WageWorks Inc.

{Brokers
Terms and Conditions}

General Terms and Conditions of Service

WageWorks has entered into a service agreement with Client (each an “Order Form”), under which WageWorks shall provide certain benefits administration services to Client (which may be referred to as the “Products” or the “Services”).  You are the broker of Client (as defined in the Order Form).  You have agreed to pay on behalf of Client the Fees set forth in the Order Form.  These General Terms and Conditions of Service govern the terms of service, and shall be read in conjunction with the Order Form, which identifies the Services purchased by Client.  Some of these terms and conditions may not be applicable to you or the purchased Services.

1. Plan Administrator; Fiduciary

You acknowledge and agree that WageWorks is not the “plan administrator” or “fiduciary” within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (to the extent such law applies) of any employee benefit plans or programs (each a “Plan” or, collectively, the “Plans”) sponsored by Client, and that WageWorks is an independent contractor engaged to perform the agreed upon Services. 

2. Term

The term of the provision of each Service is set forth on the Order Form. These General Terms and Conditions of Service shall remain in effect for so long as WageWorks provides Services pursuant to any Order Form. The term of each Service shall automatically renew for successive one (1) year periods, unless earlier terminated by either party as set forth below.

3. Fees

You shall pay WageWorks the fees (“Fees”) listed in the Order Form pursuant to the payment method set forth therein (unless otherwise specified). All undisputed Fees shall be paid net thirty (30) days from the invoice date (unless otherwise specified). You must submit written notice to WageWorks and provide supporting documentation as to any Fees you dispute within thirty (30) days from the date of the invoice. WageWorks shall provide a written response within thirty (30) days of receipt of the notice. Upon resolution, you shall pay any and all outstanding amounts due and owing within five (5) business days of such resolution. Except as otherwise set forth in the Order Form, WageWorks shall have the right to increase Fees after completion of the initial term of service set forth in the Order Form for each renewal period by providing you with written notice at least sixty (60) days prior to the expiration of the then-current term.  The new Fees shall take effect on the first day of the renewal period.  All services not set forth in the Order Form may be subject to additional fees (e.g. additional services required as a result of legislative changes, correction services, customization, etc.).  Broker shall be responsible for the payment of all Fees, regardless of whether Broker collects sufficient amounts from Clients. A service charge of 2% per month shall be applied to any overdue amounts.

The Fees described herein represent only those fees charged by WageWorks to you.  They do not include or cover fees and/or charges that a third party service provider, including a Health Savings Account (“HSA") custodian bank, may directly charge to Client’s employee participants for services they receive from such third parties.  Any and all such fees and charges that may be charged to an individual, including deductions made from an individual’s account (e.g., an HSA) or otherwise, by such third party service provider are detailed in the individual agreement(s) entered into by and between the third party service provider, including an HSA custodian bank, and each individual employee participant, which may include but are not limited to Accountholder Agreements, Participant Terms and Conditions and other ancillary agreements.

4. Taxes; Regulatory Fees

You shall be responsible for, and shall promptly pay or reimburse WageWorks for any taxes, as well as any benefit or plan-related charge, surcharge or assessment, imposed as a result of the provision of Services by WageWorks to Client.

5. Termination

a.  Termination for Convenience. Either party may terminate your obligation to pay Fees on behalf of Client without cause upon at least thirty (30) days’ prior written notice to the other party.

b.  Termination of Designated Broker Status. Either party may terminate your obligation to pay Fees on behalf of Client if you are no longer the broker for Client, however, you shall endeavor to provide at least thirty (30) days’ prior written notice of termination to WageWorks, if possible. 

c.  Termination for Material Breach. Either party may terminate your obligation to pay Fees on behalf of Client with cause upon thirty (30) days’ prior written notice to the defaulting party if such material breach is not cured within that period, if curable.

d.  Termination for Bankruptcy, Insolvency, or Business Wind Down. Either party may terminate your obligation to pay Fees on behalf of Client immediately if either party (i) voluntarily files for bankruptcy; (ii) declares insolvency; (iii) takes action to commence winding down its business; or (iv) is named as a defendant in any involuntary bankruptcy or insolvency proceeding.

e.  Effect of Termination.  Upon termination, you are and shall remain liable for the payment of all Fees due and owing up through the effective date of termination.

6. Indemnification

Neither party shall be liable in any manner for the acts and omissions of the other party or the other party’s agents, employees and representatives.  Each party shall indemnify, defend and hold harmless the other party and its officers, directors, employees and agents (“Indemnified Parties”) from and against claims and proceedings for actual damages (including reasonable legal fees and expenses) arising out of any actual or alleged: (i) breach by such party of its obligations hereunder; (ii) negligence or willful misconduct of such party or its subcontractors, employees, officers or agents; or (iii) failure of such party to comply with applicable law; or (iv) claims in which one party is named or joined with the other party when such party has not engaged in any wrongful acts. In addition, you shall indemnify, defend and hold harmless WageWorks Indemnified Parties for any act or omission taken by WageWorks pursuant to your instructions. The Indemnified Parties will promptly notify the indemnifying party of any claim. The indemnifying party shall assume and have sole control of the defense of such claim; provided, however, that neither party may settle any claim without the prior written consent of the other party if such settlement exposes the other party to any liability.

7. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS, LOSS OF DATA OR COST OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH ANY AGREEMENT BETWEEN THE PARTIES OR SERVICES PROVIDED TO CLIENT UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN ADDITION, WAGEWORKS SHALL ONLY BE LIABLE TO YOU FOR ANY DIRECT DAMAGES IN AMOUNT EQUAL TO (A) ACTUAL DAMAGES OR (B) $500, WHICHEVER IS LESS.

8. Confidentiality

a.  Confidential Information. Each party acknowledges that performance of Services may involve access to and disclosure of Confidential Information that belongs to the other party or Client. “Confidential Information” means any non-public confidential or proprietary information, including, without limitation, business and financial information; policies and procedures; operations; customer and potential customer names; suppliers and vendor names; trade secrets; trade dress; patent applications; inventions disclosures; and, with respect to Client’s Plan participants and beneficiaries, personal identification information. Confidential Information does not, however, include any information that: (i) was publicly available or released to the public domain at any time prior to disclosure by one party, (ii) becomes publicly known or generally available after disclosure by one party through no wrongful action or inaction of the other party, (iii) information that is in the party’s possession or known by the party at any time prior to the time of disclosure; (iv) is rightfully disclosed to the party by a third party that is not subject to any restrictions; or (v) a party can demonstrate was independently developed by that party without use of the other party’s Confidential Information.

b.  Restricted Use. No Confidential Information shall be disclosed to any third party other than representatives of such party who have a “need to know” such Confidential Information, provided that such representatives are informed of the confidentiality provisions hereof and agree to abide by them.

c.  Disclosure. In the event a party is required by law to disclose Confidential Information, the disclosing party shall immediately notify the other party in writing, describing the circumstances of and extent of the disclosure.

d.  Return or Destruction. Upon termination of the Order Form, each party, upon the request of the other, will return or destroy all copies of all of the other's Confidential Information in its possession or control (unless impracticable), except to the extent such Confidential Information must be retained pursuant to applicable law or a party’s document retention policy.

e.  Remedies. The parties acknowledge that compliance with the provisions of the foregoing paragraphs are necessary to protect their businesses and goodwill and that any actual or prospective breach will irreparably cause damage to them, for which money damages may not be adequate. Therefore, the parties agree that if one of them breaches, or attempts to breach, the confidentiality obligations set forth herein, the other party shall be entitled to obtain temporary, preliminary and/or permanent equitable relief, without bond, to restrain such breach, together with any and all other legal and equitable remedies available under applicable law or as set forth herein.

9. Miscellaneous

a.  Publicity.  With your prior consent, WageWorks shall be permitted to use your name and logo in sales presentations and in any filings with the Securities and Exchange Commission, and shall be permitted to reference your name in any of its earnings calls.

b.  Independent Contractor Relationship. The relationship of you and WageWorks is that of an independent contractor, and nothing herein shall be construed as creating any agency, master-servant relationship, joint venture, partnership or any other relationship between WageWorks or any of its employees and you. This arrangement is non-exclusive, and either party may perform services for others and for itself and contract with others who provide similar services.

c.  Third Party Sender.  As a Third Party Sender under National Automated Clearing House Association (“NACHA”) rules and regulations, you acknowledge and agree that WageWorks must perform a certain level of due diligence on you and that part of such diligence requires that you make certain representations and warranties in order for WageWorks to be able to originate ACH transactions on your behalf.  Accordingly, you (i) authorize WageWorks to originate transactions on your behalf, (ii) agree to be bound by applicable NACHA rules, (iii) agree not to originate transactions that violate U.S. laws, and (iv) agree to provide written notice to WageWorks if there are any restrictions on the type of transactions that may be originated and, if there are, to describe such restrictions. You further acknowledge and agree that in addition to other termination rights outlined herein, that WageWorks has the right to terminate or suspend the Services if you violate any applicable NACHA rules.  You additionally acknowledge and agree that WageWorks and the originating depository financial institution have the right to audit your compliance with the NACHA Rules and the terms of this provision with reasonable notice, during normal business hours.

d.  Records Maintenance and Disposition. WageWorks shall keep and archive records of information and data that it obtains in connection with the provision of Services hereunder (collectively “Service Records”) for the longer of seven (7) years or the period required by applicable law.

e.  Assignment. Neither of us may assign any of our rights and hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld. These General Terms and Conditions of Service shall be binding upon and shall inure to the benefit of a party’s authorized successors and assigns.

f.  Notices. All notices shall be made in writing and delivered (i) in person, (ii) by certified mail, return receipt requested, (iii) by traceable overnight delivery or (iv) by electronically confirmed facsimile or electronic mail, followed immediately by U.S. Mail to WageWorks at 1100 Park Place, 4th Floor, San Mateo, CA 94403, Attn: General Counsel, or to Broker at the address listed on the Order Form. A signed receipt shall be obtained where a notice is delivered in person. Notice will be effective upon delivery.

g.  Amendment.  These General Terms and Conditions of Service, as well as any Order Form, may only be amended in a writing signed by both parties.   

Notwithstanding the foregoing, WageWorks may make non-material change to these General Terms and Conditions of Service at any time by posting revised General Terms and Conditions of Service at https://www.wageworks.com/brokers/terms-and-conditions. A non-material change is any modification that does not have an adverse impact on you.  You are responsible for regularly reviewing this site to obtain timely notice of such amendments. You shall be deemed to accept the amended General Terms and Conditions of Service if you do not notify WageWorks of your good faith objection within thirty (30) days after such amended terms and conditions have been posted. If WageWorks does not agree to waive the amended terms and conditions to which you object, either party shall have the right to immediately terminate Services without penalty.

h.  Waiver. Any waiver of any provision set forth herein, or any Order Form, shall be effective only if in writing and signed by both parties. Failure of either party to insist on performance of any term or condition, or to exercise any right or privilege, shall not be construed as a continuing or future waiver of such term, condition, right or privilege.

i.  Governing Law. Any claims arising under or related to the Order Form and/or this arrangement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles.

j.  Severability. If any provision herein is held to be invalid or unenforceable, such provision shall be deemed deleted and the remaining provisions shall continue in full force and effect.

k.  Entire Agreement. These General Terms and Conditions of Service, any related Order Form and any Broker Fee Agreement constitute the full and complete understanding and agreement of the parties relating to the subject matter hereof and supersede all prior understandings and agreements relating to such subject matter.  In case of a conflict between these General Terms and Conditions of Service and an Order Form, the Order Form shall prevail. In case of a conflict between these General Terms and Conditions of Service and a Broker Fee Agreement, the Broker Fee Agreement shall prevail.  In case of a conflict between an Order Form and the Broker Fee Agreement, the Broker Fee Agreement shall prevail. In addition to the foregoing, these General Terms and Conditions of Service and any Order Form shall prevail over any additional or different provisions in any purchase order, acceptance notice, or other similar document issued by you, which provisions shall be of no force or effect.

l.  Survival. The following Sections shall survive the termination of the Order Form: Effect of Termination, Indemnification, Limitation of Liability, Confidentiality, Records Maintenance and Disposition, Notices, Governing Law, Entire Agreement and Survival.

 

[BAA –V 08/04/16]

 

CO-BUSINESS ASSOCIATE AGREEMENT

This Co-Business Associate Agreement ("Agreement") is made and entered into by and between you, as the broker of Client (as defined in the Order Form) and WageWorks, Inc. (“WageWorks”), and is effective as of the effective date of the Order Form (the “Effective Date”).  Each party hereto is a Business Associate of the Covered Entity, and each party may provide Protected Health Information to the other party in connection with their respective provision of services to the Covered Entity as set forth in this Agreement.   

Definitions

Unless otherwise defined, terms used in this Agreement have the same meaning as those terms in the Standards for Privacy of Individually Identifiable Health Information or the HIPAA Security Standards ("HIPAA Privacy & Security Rules"), found at 45 CFR Parts 160-164.

a.  Agreement means this Business Associate Agreement.

b.  Covered Entity means Client.

c.  HITECH Act means the HITECH Act of the American Recovery and Reinvestment Act of 2009 (Title XIII, Subtitle D of P.L. 111-5), enacted February 17, 2009 (codified at 42 USC § 17921 et seq.).

Obligations and Activities of Business Associate

a.  Use or Disclosure of Protected Health Information – Each party agrees not to use or disclose Protected Health Information, other than as permitted or required by this Agreement or as Required by Law.

b.  Safeguards – Each party agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.

c.  Duty to Mitigate – Each party agrees to mitigate, to the extent practicable, any harmful effect that is known to that party of a use or disclosure of Protected Health Information by the other party in violation of the requirements of this Agreement.   

d.  Duty to Report Violations – Each party agrees to report to the other party and the Covered Entity, as applicable, any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware, including, where there is a breach of Protected Health Information, the identities of any individual whose Protected Health Information was breached and the data elements disclosed.

e.  Agents – In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), each party agrees to ensure that any of its subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of such party agree to the same restrictions, conditions, and requirements that apply to such party with respect to such information.

f.   Access to Secretary – Each party agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information it receives from, or is created or received by the receiving party on behalf of, the disclosing party available to the disclosing party, the Covered Entity and/or the Secretary of Health and Human Services, for purposes of the determining the disclosing party and/or the Covered Entity’s compliance with the HIPAA Privacy & Security Rules.   

g.  Access to Individuals – Each party agrees to provide access to an individual’s Protected Health Information, as held in a Designated Record Set by the receiving party, so that the disclosing party and/or the Covered Entity can respond to a request by an individual in accordance with 45 CFR 164.524, including providing such information in the electronic form or format requested by the individual, as required by 45 CFR 164.524. 

h.  Amendment of Protected Health Information – Each party agrees to make any amendment(s) to Protected Health Information it holds in a Designated Record Set, as directed by the disclosing party and/or the Covered Entity pursuant to 45 CFR 164.526.  

i.   Accounting of Disclosures – Each party agrees to document and provide a description of any disclosures of Protected Health Information and information related to such disclosures as would be required for the disclosing party and/or the Covered Entity to respond to a request by an individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528.  Each party agrees to provide such information to the disclosing party and/or the Covered Entity, or to an individual at the direction of the disclosing party and/or the Covered Entity, in order for the disclosing party and/or the Covered Entity to comply with the accounting requirements in 45 CFR 164.528.

j.   Right to Restrict – Each party agrees to comply, upon communication by the disclosing party and/or the Covered Entity, with any restrictions to the use or disclosure of Protected Health Information that the disclosing party and/or the Covered Entity has agreed to in accordance with 45 CFR 164.522.

k.   HIPAA Security Standards – Each party agrees to comply with the HIPAA Privacy & Security Rules with respect to any Electronic Protected Health Information that a party holds on behalf of a Plan. 

1.  Each party agrees to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to Electronic Protected Health Information to prevent use or disclosure of Protected Health Information other than as provided for by the Agreement.

2.  Each party agrees to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the Electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of the disclosing party and/or the Covered Entity, as required in the HIPAA Privacy & Security Rules.

3.  Each party agrees to ensure that any agent, including a subcontractor, to whom it provides Electronic Protected Health Information agrees to implement reasonable and appropriate safeguards to protect such information.

4.  Each party agrees to report to the disclosing party and the Covered Entity, as applicable, any security incident under the HIPAA Privacy & Security Rules of which it becomes aware, including the identities of any individual whose Electronic Protected Health Information was breached.

l.   Responsibilities If Security Breach.  Each party shall promptly notify the other party and the Covered Entity, as applicable, if there is a breach by either the receiving party or one of its subcontractors or agents of unsecured protected health information, as defined in, and consistent with, the HITECH Act and any regulations or guidance issued thereunder, including 45 CFR Part 164, Subpart D.  Such notification shall:

1.  Be made in writing to the disclosing party and/or the Covered Entity’s respective Privacy Officer and/or General Counsel;

2.  Be made within ten business (10) daysof discovery; and

3.  Include the names of the individuals whose information was breached, the circumstances surrounding the breach, the date of the breach and date of discovery, the information breached, any steps the individuals should take to protect themselves, the steps the receiving party (or its subcontractor or agent) is taking to investigate the breach, mitigate losses, and protect against future breaches, and a contact person for more information. 

Permitted Uses and Disclosures by Business Associate

a.  Authorization to Disclose.  Each party represents and warrants that it is authorized to disclose Protected Health Information pursuant to this Agreement to perform functions, activities, or services for, or on behalf of, the Covered Entity.

b.  Disclosures Generally.  Except as otherwise limited in this Agreement, the receiving party may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, the disclosing party and/or Covered Entity, provided that such use or disclosure would not violate the HIPAA Privacy & Security Rules if done by the disclosing party and/or the Covered Entity or the minimum necessary policies and procedures of the disclosing party and/or the Covered Entity.  The disclosing party has the right to amend this Agreement at any time upon written notice with respect to permitted uses and disclosures by the receiving party.  

c.  To Carry Out Covered Entity Obligations.  To the extent the receiving party is to carry out one or more of  the Covered Entity’s obligations under Subpart E of 45 CFR Part 164, such party agrees to comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.

d.  Marketing / Sale of Protected Health Information.  Each party agrees not to engage in marketing activities or the sale of Protected Health Information, as defined in the HIPAA Privacy & Security Rules without prior written consent of the Covered Entity and individual written authorization, as required by law.

e.  Genetic Information.  Each party agrees not to undertake any activity that may be considered underwriting based on genetic information, as defined by the Genetic Information Nondiscrimination Act and prohibited under the HIPAA Privacy & Security Rules.

f.  Required By Law.  Each party may use or disclose Protected Health Information as required by law.

Term and Termination

a.  Term.  This Agreement shall remain in effect for so long as a party is providing Protected Health Information to the other in order to perform functions, activities, or services for, or on behalf of, the Covered Entity.  Upon termination of this Agreement, the receiving party will destroy or return to the disclosing party any Protected Health Information it holds in any form that was provided by the disclosing party with respect to any applicable Covered Entity.  The receiving party will retain no copies of the Protected Health Information.  If the receiving party reasonably can show that it is infeasible to return or destroy Protected Health Information, the receiving party may extend the protections under this Agreement to such Protected Health Information and only may further use or disclose such information for those purposes that make the return or destruction infeasible.

b.  Termination for Cause.  Upon the disclosing party’s knowledge of a material breach of this Agreement by the receiving party that remains uncured for more than thirty (30) days after receipt of notice (or such other reasonable period of time mutually agreed upon by the parties), if curable, the disclosing party is authorized to terminate this Agreement.

c.  Survival.   The rights and obligations of the receiving party under this Agreement will survive the termination of this Agreement.

Miscellaneous

a.  Compliance with Laws and Regulations.  The HITECH Act requires federal agencies to establish rules and regulations regarding the privacy and security of Protected Health Information.  Each party will ensure that its privacy and security procedures are compliant with the HITECH Act and any rules and regulations issued thereunder with respect to Protected Health Information under this Agreement.  The parties agree to amend this Agreement to comply with applicable requirements of the HITECH Act, where necessary.

b.  Relationship of Parties.  The parties intend that they are independent contractors and not agents of the other party.

c.  Data Exchange.  The parties shall mutually agree on the format, frequency and data parameters of any information exchanged under this Agreement.  All data transmissions shall be encrypted.  Except as expressly set forth herein, the receiving party shall not be responsible for auditing and/or correcting any errors in any data, files or other materials provided by or on behalf of the disclosing party.  The disclosing party shall indemnify, defend and hold the receiving party and its officers, directors, shareholders, employees and agents (“Indemnified Parties”) from and against any claims and proceedings for actual damages or losses (including reasonable attorney’s fees and expenses) arising out of or related to any errors in any data, files or other materials provided by or on behalf of the disclosing party.  The indemnifying party shall assume and have sole control of the defense of such claim; provided, however, that neither party may settle any claim without the prior written consent of the other party if such settlement exposes the other party to any liability.      

  

[V.09/01/16]