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CONTRACT PURSUANT TO RFP
This contract, also referred to as the master contract or master services agreement (“Agreement”) for
services pursuant to RFP No. 210204, is entered into this 20th day of October 2021 by and between
Maricopa County (“County” or “Employer”), a political subdivision of the State of Arizona, and WEX Health,
Inc. dba WEX, a North Dakota corporation (“Contractor” or “WEX”) for the purchase of COBRA and FSA
administrator services.
1.0
CONTRACT TERM
This contract is for a term of five years and two months, beginning on the 20th of October 2021, and
ending the 31st of December 2026. Upon contract award Contractor is authorized to begin
implementation of the services identified herein with a ‘Go-Live’ date of or around March 21, 2022
at which time Contractor services will begin, and the County will be responsible for payment per
the terms of the contract.
2.0
OPTION TO RENEW
The County may, at its option and with the concurrence of the Contractor, renew the term of this
contract up to a maximum fifteen additional year(s), (or at the County’s sole discretion, extend the
contract on a month-to-month basis for a maximum of four months after expiration). The Contractor
shall be notified in writing by the Office of Procurement Services of the County’s intention to renew
the contract term at least 60 calendar days prior to the expiration of the original contract term.
3.0
CONTRACT COMPLETION
In preparation for contract completion, the Contractor shall make all reasonable efforts for an
orderly transition of its duties and responsibilities to another provider and/or to the County. This
may include, but is not limited to, preparation of a transition plan and cooperation with the County
or other providers in the transition. The transition includes the transfer of all records and other data
in the possession, custody, or control of the Contractor that are required to be provided to the
County either by the terms of this agreement or as a matter of law. The provisions of this clause
shall survive the expiration or termination of this agreement.
4.0
PRICE ADJUSTMENTS
Any requests for reasonable price adjustments must be submitted 60 calendar days prior to
contract expiration. Requests for adjustment in cost of labor and/or materials must be supported
by appropriate documentation. The reasonableness of the request will be determined by comparing
the request with the Consumer Price Index or by performing a market survey. If County agrees to
the adjusted price terms, County shall issue written approval of the change and provide an updated
version of the contract. The new change shall not be in effect until the date stipulated on the
updated version of the contract.
5.0
PAYMENTS
5.1
As consideration for performance of the duties described herein, County shall pay
Contractor the sum(s) stated in Exhibit A – Pricing Sheet.
5.2
Payment shall be made upon the County’s receipt of a properly completed invoice.
SERIAL 210204-RFP
5.3
INVOICES
5.3.1
The Contractor shall submit one legible copy of their detailed invoice before
payment(s) will be made. Incomplete invoices will not be processed. At a
minimum, the invoice must provide the following information:
•
Company name, address, and contact information
•
County bill-to name and contact information
•
Contract serial number
•
County purchase order number
•
Project name and/or number
•
Invoice number and date
•
Payment terms
•
Contract item number(s)
•
Description of purchase (product or services)
•
Pricing per unit of purchase
•
Extended price
•
Total amount due
5.3.2
Labor, services, and maintenance must be billed as a separate line item.
5.3.3
Problems regarding billing or invoicing shall be directed to the department as listed
on the purchase order.
5.3.4
Payment shall only be made to the Contractor by Accounts Payable through the
Maricopa County Vendor Express Payment Program. This is an electronic funds
transfer (EFT) process. After contract award, the Contractor shall complete the
Vendor Registration Form accessible from the County Department of Finance
Vendor
Registration
Web
Site
https://www.maricopa.gov/5169/Vendor-
Information.
5.3.5
Discounts offered in the contract shall be calculated based on the date a properly
completed invoice is received by the County.
5.3.6
EFT payments to the routing and account numbers designated by the Contractor
shall include the details on the specific invoices that the payment covers. The
Contractor is required to discuss remittance delivery capabilities with their
designated financial institution for access to those details.
5.4
APPLICABLE TAXES
5.4.1
It is the responsibility of the Contractor to determine any and all applicable taxes
and include those taxes in their proposal. The legal liability to remit the tax is on
the entity conducting business in Arizona. Tax is not a determining factor in
contract award.
5.4.2
The County will look at the price or offer submitted and will not deduct, add, or alter
pricing based on speculation or application of any taxes, nor will the County
provide Contractor any advice or guidance regarding taxes. If you have questions
regarding your tax liability, seek advice from a tax professional prior to submitting
your bid. You may also find information at https://www.azdor.gov/Business.aspx.
Once your bid is submitted, the offer is valid for the time specified in this solicitation,
regardless of mistake or omission of tax liability. If the County finds overpayment
of a project due to tax consideration that was not due, the Contractor will be liable
to the County for that amount, and by contracting with the County agrees to remit
any overpayments back to the County for miscalculations on taxes included in a
bid price.
SERIAL 210204-RFP
5.4.3
Tax Indemnification: Contractor and all subcontractors shall pay all Federal, State,
and local taxes applicable to their operation and any persons employed by the
Contractor. Contractor shall, and require all subcontractors to, hold Maricopa
County harmless from any responsibility for taxes, damages, and interest, if
applicable, contributions required under Federal and/or State and local laws and
regulations, and any other costs including: transaction privilege taxes,
unemployment
compensation
insurance,
Social
Security,
and
workers’
compensation. Contractor may be required to establish, to the satisfaction of
County, that any and all fees and taxes due to the City or the State of Arizona for
any license or transaction privilege taxes, use taxes, or similar excise taxes are
currently paid (except for matters under legal protest).
6.0
AVAILABILITY OF FUNDS
6.1
The provisions of this contract relating to payment for services shall become effective when
funds assigned for the purpose of compensating the Contractor as herein provided are
actually available to County for disbursement. The County shall be the sole judge and
authority in determining the availability of funds under this contract. County shall keep the
Contractor fully informed as to the availability of funds.
6.2
If any action is taken by, any State agency, Federal department, or any other agency or
instrumentality to suspend, decrease, or terminate its fiscal obligations under, or in
connection with, this contract, County may amend, suspend, decrease, or terminate its
obligations under, or in connection with, this contract. In the event of termination, County
shall be liable for payment only for services rendered prior to the effective date of the
termination, provided that such services are performed in accordance with the provisions
of this contract. County shall give written notice of the effective date of any suspension,
amendment, or termination under this section, at least 10 days in advance.
7.0
STRATEGIC ALLIANCE for VOLUME EXPENDITURES (SAVE)
The County is a member of the SAVE cooperative purchasing group. SAVE includes the State of
Arizona, many Phoenix metropolitan area municipalities, and many K-12 unified school districts.
Under the SAVE Cooperative Purchasing Agreement, and with the concurrence of the successful
respondent under this solicitation, a member of SAVE may access a contract resulting from a
solicitation issued by the County. If contractor does not want to grant such access to a member of
SAVE, state so in contractor’s bid. In the absence of a statement to the contrary, the County will
assume that contractor does wish to grant access to any contract that may result from this bid. The
County assumes no responsibility for any purchases by using entities.
8.0
INTERGOVERNMENTAL COOPERATIVE PURCHASING AGREEMENTS (ICPAs)
County currently holds ICPAs with numerous governmental entities. These agreements allow those
entities, with the approval of the Contractor, to purchase their requirements under the terms and
conditions of the County contract. It is the responsibility of the non-County government entity to
perform its own due diligence on the acceptability of the contract under its applicable procurement
rules, processes, and procedures. Certain governmental agencies may not require an ICPA and
may utilize this contract if it meets their individual requirements. Other governmental agencies may
enter into a separate Statement of Work with the Contractor to meet their own requirements. The
County is not a party to any uses of this contract by other governmental entities.
9.0
DUTIES
9.1
The Contractor shall perform all duties stated in Exhibit B – Scope of Work, or as otherwise
directed in writing by the procurement officer.
9.2
During the contract term, County may provide Contractor’s personnel with adequate
workspace for consultants and such other related facilities as may be required by
Contractor to carry out its contractual obligations.
SERIAL 210204-RFP
10.0
TERMS AND CONDITIONS
10.1
INDEMNIFICATION
10.1.1
To the fullest extent permitted by law, and to the extent that claims, damages,
losses, or expenses are not covered and paid by insurance purchased by the
contractor, the contractor shall defend, indemnify, and hold harmless the County
(as Owner), its agents, representatives, officers, directors, officials, and employees
from and against all claims, damages, losses, and expenses (including, but not
limited to attorneys' fees, court costs, expert witness fees, and the costs and
attorneys' fees for appellate proceedings) arising out of, or alleged to have resulted
from, the negligent acts, errors, omissions, or mistakes relating to the performance
of this contract.
Contractor's duty to defend, indemnify, and hold harmless the County, its agents,
representatives, officers, directors, officials, and employees shall arise in
connection with any claim, damage, loss, or expense that is attributable to bodily
injury, sickness, disease, death, or injury to, impairment of, or destruction of
tangible property, including loss of use resulting therefrom, caused by negligent
acts, errors, omissions, or breaches of obligations in the performance of this
contract, but only to the extent caused by the negligent acts or omissions of the
contractor, a subcontractor, anyone directly or indirectly employed by them, or
anyone for whose acts they may be liable.
10.1.2
The amount and type of insurance coverage requirements set forth herein will in
no way be construed as limiting the scope of the indemnity in this section.
10.1.3
The scope of this indemnification does not extend to the sole negligence of County.
10.1.4
Limitations of Liability
10.1.4.1 Notwithstanding any other provision in this Agreement to the contrary, the
total cumulative liability of WEX to Employer for all claims, actions, or
suits however caused arising out of or in connection with this Agreement
shall be limited to direct damages and shall not exceed the greater of: (a)
the amount of fees received by WEX from Employer for the twelve (12)
months prior to the occurrence of the event giving rise to any such claims,
actions or suits; or (b) amounts payable and actually paid to Employer or
WEX, as applicable, under the insurance policies provided for under
Section 10.2 of this Agreement.
10.1.4.2 In no event shall either party be liable to the other for consequential,
special, exemplary, punitive, indirect or incidental damages, including,
but not limited to, any damages resulting from loss of use, or loss of profits
arising out of or in connection with this Agreement, whether in an action
based on contract, tort (including negligence) or any other legal theory
whether existing as of the Effective Date or subsequently developed,
even if the party has been advised of the possibility or foreseeability of
such damages.
10.1.4.3 No action under this Agreement may be brought by either party more than
two (2) years after the cause of action has accrued.
10.1.4.4 WEX and Employer expressly agree that the limitations of liability in this
Section 10.1.4 represent an agreed allocation of the risks of this
Agreement between the parties. This allocation is reflected in the pricing
offered by WEX to Employer and is an essential element of the basis of
the bargain between the parties.
SERIAL 210204-RFP
10.2
INSURANCE
10.2.1
Contractor, at Contractor’s own expense, shall purchase and maintain, at a
minimum, the herein stipulated insurance from a company or companies duly
licensed by the State of Arizona and possessing an AM Best, Inc. category rating
of B++. In lieu of State of Arizona licensing, the stipulated insurance may be
purchased from a company or companies, which are authorized to do business in
the State of Arizona, provided that said insurance companies meet the approval of
County. The form of any insurance policies and forms must be acceptable to
County.
10.2.2
All insurance required herein shall be maintained in full force and effect until all
work or service required to be performed under the terms of the contract is
satisfactorily completed and formally accepted. Failure to do so may, at the sole
discretion of County, constitute a material breach of this contract.
10.2.3
In the event that the insurance required is written on a claims-made basis,
Contractor warrants that any retroactive date under the policy shall precede the
effective date of this contract and either continuous coverage will be maintained,
or an extended discovery period will be exercised for a period of two years
beginning at the time work under this contract is completed.
10.2.4
Contractor’s insurance shall be primary insurance as respects County, and any
insurance or self-insurance maintained by County shall not contribute to it. Any
primary, non-contributory status under Contractor insurance policy is limited to
losses arising solely from work performed by or on behalf of Contractor or its
affiliates under this Agreement.
10.2.5
Any failure to comply with the claim reporting provisions of the insurance policies
or any breach of an insurance policy warranty shall not affect the County’s right to
coverage afforded under the insurance policies.
10.2.6
The insurance policies may provide coverage that contains deductibles or self-
insured retentions. Such deductible and/or self-insured retentions shall not be
applicable with respect to the coverage provided to County under such policies.
Contractor shall be solely responsible for the deductible and/or self-insured
retention.
10.2.7
The insurance policies required by this contract, except Workers’ Compensation
and Errors and Omissions, Crime and Cyber related coverages shall name County,
its agents, representatives, officers, directors, officials, and employees as
additional insureds.
10.2.8
The policies required hereunder, except Workers’ Compensation and Errors and
Omissions, shall contain a waiver of transfer of rights of recovery (subrogation)
against County, its agents, representatives, officers, directors, officials, and
employees for any claims arising out of Contractor’s work or service. Any waiver
of subrogation in the insurance required under this Agreement is limited to losses
arising solely from work performed by or on behalf of Contractor or its affiliates
under this Agreement.
10.2.9
If available, the insurance policies required by this contract may be combined with
Commercial Umbrella Insurance policies to meet the minimum limit requirements.
If a Commercial Umbrella insurance policy is utilized to meet insurance
requirements, the Certificate of Insurance shall indicate which lines the
Commercial Umbrella Insurance covers.
SERIAL 210204-RFP
10.2.9.1
Commercial General Liability
Commercial General Liability (CGL) insurance and, if necessary,
Commercial Umbrella insurance with a limit of not less than $2,000,000
for each occurrence, $4,000,000 Products/Completed Operations
Aggregate, and $4,000,000 General Aggregate Limit. The policy shall
include coverage for premises liability, bodily injury, broad form property
damage, personal injury, products and completed operations and
blanket contractual coverage, There shall be no endorsement or
modifications of the CGL limiting the scope of coverage for liability
arising from explosion, collapse, or underground property damage.
10.2.9.2
Automobile Liability
Commercial/Business Automobile Liability insurance with a combined
single limit for bodily injury and property damage of not less than
$2,000,000 each occurrence with respect to any of the Contractor’s
owned, hired, and non-owned vehicles assigned to or used in
performance of the Contractor’s work or services or use or maintenance
of the premises under this contract.
10.2.9.3
Workers’ Compensation
10.2.9.3.1
Workers’ compensation insurance to cover obligations
imposed by Federal and State statutes having jurisdiction
of Contractor’s employees engaged in the performance of
the work or services under this contract; and Employer’s
Liability insurance of not less than $1,000,000 for each
accident, $1,000,000 disease for each employee, and
$1,000,000 disease policy limit.
10.2.9.3.2
Contractor, its subcontractors, and sub-subcontractors
waive all rights against this contract and its agents,
officers, directors, and employees for recovery of damages
to the extent these damages are covered by the workers’
compensation and Employer’s Liability or Commercial
Umbrella Liability insurance obtained by Contractor, its
subcontractors, and its sub-subcontractors pursuant to this
contract.
10.2.9.4
Errors and Omissions/Professional Liability Insurance
Technology Errors & Omission insurance: Such insurance shall cover
any and all errors, omissions, or negligent acts in the delivery of
products, services, and/or licensed programs under this contract.
Each claim
$5,000,000
In the event that the Technology Errors & Omission insurance required
by this contract is written on a claims-made basis, contractor warrants
that any retroactive date under the policy shall precede the effective date
of this contract and, either continuous coverage will be maintained or an
extended discovery period will be exercised for a period of two years,
beginning at the time work under this contract is completed.
SERIAL 210204-RFP
10.2.9.5
Cyber, Network Security, and Privacy Liability
Cyber, Network Security and Privacy Liability Insurance with a limit of
not less than $5,000,000 per occurrence providing coverage for loss
or disclosure of electronic data, media and content rights infringement
and liability, network security and failure (including unauthorized
access or use of systems); and software copyright infringement
liability.
10.2.9.6
Certificates of Insurance
10.2.9.6.1
Prior to contract award, Contractor shall furnish the County
with valid and complete Certificates of Insurance, or formal
endorsements as required by the contract in the form
provided by the County, issued by Contractor’s insurer(s),
as evidence that policies providing the required coverage,
conditions and limits required by this contract are in full force
and effect. Such certificates shall identify this contract
number and title.
10.2.9.6.2
In the event any insurance policy(ies) required by this
contract is (are) written on a claims-made basis, coverage
shall extend for two years past completion and acceptance
of Contractor’s work or services and as evidenced by
annual certificates of insurance.
10.2.9.6.3
If a policy does expire during the life of the Contract, a
renewal certificate must be sent to County 15 calendar days
prior to the expiration date.
10.2.9.6.4
Certificates of Insurance shall identify Maricopa County as
the certificate holder as follows:
Maricopa County
c/o Risk Management
301 W Jefferson St, Suite 910
Phoenix, AZ 85003
10.2.9.7
Cancellation and Expiration Notice
Applicable to all insurance policies required within the insurance
requirements of this contract, Contractor’s insurance shall not be
permitted to expire, be suspended, be canceled, or be materially
changed for any reason without Contractor endeavoring to provide 30
days prior written notice to Maricopa County. Such notice shall be sent
directly to Maricopa County Office of Procurement Services and shall be
mailed, or hand delivered to 160 S. 4th Avenue, Phoenix, AZ 85003, or
emailed to the procurement officer noted in the solicitation.
10.3
FORCE MAJEURE
10.3.1
Neither party shall be liable for failure of performance, nor incur any liability to the
other party on account of any loss or damage resulting from any delay or failure to
perform all or any part of this contract, if such delay or failure is caused by events,
occurrences, or causes beyond the reasonable control and without negligence of
the parties. Such events, occurrences, or causes include, but are not limited to,
acts of God/nature (including fire, flood, earthquake, storm, hurricane, or other
natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is
declared or not), civil war, riots, rebellion, revolution, insurrection, military or
SERIAL 210204-RFP
usurped power or confiscation, terrorist activities, nationalization, government
sanction, lockout, blockage, embargo, labor dispute, strike, and interruption or
failure of electricity or telecommunication service, and pandemic.
10.3.2
Each party, as applicable, shall give the other party notice of its inability to perform
and particulars in reasonable detail of the cause of the inability. Each party must
use best efforts to remedy the situation and remove, as soon as practicable, the
cause of its inability to perform or comply.
10.3.3
The party asserting Force Majeure as a cause for non-performance shall have the
burden of proving that reasonable steps were taken to minimize delay or damages
caused by foreseeable events, that all non-excused obligations were substantially
fulfilled, and that the other party was timely notified of the likelihood or actual
occurrence which would justify such an assertion, so that other prudent
precautions could be contemplated.
10.4
ORDERING AUTHORITY
Any request for purchase shall be accompanied by a valid purchase order issued by a
County department or directed by a Certified Agency Procurement Aid (CAPA) with a
purchase card for payment.
10.5
PROCUREMENT CARD ORDERING CAPABILITY
County may opt to use a procurement card (Visa or Master Card) to make payment for
orders under this contract.
10.6
NO MINIMUM OR MAXIMUM PURCHASE OBLIGATION
This contract does not guarantee any minimum or maximum purchases will be made.
Orders will only be placed under this contract when the County identifies a need and proper
authorization and documentation have been approved.
10.7
PURCHASE ORDERS
10.7.1
County reserves the right to cancel purchase orders within a reasonable period of
time after issuance. Should a purchase order be canceled, the County agrees to
reimburse the Contractor for actual and documentable costs incurred by the
Contractor in response to the purchase order. The County will not reimburse the
Contractor for any costs incurred after receipt of County notice of cancellation, or
for lost profits, or for shipment of product prior to issuance of purchase order.
10.7.2
Contractor agrees to accept verbal notification of cancellation of purchase orders
from the County procurement officer with written notification to follow. Contractor
specifically acknowledges to be bound by this cancellation policy.
10.8
SUSPENSION OF WORK
The procurement officer may order the Contractor, in writing, to suspend, delay, or interrupt
all or any part of the work of this contract for the period of time that the procurement officer
determines appropriate for the convenience of the County. No adjustment shall be made
under this clause for any suspension, delay, or interruption to the extent that performance
would have been so suspended, delayed, or interrupted by any other cause, including the
fault or negligence of the Contractor. No request for adjustment under this clause shall be
granted unless the claim, in an amount stated, is asserted in writing as soon as practicable
after the termination of the suspension, delay, or interruption, but not later than the date of
final payment under the contract.
SERIAL 210204-RFP
10.9
STOP WORK ORDER
10.9.1
The procurement officer may, at any time, by written order to the Contractor,
require the Contractor to stop all, or any part, of the work called for by this contract
for a period of 90 calendar days after the order is delivered to the Contractor, and
for any further period to which the parties may agree. The order shall be specifically
identified as a stop work order issued under this clause. Upon receipt of the order,
the Contractor shall immediately comply with its terms and take all reasonable
steps to minimize the incurrence of costs allocable to the work covered by the order
during the period of work stoppage. Within a period of 90 calendar days after a
stop work order is delivered to the Contractor, or within any extension of that period
to which the parties shall have agreed, the procurement officer shall either:
10.9.1.1
cancel the stop work order; or
10.9.1.2
terminate the work covered by the order as provided in the Termination
for Default or the Termination for Convenience clause of this contract.
10.9.1.3
The procurement officer may make an equitable adjustment in the
delivery schedule and/or contract price, and the contract shall be
modified, in writing, accordingly, if the Contractor demonstrates that the
stop work order resulted in an increase in costs to the Contractor
10.10
TERMINATION FOR CONVENIENCE
Maricopa County may terminate the resultant contract for convenience by providing 60
calendar days advance notice to the Contractor.
10.11
TERMINATION FOR DEFAULT
10.11.1 The County may, by written Notice of Default to the Contractor, terminate this
contract in whole or in part if the Contractor fails to:
10.11.1.1 deliver the supplies or to perform the services within the time specified
in this contract or any extension;
10.11.1.2 make progress, so as to endanger performance of this contract; or
10.11.1.3 perform any of the other provisions of this contract.
10.11.2 The County’s right to terminate this contract under these subparagraphs may be
exercised if the Contractor does not cure such failure within 10 business days (or
more if authorized in writing by the County) after receipt of a Notice to Cure from
the procurement officer specifying the failure.
10.12
PERFORMANCE
It shall be the Contractor’s responsibility to meet the proposed performance requirements.
Maricopa County reserves the right to obtain services on the open market in the event the
Contractor fails to perform, and any price differential will be charged against the Contractor.
10.13
CONTRACTOR EMPLOYEE MANAGEMENT
10.13.1 Contractor shall endeavor to maintain the personnel proposed in their proposal
throughout the performance of this contract.
10.13.2 If Contractor personnel’s employment status changes, Contractor shall provide
County a list of proposed replacements with equivalent or greater experience.
SERIAL 210204-RFP
10.13.3 Under no circumstances shall the implementation schedule to be impacted by a
personnel change on the part of the Contractor.
10.13.4 Contractor shall not reassign any key personnel identified in their proposal without
the express consent of the County.
10.13.5 County reserves the right to immediately remove from its premises any Contractor
personnel it determines to be a risk to County operations.
10.13.6 County reserves the right to reasonably request the replacement of any Contractor
personnel at any time, for any reason.
10.14
WARRANTY OF SERVICES
10.14.1 The Contractor warrants that all services provided hereunder will conform to the
requirements of the contract, including all descriptions, specifications, and
attachments made a part of this contract. County’s acceptance of services or
goods provided by the Contractor shall not relieve the Contractor from its
obligations under this warranty.
10.14.2 In addition to its other remedies, County may, at the Contractor's expense, require
prompt correction of any services failing to meet the Contractor's warranty herein.
Services corrected by the Contractor shall be subject to all the provisions of this
contract in the manner and to the same extent as services originally furnished
hereunder.
10.15
USAGE REPORT
The Contractor shall furnish the County a usage report, upon request, delineating the
acquisition activity governed by the contract. The format of the report shall be approved by
the County and shall disclose the quantity and dollar value of each contract item by
individual unit of measure.
10.16
STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST
Notice is given that, pursuant to A.R.S. § 38-511, the County may cancel any contract
without penalty or further obligation within three years after execution of the contract, if any
person significantly involved in initiating, negotiating, securing, drafting, or creating the
contract on behalf of the County is at any time, while the contract or any extension of the
contract is in effect, an employee or agent of any other party to the contract in any capacity
or consultant to any other party of the contract with respect to the subject matter of the
contract. Additionally, pursuant to A.R.S. § 38-511, the County may recoup any fee or
commission paid or due to any person significantly involved in initiating, negotiating,
securing, drafting, or creating the contract on behalf of the County from any other party to
the contract arising as the result of the contract.
10.17
OFFSET FOR DAMAGES
In addition to all other remedies at Law or Equity, the County may offset from any money
due to the Contractor any amounts Contractor owes to the County for damages resulting
from breach or deficiencies in performance of the contract.
10.18
SUBCONTRACTING
10.18.1 The Contractor may not assign to another Contractor or subcontract to another
party for performance of the terms and conditions hereof without the written
consent of the County. All correspondence authorizing subcontracting must
reference the bid serial number and identify the job or project.
SERIAL 210204-RFP
10.18.2 The subcontractor’s rate for the job shall not exceed that of the prime Contractor’s
rate, as bid in the pricing section, unless the prime Contractor is willing to absorb
any higher rates. The subcontractor’s invoice shall be invoiced directly to the prime
Contractor, who in turn shall pass-through the costs to the County, without mark-
up. A copy of the subcontractor’s invoice must accompany the prime Contractor’s
invoice.
10.19
AMENDMENTS
All amendments to this contract shall be in writing and approved/signed by both parties.
Maricopa County Office of Procurement Services shall be responsible for approving all
amendments for Maricopa County.
10.20
ADDITIONS/DELETIONS OF REQUIREMENTS
The County reserves the right to add and/or delete materials and services to a contract. If
a service requirement is deleted, payment to the Contractor will be reduced proportionately,
to the amount of service reduced in accordance with the bid price. If additional materials
or services are required from a contract, prices for such additions will be negotiated
between the Contractor and the County.
10.21
RIGHTS IN DATA
10.21.1 The County shall have the use of data and reports resulting from a contract without
additional cost or other restriction except as may be established by law or
applicable regulation. Each party shall supply to the other party, upon request, any
available information that is relevant to a contract and to the performance
thereunder.
10.21.2 Data, records, reports, and all other information generated for the County by a third
party as the result of a contract are the property of the County and shall be provided
in a format designated by the County or shall be and remain accessible to the
County into perpetuity.
10.22
ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR
OTHER REVIEW
10.22.1 In accordance with Section MC1-373 of the Maricopa County Procurement Code,
the Contractor agrees to retain (physical or digital copies of) all books, records,
accounts, statements, reports, files, and other records and back-up documentation
relevant to this contract for six years after final payment or until after the resolution
of any audit questions, which could be more than six years, whichever is longest.
The County, Federal or State auditors and any other persons duly authorized by
the department shall have full access to and the right to examine, copy, and make
use of, any and all said materials.
10.22.2 If the Contractor’s books, records, accounts, statements, reports, files, and other
records and back-up documentation relevant to this contract are not sufficient to
support and document that requested services were provided, the Contractor shall
reimburse Maricopa County for the services not so adequately supported and
documented.
10.23
AUDIT DISALLOWANCES
If at any time it is determined by the County that a cost for which payment has been made
is a disallowed cost, the County shall notify the Contractor in writing of the disallowance.
The course of action to address the disallowance shall be at sole discretion of the County,
and may include either an adjustment to future invoices, request for credit, request for a
check, or a deduction from current invoices submitted by the Contractor equal to the
SERIAL 210204-RFP
amount of the disallowance, or to require reimbursement forthwith of the disallowed amount
by the Contractor by issuing a check payable to Maricopa County.
10.24
STRICT COMPLIANCE
Acceptance by County of a performance that is not in strict compliance with the terms of
the contract shall not be deemed to be a waiver of strict compliance with respect to all other
terms of the contract.
10.25
VALIDITY
The invalidity, in whole or in part, of any provision of this contract shall not void or affect
the validity of any other provision of the contract.
10.26
SEVERABILITY
The removal, in whole or in part, of any provision of this contract shall not void or affect the
validity of any other provision of this contract.
10.27
RELATIONSHIPS
10.27.1 In the performance of the services described herein, the Contractor shall act solely
as an independent Contractor, and nothing herein or implied herein shall at any
time be construed as to create the relationship of employer and employee, co-
employee, partnership, principal and agent, or joint venture between the County
and the Contractor.
10.27.2 The County reserves the right of final approval on proposed staff. Also, upon
request by the County, the Contractor will be required to remove any employees
working on County projects and substitute personnel based on the discretion of
the County within two business days, unless previously approved by the County.
10.28
NON-DISCRIMINATION
Contractor agrees to comply with all provisions and requirements of Arizona Executive
Order 2009-09, including flow down of all provisions and requirements to any
subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4 and amends
Executive Order 75-5 and is hereby incorporated into this contract as if set forth in full
herein. During the performance of this contract, Contractor shall not discriminate against
any employee, client, or any other individual in any way because of that person’s age, race,
creed, color, religion, sex, disability, or national origin. (Arizona Executive Order 2009-09
can
be
downloaded
from
the
Arizona
Memory
Project
at
http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1.)
10.29
WRITTEN CERTIFICATION PURSUANT to A.R.S. § 35-393.01
If vendor engages in for-profit activity and has 10 or more employees, and if this agreement
has a value of $100,000 or more, vendor certifies it is not currently engaged in, and agrees
for the duration of this agreement to not engage in, a boycott of goods or services from
Israel. This certification does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a
regulation issued pursuant to 50 U.S.C. § 4842.
10.30
CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
10.30.1 The undersigned (authorized official signing on behalf of the Contractor) certifies
to the best of his or her knowledge and belief that the Contractor, its current
officers, and directors:
SERIAL 210204-RFP
10.30.1.1 are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from being awarded any
contract or grant by any United States department or agency or any
state, or local jurisdiction;
10.30.1.2 have not within a three-year period preceding this contract:
10.30.1.2.1 been convicted of fraud or any criminal offense in
connection with obtaining, attempting to obtain, or as the
result of performing a government entity (Federal, State or
local) transaction or contract; or
10.30.1.2.2 been convicted of violation of any Federal or State antitrust
statutes or conviction for embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property regarding a
government entity transaction or contract;
10.30.1.3 are not presently indicted or criminally charged by a government entity
(Federal, State or local) with commission of any criminal offenses in
connection with obtaining, attempting to obtain, or as the result of
performing a government entity public (Federal, State or local)
transaction or contract;
10.30.1.4 are not presently facing any civil charges from any governmental entity
regarding obtaining, attempting to obtain, or from performing any
governmental entity contract or other transaction; and
10.30.1.5 have not within a three-year period preceding this contract had any
public transaction (Federal, State or local) terminated for cause or
default.
10.30.2 If any of the above circumstances described in the paragraph are applicable to the
entity submitting a bid for this requirement, include with your bid an explanation of
the matter including any final resolution.
10.30.3 The Contractor shall include, without modification, this clause in all lower tier
covered transactions (i.e., transactions with subcontractors or sub-subcontractors)
and in all solicitations for lower tier covered transactions related to this contract. If
this clause is applicable to a subcontractor or sub-subcontractor, the Contractor
shall include the information required by this clause with their bid.
10.31
VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL
IMMIGRATION LAWS AND REGULATIONS
10.31.1 By entering into the contract, the Contractor warrants compliance with the
Immigration and Nationality Act (INA using E-Verify) and all other Federal
immigration laws and regulations related to the immigration status of its employees
and A.R.S. § 23-214(A). The Contractor shall obtain statements from its
subcontractors certifying compliance and shall furnish the statements to the
procurement officer upon request. These warranties shall remain in effect through
the term of the contract. The Contractor and its subcontractors shall also maintain
Employment Eligibility Verification forms (I-9) as required by the Immigration Reform
and Control Act of 1986, as amended from time to time, for all employees performing
work under the contract and verify employee compliance using the E-Verify system
and shall keep a record of the verification for the duration of the employee’s
employment or at least three years, whichever is longer. I-9 forms are available for
download at www.uscis.gov.
SERIAL 210204-RFP
10.31.2 The County retains the legal right to inspect documents of Contractor and
subcontractor employees performing work under this contract to verify compliance
with paragraph 10.31.1 of this section. Contractor and subcontractor shall be given
reasonable notice of the County’s intent to inspect and shall make the documents
available at the time and date specified. Should the County suspect or find that the
Contractor or any of its subcontractors are not in compliance, the County will
consider this a material breach of the contract and may pursue any and all remedies
allowed by law, including, but not limited to: suspension of work, termination of the
contract for default, and suspension and/or debarment of the Contractor. All costs
necessary to verify compliance are the responsibility of the Contractor.
10.32
CONTRACTOR LICENSE REQUIREMENT
The Contractor shall procure all permits, insurance, and licenses, and pay the charges and
fees necessary and incidental to the lawful conduct of his/her business, and as necessary
complete any requirements, by any and all governmental or non-governmental entities as
mandated to maintain compliance with and remain in good standing. The Contractor shall
keep fully informed of existing and future trade or industry requirements, and Federal,
State, and local laws, ordinances, and regulations which in any manner affect the fulfillment
of a contract and shall comply with the same. Contractor shall immediately notify both
Office of Procurement Services and the department of any and all changes concerning
permits, insurance, or licenses.
10.33
INFLUENCE
10.33.1 As prescribed in MC1-1203 of the Maricopa County Procurement Code, any effort
to influence an employee or agent to breach the Maricopa County Ethical Code of
Conduct or any ethical conduct, may be grounds for disbarment or suspension
under MC1-902.
10.33.2 An attempt to influence includes, but is not limited to:
10.33.2.1 A person offering or providing a gratuity, gift, tip, present, donation,
money, entertainment or educational passes or tickets, or any type of
valuable contribution or subsidy that is offered or given with the intent to
influence a decision, obtain a contract, garner favorable treatment, or
gain favorable consideration of any kind.
10.33.3 If a person attempts to influence any employee or agent of Maricopa County, the
chief procurement officer, or his designee, reserves the right to seek any remedy
provided by the Maricopa County Procurement Code, any remedy in equity or in
the law, or any remedy provided by this contract.
10.33.4 ABSOLUTELY NO CONTACT BETWEEN THE RESPONDENT AND ANY
COUNTY PERSONNEL, OTHER THAN THE OFFICE OF PROCUREMENT
SERVICES, IS ALLOWED DURING THE SOLICITATION PROCESS UNLESS
THE COMMUNICATION IS IN REGARD TO PRE-EXISTING BUSINESS WITH
THE COUNTY. ANY COMMUNICATIONS REGARDING THE SOLICITATION,
ITS PARTICIPANTS, OR ANY DOCUMENTATION PRIOR TO THE CONTRACT
AWARD MAY BE GROUNDS FOR DISMISSAL OF THE RESPONDENT FROM
THE EVALUATION PROCESS.
SERIAL 210204-RFP
10.34
CONFIDENTIAL INFORMATION
10.34.1 Any information obtained in the course of performing this contract may include
information that is proprietary or confidential to the County. This provision
establishes the Contractor’s obligation regarding such information.
10.34.2 The Contractor shall establish and maintain procedures and controls that are
adequate to assure that no information contained in its records and/or obtained
from the County or from others in carrying out its functions (services) under the
contract shall be used by or disclosed by it, its agents, officers, or employees,
except as required to efficiently perform duties under the contract. The Contractor’s
procedures and controls, at a minimum, must be the same procedures and controls
it uses to protect its own proprietary or confidential information. If, at any time
during the duration of the contract, the County determines that the procedures and
controls in place are not adequate, the Contractor shall institute any new and/or
additional measures requested by the County within 15 business days of the
written request to do so.
10.34.3 Any requests to the Contractor for County proprietary or confidential information
shall be referred to the County for review and approval, prior to any dissemination.
10.35
PUBLIC RECORDS
Under Arizona law, all offers submitted and opened are public records and must be
retained by the County at the Maricopa County Office of Procurement Services. Offers shall
be open to public inspection and copying after contract award and execution, except for
such offers or sections thereof determined to contain proprietary or confidential information
by the Office of Procurement Services. If an offeror believes that information in its offer or
any resulting contract should not be released in response to a public record request, under
Arizona law, the offeror shall indicate the specific information deemed confidential or
proprietary and submit a statement with its offer detailing the reasons that the information
should not be disclosed. Such reasons shall include the specific harm or prejudice which
may arise from disclosure. The records manager of the Office of Procurement Services
shall determine whether the identified information is confidential pursuant to the Maricopa
County Procurement Code.
10.36
INTEGRATION
This contract represents the entire and integrated agreement between the parties and
supersedes
all
prior
negotiations,
proposals,
communications,
understandings,
representations, or agreements, whether oral or written, expressed, or implied.
10.37
UNIFORM ADMINISTRATIVE REQUIREMENTS
By entering into this contract, the Contractor agrees to comply with all applicable provisions
of
Title
2,
Subtitle
A,
Chapter
II,
Part
200—UNIFORM
ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL
AWARDS contained in Title 2 C.F.R. § 200 et seq.
10.38
GOVERNING LAW
This contract shall be governed by the laws of the State of Arizona. Venue for any actions
or lawsuits involving this contract will be in Maricopa County Superior Court, Phoenix,
Arizona.
10.39
PRICES
Contractor warrants that prices extended to County under this contract are no higher than
those paid by any other customer for these or similar services.
SERIAL 210204-RFP
10.40
ORDER OF PRECEDENCE
In the event of a conflict in the provisions of this contract and Contractor’s agreement, if
applicable, the terms of this contract shall prevail.
10.41
INCORPORATION OF DOCUMENTS
The following are to be attached to and made part of this Contract:
10.41.1
Exhibit A – Vendor Information and Pricing
10.41.2
Exhibit A-1 – Additional Products and Services
10.41.3
Exhibit B-1 – COBRA Administrative Services Agreement
10.41.4
Exhibit B-2 – Direct Bill Administrative Services Agreement
10.41.5
Exhibit B-3 – Reimbursement Account Administrative Services Agreement
10.41.6
Exhibit C – Service Level Agreement (SLA)
10.41.7
Exhibit D – Business Associate Agreement
10.41.8
Exhibit E – COBRA Business Requirements
10.41.9
Exhibit F – FSA Business Requirements
10.42
NOTICES
All notices given pursuant to the terms of this contract shall be addressed to:
For County:
Maricopa County
Office of Procurement Services
160 S. 4th Avenue
Phoenix, Arizona 85003-1647
For Contractor:
WEX Health, Inc. dba WEX
4321 20th Ave. S
Fargo, ND 58103
SERIAL 210204-RFP
IN WITNESS WHEREOF, this contract is executed on the date set forth above.
CONTRACTOR
AUTHORIZED SIGNATURE
PRINTED NAME AND TITLE
ADDRESS
DATE
MARICOPA COUNTY
CHAIRMAN, BOARD OF SUPERVISORS
DATE
ATTESTED:
CLERK OF THE BOARD
DATE
APPROVED AS TO FORM:
DEPUTY COUNTY ATTORNEY
DATE
SERIAL 210204-RFP
EXHIBIT A
VENDOR INFORMATION AND PRICING
SERIAL 210204-RFP
NIGP CODE: 91840
CONTRACTOR'S NAME:
WEX Health, Inc. dba WEX
COUNTY VENDOR NUMBER:
VS0000006231
ADDRESS:
4321 20th Ave. S
Fargo, ND 58103
P.O. ADDRESS:
N/A
TELEPHONE NUMBER:
701.492.7222
FACSIMILE NUMBER:
N/A
WEB SITE:
www.wexinc.com
CONTACT (REPRESENTATIVE):
Bridgit Moszer Sales Director
REPRESENTATIVE'S E-MAIL ADDRESS:
Bridgit.moszer@wexhealthinc.com
Payment Terms: Net 30 days
1.0
PRICING
1.1
COBRA monthly rate* $0.25
1.2
COBRA direct bill monthly rate** $3.75
1.3
FSA monthly rate*** $2.40
1.4
Other additional product and service solutions (see Exhibit A-1)
*Per Enrollees in COBRA Eligible Plans
**Per Participant Per Month (PPPM)
*** Per Participant Per Month (PPPM)
The following COBRA services are also included at no additional cost:
●
Access to Marketplace
●
Initial notice
●
COBRA notice and election
●
Premium billing and remittance
●
Termination tracking and notification
●
Standard postage and printing
●
Open enrollment form
●
Plan change notice
WEX does not charge implementation, set-up or renewal fees. Fees are quoted net of commissions.
WEX and the County will periodically review the rate structure to adjust per changes that are caused by
Federal postal rate increases, increases in bank fees, or that are due to Federal legislative changes.
SERIAL 210204-RFP
EXHIBIT A-1
Additional Product and Service Solutions
Open Enrollment
Pricing
Our Open Enrollment Toolkit* provides access to valuable
resources, content, and tools to promote enrollment and
utilization of our plans resulting in increased FICA tax savings
and employee retention for our clients. The toolkit includes
the following items:
●
Handouts
●
Educational email templates
●
PowerPoint slides
●
Post-enrollment educational resources via our
knowledgebase
●
Promotional/educational videos
●
Virtual open enrollment fair experience
●
One on one phone support
Included in PPPM
Debit Card
Pricing
WEX Benefits Debit Card
(2 cards per participant)
Included in PPPM
Additional Debit Cards for Spouse and Dependents (18
years of age and older)
Included in PPPM
4th Line Embossing for Employer Name
(Up to 19 Characters)
Included in PPPM
Co-branded Debit Card
$900 one-time fee
Custom Debit Card
$900 one-time cost + ongoing plastic
costs minimum order of 10,000
EMV Debit Card
Request quote
Custom MCC Network
$1,500 per custom network
SERIAL 210204-RFP
●
Product calculators
●
Live open enrollment webinars
*Toolkit may be modified at our discretion
Open Enrollment Compilation Video
Educational video tailored to an employer’s specific plan
design (i.e. grace period, run-out, carryover, etc.)
$150 one-time fee
Automated Educational Email Campaign
Email campaigns developed to promote open enrollment and
educate employees on the available plans.
Request quote
On-Site Enrollment Meetings & Benefits Fairs
May be available for an additional fee of $350
per day plus travel expenses; attendance is
subject to availability and dependent on CDC
guidelines/corporate policies regarding travel at
the time of the request.
Kickstart Mailer
Introductory direct mail piece mailed via USPS to all new
enrollments or those without email
$1.50 per mailer
Custom Marketing Solutions
Pricing
Our Custom Marketing Solutions let you take advantage of a
variety of co-branding and customization options. You can
leverage our consultative team to build a plan that works
best for you or choose one of our existing packages. Through
a collaborative discussion and review of your needs, we’ll
help you create and implement a customized communication
plan to meet what you’re looking for, built from options like
those listed below.
●
Co-branded consumer email notifications and/or
portal
●
Custom portal colors, banners and/or post login
messaging
●
Custom benefit email notifications
●
Co-branded or completely custom OE materials
●
Re-branded COBRA notifications and/or portal
●
COBRA/direct bill custom attachments or notifications
●
Email or mailed letter communications
Co-branding Package: $2,750
Consumer Online Account Package: $3,000
Gold Customization Package: $6,000
Note: Any hard costs for options chosen will be
added in addition to the base program fee.
Additional fees may apply if additional updates
or requests are made after final deliverables are
sent or go-live dates have occurred.
SERIAL 210204-RFP
●
Direct mail
Data File Integrations Options
Pricing
File Transmission
The transmission of data in WEX standard file layout to allow
for administrative services.
Included in PPPM
Custom File Transmission
●
Consumer Data Exchange
●
COBRA Data
●
Claims Exchange
●
Debit Card Substantiation
$1,200 annual fee
(per file type)
ACA File Transmission
Enables transmission of necessary data to a third party for
ACA reporting services.
$1,200 annual fee
834 5010 Eligibility File - Outbound
Enables transmission of an EDI 834 5010 to carriers for
purposes of eligibility.
Included in PPPM
(minimum eligibility may apply)
Online Account Integration Options
Pricing
Single Sign-On
Enables a seamless transition between one online platform
to the WEX Consumer Online Account without the need for
the user to enter additional login information.
$2,000 annual fee
(per portal)
Outbound Single Sign-On
Enables a seamless transition between WEX Consumer
Online Account to another third party platform without the
need for the users to enter additional login information.
$2,000 annual fee
(per portal)
Web Services
Enables the ability to display up to five data elements (ex.
balance, elections) within a third party system.
$2,000 annual fee
(per portal)
Custom Reporting
Pricing
Standard Reports and Notifications
Included in PPPM
SERIAL 210204-RFP
Report on data at the employer level. Most reports and
notifications can be automatically delivered via email, or to
one of the portals.
Ad-Hoc Reporting
Report on data at the employer level. Reports are generated
real-time from LEAP.
Included in PPPM
Custom Reporting
Creation of a custom report based on to build specific report
fields, parameters and frequency. Reports are delivered by
SFTP or with LEAP.
$150 per hour
*minimums may apply
Programming
Pricing
Custom Development
If custom work is requested, WEX will create a Professional
Services Agreement.
$150 per hour
Manual Processing
Pricing
If custom work is requested, WEX will create a Professional
Services Agreement.
$150 per hour
Non-Discrimination Testing
Pricing
Key DCAP
Access testing of the POPFSA template for the following
plans:
Cafeteria Plan Only (POP)
Dependent Care (Section 129)
Non-Discrimination Testing Subscription
Non-discrimination testing available for the following
plans:
Cafeteria Plan Only (POP)
Key DCAP included in PPPM
Non-discrimination testing subscription
$500 annual fee paired with a benefits product.
SERIAL 210204-RFP
Medical FSA (Section 125)
Dependent Care (Section 129)
Health Reimbursement Arrangement (105h)
Self-Insured Medical Plans
Non-discrimination testing subscription
$1,000 annual fee for standalone COBRA clients.
(provides access to all available tests at any
frequency)
SERIAL 210204-RFP
EXHIBIT B-1 – COBRA ADMINISTRATIVE SERVICES AGREEMENT RECITALS
The services set forth in this Agreement are subject to the master contract for services pursuant to RFP
No. 210204 (“Master Services Agreement”). In the event of a conflict between the Master Services
Agreement and any portion of this Agreement, the terms of the Master Services Agreement shall prevail.
Employer has established one or more health plans that include medical, dental, vision, employee
assistance plan, health flexible spending arrangement, and/or health reimbursement arrangement benefits
(such plans, individually and collectively as the context may require, are herein referred to as the “Plan")
for its employees.
Employer desires to retain WEX as an independent contractor to administer certain elements of its
obligations under COBRA and WEX desires to assist Employer in the administration of such COBRA
obligations.
“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the
related regulation and interpretations by the Department of Labor and the Internal Revenue Service.
WEX and Employer agree that WEX shall assist in the administration of Employer’s COBRA obligations
based on the terms and conditions set forth in this COBRA Administrative Services Agreement (“this
Agreement”), including, without limitation that:
Employer is the administrator of the Plan.
WEX is an independent contractor in relation to Employer and to the Plan and may act as an
agent and/or designee on behalf of Employer.
Employer remains responsible for maintaining the Plan, including the establishment of eligibility
and the payment of the benefits owed or established under the Plan to its participants.
WEX is to provide the agreed upon services without assuming any liability for the performance
of any services beyond those set forth below.
The above-stated recitals are accurate, true, and correct and are incorporated herein and made a part
hereof by this reference.
Now, therefore, for good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows.
ARTICLE 1 WEX ADMINISTRATIVE SERVICES
1.1
Except for those obligations that are Employer’s responsibility under this Agreement, WEX shall
assume responsibility for the proper interpretation, application, and administration of COBRA rules
and regulations for the Plan for COBRA administration under WEX’s control.
1.2
WEX services under this Agreement are limited to the benefit plans selected for services by
Employer via the WEX portal or design guide.
1.3
WEX shall have no responsibility or duty with respect to any plan where complete information about
that plan is not provided.
1.4
WEX’s responsibilities and duties with respect to the Plan are limited to those expressly provided
in this Agreement.
1.5
WEX shall consult with Employer regarding the interpretation and application of regulations
concerning COBRA administration as they apply to the Plan.
1.6
Upon timely receipt of the required information from Employer and within the applicable time frame
required by COBRA or upon the effective date of coverage, whichever is later, WEX shall send, via
“Accountable Mail” WEX’s standard initial rights notification letter (also known as the general rights
notice or the initial notice) to newly Covered employees and spouses informing them of their rights
under COBRA.
SERIAL 210204-RFP
“Accountable Mail” means mail that provides documented proof that the letter or notice was mailed
and the date of such mailing to the recipient at the recipient’s last known address and meets
COBRA regulation requirements but does not mean that delivery is tracked.
“Covered” means participating in any plan offered by Employer that is subject to COBRA and
selected for services under this Agreement.
If information is not timely received from Employer, WEX shall send the notice described in this
Section 1.6 as soon as administratively practicable after receiving the information. Consequently,
however, such notice may not be provided within the time frame required by COBRA. If complete
information is not provided, such notice also may be incomplete.
1.7
Upon commencement of the services provided herein, if requested by Employer, WEX will mail its
standard initial rights notification letter to all Covered employees and spouses. In order for WEX
to complete this mailing, Employer must provide the information requested by WEX in a timely
manner.
1.8
Upon timely receipt of complete information from Employer, WEX shall send via Accountable Mail
within the applicable time frame required by COBRA, WEX’s standard qualifying event eligibility
and election notice to all qualified beneficiaries who have a qualifying event. If complete information
is not timely received from Employer, WEX shall send the notice described in the preceding
sentence as soon as administratively practicable after receiving complete information, however,
such notice may not be provided within the applicable time frame required by COBRA.
The terms “qualifying event” and “qualified beneficiary” shall have the meanings given to them
under COBRA.
1.9
Except to the extent prohibited by state or local law, COBRA continuation coverage premiums will
include an additional 2% for administrative costs. In addition to the monthly administrative fee per
Covered employee under this Agreement, WEX will retain the 2% additional premium allowed by
COBRA for administrative costs charged to qualified beneficiaries electing or participating in
COBRA continuation coverage (“COBRA Continuants”).
1.10
WEX shall mail WEX’s portal login notice and standard payment coupons to COBRA Continuants
after COBRA continuation coverage is elected and the first COBRA premium payment has been
received.
1.11
WEX shall provide COBRA Continuants the option to make their COBRA premium payments by
check or via automatic recurring ACH (automated clearing house electronic funds-transfer system)
at no additional charge.
1.12
WEX shall provide COBRA Continuants the option to make their COBRA premium payments online
with a credit card or by a single occurrence ACH request. To the extent permitted by law and the
applicable credit card operating rules and regulations, an additional online convenience processing
fee charged by the online third-party vendor and payable by the third-party beneficiaries (or
Employer, if Employer so elects) will apply to these payment methods. The convenience
processing fee is collected by WEX and remitted to the third-party vendor.
1.13
WEX shall deposit COBRA premium payments in a custodial account for the benefit of Employer
in the manner described in Article 3.
1.14
WEX shall collect, track, process, and remit to Employer (or remit to the third party designated by
Employer to act in the place of Employer for the purpose of remittance) the COBRA premium
payments paid by COBRA Continuants, Employer or a third party.
1.15
A remit to carrier option (“Remit to Carrier”) is available at the option of Employer. In order for WEX
to implement this option, Employer must submit a completed WEX COBRA ACH direct payments
form to WEX. In addition, each applicable carrier must submit a completed WEX COBRA carrier
remittance form to WEX. WEX will reserve the right to discontinue Remit to Carrier if the separate
SERIAL 210204-RFP
billing statement that includes only COBRA Continuants is not received from the carrier. Section
2.8 addresses Employer responsibilities for this option.
1.16
WEX shall coordinate with Employer and its insurers and third-party administrators (collectively
“carrier” or “carriers”) to answer questions pertaining to COBRA continuation coverage eligibility
and COBRA premium payment status.
1.17
Using WEX’s standard forms and letters, WEX shall communicate with COBRA Continuants
concerning change of address, premium rate and benefit changes, COBRA continuation coverage
eligibility status, Medicare eligibility, advance-termination notice for the individual conversion,
individual conversion and private insurance options, and verification of termination.
1.18
WEX shall provide Employer real-time, online access to information related to the status of qualified
beneficiaries and COBRA Continuants.
1.19
WEX shall provide this information required in the event of an IRS or other third-party audit:
The written compliance procedures used by WEX in the administration of COBRA.
Samples of WEX forms and notices.
WEX records that pertain to a qualified beneficiary’s actual qualifying event or election or
COBRA Continuant’s continuation of coverage.
A description of how WEX administers COBRA coverage.
1.20
WEX shall provide Employer with the web portal login information so that Employer may notify WEX
when an employee, spouse or dependent is initially added to coverage under the Plan and when
an employee, spouse or dependent has experienced a qualifying event and is eligible for COBRA
continuation coverage under the Plan.
1.21
WEX shall provide Employer with the file format required by WEX so that Employer may upload
employee demographic, benefit, and qualifying event information using the employer web portal.
1.22
WEX shall provide a customer service line toll-free number for use during WEX normal business
hours to answer questions and address issues concerning COBRA regulation, COBRA
compliance, and COBRA premium payments.
Monday through Friday Central Time Zone
Employers 7:00 a.m. to 7:00 p.m.
Qualified Beneficiaries 6:00 a.m. to 9:00 p.m.
In compliance with applicable federal and state law, WEX may monitor and/or record calls that are
made to and from the customer service line for quality assurance and training purposes and/or to
ensure that WEX's services fully comply with the terms of this Agreement.
1.23
WEX shall notify a COBRA Continuant if COBRA coverage terminates earlier than the end of the
maximum period of coverage applicable to the qualifying event that entitled the individual to
COBRA continuation coverage. The notice will be provided as soon as administratively practicable
after WEX determines that the COBRA continuation coverage will be terminated early.
1.24
WEX shall extend the maximum COBRA continuation coverage period in cases of disability and
second qualifying events as allowed under COBRA.
1.25
WEX shall provide its standard system generated open enrollment/premium rate change letter
during open enrollment. If requested by Employer, WEX will provide qualified beneficiaries with a
link to additional plan and benefit description materials provided by Employer through the web
portal for qualified beneficiary and COBRA Continuant viewing and printing.
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1.26
Plan Records and Data
(a)
Written and electronic records containing personal information are securely destroyed or
deleted consistent with business needs or legal retention requirements.
(b)
Per business records needs and associated retention and secure destruction periods, WEX
shall retain a copy of all information (as information is defined in Section 2.22, excluding
emails or similar electronic communications destroyed in the ordinary course of business
pursuant to WEX policy) for at least eight (8) years from the date the record is created at
WEX, including, without limitation, a record of all assets and transactions involving the
Custodial Account (defined in Article 3).
(c)
Following the termination of this Agreement, WEX shall cooperate with Employer or
Employer’s subsequent service provider to affect an orderly transition of services provided
under this Agreement and, within a reasonable time, will release to Employer a copy of
data, records, and files in WEX’s standard format.
(d)
Upon termination of this Agreement, WEX shall be entitled to retain a copy of all
information, including any data, records, and files released by WEX pursuant to this Section
1.26 and will be entitled to continue to use and disclose such information for claims, audits,
and legal and contractual compliance purposes to the extent permitted by law and any
executed or applicable business associate agreement between the parties.
1.27
Information Security Program
WEX represents and warrants that it has implemented and maintains a written and comprehensive
information security program, and complies with all applicable domestic law and regulation,
including without limitation, any privacy and data security law and regulatory requirements under
applicable state law.
1.28
Subcontracting
WEX may delegate or subcontract any portion of WEX services to a third party without the written
consent of the County. For those WEX services that are delegated or subcontracted, WEX shall
remain fully and primarily responsible to Employer for compliance with all applicable provisions of
this Agreement or of any executed or applicable business associate agreement between the
parties, as well as to ensure said compliance by any third party utilized by WEX. No portion of
WEX administrative services shall be delegated or subcontracted to any third party located outside
the United States.
1.29
Audit Rights
Employer may audit or inspect any transactions, procedures, records, and participant files relating
to Covered employees or COBRA Continuants, at WEX’s offices and at a time reasonably
acceptable to WEX, upon providing ten (10) business days’ advance written notice to WEX and at
Employer’s expense. Unless otherwise required by legal and/or regulatory compliance, audits must
be completed within six (6) months following the date the audit begins.
1.30
Confidentiality of Plan Information
WEX shall keep confidential all information that it obtains concerning the Plan. Other than in the
due course of business, such information shall not be disclosed to a third party without prior
approval of Employer or as otherwise provided in Article 4.
Employer may request that WEX share Plan information and other data with a vendor of the Plan
or Employer. WEX shall consider all reasonable requests, however, prior to releasing or sharing
any Plan information or other data, Employer represents that it will enter into a business associate
agreement and/or confidentiality and data sharing agreement with the vendor.
SERIAL 210204-RFP
For confidential or protected information transmitted by a vendor of the Plan to WEX, Employer
must enter into a business associate agreement and/or confidentiality and data sharing agreement
with the vendor.
1.31
Benchmarks
WEX may, in its discretion, prepare and deliver to Employer benchmarks or other metrics showing
the experience of Employer and its participants with the services provided herein as compared to
other employers. WEX will develop any such benchmarks or metrics through the use of data that
has been aggregated and de-identified consistent with any executed or applicable business
associate agreement between the parties.
1.32
Limited Warranty
WEX represents and warrants to Employer that the WEX Services shall be performed in a
professional manner consistent with generally accepted industry standards and applicable law.
1.33
Disclaimer
WEX does not insure or underwrite Employer’s liability to provide benefits under the Plan. WEX
shall not be liable or obligated to use its funds for payment of benefits under the Plan, including,
without limitation, where such payment of benefits is sought as damages in an action against
Employer, WEX or the Plan. Employer shall promptly reimburse WEX for any benefit payments
made using WEX funds.
1.34
Non-Discrimination Testing and Additional Product and Service Solutions
Employer may subscribe to WEX’s non-discrimination testing and request additional products and
services solutions from WEX.
ARTICLE 2 EMPLOYER RESPONSIBILITIES
2.1
Employer shall provide accurate Covered employee counts to WEX on a monthly basis or as
requested by WEX. Employer shall have thirty (30) days from the date of the invoice to correct a
Covered employee count for credit or refund. Employer represents and warrants the accuracy of
any information Employer provides to WEX regarding Covered employee counts.
2.2
Employer shall provide complete demographic and benefit information to WEX for its current
COBRA Continuants on or by the date agreed upon during the implementation process.
2.3
Employer shall enter or upload an electronic file via the employer web portal containing complete
demographic and benefit election information within seven (7) days of employees, their spouses,
and/or dependents obtaining coverage under the Plan.
2.4
Employer shall notify WEX within seven (7) days of any initial qualifying event or the date coverage
is lost due to the qualifying event once Employer is notified with respect to an employee, spouse
or dependent.
2.5
Employer shall notify WEX within seven (7) days of a second qualifying event should Employer be
notified of a second qualifying event that occurs with respect to an employee, spouse or dependent.
2.6
The foregoing seven (7) day notice timelines address all potential notice requirements. However,
notwithstanding the foregoing, no matter when received, WEX will process the notice.
2.7
Unless directed otherwise by WEX, Employer shall provide notice of a qualifying event by entering
the required qualifying event information directly into the employer web portal or by uploading an
electronic file via the employer web portal. Employer is solely responsible for determining whether
an employee, spouse or dependent has experienced an initial qualifying event under the Plan and
the date of the qualifying event.
SERIAL 210204-RFP
2.8
For Remit to Carrier, Employer shall be solely responsible for its carrier to send a separate billing
statement to WEX that includes only COBRA Continuants.
2.9
For Remit to Carrier, Employer shall submit a completed WEX COBRA ACH Direct Payments form
to WEX. Failure to submit a completed WEX COBRA ACH Direct Payments form will result in WEX
remitting COBRA premium payments to Employer. Employer is at all times responsible to pay to
WEX its portion of the premium, where applicable, prior to WEX remitting premiums to the carrier.
2.10
Employer (or the third party designated by Employer to act in the place of Employer for the purpose
of remittance) shall be responsible for reconciling carrier billings with the online reports provided
by WEX through the employer web portal. The parties acknowledge that carriers often restrict the
ability to retroactively terminate COBRA coverage (even in cases of non-payment of premiums by
the COBRA Continuant). WEX shall not be liable for paying any loss or damage (including
premiums) to Employer with respect to any retroactive termination of COBRA coverage, provided
that WEX has performed in accordance with this Agreement. WEX reserves the right to decline to
implement any retroactive changes in premium rates requested by Employer, retroactive beyond
thirty (30) days.
2.11
Employer shall be responsible for selecting a determination period and establishing and advising
WEX of the applicable premium rates to be charged for COBRA continuation coverage. Employer
must notify WEX in writing at least forty-five (45) days in advance of the applicable billing date of:
(a) any changes in premium rates affecting COBRA coverage under the Plan; and (b) any changes
in premium rates during an open enrollment period, so that WEX has time to process the changes
prior to the effective date.
2.12
WEX acknowledges that carriers may not always provide information about premium rate changes
in a timely manner. If Employer is unable to notify WEX in writing at least forty-five (45) days in
advance of the applicable billing date of any changes in premium rates, WEX will make
commercially reasonable efforts to process the changes prior to the effective date.
2.13
Employer shall be solely responsible for any differences in premium payments when notification of
a premium rate change is not provided to WEX at least forty-five (45) days in advance, causing
payments made by COBRA Continuants to be incorrect for the new determination period.
2.14
Employer shall advise WEX of any material changes in the benefits plans offered and coverage
options (tiers) provided by the Plan. Employer shall forward any plan documents, plan amendments
that may impact COBRA continuants.
2.15
Employer shall be responsible for its compliance with the Patient Protection and Affordable Care
Act of 2010 (“PPACA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), the
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Internal Revenue Code
(the “Code”), each as amended from time-to-time, and other applicable law and regulation, as
applicable.
2.16
Employer shall review and be responsible for the payment of all claims under the Plan and ERISA,
including, without limitation, claims and appeals for benefits and claims and appeals for eligibility
determinations under the Plan. WEX is not responsible to receive or review claims for benefits
under the Plan and shall not be liable for the payment of any claims for benefits in connection with
the Plan, including, without limitation, where sought as damages in an action against Employer or
the Plan or for any activity or occurrences prior to the Effective Date of this Agreement, provided
that such activity or occurrence did not result from the services performed by WEX in accordance
with this Agreement.
2.17
Employer shall maintain and provide written internal compliance procedures used for notifying WEX
of a newly covered employee, spouse or dependent, a qualifying event, a report of terminations for
each tax year, or when there are premium rate and benefit changes in the event of an IRS or any
third-party audit.
SERIAL 210204-RFP
2.18
Employer shall provide for the release of information necessary for COBRA compliance and
administration under this Agreement.
2.19
Employer shall provide plan and benefit descriptions (e.g., Summary of Benefits and Coverage
(SBC), Summary Plan Description (SPD), and benefit plan booklets, etc.) to qualified beneficiaries
during open enrollment. WEX’s standard process is to provide a link to these additional materials
through the qualified beneficiary web portal for viewing and printing. If requested by Employer,
WEX may include these additional materials with its standard open enrollment/rate change letter
as long as Employer provides WEX with an electronic PDF image of the additional open enrollment
materials. A handling fee of $1.50 per page (duplex) will apply for these additional materials. WEX
will allow up to twenty-five (25) duplexed pages, including the standard open enrollment/rate
change letter.
2.20
Employer acknowledges and agrees that WEX shall:
(a)
Have no duty with respect to the funding of premiums by Employer or qualified beneficiaries
who elect COBRA;
(b)
Have no duty to pay any premiums of a qualified beneficiary to a carrier or Employer to the
extent that WEX did not receive the corresponding payment from the qualified beneficiary,
Employer or third party;
(c)
Not be liable for any failure of Employer to remit to a carrier any funds Employer receives
from WEX;
(d)
Not be liable for any failure of Employer to reconcile its carrier billings to online reports
provided by WEX through the employer web portal;
(e)
Not be liable for any retroactive premium rate changes requested by Employer;
(f)
Not be liable for any failure of Employer to modify its carrier billings and notify carriers of a
COBRA Continuant’s termination from COBRA coverage when WEX remits premiums paid
by COBRA Continuants to Employer;
(g)
Not be responsible for failure of delivery of any notice mailed by WEX using the qualified
beneficiary information provided to WEX by Employer, which failure is due to the use of
said information; and
(h)
Not be responsible for any loss or damage suffered by any participant, COBRA Continuant,
Employer or Plan, should WEX fail to give a required notice or a complete notice because
WEX did not receive notice of an event for which a notice was required, WEX did not
receive complete information, or WEX received incorrect information.
2.21
Employer Information and Instructions
(a)
WEX shall be fully protected in relying upon representations and communications made by
or on behalf of Employer in effecting its obligations under this Agreement.
(b)
WEX is entitled to rely on the most current information in its possession when providing
services under this Agreement.
(c)
WEX shall provide the services in accordance with this Agreement based on information
that is provided to WEX by Employer, Covered employee or qualified beneficiary. For this
purpose, “information” means all data, records and other information supplied to WEX,
obtained by WEX or produced by WEX (based on data, records or other information
supplied to, or obtained by, WEX) in connection with performing the services pursuant to
this Agreement, regardless of the form of the information or the manner in which the
information is provided to WEX.
SERIAL 210204-RFP
(d)
In engaging WEX to perform the services under this Agreement, Employer has authorized
and instructed WEX in this Agreement to implement WEX’s standard administrative forms
and procedures.
(e)
Employer is responsible for the integrity of data in the files. Therefore, complete and
accurate information from Employer is required in order for WEX to perform the services
set forth herein.
(f)
Employer agrees not to use the full social security number in the employee identification
number field.
2.22
Employer’s Electronic Account
For access to the services provided by WEX via an online account or other electronic means
(“Employer’s Electronic Account”), Employer is solely responsible for:
(a)
Designating who is authorized to have access to Employer’s Electronic Account;
(b)
Safeguarding all of Employer’s passwords, usernames, logins or other security features
used to access Employer’s Electronic Account (“Electronic Account Access”);
(c)
Employer’s use of Employer’s Electronic Account under any usernames, logins or
passwords;
(d)
Ensuring that use of Employer’s Electronic Account complies fully with the provisions of
this Agreement;
(e)
Any unauthorized access of Employer’s Electronic Account due to Employer’s actions or
inactions, including, without limitation, Employer’s failure to safeguard Employer’s
Electronic Account or Electronic Account Access; and
(f)
The maintenance and routine review of its computing and electronic system usage records
(i.e., log files) and the security of its own data, data storage, computing devices, other
electronic systems, and network connectivity.
2.23
Enumeration System Identifier
If required, Employer is solely responsible to the Plan to obtain or assign the standard unique
Health Plan Identifier (“HPID”) or Other Entity Identifier (OEID) or to update the enumeration system
per 45 CFR § 162.508.
2.24
Acknowledgement
Employer acknowledges and agrees that the services provided by WEX pursuant to this Agreement
relate to enrollment and disenrollment in the Plan and that these services to the extent permitted
under HIPAA shall be deemed to be performed by WEX on behalf of Employer in its capacity as
the sponsor of the Plan.
2.25
Carrier Notifications
WEX’s standard practice is to notify the applicable carrier of a qualified beneficiary’s enrollment in,
changes to or termination from COBRA coverage. However, if instead, Employer instructs WEX to
send all such notifications to Employer or to a third party other than the applicable carrier, Employer:
(a) is responsible to ensure the carrier is updated in a timely manner; (b) is responsible to provide
urgent updates to the carriers in a timely manner as necessary; (c) accepts all responsibility and
liability for the carrier notifications; and (d) expressly releases all claims against WEX in connection
with the carrier notifications and agrees to hold WEX harmless from and against all liability,
damages, costs, losses and expenses (including reasonable attorney fees) that result from the
SERIAL 210204-RFP
failure or alleged failure of Employer, its officers and employees, and any other entity (other than
WEX) in connection with such carrier notifications.
2.26
Coverage Eligibility
Employer shall be solely responsible for its carrier compliance with COBRA continuation coverage
regulatory guidelines that allow for retroactive changes or terminations for qualified beneficiary or
COBRA Continuant coverage eligibility beyond sixty (60) days.
ARTICLE 3 CUSTODIAL ACCOUNT
3.1
Appointment and Acceptance of Custodian
By signing this Agreement, Employer appoints WEX as custodian of Employer funds for the
purposes and upon the terms and conditions set forth in this Agreement, and WEX accepts such
appointment and agrees to act as custodian hereunder and to hold any Employer funds received
hereunder in accordance with the terms and conditions set forth in this Agreement.
3.2
Custodial Account
WEX maintains one or more depository accounts (the “Custodial Account”) at Bell Bank, Fargo,
North Dakota or such other custodian as WEX may designate from time to time (the “Bank”) and
holds in such Custodial Account all COBRA continuation premiums received from COBRA
Continuants or on their behalf from third parties, less any portion of the premium payment that
constitutes administrative fees payable by the COBRA Continuant. Upon deposit, such premiums
shall become Employer funds (less any applicable fees or other costs as set forth in this
Agreement). For administrative convenience and to reduce costs, WEX shall hold Employer funds
together with similar funds from other employers in a single Custodial Account (or one or more
Custodial Accounts as determined by WEX). WEX shall maintain records as to the exact amount
of funds allocated to each employer. Each employer has a legal right to the specific amount of its
funds held in the Custodial Account.
At all times, the assets comprising each employer’s funds in the Custodial Account shall be
considered a separate subaccount for purposes of this Agreement.
Depending upon the context, the term “Custodial Account” as used herein shall refer to either the
separate subaccount for Employer or all of the subaccounts for all employers in the aggregate.
3.3
Employer Funds
Employer and WEX intend and agree that the funds transferred to the Custodial Account shall be
comprised of and shall remain the general assets of Employer. The COBRA continuation premiums
received from COBRA Continuants are after-tax contributions relieved from the ERISA trust
requirements. Except to the extent that outstanding checks have been written or withdrawals made
against the Custodial Account balance on behalf of Employer, and subject to Section 6.3, Employer
funds may be withdrawn by Employer at any time (less any applicable fees or other costs as set
forth in this Agreement) and are subject to Employer’s general creditors in the same manner as
funds deposited in Employer’s ordinary checking accounts.
3.4
Disbursements
WEX shall forward the COBRA continuation premiums (less the 2% additional premium allowed by
COBRA for administrative costs charged to COBRA Continuants) from the Custodial Account to
the applicable carrier or to Employer or Employer’s designee as directed by Employer and in
accordance with this Agreement. WEX shall neither have nor shall be deemed to have any
discretion, control or authority with respect to the disposition of Employer Funds.
SERIAL 210204-RFP
3.5
Interest Earned
Employer acknowledges and understands that from time to time, WEX may receive earnings and
interest on the funds held in the Custodial Account and that any such earnings or interest shall be
part of WEX’s compensation.
Employer acknowledges and understands that fees otherwise charged by WEX for services under
this Agreement may be greater if WEX did not retain such earnings and interest on these funds.
The period during which interest may be earned begins on the date Employer funds are deposited
into the Custodial Account and continues for as long as Employer funds remain in the Custodial
Account.
Funds shall be disbursed on a first-in, first-out basis.
WEX does not track nor can it report interest earned for a single employer. WEX absorbs other
bank charges, such as transmission charges, within the fees.
3.6
Maintenance of Records
Upon Employer’s written request, WEX shall provide Employer with an accounting of all Employer
assets, transfers, and transactions activity involving the Custodial Account, including a description
of all receipts, disbursements, and other transactions.
ARTICLE 4 CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY
4.1
General Obligations
For purposes of this Article 4, “confidential business information” shall mean any business
information identified by either party as “confidential” and/or “proprietary”, or which, under the
circumstances, ought to be treated as confidential or proprietary, including non-public information
related to the disclosing party’s business, service methods, software, documentation, financial
information, prices, and product plans. Neither WEX nor Employer shall disclose confidential
business information of the other party. The receiving party shall use reasonable care to protect
the confidential business information and ensure it is maintained in confidence, and in no event
use less than the same degree of care as it employs to safeguard its own confidential business
information of like kind.
The foregoing obligation shall not apply to any information that: (a) is at the time of disclosure, or
thereafter becomes, part of the public domain through a source other than the receiving party; (b)
is subsequently learned from a third party that does not impose an obligation of confidentiality on
the receiving party; (c) was known to the receiving party at the time of disclosure; (d) was generated
independently by the receiving party; or (e) is required to be disclosed by law, subpoena or other
process.
WEX may disclose Employer’s or the Plan’s confidential business information to a governmental
agency or other third party to the extent necessary for WEX to perform its obligations under this
Agreement or if Employer has given WEX written authorization to do so.
Although WEX may have confidential business information processed, managed, and/or stored
with subcontractors or third parties, it remains fully responsible to Employer for the confidentiality
obligations set forth herein.
4.2
Financial Statements and Audit Information
If Employer requests access to certain financial statements and/or service organization control
audit reports or other audit information of WEX for the purpose of reviewing the financial, operating,
and business condition of WEX, and WEX agrees to provide such information, Employer’s
SERIAL 210204-RFP
acceptance of or access to such confidential information shall constitute its agreement with the
following:
Employer shall maintain the information (whether communicated by means of oral, electronic
or written disclosures) in confidence and shall not use the same for its own benefit, or for any
purpose other than the furtherance of its review or disclose the same to any third party.
Employer may disclose the information to its own officers, employees, and agents on a need-
to-know basis for the purposes of its review.
Employer shall use reasonable care to protect the information and to ensure that it is
maintained in confidence, and in no event use less than the same degree of care as Employer
uses to safeguard its own confidential information.
If Employer is a state agency or otherwise subject to a freedom of information type statute, the
information shall be treated as confidential and exempt from disclosure in accordance with
applicable law, as the information contains sensitive proprietary business information and data
defined as trade secret information that would not otherwise be publicly available and that
disclosure of this information to the public, including WEX’s competitors, would likely result in
substantial harm to WEX’s competitive positions and also contains confidential supervisory
information and personal information relating to directors, officers, and major shareholders of
WEX, the disclosure of which would constitute an unwarranted invasion of personal privacy.
4.3
Intellectual Property
All materials, including, without limitation, documents, forms (including data collection forms
provided by WEX), brochures, and online content ("Materials") furnished by WEX to Employer are
licensed, not sold. Employer is granted a personal, non-transferable, and nonexclusive license to
use Materials solely for Employer’s own internal business use. Employer does not have the right
to copy, distribute, reproduce, alter, display or use these Materials or any WEX trademarks for any
other purpose other than its own internal business use. Employer shall use commercially
reasonable efforts to prevent and protect the content of Materials from unauthorized use.
Employer’s license to use Materials ends on the termination date of this Agreement.
Upon termination, Employer agrees to destroy Materials or, if requested by WEX, to return them to
WEX, except to the extent Employer is required by law to maintain copies of such Materials.
WEX retains exclusive ownership rights to and reserves the right to independently use its
experience and know-how, including processes, ideas, concepts, techniques, and software
acquired prior to or developed in the course of performing services under this Agreement.
4.4
Application
Each party agrees that its obligations contained in this Article 4 apply also to its parent, subsidiary,
and affiliated companies, if any, and to similarly bind all successors, employees, and
representatives.
ARTICLE 5 TERM AND TERMINATION
5.1
Upon the completion of the later of the Agreement, or any period of further services, WEX will cease
the performance of these COBRA administration services and Employer shall be immediately
responsible for all aspects of COBRA administration. WEX shall return to Employer any Employer
funds in the Custodial Account. However, the return of such funds shall remain subject to the
completion of a final accounting of all account activities, as well as the deduction of undisputed
unpaid fees and other expenses under this Agreement or any other agreement between the parties.
As necessary, WEX shall have the immediate right to demand and pursue collection of any unpaid
fees, reimbursements or other amounts that are due and owing to WEX as of the date of termination
pursuant to the terms of this Agreement or any other agreement between the parties.
SERIAL 210204-RFP
ARTICLE 6 COST OF SERVICES
6.1
Administrative Services Fees
(a)
Employer shall pay WEX a fee for its services under this Agreement. This fee shall be
payable in accordance with the fee schedule attached hereto. Fees are invoiced monthly
and are due within thirty (30) days of the invoice date. If Employer disputes in good faith
any portion of the fees invoiced, Employer shall provide WEX with written notice of any
disputed fees together with a complete written explanation of the reasons for the dispute
(the “Dispute Notice”) within thirty (30) days of the invoice date. The parties shall work
together in good faith to reach a mutually agreeable resolution of the dispute identified in
the Dispute Notice for a period of ten (10) days following the date of the Dispute Notice.
(b)
As part of the administrative fees under this Agreement, WEX shall also retain the 2%
additional premium allowed by COBRA for administrative costs charged to COBRA
Continuants. If state or local law prevents COBRA Continuants from being charged the
additional 2% premium, then the additional 2% premium shall become a fee paid by the
Employer to WEX for its services under this Agreement. This fee shall be payable in
accordance with the fee schedule attached hereto. Such fee will be invoiced monthly and
will be due within thirty (30) days of the invoice date.
(c)
Notwithstanding the foregoing, WEX reserves the right to:
Charge for the provision of additional services that were neither included in nor
contemplated by this Agreement on the Effective Date;
Charge for proprietary technology and services; and
Increase fees based on additional costs imposed on WEX, such as significant
postal rate or bank fee increases or substantiated increased costs due to
legislative or regulatory changes, domestic or foreign, actually incurred in
performing its services.
WEX shall provide Employer with reasonable prior written notice of such charges or
increases.
(d)
On or after the rate expiration date indicated on the fee schedule, WEX reserves the right
to amend the fee schedule with at least sixty (60) days’ advance written notice. If Employer
is unwilling to accept the changes to the fee schedule, Employer may terminate this
Agreement by providing notice to WEX no later than the effective date of the fee schedule
amendment.
(e)
Fees quoted assume that WEX’s standard software and systems will be compatible with
Employer’s software and systems and with any prior service provider’s software and
systems so that the services can be readily performed without any modifications or
alterations of WEX’s software and systems. In the unusual event that costs are incurred
by WEX to integrate the WEX services with Employer’s software and systems and/or in
migrating the data from the prior service provider to WEX’s systems, those costs may be
charged separately on a time and materials basis or as otherwise provided under a
separate agreement between the parties.
6.2
Non-Party Payment on Behalf of Employer and Compliance with Anti-Rebating Law
Employer represents and warrants that if someone other than Employer is paying WEX’s fees on
behalf of Employer, the making of such payment shall not violate any applicable anti-rebating law
and agrees to hold WEX harmless (including reasonable attorney’s fees) from all losses that may
result from Employer’s breach of this provision.
SERIAL 210204-RFP
6.3
Past Due Fees
Notwithstanding anything in this Agreement or any other agreement between the parties to the
contrary, if Employer fails to pay WEX any amount (except for amounts subject to a good faith
dispute) that is due as a result of the services provided by WEX to Employer under this Agreement
or any other agreement between the parties, WEX shall be permitted to deduct the undisputed
amount from any funds held by WEX that were received from Employer. This right of offset shall
be in addition to any other remedies that WEX may have in this Agreement or any other agreement
between the parties with respect to such non-payment, including, without limitation, any right to
terminate this Agreement or a right of recoupment, regardless of whether the past due amount is
paid in full as a result of the offset or recoupment rights provided herein.
SERIAL 210204-RFP
EXHIBIT B-2 DIRECT BILL ADMINISTRATIVE SERVICES AGREEMENT RECITALS
The services set forth in this Agreement are subject to the master contract for services pursuant to RFP
No. 210204 (“Master Services Agreement”). In the event of a conflict between the Master Services
Agreement and any portion of this Agreement, the terms of the Master Services Agreement shall prevail.
Employer has established one or more group health plans (such plans, individually and collectively as the
context may require, are herein referred to as the “Plan"), which may be modified or amended from time to
time; and
The Plan provides coverage for certain eligible individuals and their eligible dependents subject to payment
of required contributions toward the cost of such coverage; and
Employer now wishes to retain the services of WEX for purposes of assisting it in billing for the required
contributions or “premiums” and WEX is willing to provide such services (“Direct Bill Services”) in return for
certain fees and consideration.
WEX shall assume no liability for the performance of any services beyond those set forth in this Direct Bill
Administrative Services Agreement (this “Agreement”).
The above-stated recitals are accurate, true, and correct and are incorporated herein and made a part
hereof by this reference.
Now, therefore, for good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows.
ARTICLE 1 WEX ADMINISTRATIVE SERVICES
1.1
WEX shall assist Employer in the administration of the Direct Bill Services as selected and
communicated by Employer in the WEX implementation process. WEX’s duties shall be limited to
those expressly provided in this Agreement or subsequently agreed to in writing by WEX and
Employer
1.2
“Member” means any individual eligible to participate in and be covered by the Plan (or portion
thereof) that is included in the Direct Bill Services, including medical, dental, vision, and any other
benefit plan that qualifies for Plan coverage.
1.3
Upon receipt of complete information from Employer (as determined by WEX), WEX shall send
WEX’s standard notification letter to new Members informing them of their rights under the Plan.
1.4
WEX shall mail its member portal login notice and standard premium payment coupons to
Members.
1.5
WEX shall provide to Members the option to pay premiums by check.
1.6
WEX shall provide to Members the option to make premium payments via automatic recurring ACH
(an electronic funds-transfer system run by the National Automated Clearing House Association).
1.7
WEX shall provide to Members the option to make premium payments online with a credit card or
via a single occurrence ACH request. To the extent permitted by law and the applicable credit card
operating rules and regulations, a reasonable additional processing fee charged by the online third-
party vendor and payable by the Members will apply to these payment methods. The fee is
collected by WEX and remitted to the third-party vendor.
1.8
WEX shall collect, track, process, and remit the premiums paid by Members in accordance with the
terms and conditions of this Agreement, including, without limitation, Article 3.
SERIAL 210204-RFP
1.9
WEX shall deposit premium payments in a Custodial Account (as defined in Article 3) for the benefit
of Employer in the manner described in Article 3.
1.10
WEX shall coordinate with Employer and its insurance carriers to answer questions pertaining to a
Member’s eligibility and payment status.
1.11
Using WEX’s standard communications, WEX shall maintain communication with Members who
participate in coverage concerning eligibility status, termination, and benefit and rate changes.
1.12
WEX shall provide Employer real-time, online access to information related to the status of Member
payment and coverage, and for notifying WEX when a Member is enrolled in or has terminated
from Plan coverage.
1.13
WEX shall supply Employer with the initial login information for accessing the employer web portal.
1.14
WEX shall supply Employer with the required file format for uploading Member demographic and
benefit information to the employer web portal.
1.15
WEX shall provide Members real-time, online access to information related to the status of their
premium payments and coverage.
1.16
WEX shall provide a customer service line toll-free number for use during WEX normal business
hours to answer questions about Direct Bill and premium payments.
Monday through Friday Central Time Zone
Employers
7:00 a.m. to 7:00 p.m.
Members
6:00 a.m. to 9:00 p.m.
In compliance with applicable federal and state law, WEX may monitor and/or record calls that are
made to and from the customer service line for quality assurance and training purposes and/or to
ensure that WEX's services fully comply with the terms of this Agreement.
1.17
WEX shall notify a Member when coverage terminates earlier than the end of the maximum period
of coverage applicable to the Plan that entitled the individual to coverage. The notice will be
provided as soon as administratively practicable after WEX determines that Plan coverage will be
terminated early.
1.18
WEX shall send WEX’s standard system generated open enrollment/rate change letter during open
enrollment. If requested by Employer, WEX will provide Members with a link to additional plan and
benefit description materials provided by Employer through the member web portal for member
viewing and printing.
1.19
Per business records needs and associated retention and secure destruction periods, WEX shall
retain a copy of all information (as information is defined in Section 2.14, excluding emails or similar
electronic communications destroyed in the ordinary course of business pursuant to WEX policy)
for at least eight (8) years from the date the record is created at WEX, including, without limitation,
a record of all assets and transactions involving the Custodial Account (defined in Article 3).
1.20
WEX represents and warrants that it has implemented and maintains a written and comprehensive
information security program and complies with all applicable law and regulation, including, without
limitation, state privacy and data security law and regulation, such as the Massachusetts Standards
for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00).
1.21
WEX may delegate or subcontract any portion of WEX services to a third party. For those WEX
services that are delegated or subcontracted, WEX shall remain fully responsible to Employer for
compliance with all applicable provisions of this Agreement or of any executed or applicable
business associate agreement between the parties. No portion of WEX services shall be delegated
SERIAL 210204-RFP
or subcontracted to any third party located outside of the United States. No transit authority
associated with a TSA shall be considered an agent or subcontractor of WEX.
1.22
Employer may inspect any transactions, procedures, records, and participant files relating to
Members, at WEX’s offices and at a time reasonably acceptable to WEX, upon providing ten (10)
business days’ advance written notice to WEX.
1.23
Benchmarks
WEX may, in its discretion, prepare and deliver to Employer benchmarks or other metrics showing
the experience of Employer and its participants with the services provided herein as compared to
other employers. WEX will develop any such benchmarks or metrics through the use of data that
has been aggregated and de-identified consistent with any executed or applicable business
associate agreement between the parties.
1.24
Limited Warranty
WEX represents and warrants to Employer that the WEX services shall be performed in a
professional manner consistent with generally accepted industry standards and applicable law.
1.25
Disclaimer
WEX does not insure or underwrite Employer’s liability to provide benefits under the Plan. WEX
shall not be liable or obligated to use its funds for payment of benefits under the Plan, including,
without limitation, where such payment of benefits is sought as damages in an action against
Employer, WEX or the Plan. Employer shall promptly reimburse WEX for any benefit payments
made using WEX funds.
1.26
Non-Discrimination Testing and Additional Product and Service Solutions
Employer may subscribe to WEX’s non-discrimination testing and request additional products and
services solutions from WEX.
ARTICLE 2 EMPLOYER RESPONSIBILITIES
2.1
Employer shall provide to WEX accurate Member counts on a monthly basis or as requested by
WEX. Employer warrants the accuracy of any information Employer provides to WEX regarding
Member counts.
2.2
Employer shall provide to WEX complete demographic and benefit information for Members
receiving Plan coverage under Employer’s Plan upon the inception of this Agreement, allowing
WEX to take over the administration of individuals currently on coverage under the Plan.
2.3
Employer shall enter information or upload an electronic file via the employer web portal containing
complete demographic and benefit election information for newly covered Members within seven
(7) days of obtaining coverage under the Plan.
2.4
Employer shall advise WEX of the applicable premium rates to be charged for Plan coverage.
Employer shall notify WEX in writing at least forty-five (45) days in advance of the applicable billing
date of: (a) any changes in premium rates affecting Plan coverage and (b) any changes in
premiums applicable to Members during an open enrollment period. If Employer is unable to notify
WEX in writing at least forty-five (45) days in advance of the applicable billing date of any changes
in premium rates, WEX will make commercially reasonable efforts to process the changes prior to
the effective date.
2.5
Employer shall reconcile Employer’s insurance carrier or third-party administrator billings with the
online reports provided by WEX through the employer web portal. Most insurers restrict the ability
to retroactively terminate coverage even in cases of non-payment of premiums by the Member.
WEX shall not be liable for paying any loss or damage (including premiums) to Employer with
SERIAL 210204-RFP
respect to any retroactive termination of coverage due to Employer’s failure to reconcile and/or
Employer advancing payment of premium on behalf of any Member and not due to WEX’s failure
to perform in accordance with this Agreement.
2.6
Employer shall be responsible for differences in premium payments paid by Members when
notification of rate changes is not provided to WEX at least forty-five (45) days in advance, causing
payments made by Members to be incorrect.
2.7
Employer shall be responsible for advising WEX of any material changes in the benefits plans
offered and coverage options (tiers) provided by the Plan. Employer shall forward any plan
documents, plan amendments that may impact COBRA continuants.
2.8
Employer shall be responsible for complying with the Patient Protection and Affordable Care Act
(“PPACA”) of 2010, the Employee Retirement Income Security Act of 1974 (“ERISA”), the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Internal Revenue Code (the
“Code”), each as amended from time-to-time ,and other applicable law and regulation as applicable
with respect to the Plan, other than for the Direct Bill Services and HIPAA responsibilities assumed
by WEX under this Agreement or the business associate agreement entered into between the
parties.
2.9
Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses, and
expenses (including reasonable attorney fees) and expressly releases all claims against WEX in
connection with any claim or cause of action for any activity or occurrence prior to the Effective
Date of this Agreement that results from the failure or alleged failure of Employer, its officers and
employees, and any other entity related to or performing services on behalf of Employer to comply
with the PPACA, ERISA, HIPAA, the Code or any other applicable law or regulation.
2.10
Employer shall review and be responsible for payment of all claims under the Plan and ERISA,
including, without limitation, claims and appeals for benefits and claims and appeals for eligibility
determinations under the Plan. WEX is not responsible to receive or review claims or appeals for
benefits or eligibility under the Plan, and WEX is not liable for the payment or funding of any claims
for benefits in connection with the Plan, including, without limitation, where sought as damages in
an action against Employer or the Plan or for any occurrences prior to the Effective Date of this
Agreement, provided that such failure did not result from the services performed by WEX in
accordance with this Agreement.
2.11
Employer shall provide the release of the information necessary for Direct Bill administration under
this Agreement.
2.12
As applicable only, Employer shall provide plan and benefit descriptions (e.g., Summary of Benefits
and Coverage (SBC), Summary Plan Description (SPD) and benefit plan booklets, etc.) to
Members during open enrollment. WEX’s standard process is to provide a link to these additional
materials through the participant web portal for Member viewing and printing. If requested by
Employer, WEX may include these additional materials with its standard open enrollment/rate
change letter as long as Employer provides WEX with an electronic PDF image of the additional
open enrollment materials. A handling fee of $1.50 per page (duplex) will apply for these additional
materials. WEX will allow for a total of up to twenty-five (25) duplexed pages, including the standard
open enrollment/rate change letter.
2.13
Employer acknowledges and agrees that under this Agreement, WEX shall:
(a) Have no duty with respect to the payment or funding of premiums or contributions by Employer
or Members who elect Plan coverage.
(b) Have no duty to pay any premiums or contributions of a Member to an insurer or third-party
administrator of the Plan to the extent that WEX did not receive the corresponding payment
from the Member or third party.
SERIAL 210204-RFP
(c) Not be liable for any failure of Employer to remit to the insurers or third-party administrators of
the Plan any funds Employer receives from WEX.
(d) Not be liable for any failure of Employer to reconcile its carrier or third-party administrator
billings to online reports provided by WEX through the employer web portal.
(e) Not be liable for any failure of Employer to modify its carrier or third-party administrator billing
and notify insurers and administrators of a Member’s termination from coverage when WEX
remits premiums or contributions paid by continuants to Employer.
(f)
Not be responsible for failure of delivery of any notice mailed by WEX using the Member
information provided to WEX by Employer as of the applicable time, which failure is due to that
information.
(g) Not be responsible for any loss or damage suffered by any Member, Employer or the Plan,
should WEX fail to give a required notice because WEX did not receive complete notice of an
event for which a notice was required or the proper address to which the notice was to be sent.
(h) Not be responsible for payments not made during or after grace periods if Employer instructs
WEX to ignore grace periods.
2.14
Employer Information and Instructions
(a) WEX shall be fully protected in relying upon representations and communications made by or
on behalf of Employer in effecting its obligations under this Agreement.
(b) WEX is entitled to rely on the most current information in its possession when providing
services under this Agreement.
(c) WEX shall provide the services in accordance with this Agreement based on information that
is provided to WEX by Employer or Member. For this purpose, “information” means all data,
records, and other information supplied to WEX, obtained by WEX or produced by WEX (based
on data, records or other information supplied to, or obtained by, WEX) in connection with
performing the services pursuant to this Agreement, regardless of the form of the information
or the manner in which the information is provided to WEX.
(d) In engaging WEX to perform the services under this Agreement, Employer has authorized and
instructed WEX in this Agreement to implement WEX’s standard administrative forms and
procedures to provide services in accordance with this Agreement.
(e) Employer is responsible for the integrity of data in the files. Therefore, complete and accurate
information from Employer is required in order for WEX to perform the services set forth herein.
(f)
Employer agrees not to use the full social security number in the employee identification
number field.
2.15
Employer’s Electronic Account
For access to the services provided by WEX via an online account or other electronic means
(“Employer’s Electronic Account”), Employer is solely responsible for:
(g) Designating who is authorized to have access to Employer’s Electronic Account;
(h) Safeguarding all of Employer’s passwords, usernames, logins or other security features used
to access Employer’s Electronic Account (“Electronic Account Access”);
(i)
Employer’s use of Employer’s Electronic Account under any usernames, logins or passwords;
SERIAL 210204-RFP
(j)
Ensuring that use of Employer’s Electronic Account complies fully with the provisions of this
Agreement; and
(k) Any unauthorized access of Employer’s Electronic Account due to Employer’s actions or
inactions, including, without limitation, Employer’s failure to safeguard Employer’s Electronic
Account or Electronic Account Access.
(l)
The maintenance and routine review of its computing and electronic system usage records
(i.e., log files) and the security of its own data, data storage, computing devices, other electronic
systems, and network connectivity.
2.16
Enumeration System Identifier
If required, Employer is solely responsible to the Plan to obtain or assign the standard unique
Health Plan Identifier (“HPID”) or Other Entity Identifier (OEID) or to update the enumeration system
per 45 CFR § 162.508.
2.17
Acknowledgement
Employer acknowledges and agrees that the services provided by WEX pursuant to this Agreement
relate to enrollment and disenrollment in the Plan, and that these services, to the extent permitted
under HIPAA, shall be deemed to be performed by WEX on behalf of Employer, in its capacity as
the sponsor of the Plan.
2.18
Carrier Notifications
As applicable only, WEX’s standard practice is to notify the Carrier of a Member’s enrollment in,
changes to or termination from coverage. If Employer instructs WEX to instead send all such
notifications to Employer or to a third party other than the carrier, Employer: (a) is responsible to
ensure the carrier is updated in a timely manner; (b) is responsible to provide urgent updates to the
carriers in a timely manner as necessary; (c) accepts all responsibility and liability for the carrier
notifications; and (d) expressly releases all claims against WEX in connection with the carrier
notifications and agrees to hold WEX harmless from and against all liability, damages, costs, losses
and expenses (including attorney fees) that result from the failure or alleged failure of Employer, its
officers and employees, and any other entity (other than WEX) in connection with such carrier
notifications.
ARTICLE 3 CUSTODIAL ACCOUNT
3.1
By signing this Agreement, Employer appoints WEX as custodian for the purposes and upon the
terms and conditions set forth in this Agreement, and WEX accepts such appointment and agrees
to act as custodian hereunder and to hold any Employer funds received hereunder in accordance
with the terms and conditions set forth in this Agreement.
3.2
WEX maintains one or more depository accounts (the “Custodial Account”) at Bell Bank, Fargo,
North Dakota or such other custodian as WEX may designate from time to time (the “Bank”) and
holds in such account all premiums and contributions received from Members, less any portion of
the funds that constitutes administrative fees payable by the Member. Upon deposit, such
premiums and contributions shall become Employer funds (less any applicable fees or other costs
as set forth in this Agreement). For administrative convenience and to reduce costs, WEX shall
hold Employer funds of Employer together with similar funds from other employers in the Custodial
Account (or one or more Custodial Accounts). WEX shall maintain records as to the exact amount
of funds of each employer. Each employer has a legal right to the specific amount of funds held in
the Custodial Account.
3.3
Employer and WEX intend and agree that Employer funds are and shall remain the general assets
of Employer, are not the general assets of WEX and are not plan assets within the meaning of
ERISA. Except to the extent that outstanding checks have been written against the account on
behalf of Employer, and subject to Section 6.3, Employer funds may be withdrawn by Employer at
SERIAL 210204-RFP
any time and are subject to Employer’s creditors in the same manner as funds deposited in
Employer’s ordinary checking accounts.
3.4
WEX shall forward premiums and contributions from the Custodial Account to Employer or
Employer’s designee as directed by Employer and in accordance with this Agreement and
Employer’s Plan. WEX shall neither have nor shall be deemed to exercise any discretion, control
or authority with respect to the disposition of Employer funds.
3.5
Employer acknowledges and understands that from time to time, WEX may receive earnings and
interest on the funds held in the Custodial Account and that any such earnings or interest shall be
part of WEX’s compensation.
3.6
Employer acknowledges and understands that fees otherwise charged by WEX for services under
this Agreement would be greater if WEX did not retain such earnings and interest on these funds.
3.7
WEX does not track nor can it report interest earned for a single employer. WEX absorbs other
bank charges, such as transmission charges, within the fees.
3.8
The period during which interest may be earned begins on the date Employer funds are deposited
into the Custodial Account and continues for as long as Employer funds remain in the Custodial
Account. Funds shall be disbursed on a first-in, first-out basis.
3.9
Upon Employer’s written request, WEX shall provide Employer with information relating to all
Employer assets, transfers, and transactions activity involving the Custodial Account, including a
description of all receipts, disbursements, and other transactions.
ARTICLE 4 CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY
4.1
General Obligations
For purposes of this Article 4, “confidential business information” shall mean any business
information identified by either party as “confidential” and/or “proprietary”, or which, under the
circumstances, ought to be treated as confidential or proprietary, including non-public information
related to the disclosing party’s business, service methods, software, documentation, financial
information, prices, and product plans. Neither WEX nor Employer shall disclose confidential
business information of the other party. The receiving party shall use reasonable care to protect
the confidential business information and ensure it is maintained in confidence, and in no event
use less than the same degree of care as it employs to safeguard its own confidential business
information of like kind. The foregoing obligation shall not apply to any information that: (a) is at
the time of disclosure, or thereafter becomes, part of the public domain through a source other than
the receiving party; (b) is subsequently learned from a third party that does not impose an obligation
of confidentiality on the receiving party; (c) was known to the receiving party at the time of
disclosure; (d) was generated independently by the receiving party; or (e) is required to be
disclosed by law, subpoena or other process.
WEX may disclose Employer’s or the Plan’s confidential business information to a governmental
agency or other third party to the extent necessary for WEX to perform its obligations under this
Agreement or if Employer has given WEX written authorization to do so.
Although WEX may have confidential business information processed, managed, and/or stored
with subcontractors or third parties, it remains fully responsible to Employer for the confidentiality
obligations set forth herein.
4.2
Financial Statements and Audit Information
If Employer requests access to certain financial statements and/or service organization control
audit reports or other audit information of WEX for the purpose of reviewing the financial, operating,
and business condition of WEX, and WEX agrees to provide such information, Employer’s
SERIAL 210204-RFP
acceptance of or access to such confidential information shall constitute its agreement with the
following:
Employer shall maintain the information (whether communicated by means of oral, electronic
or written disclosures) in confidence and shall not use the same for its own benefit, or for any
purpose other than the furtherance of its review or disclose the same to any third party.
Employer may disclose the information to its own officers, employees, and agents on a need-
to-know basis for the purposes of its review.
Employer shall use reasonable care to protect the information and to ensure that it is
maintained in confidence, and in no event use less than the same degree of care as Employer
uses to safeguard its own confidential information.
If Employer is a state agency or otherwise subject to a freedom of information type statute, the
information shall be treated as confidential and exempt from disclosure in accordance with the
applicable law and the information contains sensitive proprietary business information and data
defined as trade secret information that would not otherwise be publicly available, and that
disclosure of this information to the public, including WEX’s competitors, would likely result in
substantial harm to WEX’s competitive positions and also contains confidential supervisory
information and personal information relating to directors, officers, and major shareholders of
WEX, the disclosure of which would constitute an unwarranted invasion of personal privacy.
4.3
Intellectual Property
All materials, including, without limitation, documents, forms (including data collection forms
provided by WEX), brochures, and online content ("Materials") furnished by WEX to Employer are
licensed, not sold. Employer is granted a personal, non-transferable, and nonexclusive license to
use Materials solely for Employer’s own internal business use. Employer does not have the right
to copy, distribute, reproduce, alter, display or use these Materials or any WEX trademarks for any
other purpose other than its own internal business use. Employer shall use commercially
reasonable efforts to prevent and protect the content of Materials from unauthorized use.
Employer’s license to use Materials ends on the termination date of this Agreement.
Upon termination, Employer agrees to destroy Materials or, if requested by WEX, to return them to
WEX, except to the extent Employer is required by law to maintain copies of such Materials.
WEX retains exclusive ownership rights to and reserves the right to independently use its
experience and know-how, including processes, ideas, concepts, and techniques acquired prior to
or developed in the course of performing services under this Agreement.
4.4
Application
Each party agrees that its obligations contained in this Article 4 apply also to its parent, subsidiary,
and affiliated companies, if any, and to similarly bind all successors, employees, and
representatives.
ARTICLE 5 COST OF SERVICES
5.1
Plan Administrative Services Fees
(a) Employer shall pay WEX a fee for its services under this Agreement. This fee shall be payable
in accordance with the fee schedule attached hereto. Fees are invoiced monthly and are due
within thirty (30) days of the invoice date. If Employer disputes in good faith any portion of the
fees invoiced, Employer shall provide WEX with written notice of any disputed fees together
with a complete written explanation of the reasons for the dispute (the “Dispute Notice”) within
thirty (30) days of the invoice date. The parties shall work together in good faith to reach a
mutually agreeable resolution of the dispute identified in the Dispute Notice for a period of ten
(10) days following the date of the Dispute Notice.
SERIAL 210204-RFP
(b) On or after the rate expiration date indicated on the fee schedule, WEX reserves the right to
amend the fee schedule with at least sixty (60) days’ advance written notice. If Employer is
unwilling to accept the changes to the fee schedule, Employer may terminate this Agreement
by providing notice to WEX no later than the effective date of the fee schedule amendment.
(c) Fees quoted assume that WEX standard software, procedures, and systems will be compatible
with Employer’s software and systems and with any prior service provider’s software and
systems so that the services can be readily performed without any modifications or alterations
of WEX’s software and systems. If costs are incurred by WEX to enhance or integrate its
services with Employer’s software and systems and/or in migrating the data from the prior
service provider to WEX’s systems, those costs may be charged separately on a time and
materials basis or as otherwise provided under a separate agreement between the parties.
(d) Notwithstanding the foregoing, WEX reserves the right to:
Charge for the provision of additional services that were neither included in nor
contemplated by this Agreement on the Effective Date;
Charge for proprietary technology and services; and
Increase fees based on additional costs imposed on WEX, such as significant postal
rate or bank fee increases or substantiated increased costs due to legislative or
regulatory changes, domestic or foreign, actually incurred in performing its services.
WEX shall provide Employer with reasonable prior written notice of such charges or increases.
5.2
Non-Party Payment on Behalf of Employer and Compliance with Anti-Rebating Law
Employer represents and warrants that if someone other than Employer is paying WEX’s fees on
behalf of Employer, the making of such payment shall not violate any applicable anti-rebating law
and agrees to hold WEX harmless (including reasonable attorney fees) from all losses that may
result from Employer’s breach of this provision.
5.3
Past Due Fees
Notwithstanding anything in this Agreement or any other agreement between the parties to the
contrary, if Employer fails to pay WEX any amount (except for amounts subject to a good faith
dispute) that is due as a result of the services provided by WEX to Employer under this Agreement
or any other agreement between the parties, WEX shall be permitted to deduct the amount from
any funds received from Employer. This right of offset shall be in addition to any other remedies
WEX may have at law or equity or in this Agreement or any other agreement between the parties
with respect to such non-payment, including, without limitation, any right to terminate this
Agreement or a right of recoupment, regardless of whether the past-due amount is paid in full as a
result of the offset or recoupment rights provided herein.
SERIAL 210204-RFP
EXHIBIT B-3 – REIMBURSEMENT ACCOUNT ADMINISTRATIVE SERVICES
AGREEMENT RECITALS
The services set forth in this Agreement are subject to the master contract for services pursuant to RFP
No. 210204 (“Master Services Agreement”). In the event of a conflict between the Master Services
Agreement and any portion of this Agreement, the terms of the Master Services Agreement shall prevail.
Employer has adopted an Internal Revenue Code (together with its implementing regulations, in each case
as amended) (the “Code”) Section 125 (26 USC § 125) Cafeteria Plan (the “125 Plan”) for its eligible
employees. Included in the 125 Plan is one or more of the following plans or arrangements: a health flexible
spending arrangement (“Health FSA”); a dependent care flexible spending arrangement (“Dependent Care
FSA”) (a health FSA and a Dependent Care FSA are referred to collectively as an “FSA”); and/or a limited
purpose health flexible spending arrangement (“Limited Health FSA”).
Employer may have also adopted one or more of the following for its eligible employees: a health
reimbursement arrangement (“HRA”) Code Section 105 (26 USC § 105); a limited purpose health
reimbursement arrangement (“Limited HRA”) Code Section 105 (26 USC § 105); and/or a transportation
fringe benefit plan spending account (“TSA” or “Commuter”) qualified under Code Section 132(f) (26 USC
§ 132(f)).
Employer may have also adopted other spending or reimbursement account benefits or post-tax benefits
that are not subject to the Code.
Individually and collectively, as the context may require, the foregoing shall be referred to as the “Plan.”
Employer desires WEX to assist in its administration of the Plan, and WEX desires to assist Employer in
the administration of the Plan.
WEX and Employer agree that WEX shall assist in the administration of the Plan based on the terms and
conditions set forth in this Reimbursement Account Administrative Services Agreement (“this Agreement”),
including, without limitation that:
Employer has established the Plan for the exclusive benefit of its employees.
Employer is the administrator of the Plan (the “Plan Administrator”).
Employer remains the administrator of the Plan and is responsible for the operation and
maintenance of the Plan, including the establishment of eligibility and benefits and funding the
payment of benefits owed to participants under the Plan.
WEX is an independent contractor in relation to Employer and to the Plan and acts as an agent on
behalf of Employer in rendering services for Employer pursuant to this Agreement.
WEX is to provide the agreed upon services without assuming any liability for the performance of
any services beyond those set forth below.
The above-stated recitals are accurate, true, and correct and are incorporated herein and made a part
hereof by this reference.
Now, therefore, for good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1 WEX ADMINISTRATIVE SERVICES
a.
Plan Administration Assistance
WEX shall assist Employer in the administration of the Plan as provided in this Agreement. WEX’s duties
with respect to the Plan are limited to those expressly provided for in this Agreement. The benefit plan or
SERIAL 210204-RFP
plans covered for services under this Agreement are limited to plans selected by Employer via the WEX
portal or design guide.
If a plan is not selected, the plan is not covered for services under this Agreement, and WEX shall have no
responsibility or duty with respect to such plan.
b.
Plan Documents Assistance
(a)
Upon request, WEX will assist Employer in the establishment and operation of the Plan by
providing, for review by Employer, WEX’s standard documents, including a plan document, a summary plan
description (“SPD”), if applicable, and other standard documents relating to the administration of a plan.
(b)
Employer is under no obligation to use WEX’s standard documents in establishing and
maintaining its Plan.
(c)
WEX’s standard documents are based on WEX’s internal policies and procedures, which
may change from time to time, and the legal and regulatory requirements then in effect.
(d)
It is Employer’s responsibility to determine whether WEX’s standard documents are legally
compliant for Employer’s purposes, in compliance with the requirements of its Plan, are appropriately
completed, and are appropriately and timely adopted by Employer.
(e)
Employer must provide WEX with an executed copy of its plan document.
(f)
When there is a change in applicable domestic law or regulation or when requested by
Employer due to Employer changing plan design, WEX will provide Employer with its standard plan
amendments.
(g)
It is Employer’s responsibility to determine whether WEX’s standard plan amendments or
other revisions are legally compliant for Employer’s purposes, in compliance with the requirements of its
Plan, are appropriately completed, and are appropriately and timely adopted by Employer.
(h)
Employer must provide WEX with an executed copy of its amended plan document.
(i)
For the establishment of HRAs, Limited HRAs, and TSAs, WEX provides a prototype plan
with an agreement, that once adopted, becomes Employer’s HRA, Limited HRA or TSA plan document.
(j)
For the establishment of other spending or reimbursement account benefits or post-tax
benefits that are not subject to the Code, WEX does not provide a standard plan document or a prototype
plan with an agreement.
c.
Recordkeeping
WEX shall assist Employer in the development and maintenance of administrative and recordkeeping
systems for the Plan. WEX’s recordkeeping services are listed in the Services and Recordkeeping
Addendum.
d.
Information for Employer Disclosure and Plan Reporting
WEX shall provide Employer with general information about disclosure and Plan reporting requirements
that relate to the Plan and the information maintained by WEX that is necessary for Employer to prepare
the annual Form 5500.
WEX shall not be responsible for the accuracy of any information provided by Employer nor shall WEX be
responsible for determining the level of compliance required by the Plan. It is the sole responsibility of
Employer to comply with all legal disclosure and Plan reporting requirements.
e.
WEX Reporting to Employer
SERIAL 210204-RFP
WEX shall provide the following reports to Employer:
Employer Funding Report (daily or monthly – the frequency of this report is dependent on the
funding method selected)
Payment History Report (on demand)
Enrollment Report (monthly and on demand)
Account Balance Detail Report (monthly and on demand)
Payroll Deduction Report (frequency based on payroll frequency for auto-post employers)
Statement of fees due to WEX (monthly invoice)
f.
Forms
WEX shall provide Employer forms for use in administering the Plan. The forms are available within the
online account. All forms and all user guide information will be subject to periodic updates and revision.
WEX shall also provide Employer instructions and forms for use in the processing of benefit claims under
the Plan.
g.
Plan Payments
Using funds received from Employer, WEX shall pay the amounts due as a result of the operation of the
Plan and in compliance with the participant’s current Plan elections.
h.
Claims Processing
(a)
WEX shall process claims received from Employer or from Plan participants on a daily
basis during regular business hours (6:00 a.m. to 6:00 p.m. Central Time Zone, Monday through Friday
excluding holidays).
(b)
WEX shall arrange for the payment of approved reimbursement requests as provided in
the Plan.
(c)
WEX shall process any initial claim for benefits made under the Plan provided the claim is
submitted in accordance with the Plan, the SPD, and any reasonable rules established by WEX and
communicated to Employer and participants.
(d)
WEX will accept or deny (in whole or in part) an initial claim for benefits after making such
investigation as it deems necessary.
(e)
To the extent WEX determines that a participant is entitled to the claimed benefits under
the Plan, WEX will arrange for the proper payment from the Plan using the funds provided by Employer.
(f)
To the extent WEX determines that a participant is not entitled to claimed benefits under
the Plan, WEX shall provide to such participant a written notification of its decision as soon as
administratively practicable after the claim was received by WEX, subject to the requirements of Section
503 of the Employee Retirement Income Security Act of 1974 (“ERISA”) (29 USC § 1133) and 29 CFR §
2590.715-2719.
(g)
WEX shall be responsible for making the decision to accept or deny (in whole or in part) all
appeals of denied benefit claims consistent with Section 503 of ERISA (29 USC § 1133) and 29 CFR §
2590.715-2719.
(h)
WEX shall be responsible for notifying the participant of its decision regarding an appeal
consistent with Section 503 of ERISA (29 USC § 1133) and 29 CFR § 2590.715-2719.
SERIAL 210204-RFP
(i)
In making decisions regarding claims for benefits and appeals of denied benefit claims,
WEX shall have discretionary authority to construe and interpret the terms of the Plan and to determine
whether a benefit claim is properly payable under the Plan.
(j)
Notwithstanding anything herein to the contrary, Employer shall be responsible for all
eligibility claims, eligibility appeals, and eligibility determinations.
(k)
To the extent that WEX provides written non-English assistance to a participant during the
course of claims processing as required by Section 503 of ERISA (29 USC § 1133) and 29 CFR § 2590.715-
2719, Employer shall reimburse WEX for the related fees and expenses, if any.
i.
Fiduciary Duties
WEX performs fiduciary duties under the Plan only to the extent described in Section 1.8 and is a fiduciary
under ERISA for the claim and appeal determinations for those plans or arrangements that are subject to
ERISA.
j.
Employer Funds and Custodial Account
Funds received by WEX from Employer for the payment of Plan benefits shall be held in the Custodial
Account pursuant to Article 3.
k.
Direct Load Payments for TSA
As applicable, using Plan funds, and based on instructions received from the participant, WEX shall pay
employer-provided transportation benefits through electronic media by transmitting funds to a participant’s
smartcard or account with the transit authority. Only pre-tax participant contributions are eligible for use
with the transit authority smartcard. A transactional processing fee could be incurred.
l.
Overpayment Recovery
If WEX determines that it has paid benefits to an ineligible person or paid more than the appropriate amount,
WEX shall, with Employer’s full cooperation, undertake a good faith effort to recover such erroneous
payment. For purposes of this provision, WEX shall have the sole discretion to determine what constitutes
a “good faith effort,” which effort may vary from time to time depending upon the circumstances of the
overpayment but may include WEX’s attempt to contact the participant twice via letter, phone, email or
another means about the recovery of the payment at issue.
m.
Unused Amounts and Unclaimed Amounts
Except for those amounts subject to any Health FSA carryover elected by the Plan in accordance with the
Internal Revenue Service (“IRS”) Notice 2013-71 (as such guidance may be modified or updated), all
amounts that remain unused in an FSA account or a TSA after the end of the period specified by the Plan
during which a participant can make a claim plus any periods for appeal or claim dispute shall be forfeited
by the participant and returned to Employer less any undisputed fees and expenses due and owing to WEX
under this Agreement. The direct terms of an applicable Plan may alter the forfeiture provisions of this
Section 1.13 only with respect to a Plan participant.
Any amounts unclaimed by participants, including any unclaimed reimbursement checks (or other similar
methods of payment) that have been issued but remain unendorsed or uncashed and unpaid after the end
of the plan year’s run-out period elected by the Plan, shall be returned to Employer less any undisputed
fees and expenses due and owing to WEX under this Agreement. Employer shall be responsible to report
unclaimed amounts in accordance with applicable state law unless otherwise forfeited under the terms of
the Plan.
n.
Retention and Release of Plan Data, Records, and Files
(a)
Written and electronic records containing personal information are securely destroyed or
deleted consistent with business needs or legal retention requirements.
SERIAL 210204-RFP
(b)
Per business records needs and associated retention and secure destruction periods, WEX
retains a copy of all information (as information is defined in Section 2.14, excluding emails or similar
electronic communications destroyed in the ordinary course of business pursuant to WEX policy) for at least
eight (8) years from the date created at WEX, including, without limitation, a record of all assets and
transactions involving the Custodial Account (defined in Article 3).
(c)
Following the termination of this Agreement, WEX shall cooperate with Employer or
Employer’s subsequent service provider to affect an orderly transition of services provided under this
Agreement and, within a reasonable time, will release to Employer a copy of all data, records, and files in
WEX’s standard format.
(d)
Upon termination of this Agreement, WEX is entitled to retain a copy of all information
including the data, records, and files released by WEX pursuant to Section 1.14(c) and to use and disclose
such information for claims, audits, and legal and contractual compliance purposes to the extent permitted
by law and any executed or applicable business associate agreement between the parties.
o.
Notice of Litigation
WEX shall notify Employer promptly of any summons, complaint or other communication concerning
threatened litigation or any inquiry by any governmental agency that is related to the Plan unless such
notification would be a violation of applicable law.
p.
Confidentiality of Plan Information
WEX shall keep confidential all information that it obtains concerning the Plan. Other than in the due course
of business, such information shall not be disclosed to a third party without prior approval of Employer or
as otherwise provided in Article 4.
Employer may request that WEX share Plan information and other data with another vendor of the Plan or
Employer. WEX shall consider all reasonable requests, however, prior to releasing or sharing any Plan
information or other data with another vendor, Employer must enter into a business associate agreement
and/or a confidentiality and data sharing agreement with the vendor and make a copy of such agreement
available to WEX upon request.
For confidential or protected information transmitted by a vendor of the Plan to WEX, Employer must enter
into a business associate agreement and/or a confidentiality and data sharing agreement with the vendor.
q.
Audit
(a)
During the term of this Agreement, and at any time within six (6) months following its
termination, Employer (or a mutually agreeable third-party auditor) may audit WEX to determine whether
WEX is fulfilling its obligations under this Agreement with respect to processing claims for benefits.
(b)
The audit shall be limited to such processing claims for benefits information relating to the
calendar year in which the audit begins and/or the immediately preceding calendar year.
(c)
WEX will provide timely inquiry and feedback regarding the sample size and sampling
methodology as it relates to the objective of the audit.
(d)
Unless otherwise required by legal and/or regulatory compliance, the audit must be
completed within six (6) months following the date the audit begins.
(e)
The place, time, type, duration, and frequency of any audit must be reasonable and
mutually agreeable.
(f)
Employer shall pay or cause to be paid any expenses that it incurs in connection with the
audit, including WEX’s then current internal billing rate for audit related tasks.
(g)
Any audit will be subject to these additional requirements:
SERIAL 210204-RFP
(i)
Employer must provide WEX with a sixty (60) day advance written notice of its
intent to audit.
(ii)
Employer must utilize individuals to conduct the audit who are qualified by
appropriate training and experience for such work; who will perform their review in accordance with
published administrative safeguards and procedures against unauthorized use or disclosure (in the
audit report or otherwise) of any individually identifiable information (including health care
information) contained in the information audited; and who will not make or retain any record of
payment identifying information concerning treatment of drug or alcohol abuse, mental/nervous
disorders, HIV/AIDS or genetic markers in connection with the audit (“Auditor”).
(iii)
At least thirty (30) days in advance of the commencement of the audit, Employer
must provide WEX with a complete and accurate list of the transactions to be selected for audit,
along with the specific service for which each transaction or item is being tested. The sample must
be based on a statistically valid random sampling methodology (e.g., systematic random sampling,
simple random sampling, or stratified random sampling).
(iv)
The Auditor must provide its draft findings to WEX before a final audit report is
presented to Employer. The draft findings will be the basis for discussion between the Auditor and
WEX to resolve any disagreement and to summarize the audit findings.
(v)
The Auditor must provide its final audit report to WEX before delivery to Employer
and allow WEX to include with the final audit report a supplementary statement containing facts
that WEX considers pertinent to the audit.
(vi)
The Auditor must provide WEX with a complete copy of the final audit report that
is delivered to Employer.
(vii)
The audit will be subject to proprietary and confidentiality protections. Before the
audit commences, Employer and any third-party auditor shall execute a non-disclosure and
confidentiality agreement, the scope of which shall be reasonable and shall be determined by WEX.
(viii)
There must be no conflict of interest that would prevent the Auditor from performing
an independent audit. Auditors retained exclusively by Employer may not be compensated on the
basis of a contingency fee or a percentage of overpayments identified.
r.
Red Flags Rule
For the purposes of this Section 1.18, “Red Flags Rule” means regulation adopted by various federal
agencies, including the Federal Trade Commission, in connection with the detection, prevention, and
mitigation of identity theft and located at 72 Fed. Reg. 63718 (November 9, 2007), as amended.
For the purposes of this Section 1.18, “Covered Services” means the services provided by WEX with
respect to the plans selected by Employer and as described in the Debit Card Services Addendum that
allow Plan participants to pay for eligible expenses under the Plan with a debit card or other stored-value
card and any other services provided by WEX pursuant to this Agreement that fall under the protections of
the Red Flags Rule as determined by WEX in its sole discretion.
To the extent applicable, WEX shall comply with the Red Flags Rule with respect to Covered Services. As
part of its Red Flags Rule compliance, WEX shall adopt, maintain, and use appropriate and commercially
reasonable rules, procedures, and safeguards to detect and identify red flags and to prevent and mitigate
identity theft as required by the Red Flags Rule. Such rules, procedures, and safeguards are set forth in a
written program (the “Red Flags Program”). WEX shall, upon request, make available to Employer a copy
of its Red Flags Program.
The parties agree that if a breach of unsecured protected health information (as defined in any executed or
applicable business associate agreement between the parties) occurs and a violation of the Red Flags Rule
occurs with respect to the same incident, both the Red Flags Rule and the provisions of any executed or
applicable business associate agreement between the parties shall apply, except that the notice
SERIAL 210204-RFP
requirements of any executed or applicable business associate agreement between the parties shall satisfy
any notice obligations under the Red Flags Rule and this Section 1.18.
This Section 1.18 shall be null and void to the extent action is taken by U.S. Congress or a federal agency
to exempt the Covered Services (or third-party administrators that provide Covered Services) from the Red
Flags Rule.
s.
Information Security Program
WEX represents and warrants that it has implemented and maintains a written and comprehensive
information security program and complies with all applicable domestic law and regulation.
t.
Total Control and Discretionary Authority
Except as otherwise expressly provided in this Agreement, Employer has total control and discretionary
authority over the Plan and the manner in which the Plan is operated. WEX serves as Employer’s agent
only for the processing of qualifying expense/reimbursement requests as provided under this Agreement.
u.
External Review
To the extent that the external review requirements set forth in 29 CFR § 2590.715-2719 apply to the Plan,
WEX shall serve as a conduit for external review requests, meaning WEX will send appropriate information
to, and cooperate fully with, the external review organization conducting the review. Any cost, fee or
expense related to the review or request for review shall be paid by Employer. If WEX pays any such cost,
fee or expense on behalf of Employer, Employer shall reimburse WEX promptly upon request.
v.
Subcontracting
WEX may delegate or subcontract any portion of WEX services to a third party without the written consent
of the County. For those WEX services that are delegated or subcontracted, WEX shall remain fully and
primarily responsible to Employer for compliance with all applicable provisions of this Agreement or of any
executed or applicable business associate agreement between the parties, as well as to ensure said
compliance by any third party utilized by WEX. No portion of WEX administrative services shall be
delegated or subcontracted to any third party located outside the United States.
w.
Benchmarks
WEX may, in its discretion, prepare and deliver to Employer benchmarks or other metrics showing the
experience of Employer and its participants with the services provided herein as compared to other
employers. WEX will develop any such benchmarks or metrics through the use of data that has been
aggregated and de-identified consistent with any executed or applicable business associate agreement
between the parties.
x.
Limited Warranty
WEX represents and warrants that the WEX services shall be performed in a professional manner
consistent with generally accepted industry standards and applicable law.
y.
Disclaimer
WEX does not insure or underwrite Employer’s liability to provide benefits under the Plan. WEX shall not
be liable or obligated to use its funds for payment of benefits under the Plan, including, without limitation,
where such payment of benefits is sought as damages in an action against Employer, WEX or the Plan.
Employer shall promptly reimburse WEX for any benefit payments made using WEX funds.
Notwithstanding the foregoing, in the event WEX overpays a claim for benefits under the Plan (“Plan
Benefits”) or pays Plan Benefits to the wrong party, it shall take all reasonable steps to recover the
overpayment; however, WEX shall not be required to initiate legal proceedings, mediation, or arbitration to
recover any overpayment and may not do so without the consent of Employer. WEX shall not be
SERIAL 210204-RFP
responsible for reimbursing any unrecovered payments of Plan Benefits unless made as a result of its gross
negligence or intentional wrongdoing.
z.
Non-Discrimination Testing and Additional Product and Service Solutions
In order to run the non-discrimination tests, Employer must provide WEX with all information requested and
in WEX’s file format. Employer’s Human Resource Information System (“HRIS”) and payroll systems are
the systems of record and all information requested for testing must be provided to WEX from the
Employer’s systems. Failure to provide the information required will result in incomplete test results.
Employer is responsible to initiate any corrective action required in the event the plan is deemed
discriminatory. WEX warrants that the test will perform materially in accordance with the data submitted
and that the functionality of test will not be materially decreased during the term of this Agreement.
Employer may subscribe to WEX’s expanded non-discrimination testing and request other additional
products and services solutions from WEX.
ARTICLE 2 EMPLOYER RESPONSIBILITIES
2.1
Compliance with Laws
Plan Compliance. Although WEX serves as Employer’s agent for services rendered pursuant to this
Agreement, Employer remains responsible for compliance of the Plan itself with the Patient Protection and
Affordable Care Act of 2010 (the “PPACA”), ERISA, the Health Insurance Portability and Accountability Act
of 1996 (“HIPAA”), each as amended from time-to-time, the Code, and any other law or regulation, domestic
or foreign, as applicable.
2.2
Plan Documents
Employer is responsible for the final content of all Plan materials and documents. It is Employer’s
responsibility to ensure that the Plan documents and any amendments to the Plan documents are legally
compliant for Employer’s purposes, appropriately completed, in compliance with the requirements of the
Plan, and appropriately and timely adopted by Employer. Employer shall file with the appropriate
governmental agencies all required returns, reports, documents, and other papers relating to the Plan.
Employer shall distribute to its employees participating in the Plan all materials and documents as required
under applicable law.
2.3
Summary Plan Description
To the extent applicable, Employer shall distribute to its employees participating in the Plan a copy of the
SPD and/or the summary of benefits and coverage.
2.4
Plan Amendments
Employer shall notify WEX of any contemplated amendment to the Plan. Under no circumstances may
Employer alter WEX’s services or obligations under the Agreement through an amendment to the Plan
without the prior written notice to and acceptance of WEX. WEX has no obligation to provide any Plan
amendments to Employer other than described in Section 1.2.
2.5
Plan Eligibility
Employer shall provide WEX a record of all employees who are eligible to participate in the Plan and notify
WEX of any changes on a monthly basis.
Employer shall also provide WEX with the demographic and related information that WEX may need to
perform its services under this Agreement.
Employer shall be solely responsible for determining which of its employees are eligible to participate in the
respective plan, to collect the required information from those employees, and to inform WEX of such
eligible employees.
SERIAL 210204-RFP
Employer shall be responsible to collect and to provide to WEX, in an electronic format, all reasonably
required information to ensure compliance with the MSP rules and regulations where WEX acts as RRE for
an HRA offered by Employer.
2.6
Employer Assistance
Employer shall assist in the enrollment of the employees in the Plan, cooperate with WEX regarding the
proper settlement of claims, and transmit inquiries pertaining to the Plan to WEX. Late notification of Plan
eligibility or incorrect Plan eligibility provided by Employer to WEX may result in erroneous plan benefit
payments, for which Employer shall be solely responsible. Employer shall also be responsible for collecting
any such erroneous payments from the employee. If there are insufficient Employer funds available to
restore the erroneous payments or if the requested reimbursement of funds would otherwise cause the
Minimum Account Balance deposit (if applicable) to become insufficient, WEX may suspend services under
this Agreement and request immediate restoration of funds from Employer.
2.7
Funds
Employer shall deposit funds in the Custodial Account to be used to pay benefits and expenses under the
Plan as agreed to herein and in accordance with the Plan documents. Funds deposited in the Custodial
Account shall consist solely of general assets of Employer. Participant contributions, if any, made by
employees to the Plan through salary reduction or otherwise, shall be used to reimburse Employer for the
funds advanced by Employer to pay benefits under the Plan. Employer has the sole responsibility and
liability for the funding of all benefits under the Plan.
2.8
Claims-Based Funding Method
If Employer selects the claims-based funding method to pay claims, Employer gives WEX approval to
withdraw applicable amounts from Employer’s designated United States bank account to deposit in the
Custodial Account from which disbursements can be made on Employer’s behalf for payment of qualifying
expenses, which are otherwise specified by Employer in its Plan document or as provided for under the
Code.
2.9
Debit Card Payments
All participants in a Health FSA, Dependent Care FSA, a comprehensive HRA or a TSA (as applicable)
shall automatically receive one or more debit cards or similar electronic payment technology, for which the
terms of the Debit Card Services Addendum shall control.
2.10
Ownership of Account Assets
All funds from Employer deposited in the Custodial Account remain Employer’s general assets. WEX shall
be responsible for administering the funds in accordance with the terms of this Agreement. Funds are
disbursed from the Custodial Account by WEX or any of its designees only for an allowable Plan expense
as determined by Employer or a representative of Employer (including WEX) or as otherwise required by a
court of competent jurisdiction.
2.11
Fraud Against the Plan
Employer is solely responsible for making the Plan whole if fraud is committed against the Plan by its
employees, Plan participants or any third party (other than WEX). WEX will assist in pursuing or remedying
such fraud using its standard procedures.
2.12
Plan Fiduciary
SERIAL 210204-RFP
(a)
Except as provided in Section 1.9, Employer agrees that WEX is not a named fiduciary, or
a Plan fiduciary under the Plan as such terms are described under ERISA. WEX shall have no power or
authority to waive, alter, breach or modify any terms and conditions of the Plan. WEX shall make payments
or distributions from the Custodial Account in accordance with the framework of policies, interpretations,
rules, practices, and procedures set forth in the Plan, this Agreement, and as otherwise agreed upon or
directed by Employer.
(b)
Except as provided in Section 1.9, WEX neither shall have nor shall be deemed to exercise
any discretion, control or authority with respect to the disposition of Employer funds. Employer agrees that
the use of, offset or recoupment of funds in the Custodial Account to pay undisputed fees or other
undisputed amounts due to WEX pursuant to this Agreement constitutes Employer action that is authorized
by Employer under this Agreement and agrees that such actions are not discretionary acts of WEX and do
not create a fiduciary status for WEX.
(c)
WEX agrees that it will perform services on the Plan’s behalf as set forth in this Agreement,
including any addenda to this Agreement. However, WEX will not undertake any duties or responsibilities,
regardless of whether they are set forth in the Plan, if such actions are in violation of any applicable domestic
law or regulation.
2.13
Employer Information and Instructions
(a)
WEX shall be fully protected in relying upon representations and communications made by
or on behalf of Employer in effecting its obligations under this Agreement.
(b)
WEX is entitled to rely on the most current information in its possession when providing
services under this Agreement.
(c)
WEX shall provide the services in accordance with this Agreement based on information
that is provided to WEX by Employer. For this purpose, the term “information” means all data, records, and
other information supplied to WEX, obtained by WEX or produced by WEX (based on data, records or other
information supplied to or obtained by WEX) in connection with performing the services pursuant to this
Agreement, regardless of the form of the information or the manner in which the information is provided to
WEX.
(d)
In engaging WEX to perform the services under this Agreement, Employer has authorized
and instructed WEX to implement WEX’s standard administrative forms and procedures.
(e)
Employer is responsible for the integrity of data in the files. Therefore, complete and
accurate information from Employer or a vendor on behalf of Employer is required in order for WEX to
perform the services set forth herein.
(f)
Employer agrees not to use the full social security number in the employee identification
number field.
(g)
Employer warrants the accuracy of the information provided by or on behalf of Employer
to WEX regarding the participant count.
2.14
Employer’s Electronic Account
If Employer chooses to access the services provided by WEX via an online account or other electronic
means (“Employer’s Electronic Account”), Employer is solely responsible for:
(a)
Designating who is authorized to have access to Employer’s Electronic Account;
(b)
Safeguarding all of Employer’s passwords, usernames, logins or other security features
used to access Employer’s Electronic Account (“Electronic Account Access”);
(c)
Employer’s use of Employer’s Electronic Account under any usernames, logins or
passwords;
SERIAL 210204-RFP
(d)
Ensuring that use of Employer’s Electronic Account complies fully with the provisions of
this Agreement; and
(e)
Any unauthorized access or use of Employer’s Electronic Account caused by Employer’s
actions or inactions, including, without limitation, its failure to safeguard the Employer’s Electronic Account
or Electronic Account Access.
Employer is solely responsible for the maintenance and routine review of its computing and electronic
system usage records (i.e., log files) and the security of its own data, data storage, computing devices,
other electronic systems, and network connectivity.
Employer acknowledges and agrees that WEX has no control over and is not liable to Employer, Employer’s
employees or any other third party for any consequences, losses or damages resulting from unauthorized
access or use of the Employer’s Electronic Account as set forth in this Section 2.15.
2.15
Enumeration System Identifier
If required, Employer is solely responsible to the Plan to obtain or assign the standard unique Health Plan
Identifier (“HPID”) or Other Entity Identifier (OEID) or to update the enumeration system per 45 CFR §
162.508.
2.16
Acknowledgment
Employer acknowledges and agrees that the services provided by WEX pursuant to this Agreement relate
to enrollment and disenrollment in the Plan and that these services to the extent permitted under HIPAA
shall be deemed to be performed by WEX on behalf of Employer in its capacity as the sponsor of the Plan.
ARTICLE 3 CUSTODIAL ACCOUNT
3.1
Appointment and Acceptance of Custodian
By signing this Agreement, Employer appoints WEX as custodian of Employer funds for the purposes and
upon the terms and conditions set forth in this Agreement, and WEX accepts such appointment and agrees
to act as custodian hereunder and to hold any Employer funds received hereunder in accordance with the
terms and conditions set forth in this Agreement.
3.2
Custodial Account
WEX maintains one or more depository accounts (“Custodial Account”) at a bank designated by WEX and
holds in such Custodial Account all funds initially received from Employer plus any additional funds that
may be received from Employer for Custodial Account from time to time. For administrative convenience
and to reduce costs, WEX shall hold funds received from Employer together with similar funds from other
employers in a single Custodial Account (or one or more Custodial Accounts as determined by WEX). WEX
shall maintain records as to the exact amount of funds attributable to each employer so that each employer
has a legal right to the specific amount of its funds held in the Custodial Account (less any applicable fees,
costs or expenses as set forth in this Agreement). At all times, the assets comprising each employer’s
funds in the Custodial Account shall be considered a separate subaccount for purposes of this Agreement.
Depending upon the context, the term “Custodial Account” as used herein shall refer to either the separate
subaccount for Employer or all of the subaccounts for all employers in the aggregate.
3.3
Employer Funds
WEX and Employer intend and agree that all funds received from Employer for deposit in the Custodial
Account shall be comprised of and shall remain Employer’s general assets. In no event will funds received
from Employer and deposited in the Custodial Account constitute or include participant or employee
contributions to employee benefit plans, whether made by salary reduction or otherwise, as those terms
have their general meaning under ERISA. Except to the extent that outstanding checks have been written
or withdrawals have been made against the Custodial Account balance on behalf of Employer, and subject
to Section 6.3, all funds received from Employer and deposited in the Custodial Account may be withdrawn
SERIAL 210204-RFP
by Employer at any time (less applicable fees, costs or expenses as set forth in this Agreement) and are
subject to the claims of Employer’s general creditors in the same manner as funds deposited in Employer’s
ordinary checking accounts. Notwithstanding the foregoing, this Agreement does not alter or eliminate any
separate obligation of Employer to fund and maintain the Minimum Account Balance in the Custodial
Account as described in Section 2.9.
3.4
Disbursements
WEX shall make payments or distributions from the Custodial Account in accordance with the framework
of policies, interpretations, rules, practices, and procedures established by WEX for this purpose and as
set forth in the Plan or as otherwise agreed upon or directed by Employer. WEX shall neither have nor
shall be deemed to have any discretion, control or other authority with respect to the disposition of Employer
funds.
3.5
Interest Earned
Employer acknowledges and understands that from time to time, WEX may receive earnings and interest
on the funds held in the Custodial Account and that any such earnings or interest shall be part of WEX’s
compensation. Employer acknowledges and understands that fees otherwise charged by WEX for services
under this Agreement would be greater if WEX did not retain such earnings and interest on these funds.
The period during which interest may be earned begins on the date Employer funds are deposited into the
Custodial Account and continues for as long as Employer funds remain in the Custodial Account. Funds
shall be disbursed on a first-in, first-out basis.
WEX does not track nor can it report interest earned for a single employer. WEX absorbs other bank
charges, such as transmission charges, within the fees.
3.6
Maintenance of Records
Upon Employer’s written request, WEX shall provide Employer with an accounting of all Employer assets,
transfers, and transaction activity involving the Custodial Account in relation to Employer, including a
description of all receipts, payments or disbursements, and other transactions.
ARTICLE 4 CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY
4.1
General Obligations
For purposes of this Article 4, “confidential business information” shall mean any business information
identified by either party as “confidential” and/or “proprietary”, or which, under the circumstances, ought to
be treated as confidential or proprietary, including non-public information related to the disclosing party’s
business, service methods, software, documentation, financial information, prices, and product plans.
Neither WEX nor Employer shall disclose confidential business information of the other party. The receiving
party shall use reasonable care to protect the confidential business information and ensure it is maintained
in confidence, and in no event use less than the same degree of care as it employs to safeguard its own
confidential business information of like kind. The foregoing obligation shall not apply to any information
that: (a) is at the time of disclosure, or thereafter becomes, part of the public domain through a source other
than the receiving party; (b) is subsequently learned from a third party that does not impose an obligation
of confidentiality on the receiving party; (c) was known to the receiving party at the time of disclosure; (d)
was generated independently by the receiving party; or (e) is required to be disclosed by law, subpoena or
other process.
WEX may disclose Employer’s or the Plan’s confidential business information to a governmental agency or
other third party to the extent necessary for WEX to perform its obligations under this Agreement or if
Employer has given WEX written authorization to do so.
Although WEX may have confidential business information processed, managed, and/or stored with
subcontractors or third parties, it remains fully responsible to Employer for the confidentiality obligations set
forth herein.
SERIAL 210204-RFP
4.2
Financial Statements and Audit Information
If Employer requests access to certain financial statements and/or service organization control audit reports
or other audit information of WEX for the purpose of reviewing the financial, operating, and business
condition of WEX, and WEX agrees to provide such information, Employer’s acceptance of or access to
such confidential information shall constitute its agreement with the following:
Employer shall maintain the information (whether communicated by means of oral, electronic or
written disclosures) in confidence and shall not use the same for its own benefit, or for any purpose
other than the furtherance of its review or disclose the same to any third party.
Employer may disclose the information to its own officers, employees and agents on a need-to-
know basis for the purposes of its review.
Employer shall use reasonable care to protect the information and to ensure that it is maintained
in confidence, and in no event use less than the same degree of care as Employer uses to
safeguard its own confidential information.
If Employer is a state agency or otherwise subject to a freedom of information type statute, the
information shall be treated as confidential and exempt from disclosure in accordance with
applicable law, as the information contains sensitive proprietary business information and data
defined as trade secret information that would not otherwise be publicly available and that
disclosure of this information to the public, including WEX’s competitors, would likely result in
substantial harm to WEX’s competitive positions and also contains confidential supervisory
information and personal information relating to directors, officers, and major shareholders of WEX,
the disclosure of which would constitute an unwarranted invasion of personal privacy.
4.3
Intellectual Property
All materials, including, without limitation, documents, forms (including data collection forms provided by
WEX), brochures, and online content ("Materials") furnished by WEX to Employer are licensed, not sold.
Employer is granted a personal, non-transferable, and nonexclusive license to use Materials solely for
Employer’s own internal business use. Employer does not have the right to copy, distribute, reproduce,
alter, display or use these Materials or any WEX trademarks for any other purpose other than its own
internal business use. Employer shall use commercially reasonable efforts to prevent and protect the
content of Materials from unauthorized use. Employer’s license to use Materials ends on the termination
date of this Agreement.
Upon termination, Employer agrees to destroy Materials or, if requested by WEX, to return them to WEX,
except to the extent Employer is required by law to maintain copies of such Materials.
WEX retains exclusive ownership rights to and reserves the right to independently use its experience and
know-how, including processes, ideas, concepts, techniques, and software acquired prior to or developed
in the course of performing services under this Agreement.
4.4
Application
Each party agrees that its obligations contained in this Article 4 apply also to its parent, subsidiary, and
affiliated companies, if any, and to similarly bind all successors, employees, and agents.
ARTICLE 5 TERM AND TERMINATION OF THE AGREEMENT
5.1
Within sixty (60) days after the later of the termination of this Agreement or the specified run-out
period, WEX shall prepare and deliver to Employer a complete and final accounting and report of the
financial status of the Plan as of the date of termination together with all books and records in WEX’s
possession and control pertaining to the administration of the Plan, all claims’ files (including any pending
and unpaid claims), and all reports pertaining to the Plan.
SERIAL 210204-RFP
ARTICLE 6 COST OF SERVICES
6.1
Plan Administrative Service Fees
(a)
Employer shall pay WEX a fee for its services rendered pursuant to this Agreement in
accordance with the fee schedule attached hereto. Fees are invoiced monthly and are due within thirty
(30) days of the invoice date. If Employer disputes in good faith any portion of the fees invoiced, Employer
shall provide WEX with written notice of any disputed fees together with a complete written explanation of
the reasons for the dispute (the “Dispute Notice”) within thirty (30) days of the invoice date. The parties
shall work together in good faith to reach a mutually agreeable resolution of the dispute identified in the
Dispute Notice for a period of ten (10) days following the date of the Dispute Notice.
(b)
Employer shall have thirty (30) days from the date of the invoice to correct a participant
count for credit or refund.
(c)
On or after the rate expiration date indicated on the fee schedule, WEX reserves the right
to amend the fee schedule with at least sixty (60) days’ advance written notice. If Employer is unwilling to
accept the changes to the fee schedule, Employer may terminate this Agreement by providing notice to
WEX no later than the effective date of the fee schedule amendment.
(d)
Fees quoted assume that WEX standard software, procedures, and systems will be
compatible with Employer’s software and systems and with any prior service provider’s software and
systems so that the services can be readily performed without any modifications or alterations of WEX’s
software and systems. If costs are incurred by WEX to enhance or integrate its services with Employer’s
software and systems and/or in migrating the data from the prior service provider to WEX’s systems, those
costs may be charged separately on a time and materials basis or as otherwise provided under a separate
agreement between the parties.
(e)
Notwithstanding the foregoing, WEX reserves the right to:
Charge for the provision of additional products or services that were neither included in nor
contemplated by this Agreement on the Effective Date;
Charge for proprietary technology and services;
Increase fees based on additional costs imposed on WEX, such as significant postal rate
or bank fee increases or substantiated increased costs due to legislative or regulatory
changes, domestic or foreign, actually incurred in performing its services; and
Pass through any fees charged to WEX by a Vendor of Employer.
WEX shall provide Employer with reasonable prior written notice of such charges or increases.
6.2
Non-Party Payment on Behalf of Employer and Compliance with Anti-Rebating Law
Employer represents and warrants that if someone other than Employer is making the payment of WEX’s
fees on behalf of Employer, the making of such payment does not violate any applicable anti-rebating law.
Employer agrees to hold WEX harmless and not liable and release it from all liability whatsoever from all
losses and expenses that may result from Employer’s breach of this provision.
6.3
Past Due Fees
Notwithstanding anything in this Agreement or any other agreement between the parties to the contrary, if
Employer fails to pay WEX, any amount (except for amounts subject to a good faith dispute) that is due as
a result of the services provided by WEX to Employer under this Agreement or any other agreement
between the parties, WEX shall be permitted to deduct (in accordance with Section 2.13(b)) the undisputed
amount from any funds held by WEX that were received from Employer. This right of offset shall be in
SERIAL 210204-RFP
addition to any other remedies that WEX may have under this Agreement or any other agreement between
the parties with respect to such non-payment, including, without limitation, any right to terminate this
Agreement or right of recoupment, regardless of whether the past due amount is paid in full as a result of
the offset or any recoupment rights provided herein.
6.4
Participant Count for Billing Purposes
The participant count for billing purposes is determined by WEX on a monthly basis. A participant is counted
for billing purposes if their account is being administered by WEX under the Plan, which may include a
carryover and/or applicable grace period, a run-out period, and/or a zero-dollar balance.
SERIAL 210204-RFP
SERVICES AND RECORDKEEPING ADDENDUM
Services and Recordkeeping as Applicable
Adjudicate FSA, HRA and Parking reimbursement requests
Included
Administration for 2½ month grace period extension
Included
Automatic email to participant when claims received, and reimbursement is made
Included
Claims-Based Funding
Included
Deduction/Contribution-Based Funding as available
Included
Daily processing of claims for reimbursement
Included
Debit card
Included
Employee group meetings
Additional fee
may apply
IIAS compliant debit card
Included
Issue direct deposit to participant savings or checking accounts
Included
Issue reimbursement checks to participants
Included
Maintain and update employee FSA/HRA/TSA records
Included
Electronic open enrollment materials or online enrollment presentation (Health FSA
and Dependent Care FSA Only)
Included
Plan design and set up
Included
Postage for standard mailings
Included
Process claims during plan year run-out period
Included
Reconcile records to employer’s payroll, if applicable
Included
Web enrollment
Included
Reporting and Communication – Employer
Standard reporting available on status of account balances
Included
Reporting and Communication – Participant
Account balance notice sent 60 days prior to end of plan year (Health and Dependent
Care FSA Only)
Included
Communication concerning ineligible claims
Included
Open Enrollment Guides/Handouts
Included
Online access to account information 24/7
Included
Emailed notice of account statement available
Included
Statement included with each reimbursement check
Included
Toll-free customer service line
Monday through Friday Central Time
Zone
Employers
7:00 a.m. to 7:00 p.m.
Participants
6:00 a.m. to 9:00 p.m.
In compliance with United States federal and state law, WEX may monitor and/or record
calls that are made to and from the customer service line for quality assurance and
training purposes and/or to ensure that WEX's services fully comply with the terms of
the Agreement.
Included
Compliance
Standard plan document (Section 125, FSA, HRA and TSA only)
Included
Standard plan document and summary plan description updates
Included
Standard summary plan description
Included
SERIAL 210204-RFP
Information for annual 5500 Filing (Health FSA and HRA)
Included
Standard KeyDCAP Non-Discrimination Testing:
Cafeteria Plan 25% Key Employee Concentration
Dependent Care More than 5% Owners Concentration
Dependent Care 55% Average Benefits
Included
Expanded Non-Discrimination Subscription Testing:
Premium Only Plan (POP), Flexible Spending Account (FSA), Health Reimbursement
Arrangement (HRA), Self-Insured Medical Plan (SIMP)
Additional fee
may apply
SERIAL 210204-RFP
DEBIT CARD SERVICES ADDENDUM
To the extent that debit cards are used for the reimbursement accounts, the following applies with respect
to the debit card services:
1
Definitions for the purposes of this Addendum:
1.1
“Card Transaction” means the presentation of the debit card for payment of Qualified Services.
1.2
For a Health FSA and/or HRA, “Qualified Services” means all related goods and services within
the meaning of the term "medical care" or "medical expense" as defined in Code Section 213 (26 USC §
213) and the rulings and Treasury regulations thereunder to the extent that such goods and services are
allowable for the Account in question.
1.3
For a TSA, “Qualified Services” means parking, transit passes, and commuter highway vehicle,
within the meaning of Code Section 132(f) (26 USC § 132(f)) as it relates to qualified transportation plans.
1.4
“Account” means the FSA account, HRA account, and/or TSA as the context requires and as
elected by Employer as part of the Agreement.
1.5
“Employee” means those employees eligible to participate in the Plan.
1.6
Plan participants or “Participant” means Employees who are entitled to account coverage based
on the Employer’s plan document.
2
General Provisions of Debit Card Services
2.1
WEX is responsible to provide debit card services to Participants, including:
Updating Participant records;
Maintaining accurate account balances and deposit information;
Activating and deactivating the debit cards;
Canceling the debit cards;
Responding to Participant inquiries; and
Providing appropriate notices of actions taken.
2.2
WEX agrees to reasonably ensure compliance with proper use of the debit card and take whatever
action is necessary to investigate and resolve errors in Card Transactions that are asserted by Participants
within five (5) business days of notice of an assertion.
2.3
WEX agrees to cancel access to a Participant's account when a debit card is reported as lost or
stolen.
2.4
WEX agrees to deactivate a Participant’s debit card upon notice from Employer of ineligibility or
termination. If Employer fails to provide notice, Employer will be responsible for any ensuing Card
Transactions.
2.5
WEX will make available to Employer, for distribution to the Participants, information as to the
proper use of the debit card.
2.6
Employer acknowledges that it must, in accordance with applicable law, facilitate an after-tax
payroll deduction in those instances where the debit card was used to pay for an ineligible expense and the
participant failed to reimburse the Plan or the ineligible expense could not be offset with an eligible expense.
2.7
Employer agrees to notify WEX immediately upon suspicion or confirmation of inappropriate or
fraudulent debit card use.
SERIAL 210204-RFP
2.8
The liability for payment of claims falls on Employer or the Participant. Additional Card Transaction
costs, if any, are paid by Employer or Participant.
2.9
WEX standard administrative procedures may be different for Card Transactions with respect to a
health FSA, HRA, and TSA and with respect to a group or groups of Card Transactions.
3
Settlement Provisions of Debit Card Services
3.1
Employer has, in conjunction with this Agreement, executed and delivered to WEX an Authorization
Agreement for Automated Clearing House (ACH) Direct Payments, which authorizes the issuer of the debit
cards ("Issuer") to debit the account of the depository financial institution designated by Employer in said
Agreement ("Account") as more fully set forth therein. This information may be delivered or collected via
or within an online form.
3.2
Each business day, Issuer is authorized to debit Employer's Account in the amount required to
settle all Card Transactions ("Daily Settlement Amount") and the collected and available funds in Employer's
Account must be greater than or equal to the Daily Settlement Amount for the previous business day.
3.3
Employer shall reimburse/pay Issuer for all Card Transactions irrespective of whether any
authorization for a Card Transaction was made in accordance with the terms of the Plan.
3.4
If Employer fails to fund the Account to settle with Issuer for Card Transactions, fails to
reimburse/pay Issuer for all Card Transactions, or breaches its obligations to Issuer, Issuer may, at its
option, suspend or terminate all debit cards or change the method by which Employer may settle with Issuer
for Card Transactions.
3.5
Employer acknowledges that Issuer is not a party to the Agreement and Issuer has no obligation
or responsibility to process and or adjudicate benefit claims. Issuer's function is to issue debit cards and to
make settlements arising from Card Transactions based solely on the information provided to it by the debit
card processor.
4
Miscellaneous Provisions of Debit Card Services
4.1
Card Transactions and direct deposit payments will be settled directly to the Account at the
depository financial institution designated by Employer and on record with WEX.
4.2
Changes to Account information must be made via the submission to WEX of a new Authorization
Agreement for Automated Clearing House (ACH) Direct Payments. This information may be delivered or
collected via or within an online form.
4.3
Said authorization remains in full force and effect until WEX and Issuer receive written notification
to revoke it in such time and manner as to afford WEX, Issuer, and the depository financial institution
designated by Employer a reasonable opportunity to act on it.
4.4
Employer acknowledges that the Issuer shall be deemed to be a third-party beneficiary with respect
to Sections 3 and 4 of this Addendum with full rights to rely upon and enforce the provisions thereof.
4.5
Employer acknowledges that the origination of ACH transactions to the account must comply with
the provisions of United States law.
4.6
Unless otherwise stated, all provisions of the Agreement apply to the debit card services.
SERIAL 210204-RFP
EXHIBIT C – SERVICE LEVEL AGREEMENT (SLA)
WEX will put a total of 40% of quarterly Benefit plan fees at risk based on the following: 15% for
Implementation the first quarter of the first year and 25% for ongoing operations for all quarters.
Performance Guarantees
Fees At Risk
Actual Performance
IMPLEMENTATION
There will be a 15-business day turnaround
time on accurate group set up (as agreed to
during the implementation process) once
complete plan information is received.
15% of
1st quarter fees
PARTICIPANT/MEMBER SERVICES
The average answer time for the participant
call center senior queue will be 30 seconds
or less.
3%
The participant call center answer rate will
be greater than 95%.
3%
95% of participant emails will be responded
to within 1 business day.
3%
ACCOUNT MANAGEMENT
Account Management Survey: Fees at risk
will be paid if the cumulative client survey
score is less-than satisfied. A cumulative
score of 3.0 and above is considered
passing. All primary client contacts must
participate in the survey.
4%
FILES
100% of files will be processed within 2
business days.
3%
CLAIMS
98% of claims will be processed within 2
business days.
3%
SYSTEMS
The website (www.wexinc.com) will have a
98% accessibility rate.
3%
There will be a 98% system (Consumer and
Employer Portal) availability rate for
customer inquiries.
3%
Performance guarantees are (i) based upon aggregated performance data, metrics and procedures
determined by WEX, subject to changes generally implemented, and are not based upon individual
client performance, except for the account management survey, and (ii) subject to any force majeure
or similar clause set forth in any agreement you have with WEX and also exclude other unusual and
excessive temporary events. All Employer credits applied during the applicable period shall be offset
against the Fee Amount.
SERIAL 210204-RFP
EXHIBIT D BUSINESS ASSOCIATE AGREEMENT RECITALS
WHEREAS, WEX has agreed to provide certain administrative services, activities or functions in connection
with the Plan (“Services”) pursuant to a master contract for services pursuant to RFP No. 210204 (“Master
Services Agreement”) between WEX and Employer (also “Sponsor”); and
WHEREAS, the parties desire to enter into this Business Associate Agreement (this “Agreement”), effective
upon the earlier of the Master Services Agreement effective date or the date of first receipt of PHI from the
Plan or Sponsor by WEX, as set forth below for the purpose of addressing the following law, as amended
and clarified by the HIPAA Omnibus Rule or any regulation, rule or guidance that may be issued after the
effective date of this Agreement:
The Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) enacted
as part of the American Recovery and Reinvestment Act of 2009 and the regulations promulgated
thereunder relating to the privacy and security of protected health information;
The “Standards for Privacy of Individually Identifiable Health Information,” 45 CFR Part 160
(specifically recognizing here 45 CFR Part 160, Subparts C, D, and E (“Enforcement Rule”)) and
Part 164, Subparts A and E (“Privacy Rule”);
The “Standards for Electronic Transactions,” 45 CFR Part 160, Subpart A and Part 162, Subpart A
and Subparts I through R (“Electronic Transaction Rule”);
The “Security Standards for the Protection of Electronic Protected Health Information,” 45 CFR Part
160 and Part 164, Subparts A and C (“Security Rule”); and
The “Standards for Breach Notification for Unsecured Protected Health Information,” 45 CFR Part
160 and Part 164, Subparts A and D (“Breach Notification Rule”).
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Plan and WEX agree as follows:
ARTICLE 1 DEFINITIONS
1.1
“Agent” shall have the meaning given to it in Section 2.5. As provided by the Health
Insurance Portability and Accountability Act, as amended (“HIPAA”), an Agent and a Subcontractor are two
separate types of arrangements.
1.2
“Breach” shall have the meaning given to it by 45 CFR § 164.402.
1.3
“Business Associate” shall have the meaning given to it by 45 CFR § 160.103.
1.4
“Designated Record Set” shall have the meaning given to it by 45 CFR § 164.501.
1.5
“Health Care Operations” shall have the same meaning given to it in 45 CFR § 164.501.
1.6
“HIPAA” shall mean, collectively, the Privacy Rule, the Electronic Transaction Rule, the
Security Rule, and/or the Breach Notification Rule, each as amended and clarified by the HIPAA Omnibus
Rule.
1.7
“HIPAA Omnibus Rule” shall mean the “Modifications to the HIPAA Privacy, Security,
Enforcement, and Breach Notification Rules under the Health Information Technology for Economic and
Clinical Health Act (the HITECH Act) and the Genetic Information Nondiscrimination Act (GINA),” 78
Federal Register 5566 (January 25, 2013).
1.8
“Individual” shall mean the person who is the subject of PHI and shall include a person who
qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
SERIAL 210204-RFP
1.9
“Individual Rights Requests” shall mean requests under Article 3.
1.10
“Payment” shall have the same meaning given to it in 45 CFR § 164.501.
1.11
“PHI” or “ protected health information”, defined at 45 CFR § 160.103, shall mean any
information, whether oral or recorded in any form or medium, that: (i) relates to the past, present or future
physical or mental health or condition of an Individual; the provision of health care to an Individual; or the
past, present or future payment for the provision of health care to an Individual; and (ii) identifies the
Individual or with respect to which there is a reasonable basis to believe the information can be used to
identify the Individual
1.12
“Plan” shall have the same meaning given to it as the group health plan or plans of the
Sponsor as set forth in 45 CFR § 160.103.
1.13
“Plan Administration Functions” shall have the same meaning given to it in 45 CFR §
164.504.
1.14
“Plan Administrator” shall mean the entity, individual, group or committee appointed by the
Sponsor, or its successor or successors with the authority to administer the Plan.
1.15
“Privacy Official” shall mean the person designated by the Plan to serve as its privacy
official within the meaning of 45 CFR § 164.530(a), and any person to whom the Privacy Official has
delegated any of his or her duties or responsibilities.
1.16
“Protected Information” shall mean PHI received from the Plan or created, received,
maintained or transmitted by WEX on behalf of the Plan.
1.17
“Required by Law” shall have the same meaning given to it in 45 CFR § 164.103.
1.18
“Secretary” shall mean the Secretary of the United States Department of Health and
Human Services.
1.19
“Services” shall mean the activities, functions, and/or services that WEX from time to time
renders to or on behalf of the Plan to the extent that those activities, functions, and/or services are covered
by HIPAA.
1.20
“Subcontractor” shall have the same meaning given to it in 45 CFR § 160.103.
1.21
“Unsecured PHI” shall mean Protected Information that is not secured through the use of
a technology or methodology that renders such Protected Information unusable, unreadable or
indecipherable to unauthorized individuals as specified in 45 CFR § 164.402.
ARTICLE 2 OBLIGATIONS AND ACTIVITIES OF WEX
2.1
Status of WEX. WEX acknowledges and agrees that it is a Business Associate of the Plan
for purposes of the Privacy Rule.
2.2
Permitted Uses and Disclosures of Protected Information.
(a)
Permitted Uses. WEX shall not use Protected Information other than as permitted
by this Agreement. WEX may use Protected Information: (i) in connection with the performance,
management and administration of the Services; (ii) for the proper business management and
administration of WEX; (iii) to carry out WEX’s legal responsibilities; (iv) to report violations of law consistent
with 45 CFR § 164.502(j); (v) to the extent and for any purpose authorized by an Individual under 45 CFR
§ 164.508; and (vi) for any purpose provided that no data is identifiable and data has been de-identified
pursuant to 45 CFR § 164.514(b) (including the separate de-identification guidance issued by the Secretary
on November 26, 2012). Notwithstanding the foregoing sentence, WEX shall not use Protected Information
in any manner that violates the Privacy Rule, or that would violate the Privacy Rule if so, used by the Plan
(except for the purposes specified under 45 CFR § 164.504(e)(2)(i)(A) and (B)).
SERIAL 210204-RFP
(b)
Permitted Disclosures. WEX shall not disclose Protected Information other than
as permitted by this Agreement. WEX may disclose Protected Information: (i) in connection with the
performance, management and administration of the Services; (ii) to report violations of law consistent with
45 CFR § 164.502(j); (iii) to the extent and for any purpose authorized by an Individual under 45 CFR §
164.508; and (iv) for any purpose provided that no data is identifiable and data has been de-identified
pursuant to 45 CFR § 164.514(b) (including the separate de-identification guidance issued by the Secretary
on November 26, 2012). In addition, WEX may also disclose Protected Information to a third party for the
proper business management and administration of WEX and to carry out WEX’s legal responsibilities,
provided that the disclosure is Required by Law or WEX obtains, prior to the disclosure: (i) reasonable
assurances from the third party that the Protected Information will be held confidentially and used or further
disclosed only as Required by Law or for the purpose for which it was disclosed to the third party; and (ii)
an agreement from the third party that the third party will notify WEX immediately of any instances in which
it knows the confidentiality of the information has been breached. Further, WEX shall disclose, upon
request, Protected Information to the Sponsor for Plan Administration Functions and to designated Sponsor
employees (or designated Business Associates of the Plan) who are working for or on behalf of the Plan
for purposes of Payment and Health Care Operations (including claims assistance activities) consistent
with 45 CFR § 164.506(c)(1). Notwithstanding the foregoing, WEX shall not disclose Protected Information
in any manner that violates the Privacy Rule, or that would violate the Privacy Rule if so, disclosed by the
Plan (except for the purposes specified under 45 CFR § 164.504(e)(2)(i)(A) and (B)).
(c)
Minimum Necessary. To the extent required by the Privacy Rule, WEX shall only
request, use, and/or disclose the minimum amount of Protected Information necessary to accomplish the
purpose of the request, use, and/or disclosure. For this purpose, the determination of what constitutes the
minimum necessary amount of Protected Information shall be determined in accordance with Section
164.502(b) of the Privacy Rule.
(d)
Direct Application of Privacy Rules. WEX shall not use and/or disclose Protected
Information or provide any Services that require the use and/or disclosure of Protected Information unless
such use and/or disclosure directly complies with this Section 2.2 and Sections 164.502(a)(3) and
164.504(e) of the Privacy Rule.
(e)
GINA Provisions. Notwithstanding subsections (a) through (c) above, WEX shall
not use and/or disclose Protected Information that is genetic information for underwriting purposes, as set
forth in 45 CFR § 164.502(a)(5).
2.3
Safeguards. WEX shall maintain and use appropriate and commercially reasonable
safeguards to prevent use and/or disclosure of Protected Information other than as permitted or required in
this Agreement.
2.4
Reports of Prohibited Disclosures. If WEX becomes aware of a disclosure of an
Individual’s Protected Information by WEX and the disclosure violated the provisions of this Agreement,
WEX must inform the Privacy Official regarding the prohibited disclosure of the Individual’s Protected
Information. To the extent that a disclosure described in this Section 2.4 also constitutes a Breach of
Unsecured PHI, the provisions of this Section 2.4 shall not apply, but rather the provisions of Section 2.8
shall apply.
2.5
Agents and Subcontractors. WEX shall require each of its authorized representatives,
agents, and entities (collectively, “Agents”) to whom WEX provides Protected Information on behalf of the
Plan to agree to observe the restrictions on use and disclosure of the Protected Information imposed upon
WEX by this Agreement and the Privacy Rule. In addition, WEX shall enter into a business associate
agreement with each of its Subcontractors which meets the requirements of the Privacy Rule, including the
requirements set forth in 45 CFR § 164.504(e).
2.6
Access by Secretary. WEX shall make available to the Secretary WEX’s internal practices,
books, and records (including its policies and procedures) relating to WEX’s use and disclosure of Protected
Information for the purpose of enabling the Secretary to assess the Plan’s and/or WEX’s compliance with
HIPAA. WEX shall inform the Privacy Official of any request sent by the Secretary on behalf of the Plan
that is received by WEX, unless it is prohibited by applicable law from doing so.
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2.7
Mitigation. WEX agrees to mitigate, to the extent practicable, any harmful effect that is
known to WEX of a use or disclosure of Protected Information by WEX in violation of the requirements of
this Agreement and provide any notice and remediation that either WEX or the Plan is required to provide
by any applicable law in connection with such actual or suspected Breach. Where a Breach involves PHI
data elements that reasonably could lead to identity theft, WEX shall provide credit monitoring or other
commercially reasonable identity theft mitigation service for the affected individuals for one year.
2.8
Notice of Breach of Unsecured PHI.
(a)
WEX Requirements. Upon WEX’s discovery of a Breach of Unsecured PHI by
WEX, WEX shall –
(1)
Pursuant to the requirements set forth in subsection (c) below, provide
written notice of the Breach to the Privacy Official, as soon as administratively practicable, but no
later than ten (10) business days after the Breach is discovered, and
(2)
Pursuant to the requirements set forth in subsection (b) below, provide
written notice of the Breach, on behalf of the Plan, without unreasonable delay and in no case later
than sixty (60) calendar days after discovery of a Breach as authorized under 45 CFR § 164.404
or such later date as is authorized under 45 CFR § 164.412 to:
(i)
each Individual whose Unsecured PHI has been, or is reasonably
believed by WEX to have been, accessed, acquired, used or disclosed as a result
of the Breach;
(ii)
the media to the extent required under 45 CFR § 164.406; and
(iii)
the Secretary to the extent required under 45 CFR § 164.408
(unless the Plan has elected to provide this notification and has informed WEX);
and
(3)
If the Breach involves less than 500 individuals, maintain a log or other
documentation of the Breach which contains such information as would be required to be included
if the log were maintained by the Plan pursuant to 45 CFR § 164.408, and provide such log to the
Plan within five (5) business days of the Plan’s written request.
(b)
Notice Requirements. This subsection (b) provides the following special rules that
shall each be applicable to the provisions of Section 2.8(a)(2) –
(1)
The date that a Breach is discovered shall be determined by WEX, in its
sole discretion, in accordance with the Breach Notification Rule.
(2)
The content, form, and delivery of each of the notices required by Section
2.8(a)(2) shall comply in all respects with the breach notification provisions applicable to the Plan,
as set forth in the Breach Notification Rule.
(3)
WEX shall send the notices described in Section 2.8(a)(2)(i) to each
Individual using the address on file with WEX (or as may be otherwise provided by the Plan). If the
notice to any Individual is returned as undeliverable, WEX shall make one additional attempt to
deliver the notice to the Individual using such information as is reasonably available to it or shall
take other action required by the Breach Notification Rule.
(4)
With respect to notices required under Section 2.8(a)(2)(i) and (ii), WEX
and the Privacy Official shall cooperate in all respects regarding the drafting and the content of the
notices. To that end, before sending any notice to any Individual or the media under Section
2.8(a)(2)(i) or (ii), WEX shall first provide a draft of the notice to the Privacy Official. The Privacy
Official shall have ten (10) business days (plus any reasonable extensions) to either approve
WEX’s draft of the notice or revise the language of the notice. Alternatively, the Privacy Official
may elect to draft the notice for review by WEX. Once WEX and the Privacy Official agree on the
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final content of the notice, WEX shall send the notice to the Individuals and/or the media based on
the requirements of the Breach Notification Rule.
(c)
Privacy Official Notice. The notice to the Privacy Official pursuant to Section
2.8(a)(1) shall include any information available to WEX that is required to be included in a notification to
an Individual under 45 CFR § 164.404(c). To the extent that WEX does not have the information to be
provided in the prior sentence when it is required to notify the Privacy Official, WEX shall provide such
information as soon as administratively practicable after such information becomes available. Upon the
Plan’s written request, WEX shall provide such additional information regarding the Breach as may be
reasonably requested from time-to-time by the Plan.
(d)
Notice Fees. WEX reserves the right to charge reasonable, cost-based fees for
sending the notices required by this Section 2.8 should a Breach be due to actions on the part of the
Sponsor, the Plan or any other entity (other than WEX, its Agents or Subcontractors).
(e)
Remuneration. WEX shall not directly or indirectly receive any remuneration in
exchange for PHI or Use or Disclose PHI for marketing or fundraising purposes.
ARTICLE 3 INDIVIDUAL RIGHTS REQUIREMENTS
3.1
Designated Record Sets.
(a)
General. WEX agrees to maintain a Designated Record Set for the Plan in a
manner and form that will allow the Plan to provide access and amendment rights to an Individual with
respect to the Individual's Protected Information in conformance with 45 CFR §§ 164.524 and 164.526.
(b)
Access to Protected Information. Upon request from the Plan, WEX shall process
and respond to a request by an Individual for access to an Individual’s Protected Information that is
maintained by WEX in a Designated Record Set pursuant to 45 CFR § 164.524 (an “Access Request”).
WEX shall respond to such Access Request by furnishing such Protected Information to the Plan within a
timeframe that reasonably allows the Plan to satisfy the timeframes required by 45 CFR § 164.524. If the
Protected Information that is requested is maintained electronically and the Individual requests an electronic
copy of such information, WEX will provide access to the information in an electronic format that complies
with 45 CFR § 164.524(c)(2)(ii). Thereafter, the Plan will be responsible for sending such information to
the Individual.
(c)
Amendment to Protected Information. Upon request from the Plan, WEX shall
process a request by an Individual for amendment to an Individual’s Protected Information that is
maintained by WEX in a Designated Record Set pursuant to 45 CFR § 164.526 (an “Amendment Request”).
WEX shall process such Amendment Request within a timeframe that reasonably allows the Plan to satisfy
the timeframes required by 45 CFR § 164.526.
(d)
Coordination with Privacy Official. WEX shall coordinate and cooperate with the
Privacy Official (or any other person designated by the Plan Administrator for this purpose) regarding all
processing, recordkeeping, and documentation issues relating to Access Requests and Amendment
Requests. Notwithstanding the foregoing, WEX shall not be obligated to coordinate with the Privacy Official
if an Individual files an Access Request or an Amendment Request with WEX and such request is directed
solely to WEX.
3.2
Accounting of Disclosures of Protected Information.
(a)
Documentation of Disclosures. WEX agrees to document and maintain a log of
any and all disclosures from and after the date or dates required by 45 CFR § 164.528 made by WEX of
Protected Information in a manner and form that will allow the Plan to provide to an Individual an accounting
of disclosures or other applicable report of the Individual's Protected Information in compliance with and
based on the requirements of 45 CFR § 164.528.
(b)
Accounting Requests. Upon request from the Plan, WEX shall process and
respond to a request by an Individual for an accounting of disclosures or other applicable report of an
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Individual’s Protected Information pursuant to the requirements of 45 CFR § 164.528 (an “Accounting
Request”). WEX shall furnish such accounting relating to the Accounting Request to the Plan within a
timeframe that reasonably allows the Plan to satisfy the timeframes required by 45 CFR § 164.528.
Thereafter, the Plan will be responsible for sending such information to the Individual.
(c)
Coordination with Privacy Official. WEX shall coordinate and cooperate with the
Privacy Official (or any other person designated by the Plan Administrator for this purpose) regarding all
processing, recordkeeping, and documentation issues relating to Accounting Requests. Notwithstanding
the foregoing, WEX shall not be obligated to coordinate with the Privacy Official if an Individual files an
Accounting Request with WEX and such request is directed solely to WEX.
3.3
Privacy Protection Requests.
(a)
Restriction Requests on Uses and Disclosures. The Plan and WEX on behalf of
the Plan shall not agree to a restriction on the use or disclosure of Protected Information pursuant to 45
CFR § 164.522(a) without first consulting with the other party. WEX is not obligated to implement any
restriction, if such restriction would hinder Health Care Operations or the Services WEX provides to the
Plan, unless such restriction would otherwise be required by 45 CFR § 164.522(a).
(b)
Confidential Communication Requests. WEX shall implement any reasonable
requests by Individuals relating to a request to receive communications of Protected Information by
alternative means or at alternative locations to the extent required by 45 CFR § 164.522(b).
(c)
Coordination with Privacy Official. WEX shall coordinate and cooperate with the
Privacy Official (or any other person designated by the Plan Administrator for this purpose) regarding all
processing, recordkeeping, and documentation issues relating to requests under this Section 3.3.
ARTICLE 4 ELECTRONIC TRANSACTION RULE
4.1
Business Associate Requirements. WEX acknowledges that it is a Business Associate of
the Plan for purposes of the Electronic Transaction Rule. WEX agrees that it shall comply with all Electronic
Transaction Rule requirements that may be applicable to WEX with respect to the Services it provides to
and on behalf of the Plan. WEX shall also require each of its Agents and Subcontractors to whom WEX
provides Protected Information that is received from or created or received by WEX on behalf of the Plan,
to provide assurances, in writing, that they will comply with the applicable requirements of the Electronic
Transaction Rule.
4.2
Sponsor Transmissions. The Sponsor hereby represents and warrants that all electronic
transmissions with respect to the Plan between the Sponsor (either directly or through its designated agent)
and WEX relating to enrollment and disenrollment information and premium payment information as each
are covered by the Electronic Transaction Rule are sent or received by the Sponsor (either directly or
through its designated agent) in the Sponsor’s capacity as an employer and are not sent or received by the
Plan or are not subject to HIPAA for other reasons, such as that the information is an employment record
and not PHI.
ARTICLE 5 OBLIGATIONS OF PLAN
5.1
Privacy Notice. Upon request, the Plan will provide WEX with a copy of its notice of privacy
practices pursuant to 45 CFR § 164.520.
5.2
Authorizations. The Plan will notify WEX of any changes in or revocations of Individual
authorizations for use or disclosure of Protected Information to the extent that such changes or revocations
may affect WEX’s use or disclosure of Protected Information.
5.3
Officials. The Plan will notify WEX of the current name and contact information of the Plan
Administrator, the Privacy Official, and any other person that has the authority to act on behalf of the Plan
with respect to the provisions contained in this Agreement.
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5.4
Plan. Sponsor represents that its Plan documents include specific provisions to restrict the
use or disclosure of PHI and to ensure adequate procedural safeguards and accounting mechanisms for
such uses or disclosures, in accordance with the Privacy Rule.
5.5
Standard Requirements for Group Health Plans. The Plan represents and warrants that:
(a) its plan documents, in accordance with 45 CFR § 164.504(f), allow the Plan to receive Protected
Information; (b) it has received a certification from the Sponsor in accordance with 45 CFR § 164.504(f)(2)(ii)
and will provide a copy of such certification to WEX upon request; (c) the plan document amendments
permit the Plan to receive Protected Information (including detailed invoices, reports, and statements from
WEX); and (d) the Plan has determined, through its own policies and procedures and in compliance with
45 CFR § 164.502(b), that the Protected Information that it receives from WEX (including the detailed
invoices, reports, and statements) contains the minimum information necessary for the Plan to carry out its
Payment and Health Care Operations activities.
5.6
Sponsor agrees and understands that the Plan is independently responsible for the security
of all PHI in its possession (electronic or otherwise), including all PHI that it receives from outside sources
including the Business Associate.
ARTICLE 6 AMENDMENT AND TERMINATION
6.1
Amendment. No change, modification or attempted waiver of any of the provisions of this
Agreement shall be binding upon any party hereto unless reduced to writing and signed by both parties.
WEX agrees to take such action as is necessary to amend this Agreement from time to time as the Plan
reasonably determines necessary to comply with HIPAA, or any other applicable law, rule or regulation.
6.2
Term. The Term of this Agreement shall be effective on the Effective Date (unless
otherwise noted herein) and shall terminate when all of the Protected Information received from the Plan or
created or received by WEX on behalf of the Plan, is destroyed in accordance with the Plan’s authorization
or is returned to the Plan (or its designated agents) pursuant to Section 6.4.
6.3
Termination. If one party to this Agreement (“Non-Breaching Party”) has knowledge of a
material violation of this Agreement by the other party to this Agreement (“Breaching Party”), as determined
in good faith by the Non-Breaching Party, the Non-Breaching Party must promptly:
(a)
Provide an opportunity for the Breaching Party to end and to cure the material
violation within a reasonable time specified by the Non-Breaching Party, and if the Breaching Party does
not end and cure the material violation within such time (including reasonable extensions that the Non-
Breaching Party determines are necessary) to the satisfaction of the Non-Breaching Party, the Non-
Breaching Party shall immediately terminate the Services rendered by WEX and any agreement or contract
related thereto; or
(b)
If a cure is not possible as determined by the Non-Breaching Party in its sole
discretion, the Non-Breaching Party shall immediately terminate the Services rendered by WEX and any
agreement or contract related thereto.
6.4
Effect of Termination. Upon termination pursuant to Section 6.3, the Plan within a
reasonable time thereafter must inform WEX to either destroy or return to the Plan (or any agents
designated by the Plan) the Protected Information that WEX and its Agents and Subcontractors maintain
in any form, and WEX and its Agents and Subcontractors shall retain no copies of the Protected Information.
However, in many situations WEX maintains one or more backup copies of Protected Information for
auditing, data management, and other related purposes and WEX has determined that destruction of all
copies of Protected Information that it maintains is infeasible.
Therefore, after termination of the Services and pursuant to 45 CFR § 164.504(e)(2)(ii)(J), this Agreement
shall remain in effect, and WEX shall continue to observe and shall ensure that its Agents and
Subcontractors continue to observe its obligations under this Agreement to the extent copies of the
Protected Information are retained by WEX and shall limit further uses and disclosures of Protected
Information to the purposes that make its return or destruction infeasible and that are consistent with the
Privacy Rule.
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ARTICLE 7 ELECTRONIC SECURITY STANDARDS
7.1
Definitions. When used in this Article, the following terms shall have the meanings set forth
as follows:
(a)
“Electronic Media” shall have the meaning given to it in 45 CFR § 160.103.
(b)
“Electronic Protected Information” shall mean Protected Information received from
the Plan or created, received, maintained or transmitted by WEX on behalf of the Plan that is transmitted
by Electronic Media or maintained in Electronic Media.
(c)
“Security Incident” shall have the meaning given to it in 45 CFR § 164.304.
7.2
Requirements. Pursuant to 45 CFR § 164.314(a)(2)(i), WEX shall:
(a)
Comply with the applicable requirements of the Security Rule, including the
requirement that WEX implement, maintain and document administrative, physical, and technical
safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of
Electronic Protected Information to the extent required by the Security Rule;
(b)
Report (pursuant to the terms and conditions of Section 7.3) to the Privacy Official
(or such other person designated for this purpose) any Security Incident of which WEX becomes aware
and which occurred during the applicable reporting period;
(c)
Require each of its Agents to whom WEX provides Electronic Protected
Information to agree to implement administrative, physical, and technical safeguards that reasonably and
appropriately protect the confidentiality, integrity, and availability of the Electronic Protected Information
that is provided to the Agent to the extent required by the Security Rule; and
(d)
Enter into a contract or other arrangement with each of its Subcontractors that
create, receive, maintain or transmit Electronic Protected Information on behalf of WEX pursuant to which
the Subcontractor agrees to comply with the applicable requirements of the Security Rule.
7.3
Reporting Protocols. All reports required by Section 7.2(b) shall be provided pursuant to
the terms and conditions specified in this section.
(a)
Attempted Security Incidents. Reporting for any Security Incident involving the
attempted unauthorized access, use, disclosure, modification or destruction of Electronic Protected
Information (collectively, an “Attempted Security Incident”) shall be provided pursuant to the standard
reporting protocols of WEX (as determined by WEX).
(b)
Successful Security Incident. Reporting for any Security Incident involving the
successful unauthorized access, use, disclosure, modification or destruction of Electronic Protected
Information (collectively, a “Successful Security Incident”) shall be provided to the Plan pursuant to the
standard reporting protocols of WEX (as determined by WEX), provided that: (i) the reports shall at a
minimum include the date of the incident, the parties involved (if known, including the names of Individuals
affected), a description of the Successful Security Incident, a description of the Electronic Protected
Information involved in the incident, and any action taken to mitigate the impact of the Successful Security
Incident and/or prevent its future recurrence; and (ii) the reports shall satisfy the minimum requirements for
Security Incident reporting that may be required from time to time by the Secretary. In addition, Successful
Security Incidents shall be reported to the Plan as soon as administratively practicable after the occurrence
of the incident taking into account the severity and nature of the incident. Notwithstanding the foregoing,
the Plan may request details about one or more Successful Security Incidents, and WEX shall have thirty
(30) days thereafter to furnish the requested information.
(c)
Breach of Unsecured PHI. To the extent that a Security Incident described in this
Section 7.3 also constitutes a Breach of Unsecured PHI, the provisions of this Section 7.3 shall not apply,
but rather the provisions of Section 2.8 shall apply.
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7.4
Mitigation. WEX agrees to mitigate, to the extent practicable, any harmful effect that is
known to WEX relating to any Successful Security Incident and provide any notice and remediation that
either WEX or the Plan is required to provide by any applicable law in connection with such Security
Incident. Where the Security Incident involves data elements that reasonably could lead to identity theft,
WEX shall provide credit monitoring or other commercially reasonable identity theft mitigation service for
the affected individuals for one year.
7.5
Access by Secretary. WEX shall make available to the Secretary WEX’s internal practices,
books and records (including its policies and procedures) relating to the safeguards established by WEX
with respect to Electronic Protected Information for the purpose of enabling the Secretary to assess WEX
and/or the Plan’s compliance with the Security Rule. WEX shall inform the Privacy Official of any request
sent by the Secretary on behalf of the Plan that is received by WEX, unless WEX is prevented by applicable
law from doing so.
ARTICLE 8 GENERAL
8.1
Other Agreements. The Plan and WEX acknowledge and affirm that this Agreement is in
no way intended to address or cover all aspects of the relationship of the Plan and WEX and of the Services
that are rendered by WEX to and on behalf of the Plan. Rather, this Agreement deals only with those
matters that are specifically addressed herein. Further, this Agreement supersedes any prior business
associate agreements entered into by WEX and the Plan (or any predecessor to the Plan) and shall apply
to all Protected Information existing as of the effective date of this Agreement or created or received
thereafter while this Agreement is in effect.
8.2
Indemnification. Any indemnification relating to violations of this Agreement by WEX or
the Plan (or the Sponsor on behalf of the Plan) shall be addressed to the extent applicable by the Master
Services Agreement.
8.3
Severability. The provisions of this Agreement shall be severable, and the invalidity or
unenforceability of any provision (or part thereof) of this Agreement shall in no way affect the validity or
enforceability of any other provisions (or remaining part thereof). If any part of any provision contained in
this Agreement is determined by a court of competent jurisdiction, or by any administrative tribunal, to be
invalid, illegal or incapable of being enforced, then the court or tribunal shall interpret such provisions in a
manner so as to enforce them to the fullest extent of the law.
8.4
Interpretation. The provisions of this Agreement shall be interpreted in a manner intended
to achieve compliance with HIPAA. Whenever the Agreement uses the term “including” followed by a
specific item or items, or there is a passage having a similar effect, such passages of the Agreement shall
be construed as if the phrase “without limitation” followed such term (or otherwise applied to such passage
in a manner that avoids limitations on its breadth of application). Where the term “and/or” is used in this
Agreement, the provision that includes the term shall have the meaning the provision would have if “and”
replaced “and/or,” but it shall also have the meaning the provision would have if “or” replaced “and/or.” Any
reference to a section or provision of HIPAA shall include any amendment or clarification of such section
or provision contained in the HIPAA Omnibus Rule and any regulation, rule or guidance issued by the
Secretary following the effective date of this Agreement.
8.5
Binding Effect. The provisions of this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their heirs, assigns and successors in interest. The Plan shall have
the right to assign this Agreement to any successor or surviving health plan, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by any such assignee.
8.6
No Third-Party Beneficiaries. Nothing express or implied in this Agreement is intended to
confer, and nothing herein shall confer, upon any person other than the parties hereto any rights, remedies,
obligations or liabilities whatsoever.
8.7
Applicable Law and Disputes. The provisions of this Agreement shall be construed and
administered to, and its validity and enforceability determined under HIPAA. To the extent that HIPAA is
not applicable in a particular circumstance, the provisions of this Agreement shall be construed and
administered to, and its validity and enforceability determined under the Employee Retirement Income
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Security Act of 1974, as amended (“ERISA”). In the event that HIPAA and ERISA do not preempt state law
in a particular circumstance, the laws of the State of North Dakota shall govern. In the event of any conflict
of state laws, the laws of the State of Arizona shall prevail. The parties agree that any claim or action
arising from this Agreement can only be brought in the United States District Court for the District of Arizona,
and both parties’ consent to such jurisdiction and venue. Any disputes between the parties arising under
this Agreement shall be resolved in accordance with the dispute resolution procedures, if any, set forth in
the Master Services Agreement.
8.8
State Privacy and Security Laws.
(a)
General. Pursuant to 45 CFR § 160.203, WEX and the Plan acknowledge that
HIPAA only preempts state laws which are contrary to a HIPAA standard, requirement or implementation
specification, provided that state laws which relate to the privacy of Protected Information and are more
stringent than the Privacy Rule are not preempted. Accordingly, the parties acknowledge that certain State
Privacy Laws affecting the privacy and/or security of personally identifiable information (e.g., name,
address, age, and social security number) relating to a Plan participant or beneficiary (“Privacy Restricted
Data”) may apply to the Services provided by WEX to the extent such State Privacy Laws are not preempted
by HIPAA. For purposes of this Section 8.8, “State Privacy Laws” shall mean any applicable state and local
privacy laws governing the creation, collection, storage, maintenance, access, modification, transmission,
use or disclosure of Privacy Restricted Data.
(b)
State Privacy Laws. All Privacy Restricted Data created, collected, received or
obtained by or on behalf of WEX in the course of performing its Services shall be created, collected,
received, obtained, stored, maintained, accessed, modified, transmitted, used, and disclosed in accordance
with any and all applicable State Privacy Laws. WEX shall at all times perform the Services in accordance
with the State Privacy Laws and as not to cause the Sponsor or the Plan to be in violation of the State
Privacy Laws. WEX shall be fully responsible for any creation, collection, receipt, access, storage,
maintenance, modification, transmission, use, and disclosure of Privacy Restricted Data performed by or
on behalf of WEX that is in violation of any State Privacy Laws. WEX shall remedy and mitigate the
damages of any breach of privacy, security, integrity or confidentiality with respect to the unauthorized
creation, collection, receipt, storage, maintenance, access, modification, transmission, use or disclosure (a
“State Breach”) of Privacy Restricted Data that is or may be in violation of any State Privacy Laws.
(c)
Notification. WEX shall notify the Privacy Official (using the procedures that apply
to Breaches of Unsecured PHI under Section 2.8(c)) of any State Breaches by or on behalf of WEX of
Privacy Restricted Data that is or may be in violation of any State Privacy Laws. In addition, WEX shall
also notify the affected Plan participants and beneficiaries (using the procedures that apply to Breaches of
Unsecured PHI under Section 2.8(b)) of any State Breaches by or on behalf of WEX of Privacy Restricted
Data that is in violation of any State Privacy Laws and any state or local governmental agencies, authorities
or other entities, but only to the extent required by such State Privacy Laws.
(d)
HIPAA Coordination. The parties acknowledge that in certain situations the
provisions of both Section 2.8 and this Section 8.8 shall apply. If both Sections 2.8 and 8.8 apply in a given
situation, WEX shall comply with both Sections 2.8 and 8.8 to the extent applicable.
8.9
Obligation of Plan and WEX. To the extent that WEX carries out the HIPAA obligations of
the Plan (including the obligations set forth in Section 2.8 and Article 3), WEX shall comply with the
applicable requirements of HIPAA as they apply to the Plan in the performance of such obligations on behalf
of the Plan.
EXHIBIT E – COBRA BUSINESS REQUIREMENTS
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EXHIBIT F – FSA BUSINESS REQUIREMENTS
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