatory at the addr-�: forth below or such other person and address as may be designated from time to time in writ:, �� :such communications shall be deemed received by the other party upon the earlier of actual rece i, f. -,foal delivery.: To The CITY: To CONTRACTOR: City of Fort Worth EMPLOYEE TECH, INC. Attn: Susan Alanis Attn: Michael Weiskirch 1000 Throckmorton Street 1300 Elmwood Avenue Fort Worth, TX 76102-6311 Deerfield, IL 60015 With copy to the City Attorney's Office at same address ,:43685.2.