Professional Services Agreement - Infinisource - City's Flexible Spending Account

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directly related to and necessary for the performance of its obligations under this Agreement (unless required to do so by a court of competent jurisdiction or a regulatory body having authority to require such disclosure). Information revealed or disclosed by a party for any purpose not directly related to and necessary for the performance of such party's obligations under this Agreement shall not be considered confidential information for purposes hereof (a) if, when, and to the extent such information is or becomes generally available to the public without the fault or negligence of the party receiving or disclosing the Information; or (b) if the unrestricted use of such information by the party receiving or disclosing the information has been expressly authorized in writing and in advance by an authorized representative of the other party. For purposes of this Section, confidential information Is any information in written, human -readable, machine-readable or electronically recorded form (and identified as confidential and/or proprietary or words of similar import) and information disclosed orally in connection with this Agreement and identified as confidential and/or proprietary (or words of similar import); and programs, policies, practices, procedures, files, records and correspondence concerning the parties respective businesses or finances. The terms and conditions related to confidentiality in this Agreement shall survive the termination of this Agreement. Employer agrees that it shall not disclose to any other party, nor shall Employer use for its own benefit, the details or written evidence of services provided by Infinisource hereunder without the express prior written consent of Infinisource. Both parties agree to use and disclose Individually Identifiable Health Information, Including Protected Health Information, only as set forth in the H1PAA Confidentiality Appendix Incorporated into and made a part of this Agreement. G. Audits Employer (or its designated agent) may perform no more than one (1) audit of the records specifically related to performance of the parties under this Agreement each year, subject to reasonable prior written notice to Infinisource. Audits must be performed during Infinisource's normal working hours. Infinisource may require Employer or an agent of Employer to sign a confidentiality Agreement provided by Infinisource. Each party agrees to provide reasonable assistance and Information to the auditors. Employer acknowledges and agrees that if it requests an audit, it will reimburse Infinisource for Infinisource's reasonable expenses, including copying and labor costs, in assisting Employer to perform the audit. Each party also agrees to provide such additional information and reports, as the other party will reasonably request. H. Electronic Administrative Services Infinisource may provide certain electronic administrative services as set forth in this Agreement. Infinisource shall not be deemed in default of this Agreement, nor held responsible for any cessation, interruption or delay in the performance of its Obligations to provide such services hereunder due to causes beyond its reasonable control, including, but not limited to, natural disaster, act of God, labor controversy, civil disturbance, disruption of the public markets, terrorism, war or armed conflict, orthe inability to obtain sufficient materials or services required in the conduct of its business, including Internet access, or any change in or the adoption of any law, judgment or decree. I. Payments to Infinisource Notwithstanding any provision herein to the contrary, Employer and Infinisource Intend and agree that any funds submitted by Employer to Infinisource in accordance with this Agreement are paid from Employer's general assets and in no way include any employee contributions. Employer further warrants and represents that such payments are not made to Infinisource from a separate fund, account or trust bearing the name of a Benefit Plan or that of any Covered individuals thereof. Employer agrees that any trust requirements, to the extent applicable, are the sole responsibility of Employer. Infinisource may deposit any amounts received from Employer and/or directly from individuals covered under a Benefit Plan for purposes of paying Benefit Claims or Benefit Plan premiums in a general custodial account maintained by Infinisource on behalf of its employer clients. Any interest earned with respect to funds in the custodial account is retained by Infinisource as an administrative fee in addition to the fees set forth in the Fees section. in addition, any fees due and payable to Infinisource in accordance with this Agreement may be withdrawn from such account in the event that Employer has failed to timely and completely pay a required fee or as otherwise agreed to by the parties. J. Bonding To the extent required by applicable law, Infinisource will maintain a fidelity bond covering all Infinisource's employees who handle plan funds in accordance with the terms of this Agreement. This bond covers the handling of plan funds from dishonesty, theft, forgery or alteration and unexplained disappearance. Any interest earned with respect to funds in the custodial account is retained by Infinisource as an administrative fee in addition to the fees set forth in the Fees and Consideration Appendix. K. Communications All communications between the parties shall be sent by e-mail, confirmed fax, guaranteed overnight mail or similar service with tracing capability or first class United States mail. All communications between the parties are deemed provided when sent except as otherwise set forth In this Agreement. Employer agrees that Infinisource communicates confidential, protected, privileged or otherwise sensitive information to Employer through a named contact designated by Employer ("Designated Person"). As a result, Employer agrees that Employer is responsible for all damages or costs arising from communication to such Designated Person, especially if Employer failed to notify Infinisource that the named contact was no longer a Designated Person. L. Entire Agreement This instrument (including documents specifically incorporated into and made a part of this Agreement by reference) embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein; and this Agreement shall supersede all previous communications, representations or agreements, either verbal or written, between the parties hereto. Failure by Employer or Infinisource to insist upon strict performance of any provision of this Agreement will not modify such provision, render it unenforceable, or waive any subsequent breach. This Agreement shall be construed under the laws of the State of Indiana. If any part, section, clause, or provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other part, section, clause, or provision thereof. M. Amendments, Waivers and Modifications This agreement may be amended only by written agreement of the duly authorized officials of Employer and Infinisource except as otherwise set forth herein. In addition, any failure by Infinisource to enforce a right provided for in this Agreement shall not be considered a waiver of that right unless expressly set forth as such in writing. N. Assignment Employer may not assign any of its rights under this Agreement to any third party without the prior written consent of Infinisource. For purposes hereof, a change of control of more than fifty percent (50%) of Employer's equity ownership (or its ultimate parent's ownership), whether by merger, sale of equity securities or otherwise, shall constitute an assignment of this Agreement by Employer. Infinisource may assign any or all of its rights under this Agreement to any Affiliate of Infinisource.