Loading...
HomeMy WebLinkAboutProfessional Services Agreement - Infinisource - City's Flexible Spending AccountR MN r.��,yWew._.�.-..--�.........-ice= — —• - _ _ -- - - - _ — — — -- -- ow 077-1 1 7--k, Is' lx�,?Kll 71 wl 1111,01ra7; 171 71mmook 47, i o"We Infinisource Service Agreement Section 3: General Terms and Conditions Infinisource Inc., ("Infinisource') owns and operates a service corporation designed to assist employers with various administrative services related to certain benefit plans ("Benefit Plan(s)") sponsored and maintained by Employer (as Identified in Section 3) for the benefit of eligible employees and their eligible dependents covered under the Plan ("Covered Individuals"). Infinisource will only provide the services specifically set forth in this Agreement and chosen by Employer in the Fees and Consideration Appendix (Section 1) attached to and incorporated €n this Agreement. In consideration of the mutual promises set forth herein, it is agreed by and between Infinisource and Employer (the "parties") as follows: A. Commencement of Agreement and Duration This Agreement shall commence on the service effective date (the "Effective Date") assigned by Infinisource, and it shall continue until terminated in accordance with this Agreement. The Appendices incorporated into and made a part of this Agreement may have a later effective date. B. Scope of Agreement; Relationship of Parties This Agreement sets forth certain rights and obligations of Employer and Infinisource, and the terms of this Agreement shall apply to any assignee or successor of Employer and/or Infinisource. The parties intend that this Agreement will establish an independent contractor relationship. Infinisource is not an agent or employee of Employer (for purposes of establishing Principal -Agent relationships), and the employees of Employer are not entitled to any of the benefits of employment granted by Inflnisource to its own employees. Infinisource is not the Plan Administrator or a Plan Fiduciary of the Benefit Plans, as those terms are defined in ERISA. It is understood that Infinisource is free to perform similar services for other employers while this Agreement is effective. Employer is solely responsible for establishment and operation of the Benefit Plans far which Infinisource provides related services in accordance with this Agreement. Employer has sole discretionary authority and responsibility for construing and interpreting the provisions of the Benefit Plans and deciding all questions of fact arising under the Plans. It is Employer's sole responsibility and duty to ensure compliance with all applicable laws and regulations, and Inflnisource's provision of services under this Agreement does not relieve Employer of this obligation. Infinisource is responsible for providing services that comply with applicable law and regulations that assists Employer with its obligations under such Benefit Plans to the extent set forth herein. Subject to Infinisource's responsibilities under subsection O, Employer understands that it is Employer's responsibility to pay any fee or penalty assessed by the Internal Revenue Service, the Department of Labor or other state or federal regulatory agency. Employer acknowledges that Infinisource is not an accounting or law firm and no services provided by Infinisource in accordance with this Agreement will be construed by Employer as tax or legal advice as a result of providing such services. All duties performed by Infinisource will be nondiscretionary in nature and will be performed in accordance with the terms of the Benefit Plans established by Employer and Infinisource's standard operating procedures. Infinisource has no discretionary authority with respect to interpreting the terms of the Benefit Plans. C. Fees In consideration of the provision of services by Inflnisource hereunder, Employer agrees to make payments in the amounts specified in the Fees section herein. Failure to pay fees by the due date (including any grace period) may result in the imposition of interest and penalties and/or termination of the Agreement. Infinisource may change the fees for any reason at the beginning of each 12-month period beginning with the Effective Date provided that notice of such changes is provided to Employer at least 30 days before the beginning of such 12-month period. In addition, Inflnisource may revise the fees during any 12-month period if changes to the Benefit Plans or applicable law are made (regardless of the reason) that materially revise the nature or scope of the services contemplated by this Agreement. Such changes will be effective no earlier than 30 days after Infinisource provides written notice to Employer. D. Authorization Employer hereby authorizes Infinisource to perform any and all acts and deeds necessary to perform the duties as set forth in this Agreement, including but not limited to, enlisting the services of a third party to assist Infinisource with its duties hereunder. Such third parties have agreed to confidentiality requirements consistent with Infinisource's responsibilities under this Agreement. Infinisource will indemnify and hold Employer harmless for all direct monetary damages of a compensatory nature arising from the intentional and grossly negligent acts of the third party related to services provided by the third party in accordance with this subsection D. If Employer requests Infinisource to act in a manner that is inconsistent with the terms of this Agreement and/or applicable law, Infinisource reserves the right to refuse such a request and will comply with such request only to the extent Employer makes such request in writing. E. Information from Employer Infinisource will establish various methods for transferring information to and from Infinisource. Employer must use one of the methods established by Infinisource. Employer will furnish the information determined by Infinisource to be necessary to satisfy its responsibilities under this Agreement. Such information will be provided to Infinisource in the time and in the manner agreed to by Employer and Infinisource. Employer understands that Infinisource cannot accurately perform its duties under this Agreement without accurate and timely information and that Infinisource shall have no liability to Employer or any Covered Individual as a consequence of inaccurate and/or untimely information provided to Infinisource by Employer, its designee, or another existing or former service provider. Inflnisource will have no obligation to credit Employer for any claims expenses or administrative fees incurred or paid to Infinisource as a consequence of Infinisource receiving Inaccurate or untimely information. Employer agrees to pay Infinisource its standard hourly rate set forth In the Fees and Consideration Appendix, if any, for any corrections that must be made as a result of such inaccurate or untimely information. Inflnisource will assume that all such information provided to Infinisource by Employer, its designee or another existing or former service provider is complete and accurate and is under no duty to question the completeness or accuracy of such information. Employer will review any information and/or reports provided by Inflnisource in accordance with this Agreement as soon as possible after Employer has received such information and Employer will notify Infinisource of any errors in such information and/or reports as soon as possible after its review. F. Confidentiality and Disclosure All information, whether printed, written or oral, In answer to an inquiry or voluntarily furnished by Employer or its agents or employees to Infinisource shall be held in confidence by Infinisource and used and disclosed solely for the purposes of fulfillment of the terms of this Agreement. Employer and Infinisource each acknowledge that as a result of entering into this Agreement, each party has, and will continue to reveal and disclose to the other, information that is proprietary and/or confidential to such party. Employer and Infinisource agree that each party will (a) keep such proprietary and/or confidential information of the other party in strict confidence; (b) not disclose confidential information of the other party to any third parties or to any of its employees not having a legitimate need to know such information; and (c) will not use confidential information of the other party for any purpose not sr ,r �t. � 3!.': �� _f �[.-t �i !�;�i)I, '. ,al1,y� �i�;,]' ,i 1,1,.-. `.)[)-. ,.4.. _I .�� � r ...,. ,!a: 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. O. Indemnification and Liability I. Infinisource will exercise the same reasonable care and due diligence in performing its obligations under this Agreement that a prudent administrator in the same industry would exercise (herein after, the "Standard of Care"). it shall not be a breach of the Standard of Care set forth herein if Infinisource acts in accordance with Employer's written instructions. 2. Except as otherwise provided in this Agreement, Infinisource will indemnify and hold Employer, its officers and employees harmless against all direct monetary damages, in connection with any action, suit, administrative proceeding or settlement related to the Benefit Plans for which Infinisource provides administration assistance to the Employer, only to the extent such damages are reasonably ascertainable and are the direct and proximate result of Infinisource's breach of the Standard of Care set forth herein. 3. Employer agrees to indemnify and hold Infinisource, its officers, and employees harmless from and against all direct monetary damages , in connection with any action, suit, administrative proceeding or settlement related to the Benefit Plans for which Infinisource provides administration assistance to Employer to the extent such damages arising from or related to services provided under this Agreement are not the direct and proximate result of Infinisource's breach of the Standard of Care set forth herein. 4. Under no circumstance will either party be liable to the other in a breach of contract claim for any incidental, indirect and/or punitive damages. P. Benefit Plan Claims Infinisource does not insure or underwrite the Benefit Plan liability of Employer and is not financially responsible for the claims and/or expenses incident to the Benefit Plans. Infinisource has no duty or obligation to defend any legal action or proceeding brought to recover benefits under the Benefit Plans; however, Infinisource will provide to Employer and/or Employer's legal counsel, upon request and subject to any limitations described in this Agreement, any documentation in Infinisource's possession that may relate to such claim for benefits and/or expenses. Q. Termination of Agreement Either party may terminate all or part of this Agreement for any reason effective no earlier than 60 days after written notice is provided to the other party. This Agreement will automatically terminate on the earliest of the following dates. I. Twenty-four (24) months after the service effective date as described in Section 3.A. 2. The date that all Benefit Plans for which related services are provided under this Agreement have been terminated. 3, If the reason for termination is the failure by Employer to pay a fee by the due date(including any grace period), termination of this Agreement will be retroactively effective as of the last day of the period for which a fee was properly made in accordance with this Agreement, except as otherwise provided in writing by Infinisource. 4. The date that this Agreement or all of the Benefit Plans for which related services are provided in accordance with this Agreement become in violation of applicable law. Termination of this Agreement shall not terminate the rights or obligations of either party arising prior to the effective date of such termination. The indemnity and confidentiality provisions of this Agreement shall survive its termination. R. Recordkeeping Infinisource will maintain the usual and customary books, records and documents, including electronic records in Infinisource's possession, for the greater of the term of this Agreement plus 30 days or eight years following the date the record was created or received by Infinisource. During this period, Employer has the right of continuing access to these documents, and as such Infinisource will deliver copies of all such books, records and documents in its possession to Employer or its designee as soon as possible but no later than 30 days after Employer has provided a written request for such documents. Employer shall be required to pay Infinlsource's reasonable charges for transportation or duplication of such records. Infinisource Service Agreement - HIPAA Confidentiality Appendix This HIPAA Confidentiality Appendix ("Appendix") is by and between Employer in its individual capacity and on behalf of its group health plans) ("Plan(s)") and Infinisource, in its capacity as service provider to both the Plan and Employer. This Appendix is incorporated into and made a part of the Infinisource Service Agreement ("Agreement") between Employer and Infinisource. The effective date of this Appendix is the effective date of the Agreement. This Appendix is effective until terminated as set forth below or the Agreement is terminated in accordance with the terms of the Agreement. A. Scope and Purpose Generally, this Appendix is intended to comply with the privacy, security, breach notification and enforcement rules at 45 CFR Parts 160 and 164 ("HIPAA Rules"), issued pursuant to the Health Insurance Portability and Accountability Act ("HIPAA"), as amended by the Health information Technology for Economic and Clinical Health Act ("HITECH Act"), The parties agree and acknowledge that this Appendix is intended to serve the same purposes as a Business Associate Agreement as that term is defined in the HIPAA Rules. In agreeing to this Appendix, both Employer and Infinisource acknowledge that the Plan and Employer are separate and distinct entities and that Infinisource may perform services both on behalf of the Plan and also on behalf of Employer in its capacity as Plan Sponsor. Infinisource is considered a Business Associate under the HIPAA Rules only with respect to services it performs on behalf of the Plan, which is a Covered Entity under HIPAA, if any, and an Agent of Employer with respect to services it performs on behalf of Employer/Plan Sponsor, if any. This Appendix sets forth the responsibilities of Infinisource in its capacity as a Business Associate and in its capacity as Agent of Employer, as required by HIPAA Rules. See 45 CFR §164.504(e) & (f) for more information. This Appendix also sets forth Employer's responsibilities under this Appendix. Infinisource is referred to as Agent of Employer in this Appendix for the sole purpose of identifying the distinction between its role as a service provider to the Plan and as a service provider to Employer related to the use and disclosure of health information. The use of the term "agent" is not intended to define the legal relationship between Employer and Infinisource. A reference in this Appendix to a section in the HIPAA Rules means the section as in effect or as amended. Any ambiguity in this Appendix will be interpreted to permit compliance with the HIPAA Rules. B. Definitions The following terms used in this Appendix have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information ("PHI"), Required by Law, Secretary, Security incident, Subcontractor, Unsecured PHI and Use. Other capitalized terms used but not defined in this Agreement have the same meaning asthose terms are defined in the HIPAA Rules. Otherdefined terms are as follows: 1. "Business Associate" has the same meaning as the term "business associate" at 45 CFR §160.103. 2. "Covered Entity" generally has the same meaning as the term "covered entity" at 45 CFR §160.103. Vlll:;,0611qi. 3. "Representative" includes Business Associate's managing members (as applicable), trustees, general partners (as applicable), financial and legal advisors and all other individuals, including employees, who are performing functions related to the subject matter of this Agreement. C. Responsibilities of Business Associate 1. Scope of Responsibilities. All services performed by Infinisource in accordance with the Agreement other than those set forth in Section D below will be considered performed on behalf of the Plan and are subject to the provisions set forth in this Section C. 2. Confidentiality. At all times, both during and after the termination of its relationship with the Plan for any reason, Business Associate and its Representatives will not use, disclose or give others any of the PHI in any manner whatsoever, except as provided in Sections C.3 and CA of this Appendix, and will hold and maintain the PHI in confidence. Business Associate will ensure that appropriate safeguards are in place to prevent the use or disclosure of the PHI otherwise than as permitted by this Agreement or HIPAA. 3. Permitted Uses and Disclosures: a. Except as otherwise limited in this Appendix, Business Associate may use or disclose PHI, provided that the use or disclosure of PHI would not violate the HIPAA Rules, as follows: (€) as permitted or required in this Appendix and in the Agreement; (€1) as otherwise permitted by the HIPAA Rules; (III) as Required by Law; (iv) for the proper management and administration of Business Associate; (v) to fulfill any present or future legal responsibilities; (vi) for Data Aggregation services, only as permitted or required by this Agreement or the HIPAA Rules; or (0) any use or disclosure of PHI that has been de -identified as defined by the Privacy Security/Security Rules. b. Business Associate shall document any disclosures of PHI and the information related to those disclosures to respond to an accounting of disclosures of PHI if requested by Employer in accordance with the HIPAA Rules and to provide the documentation to the Plan as it may request from time to time. c. If Business Associate maintains PHI in a Designated Record Set, Business Associate shall provide access to the PHI to the Individual or the Individual's designee as necessary to satisfy the Plan's obligations under the HIPAA Rules. Business Associate shall amend PHI that it maintains in a Designated Record Set as directed or agreed to by the Plan and to incorporate any amendments to PHI. d. Business Associate may disclose PHI to its agents or Subcontractors with a bona fide need to know the PHI, but only if, prior to the disclosure, these agents or Subcontractors will agree to the same restrictions, conditions and requirements that apply to Business Associate with respect to PHI. e. Business Associate may disclose PHI to other third party vendors provided that Business Associate has received instruction to do so from Employer. Business Associate may assume upon instruction from Employer that the third party vendor has properly entered Into a Business Associate Agreement where required. f. Business Associate shall make reasonable efforts to use or disclose no more than the minimum amount of PHI necessary to accomplish the intended purpose. The Minimum Necessary standard will not apply in these situations: • Disclosures to or requests by a healthcare provider for treatment • Uses or disclosures made to an Individual regarding the Individual's PHI or as authorized by the Individual In writing • Disclosures to the Secretary or as required by law • Uses or disclosures required for compliance with HIPAA 4. Required Uses and Disclosures. Business Associate may disclose the PHI revealed to it by the Plan only to the extent the disclosure is required by Law or is in compliance with a court order. Business Associate shall make its internal practices, books and records, relating to the use and disclosure of PHI received from or created or received by Business Associate on behalf of the Plan, available to the Secretary for purposes of determining the Plan's compliance with the HIPAA Rules. S. Required Notice to Business Associate. In accordance with HIPAA, and to the extent that the limitation may affect Business Associate's use or disclosure of PHI, Employer, acting on behalf of the Plan, shall notify Business Associate of any limitation(s) in its notice of privacy practices, including but not limited to any change in, or revocation of, permission by an Individual to use or disclose PHI. Employer, acting on behalf of the Plan, shall also notify Business Associate of any restriction to the use or disclosure of PHI that It has agreed to in accordance with HIPAA, to the extent that the restriction may affect Business Associate's use or disclosure of PHI. The Plan shall not request Business Associate to use or disclose PHI in any manner that would violate the HIPAA Rules if done by the Plan, except for Data Aggregation or management and administration and legal responsibilities of the Business Associate, G. Required Notice to the Plan. Business Associate shall notify the Plan of any use or disclosure of PHI otherwisethan as provided by this Agreement, including but not limited to any Security Incident of which it becomes aware, as soon as possible but no later than within ten days of becoming aware of the prohibited use of disclosure. Notice to one of the employees designated by Employer in accordance with Section C.7 is considered notice to the Plan. 7. Disclosure to Employees of Employer: a. When Business Associate discloses PHI to Employer, the Plan acknowledges and agrees that Business Associate shall only disclose PHI to the employees who are identified in the Notice of Privacy Practices distributed by Employer as having access to PHI and employees whom the Employer has designated as HIPAA contacts. The Plan agrees and acknowledges that these disclosures are solely for purposes of carrying out Plan administration functions that Employer performs for its Plan. b. Employer shall timely notify Business Associate in writing of any changes to the names or positions of employees listed in the Notice of Privacy Practices and changes to a HIPAA designated contact. Business Associate has no duty to inquire whether Employer's list of designated HIPAA contacts is accurate or up to date. c. Employer shall indemnify and hold harmless Business Associate (and Its employees) for any and all liability Business Associate may Incur as a result of any improper use or disclosure of PHI by Employer or Its employees. Business Associate shall Indemnify and hold harmless Employer (and its employees) for any and all liability Employer may incur as a result of any improper use or disclosure of PHI by Business Associate. 8, Electronic Data Interchange (EDI). Business Associate agrees to comply with the EDI standard transaction requirements in the HIPAA Rules to the extent applicable. 9. Security. Business Associate shall: a. Implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of electronic PHI that it creates, receives, maintains or transmits on behalf of the Plan and prevent use or disclosure of electronic PHI other than as provided for by this Appendix. 31� .4EYII,E_,EEEI, ., . t , ,. .: :.0 y EJr„i � ii 4.EH37.1 E [.. 3. C;41f1 All, b. Ensure that any agent or Subcontractor to whom it provides electronic PHI agrees to implement reasonable and appropriate safeguards to protect electronic PHI. 10. Additional Requirements from the HITECH Act. Business Associate shall: a. Comply with the HIPAA Rules in the same manner that a Covered Entity is required to comply in the performance of one or more of the Plan's HIPAA obligations. b. Refrain from directly or indirectly receiving remuneration in exchange for any PHI of an Individual unless specifically allowed by HIPAA, c. Comply with the marketing limitations in HIPAA. d. Comply with any required accounting of PHI disclosures as necessary to satisfy the Plan's obligations under the HIPAA Rules. e. Notify the Plan of a Breach of Unsecured PHI, following the discovery of the Breach, without unreasonable delay and in no case later than 60 calendar days after discovery of the Breach. Breaches are treated as discovered on the first day on which the Breach is known to Business Associate or, by exercising reasonable diligence, would have been known to Business Associate. The Plan agrees that all other Breach notifications (including but not limited to disclosures to individuals, the Department of Health and Human Services and/or prominent media outlets) are the responsibility of the Covered Entity, as specified in the HITECH Act. D. Responsibilities of Agent of Employer 1. Scope of Responsibility. Infinisource performs the services set forth in Section D.2 on behalf of Employer as agent of Employer to assist Employer with Employer's obligations related to the Plan. 2. Scope of Services. The following services are performed by Infinisource as Agent of Employer: a. Services that facilitate and report the enrollment and disenrollment of employees and their eligible dependents in the Plan. b. Services that facilitate the payment of premiums under the Plan. 3. Scope of Responsibilities of Agent of Employer. Infinisource, as Agent of Employer, agrees to the same conditions and restrictions set forth in Sections C.2 through C.10 to the extent the information received from Employer originated from the Plan (i.e., the information was once PHI). With regard to all other individual identifiable health information, Infinisource agrees to use its best efforts to protect the confidentiality of the information and to only use the Information as necessary to perform services referenced in Section D.2 or as otherwise required or permitted by applicable law. 4. Electronic Data Interchange. Employer acknowledges that Agent of Employer is under no obligation to comply with the EDI standard transaction requirements set forth in 45 CFR Parts 160 and 162 and the security rules set forth in 45 CFR §164.302 et seq. with respect to services set forth in Section D,2, E. Termination 1. Termination for Cause. If Business Associate violates a material term of this Appendix, Employer may choose to do one of the following: a. Provide an opportunity for Infinisource to cure the breach or end the violation within a reasonable amount of time and terminate this Appendix and/or this Agreement if Infinisource does not cure the breach or end the violation within the time specified by Employer. b. Immediately terminate this Appendix and/or this Agreement if cure is not possible. 2. Business Associate Obligations upon Termination. a. Upon termination of this Appendix and/or this Agreement, Infinisource shall return to the Plan or destroy all PHI received from the Plan, or created, maintained or received by Infinisource on behalf of the Plan in any form except to the extent determined infeasible as set forth in Section 2b. This provision shall apply to PHI that is in the possession of Subcontractors or agents of Infinisource. Infinisource shall retain no copies of the PHI. b, If Infin€source determines, in its sole discretion, that returning or destroying the PHI is infeasible, Infinisource shall notify the Plan of the conditions that make return or destruction infeasible. In that event, Infinisource shall: • Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities. • Return to the Plan or destroy the remaining PHI that Business Associate still maintains in any form. • Continue to use appropriate safeguards and comply with the HIPAA Rules with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section E, for as long as Business Associate retains the PHI. • Refrain from using or disclosing the PHI retained by Business Associate other than for the purposes for which the PHI was retained and continue to comply with the permitted uses and disclosures that applied prior to termination of this Appendix. • Return to the Plan or destroy the PHI retained by Business Associate when no longer needed for Its proper management and administration or to carry out its legal responsibilities. 3. Survival. The obligations of Business Associate under this Section E shall survive the termination of this Appendix and/or this Agreement. Infinisource Service Agreement Fringe Benefit Plan Administration Service Appendix Employer has established a Code §125 Cafeteria Plan ("Cafeteria Plan"), a Code §105 Health Flexible Spending Account ("Health FSA") and/or a Code §129 Dependent Care Flexible Spending Account ("Dependent Care FSA"). In addition, Employer may have established one or more Code §105 Health Reimbursement Arrangements ("HRAs") as described in IRS Notice 2002-45, or a Code §132 Qualified Transportation Fringe Benefit Plan. All such plans shall be referred to collectively as the "Plans'. Employer has asked Infinisource to assist it with its administrative obligations under one or more of the Plans. This Service Appendix describes the rights and responsibilities of Infinisource and Employer with respect to various administrative services provided by Infinisource with respect to the Plans. Infinisource will also provide current and updated Information to Employer relating to compliance with IRS Code Sections 105, 125, 129 and/or 132, including any changes or modifications in compliance requirements, notification language and related steps necessary to act in accord with said changes or modifications. These notifications will be based on Infinisource interpretation as a consultant/benefits administrator of applicable law and should not be construed as tax or legal advice. The rights and obligations outlined below apply only to the extent chosen by Employer on the Fees and Consideration Appendix. This Service Appendix is incorporated into and made a part of the Service Agreement (the "Agreement"). The effective date of this Service Appendix Is the effective date of the Agreement or, if later, the date assigned by infinisource as defined in the Infinisource Client Welcome Letter. The responsibilities of the parties set forth in this Service Appendix are in addition to any responsibilities set forth in the Agreement. If there is a conflict between this Service Appendix and the Agreement, the Agreement controls. A. Responsibilities of Infinisource 1. - -r,._ i `; ' . '-; i ,�� ( A . '- -! i� ,�„ is ' i ;rJf-;. ' - i'.; �-. 1 .1lil ) Lli., 1 1. it 1: �"'1 I I t, l .. � ,,c I"':�„ 1. Adoption of the Plan(s). Infinisource shall assist Employer in evaluating the benefits, terms and conditions of the Plan(s), and shall assist Employer in selecting available benefits and funding options. Infinisource shall be under no obligation to specify benefits or funding options. 2. Communication of Plan to Eligible Employees (FSA Plans only). Infinisource will provide communication and enrollment materials for downloading via Infinisource website at no additional charge. Enrollment "kits" are available for an additional fee as outlined in the Fees and Consideration Appendix. Infinisource will conduct meetings and/or provide audiovisual materials or presentations (for an additional fee as outlined in the Fees and Consideration Appendix), at which time the benefits, terms and conditions of the Plans dictated by Employer shall be described to the eligible employees. 3. General administration of Plan(s). Infinisource will keep a record of each Plan participant and maintain separate notational bookkeeping records and accounts based on the participants' Reimbursement Account elections for each Plan Year. The records shall include the level of coverage, reimbursements and account balances. Infinisource will process midyear election changes under the Plans in accordance with the terms of the Plans and applicable law. Infinisource will examine each claim for benefits under the Plan in accordance with the claim review procedures of the Plans and applicable law, take reasonable steps to verify its validity, compute the amount payable and either disburse the benefit due under the Plan, to the extent Employer has provided sufficient funds as required by this Appendix, or deny the claim In accordance with the provisions of the Plan and the applicable rules and regulations. Infinisource will provide each participant submitting a claim with an explanation of payment or denial in accordance with the Plan's claim review procedures and applicable regulations and an explanation of the year-to-date activity in the participant's account. In the event this Agreement is terminated, all requests for reimbursement submitted to Infinisource after the effective date of termination will be returned to Employer, or at Employer's request, submitted to another third party. Infinisource will have no further responsibility with respect to such claims submitted after the effective date of termination. 4. Nondiscrimination Testing. Infinisource makes available the following nondiscrimination testing required under the Code (collectively referred to as the "Nondiscrimination Tests") with respect to the Plan (s) (to the extent Infinlsource provides related administrative services): (a.) Key Employee Concentration Test required under Code §125. (b.) The 55% Average Benefits Test required under Code §129. (c.) The 25%Shareholder Concentration Test required under Code §129. (d.) The Highly Compensated Individual Eligibility and Benefits Test required under Code § 105. To the extent necessary, Infinisource will prompt Employer to complete the Nondiscrimination Tests. Employer will complete the Nondiscrimination Tests and Infinisource will notify Employer if, based on Infinisource interpretations, any of the tests fall to pass. The results will be based on information received from Employer and/or any information obtained and maintained by Infinisource in the course of performing services required under this Agreement, including but not limited to this Appendix. Infinisource will conduct additional Nondiscrimination Tests required under Code §125, §105 and/or §129 only upon Employer's written request. 5. Plan Documents and Summary Plan Descriptions (SPDs). Based on Employer's completion of a plan design worksheet, Infinlsource shall prepare the text for the initial drafts of the required Plan document(s) and SPD(s) pursuant to information provided by Employer. 6. Form 5500 Data. Infinisource will assist Employer with information to complete Form 5500 for the Health FSA and/or HRA, if applicable, by providing any information maintained in Infinisource database that is required to be included on the Form 5500 with respect to such reimbursement accounts to the extent requested in writing by Employer. 7. Positive Pay Tool. Positive Pay is an automated check fraud detection tool required by some banks. Positive Pay matches key information for each check against a special electronic file provided by Infinisource. This requires special work between Infinisource and its software vendor on an initial and ongoing basis. If Employer's bank requires use of Positive Pay for its banking activity, Infinlsource shall provide the files as and when required, provided that Employer pays the additional fees set forth in the Fees and Consideration Appendix. In the alternative, Employer may require all participants to be reimbursed via direct deposit, thereby eliminating the need for the Positive Pay tool. B. Responsibilities of Employer Employer is responsible for all Plan administration not set forth above, including but not limited to the following: 1. Adoption and Maintenance of the Plans. Employer has the exclusive right and duty, however, to select, implement, amend or modify benefits or funding options adopted in connection with the Plans. 2. General Administration. Employer is responsible for establishing eligibility criteria and determining which employees and/or dependents have met those criteria. Employer will establish a claims appeal procedure for handling disputes regarding claims for benefits or the payment of benefits. Although Infinisource may process claims and handle the initial determination and up to the first level of appeal, Employer has final authority as to the denial or payment of a claim on appeal and is the claim fiduciary responsible for handling the final appeal level set forth under the Plan. 3. Information Provided to Infinisource. Employer shall provide the following information to Infinisource: (a.) Enrollment forms (or enrollment information) for all new participants added to the Plan and a list of participants terminated or deleted from the Plan, including their date of termination. (b.) A confirmation of payroll deductions (contributions) on a per pay period basis for the Flexible Benefit Plan and the Qualified Transportation Fringe Benefit Plan, if applicable. (c.) All other information relating to the Plans and its participants necessary for Infinisource to perform its duties under this Agreement. (d.) With respect to a Code §132 Qualified Transportation Fringe Benefit Plan, information concerning Employer's ability to make cash reimbursements for transit expenses in accordance with Treas. Reg.1.132-9 Q-16. 4. Plan Documents and SPDs. It shall be Employer's obligation to complete the plan design worksheet completely and accurately and ensure that draft documentation provided by Infinisource complies with the applicable laws and regulation in light of the facts and circumstances surrounding Employer and its particular plans and plan designs. 5. Deposit of Funds. Employer shall make sufficient funds available to pay all eligible claims presented to Infinisource in accordance with one of the following methods; however, if claims are paid pursuant to an electronic payment card, Employer must make funds available in accordance with the Electronic Payment Card Service Appendix incorporated into and made a part of this Agreement. Employer will make sufficient funds available from its general assets for amounts allocable to eligible reimbursement benefits under its Plans by depositing funds in amounts specified by Infinisource from time to time in an Employer -owned and named account (the "Account") at a financial institution selected by Employer and grant to Infinisource withdrawal authority over the Account sufficient to enable it to pay benefits under Employer's Plans. Infinisource will provide Employer with monthly check registers for funding and/or reconciliation purposes. Employer bears sole responsibility for any fees imposed with respect to the Account by the financial institution. If, at anytime, the amount of reimbursement benefits payable under the applicable plan exceeds the amount deposited by Employer in the Account, Employer shall transfer an amount necessary to the Account to fulfill its reimbursement obligations before any further reimbursement benefit payment is made. Employer shalt pay Infinisource an additional fee for each ACH transfer that fails due to any reason within Employer's control. Infinisource is under no obligation to advance funds on behalf of Employer. 6. COBRA Notification. Employer shall be responsible for complying with its obligation under the Consolidated Omnibus Budget Reconciliation Act (COBRA) with respect to the Plans. No assistance will be provided by Infinisource except to the extent set forth In a separate administrative service appendix attached and incorporated into the Agreement. 7. Execution of Documents. Employer shall ensure that the Plan Document is properly executed and shall provide a copy of the SPD to all Plan participants in accordance with applicable law. 8. Reviewing Reports. Employer is responsible for reviewing the reports submitted by Infinisource and notifying Infinisource of any errors of which it is aware within a reasonable period of time after reviewing them. 9. Positive Pay Tool. Employer Is responsible for cooperating with Infinlsource in setting up and maintaining all relevant information related to Positive Pay. 10. Additional Transportation Plan Solution. For the Code §132 Qualified Transportation Fringe Benefit Plan, Infinisource is making available to Employer an additional, online commuter benefit solution through an Infinisource vendor. If Employer requests this additional solution, Employer agrees to reimburse Infinisource the cost of the administrative fee that the vendor charges Infinisource. Infinisource Service Agreement - Electronic Payment Card Service Appendix Employer has asked Infinisource to assist it with its administrative obligations under one or more benefit plans ("the Plan") for which an electronic payment card (the "Card") is available. Infinisource has contracted with one or more third parties to make the "Card" available to Employer for use by Plan participants for the purpose of facilitating direct payment of eligible expenses under the Plan. This Service Appendix describes the rights and responsibilities of Infinisource and Employer with respect to use of the Card made available by Infinisource. The rights and obligations outlined below apply only to the extent chosen by Employer on the Fees and Consideration Appendix. This Service Appendix is incorporated into and made a part of the Service Agreement (the "Agreement"). The effective date of this Service Appendix is the effective date of the Agreement or if later, the effective date of the Fees and Consideration Appendix on which these services are chosen by Employer. The responsibilities of the parties set forth in this Service Appendix are in addition to any responsibilities set forth in the Agreement. If there is a conflict between this Service Appendix and the Agreement, the Agreement controls. A. Responsibilities of Infinisource 1. Infinisource will make the Card available to Employer and Plan participants at all times during the course of this Agreement except as otherwise set forth herein. Use of the Card will be subject to the terms of this Agreement and any cardholder agreement delivered with the Card. 2. Infinisource may engage the services of one or more third parties ("Third Party Service Provider") in order to comply with its obligation to provide the Card during the term of this Agreement. Infinisource agrees to ensure that any third party with whom Infinisource contracts to provide such services agrees to protect individually identifiable health information in the same manner that infinisource has as set forth in the HIPAA Confidentiality Appendix attached hereto. 3. Infinisource will provide administrative services to Employer and participants related to use of the Card, including activating and deactivating Cards, responding to participant inquiries and providing appropriate notices regarding Participant accounts and actions taken in relation thereto (in the same manner set forth in the Fringe Benefit Plan Administration Service Appendix). 4. Infinisource agrees to reasonably ensure compliance with proper use of the Card and take whatever action is necessary to investigate and resolve errors in Card transactions asserted by participants within ten (10) business days of receipt of notice. Infinisource will promptly cancel any Card reported to Infinisource as lost or stolen. However, Infinisource Is not responsible for costs and/or damages associated with lost or stolen Cards that are not properly reported as such bythe Plan participant. S. Infinisource or Third Party Service Provider will make available a noninterest bearing account into which Employer must deposit the Minimum Balance as set forth below. 6. Infinisource agrees to comply with applicable laws regarding handling and privacy of account and transaction information and to operate the Card program in accordance with published IRS guidance applicable to Card processing of eligible expenses. In accordance with the applicable guidance, the Card will be limited to certain merchants and merchant category codes. The purchase of items under a qualifying merchant category code does not necessarily indicate that the expense is an eligible expense (as defined in the Plan). If the Card is used to purchase an ineligible expense, Infinisource will make reasonable attempts to obtain repayment from the participant or Infinisource will attempt to offset the ineligible expense with future claims filed by the participant under the Plan; however, Infinisource is not liable to employer for any ineligible expenses not repaid by the participant or not offset by future claims to the extent such ineligible expense did not result from Infinisource negligence. 7. Infinisource will deactivate any Card upon notification by Employer of termination of employment or when Infintsource or the Third Party Service Provider determines in its sole discretion that the Card has been improperly used. 8. Infinisource and the Third Party Service Provider are not responsible for any errors that result from inaccurate and/or Incomplete data provided by Employer. B. Responsibilities of Employer 1. Employer acknowledges that any and all data or information necessaryto provide the Card program will reside on servers owned by or operated on behalf of Infinisource or its third party vendors. 2. Employer hereby grants to Infinisource and the Third Party Service Provider the right to receive, process and perform all required services in accordance with information and data that is submitted to Infinisource in order for Infinisource to provide the Card program. Employer further grants to Infinisource and the Third Party Service Provider the right to derive and use aggregate and statistical data from such information and data; however, any aggregate or statistical data arising from Protected Health Information as defined in the HIPAA Confidentiality Agreement will be de -identified. 3. Employer agrees to only use the participant website made available by Infinisource for its intended purposes, and will keep such website free from (i) any intellectual Property that contains profane graphics or text, (i1) advertisements for adult entertainment or escort services or (iii) any click -through to one or more websites that feature or otherwise contain adult entertainment or escort services. Employer acknowledges that all right, title and 0, ° IEri-. interest in and to the website are the sole property of Infinisource and its licensors. Nothing in this Agreement will be construed to give Employer any rights in such website. 4. As set Forth above, Employer agrees to deposit into the account established by Infinisource or the Third Party Service Provider (the "Deposit Account') the "Minimum Balance". The Minimum Balance means the balance that Employer will deposit and maintain in the Deposit Account as determined by Infinisource, based on Third Party Service Provider's requirements. A Minimum Balance will be maintained and calculated separately for each Plan. In the event that Card transactions reduce the balance in the Deposit Account to an amount less than the Minimum Balance, Infinisource or Third Party Service Provider will provide Employer notice of such balance and will withdraw additional funds from the account by electronic funds transfer (ACH), in an amount sufficient to restore the account to the Minimum Balance to the Deposit Account. in the event sufficient funds are not available to restore the Deposit Account to the Minimum Balance within 24 hours of such notice, Infinisource may immediately shut down the Deposit Account and all associated Cards until the Minimum Balance is restored. Infinisource may increase the Minimum Balance at its discretion should the balance of the Deposit Account fall below the Minimum Balance. 5. Employer warrants that all contributions made to the Deposit Account as set forth herein consist of Employer contributions only and do not consist of employee contributions. 6. Employer hereby grants to Infinisource and its Third Party Service Provider a non-exclusive, non -transferable, royalty -free license to use Employer's trademarks in connection with the Card program, in the forms and formats approved by Employer on: (i) the Cards; (ii) periodic statements; and (ii€) other communications to Plan participants with respect to the Accounts. 7. Employer acknowledges that participants must comply with the Third Party Service Provider's terms and conditions and the legal requirement relating to Card usage, including but not limited to substantiation of FSA claims. 8. Employer agrees that the name of the financial institution which issues the Card, a website Uniform Resource Locator and a customer service phone number will be printed on all Cards. Employer is responsible for all costs incurred by Infinisource resulting from improper use of the Card. 3."A Ii .�9 �IL)�...., ,.. . 1 i ... E� � 3 ' 1 � 3iNh_ .� �L�1fO>i5( -.! I 11i>fi _ Eli ,_f.-',I 77 , 0