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HomeMy WebLinkAboutHealth Savings Account Administrative ServicesDiscovery Benefits- 0— HEALTH enefits0 HEALTH SAVINGS ACCOUNT ADMINISTRATIVE SERVICES AGREEMENT RECITALS Employer has established a Health Savings Account ("HSA') program under which HSAs can be established by or on behalf of Employer's employees ("Employees'), An HSA is a custodial account used to pay or reimburse certain medical expenses. The employee, the employer or both may make contributions to the HSA. Employer desires DBI to assist in its administration of the HSAs based on the terms and conditions set forth in this Agreement. DBI will perform certain recordkeeping and nondiscretionary administrative services based on the terms and conditions set forth in this Agreement. Contributions made by or on behalf of Employees will be placed in a DBI account and then transferred to the HSA. Healthcare Bank, a division of Bell Bank, Fargo, North Dakota, or such other custodian as DBI may designate from time to time, will serve as the custodian of the HSAs. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE 1 SCOPE AND PURPOSE This Agreement is limited in scope and purpose to establishing the terms and conditions for the transfer of payroll deductions and Employer contributions (if applicable) to HSAs of Employees. Nothing in this Agreement shall modify or amend the terms of any HSA agreement entered into between the custodian and Employees. Complete and accurate information from Employer is required in order for DBI to perform the services set forth herein. DBI shall not be responsible for the truth or accuracy of such information or for the establishment of an HSA or the HSA maintenance activities based on the information received from Employer. Employer acknowledges and agrees that DBI shall have no liability in connection with: • Determining that the Employee is eligible to maintain an HSA and make contributions under applicable tax law. • Ensuring that all distributions the Employee makes are permitted under said law. • The tax consequences of any contribution (including rollover contributions) or distribution. • Paying any custodian investment fees that may be applicable to an HSA. • Legal, tax or accounting advice in relation to the HSAs. DBI assumes no responsibility or authority under this Agreement for: • The design, funding or operation of any Employer-sponsored health and welfare benefit plan or for compliance of any such plan with ERISA, including any aspect of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA'); • Duties incumbent upon a "plan sponsor" or "covered entity" under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA'� privacy and security rules; • The funding of claims for benefits under any HSA or employee benefit plan or the payment of fees to third parties providing services or products to Employer or Employees. • The funding of any contributions; or • Insuring or underwriting any liability to provide benefits under any employee benefit plan. ARTICLE 2 OPENING OF ACCOUNTS In accordance with procedures to be agreed upon by the parties, Employer will: (i) inform Employees who wish to participate that they may enroll in an HSA via electronic procedures established by DBI; (ii) provide each Employee with all applicable DBI notices, forms, and disclosures directly or online through the consumer portal; and (iii) provide to DBI at such time and in such format as DBI requires, the information with respect to each Employee participating in Employer's HSA program. Employer shall ask DBI to establish or "open" HSAs only for those Employees who have indicated the intent to open such an account; represents that the Employees have certified their authorization to work in the United States and have furnished their social security or other taxpayer identification numbers, which Employer will provide to DBI for the purposes of establishing HSAs; and warrants that the information and data Employer provides to DBI under this Agreement will be true and complete. DBI reserves all rights to decline to open or activate any HSA or to close any HSA insofar as its practices and procedures have not been properly observed by Employer or the Employee. ARTICLE 3 FUNDING OF ACCOUNTS Based on the contribution timing set and maintained by Employer and in the form to be agreed upon by the parties, Employer shall remit to DBI the contributions to be transferred to the HSA of each Employee and provide accompanying information that accurately indicates each HSA and the dollar amount to be credited to each such HSA. DBI shall have no liability for any funds not received by DBI or for any errors in crediting an HSA based on the information provided by Employer, including where such contributions are automated, recurring contributions. Unless the account has not been successfully opened, contributions may be withdrawn or transferred from an HSA solely upon the instructions of the custodian and the respective Employee. ARTICLE 4 MISTAKEN EMPLOYER CONTRIBUTIONS Employer acknowledges and agrees that Internal Revenue Service (IRS) regulation requires that HSA contributions be non -forfeitable, provided that the IRS will allow the reversal of mistaken employer contributions: • When there is a mistake in the eligibility to establish an HSA and the employee was never eligible for HSA contributions. • When the contribution exceeds the annual HSA maximum contribution. • When there is clear documentary evidence demonstrating that there was an administrative or process error. DBI agrees to assist Employer in requesting the return of mistaken employer contributions from the custodian in the above situations, or as otherwise permitted by applicable IRS guidance. In all cases, the return of mistaken HSA contributions is subject to the rules, procedures, and limitations of the custodian. DBI and the custodian assume no liability for mistaken employer contributions. ARTICLE 5 ACCOUNT MAINTENANCE In order to administer and maintain the HSAs, from time to time in accordance with procedures to be agreed upon, Employer shall submit to DBI certain information concerning the status of Employees and HSA contributions, and DBI may provide certain information about the HSAs to Employer. Employer acknowledges that DBI may rely upon all information provided by Employer in maintaining and administering the HSAs. Employer shall be responsible for all costs and expenses incurred by DBI for error correction or other activities undertaken by DBI at Employer's request or as a result of erroneous information provided by Employer to DBI. If requested, Employer shall certify to DBI the personnel authorized by Employer to receive and furnish information under this Agreement. As permitted by law, Employer shall cooperate with DBI in any manner deemed reasonably necessary by DBI to protect its rights. ARTICLE 6 CLOSING OF ACCOUNTS DBI will close an HSA only upon the instructions of the respective Employee. Notwithstanding anything to the contrary herein, at its discretion, DBI may refuse to open, or may close any previously established HSA for which the Employee is unable or unwilling to sign DBI forms or otherwise agree to the terms and conditions related to such HSA or otherwise violates any terms thereof. Employer acknowledges that upon any such closure, funds in the HSA will be returned to the Employee or forwarded to another financial institution upon instructions of the Employee unless the mistaken employer contribution rules apply, in which case the funds will be returned to the Employer. Employer further acknowledges that such closure may result in tax consequences for which the Employee shall be solely responsible and for which the Employer will be responsible for the applicable tax reporting consequences. The custodian may resign and close the HSA for any reason or no reason, effective thirty (30) days after it provides written notice of its resignation to the Employee. ARTICLE 7 EMPLOYER RESPONSIBILITIES Employer represents and warrants that it will have confirmed the identity and employment eligibility of all Employees for whom information is provided to DBI as follows: • Through the U.S. Citizenship and Immigration Services I-9 forms completed by Employees if hired after November 6, 1986; or • For Employees hired before that date, review by Employer of Employees' driver's licenses or other government -issued identifying documentation evidencing nationality or residence and bearing a photograph or similar safeguard. Employer represents and warrants that it does not: • Limit the ability of eligible individuals to move their funds to another HSA beyond restrictions imposed by the Internal Revenue Code of 1986 ("Code'; • Impose conditions on uses of HSA funds beyond those permitted under the Code; • Make or influence the investment decisions with respect to funds contributed to an HSA; Represent that HSAs are an employee welfare benefit plan established or maintained by Employer; or • Receive any payment or compensation from DBI in connection with an HSA. To the extent applicable, the HSA comparability testing under Code Section 4980G is the responsibility of Employer to complete. ARTICLE 8 EMPLOYER INFORMATION AND INSTRUCTIONS Employer has authorized and instructed DBI in this Agreement to implement DBI's standard administrative procedures to provide services in accordance with this Agreement. DBI shall be fully protected in relying upon representations by Employer set forth in this Agreement and communications made by or on behalf of Employer in effecting its obligations under this Agreement. To the extent permitted by law, Employer agrees to hold DBI harmless from and against all liability, damages, costs, losses, and expenses (including reasonable attorney fees) and expressly releases all claims against DBI in connection with any claim or cause of action for any activity or occurrence prior to the commencement of services under 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 (other than DBI) to comply with ERISA, the Code, and any other applicable law or regulation with respect to the HSAs. If Employer instructs DBI with a specific written request in a format acceptable to DBI to provide services in a manner other than in accordance with DBI's standard forms and procedures, DBI may (but need not) comply with such an instruction. This would include any Employer instruction to add a vendor link to the consumer portal. To the extent that DBI complies with such an instruction, Employer and not DBI shall be solely responsible for DBI's action so taken, and Employer, to the extent permitted by law, agrees to hold DBI harmless from and against all liability, damages, costs, losses, and expenses (including reasonable attorney fees), and expressly releases all claims against DBI in connection with any claim or cause of action, which results from or in connection with DBI complying with Employer's specific written instruction to provide services in a manner other than in accordance with DBI's standard procedures. ARTICLE 9 RETENTION AND RELEASE OF DATA, RECORDS, AND FILES Written and electronic records containing personal information are securely destroyed or deleted consistent with business needs or legal retention requirements. Per business records needs and associated retention and secure destruction periods, DBI retains a copy of all information, excluding emails or similar electronic communications destroyed in the ordinary course of business pursuant to DBI policy, for at least eight (8) years from the date created at DBI. Following the termination of this Agreement, DBI shall cooperate with Employer or Employer's subsequent service provider to effect 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 DBI's standard format. Upon termination of this Agreement, DBI is entitled to retain a copy of all information including the data, records, and files to use and disclose such information for claims, audits, and legal and contractual compliance purposes to the extent permitted by law. ARTICLE 10 CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY (a) General Obligations For purposes of this Article 10, "confidential business information" shall mean any 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, employees, service methods, software, documentation, financial information, prices, and product plans. Neither DBI 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: (i) is at the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving party; (iii) was known to the receiving party at the time of disclosure; (iv) was generated independently by the receiving party; or (v) is required to be disclosed by law, subpoena or other process. DBI may disclose Employer's confidential business information to a governmental agency or other third party required by law to the extent necessary for DBI to perform its obligations under this Agreement or if Employer has given DBI written authorization to do so. Although DBI 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. Each party agrees that its obligations contained in this Article 10 apply also to its parent, subsidiary, and affiliated companies, if any, and to similarly bind all successors, employees and representatives. (b) 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 DBI for the purpose of reviewing the financial, operating, and business condition of DBI, and DBI agrees to provide such information, Employer's acceptance of or access to such confidential information shall constitute its agreement with the following: • Employer will 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 only disclose the information to its own officers and employees on a need -to - know basis for the purposes of its review. 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 DBI's competitors, would likely result in substantial harm to DBI's competitive positions and also contains confidential supervisory information and personal information relating to directors, officers, and major shareholders of DBI, the disclosure of which would constitute an unwarranted invasion of personal privacy. (c) Intellectual Property All materials, including, without limitation, documents, forms (including data collection forms provided by DBI), brochures, and online content ("Materials") furnished by DBI 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 DBI 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 DBI, to return them to DBI, except to the extent Employer is required by law to maintain copies of such Materials. DBI 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. ARTICLE 11 TERM OF AGREEMENT (a) Duration The term of this Agreement shall commence as of the Effective Date and shall continue for a period of twelve (12) months (the "Initial Term'. (b) Renewal This Agreement shall automatically renew for another twelve (12) months at the end of the Initial Term and every twelve (12) months thereafter unless terminated pursuant to this Article 11. (c) Termination without Cause Notwithstanding the foregoing, this Agreement may be terminated at any time during the Initial Term or any renewal term by Employer or by DBI without cause and without liability with written notice of the intention to terminate to be effective as of a date set forth in the written notice not fewer than sixty (60) days from the date of such notice. (d) Automatic Termination and Termination with Cause (i) The Agreement shall automatically terminate: • If any law is enacted or interpreted to prohibit the continuance of this Agreement, upon the effective date of such law or interpretation; • If any monthly service fee remains unpaid to DBI beyond ten (10) days past the due date, upon written notification by DBI to Employer that DBI is exercising its option to enforce this provision; or • If at any time Employer fails to provide funds for the payment of benefits. (ii) If a party is in default under any provision of this Agreement other than a payment default, the other party may give written notice to the defaulting party of such default. If the defaulting party has not used good faith efforts to cure such breach or default within thirty (30) days after it receives such notice, or if good faith efforts to cure have begun within thirty (30) days but such cure is not completed within sixty (60) days after receipt of the notice, the other party shall have the right by further written notice (the 'Termination Notice') to terminate the Agreement as of any future date designated in the Termination Notice. (e) Fees or Charges All fees and charges that have accrued up to the date of termination shall be paid with in thirty (30) days after the date of termination. ARTICLE 12 COST OF SERVICES The service fees 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 fails to pay within sixty (60) days of the invoice date, and upon written request of DBI to the custodian, fees will be deducted directly from each HSA to which the fees relate, provided that no amount may be deducted from one HSA to cover the unpaid service fees from another HSA. Employer shall have thirty (30) days from the date of the invoice to correct the HSA participant count for credit or refund. The service fees are billed to Employee after termination of employment with Employer. If requested by Employer, the service fees can be charged to Employees, and withdrawn from the HSAs on or around the first of each month. This transaction will appear as a separate line item on the account. The fees cannot be charged to Employees if the service fees are part of a DBI solution or a monthly minimum fee. Notwithstanding the foregoing, DBI reserves the right to: • Charge Employer reasonable fees for the reproduction or return of records or reports requested by Employer or governmental agencies if the governmental agency has made the request on behalf of Employer or for reasonable fees charged by other parties for information reasonably required by DBI to perform its duties under this Agreement. • Charge fees 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, including, but not limited to LEAP and Application Programming Interface (API) connections, if such charges are implemented on a nearly universal basis as a matter of policy. • Increase fees based on additional costs imposed on DBI, 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. The service fees incorporate fees charged by the custodian. Upon thirty (30) days' advance written notice to Employer, DBI may adjust the service fees to reflect any adjustment in the fees charged to DBI by the custodian. DBI shall provide Employer with reasonable prior written notice of such increases. On or after the rate expiration date indicated on the fee schedule, DBI reserves the right to amend the fee schedule with 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 DBI no later than the effective date of the fee schedule amendment. Fees quoted assume that DBI 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 DBI's software and systems. In the unusual event that costs are incurred by DBI to integrate the DBI Services with Employer's software and systems and/or in migrating the data from the prior service provider to DBI'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. ARTICLE 13 RED FLAGS RULE COMPLIANCE To the extent applicable, DBI shall comply with the Red Flags Rule with respect to the services provided by DBI under this Agreement that are covered by the Red Flags Rule as determined by DBI in its sole discretion. For purposes of this provision, "Red Flags Rule" means the regulations 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. As part of its Red Flags Rule compliance, DBI shall adopt, maintain, and use appropriate and commercially reasonable rules, procedures, and safeguards to detect and identify red flags and to prevent and mitigate identify theft as required by the Red Flags Rule. Such rules, procedures, and safeguards shall be set forth in a written program (the "Red Flags Program'). DBI shall, upon request, make available to Employer a copy of its Red Flags Program. ARTICLE 14 LIMITATIONS, INDEMNIFICATION, AND INSURANCE (a) Notwithstanding any other provision in this Agreement to the contrary, the maximum total liability of DBI to Employer shall be limited to direct money damages in an amount not to exceed the dollar amount that is paid or payable to cover such liability under the insurance policy or policies provided for herein. 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 of such damages. In the event the foregoing is found to be invalid, in no event will DBI's liability for such damages exceed the fees paid by Employer for the services in the twelve-month period in which the cause of action occurred. This is Employer's sole and exclusive remedy. No action under this Agreement may be brought by either party more than two (2) years after the cause of action has accrued. DBI and Employer expressly agree that the limitations of liability stated herein represents an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by DBI to Employer and is an essential element of the basis of the bargain between the parties. (b) Subject to the limitations in this Article 14, DBI will indemnify, defend and hold harmless Employer (and its respective officers, directors, employees, representatives, successors, and permitted assigns) from and against any and all liability, damages, costs, losses, penalties, expenses and reasonable attorney fees (collectively, "Losses' incurred by Employer in connection with any threatened, pending or adjudicated claim, demand, action, suit or proceeding by any third party to the extent arising out of DBI's (i) fraudulent or criminal actions or omissions or (ii) material breach of this Agreement or of any executed or applicable business associate agreement between the parties. (c) To the extent permitted by law, Employer will indemnify, defend and hold harmless DBI (and its respective officers, directors, employees, representatives, successors, and permitted assigns) from and against any and all liability, damages, costs, losses, penalties, expenses and reasonable attorney fees (collectively, "Losses') incurred by DBI in connection with any threatened, pending or adjudicated claim, demand, action, suit or proceeding by any third party (including an action brought by or on behalf of an employee or a participant) to the extent arising out of Employer's (i) fraudulent or criminal actions or omissions or (ii) material breach of this Agreement or of any executed or applicable business associate agreement between the parties. If Employer is a state agency or otherwise subject to a public entity/political subunit non -indemnification type statute and therefore unable to indemnify under this Agreement, DBI shall not be responsible for any injury or damage that occurs as a result of any negligent act or omission committed by Employer, including its employees or assigns. (d) The party seeking indemnification under (b) or (c) above must notify the indemnifying party within thirty (30) days in writing of any actual or threatened claim, demand, action, suit or proceeding to which it claims such indemnification applies. Failure to so notify the indemnifying party shall not be deemed a waiver of the right to seek indemnification, unless the actions of the indemnifying party have been materially prejudiced by the failure of the other party to provide notice within the required time period. The indemnifying party may (but is not required to) take steps to be joined as a party to any proceeding in which indemnification has been claimed, and the party seeking indemnification shall not oppose any such joinder. Whether or not such joinder takes place, the indemnifying party shall provide the defense with respect to Losses to which this Article 14 applies and in doing so shall have the right to control the defense and settlement with respect to such claims to the extent that the defense and settlement relates to the payment of monetary compensation. The party seeking indemnification may assume responsibility for the direction of its own defense at any time, in whole or in part, in which case the costs and expenses, including reasonable attorneys' fees, of the defense shall become Losses subject to indemnification under this Article 14 by the indemnifying party. The party seeking indemnification may assume at any time, in whole or in part, the right to settle or compromise any Losses against it with the reasonable consent of the indemnifying party, and such settlement or compromise that relates to monetary compensation shall become Losses subject to indemnification under this Article 14 by the indemnifying party. (e) During the term of this Agreement, DBI shall maintain general liability insurance and professional/cyber liability insurance with policy limits of not less than $5,000,000 per occurrence and in the aggregate for the purpose of providing coverage for claims arising out of the performance of its services under this Agreement. DBI shall maintain a bond (or an insurance policy similar to a bond) for DBI and any of its employees who may collect, disburse or otherwise handle or have possession of any funds provided by Employer. Upon request, DBI shall provide Employer with a certificate or certificates of insurance reflecting such insurance coverages. ARTICLE 15 GENERAL (a) Neither Employer nor DBI will restrict the ability of HSA owners to move funds to another HSA beyond those restrictions imposed by the Code. (b) By executing this Agreement, the parties agree to extend the term of any Automated Clearing House ("ACH'� Agreement associated herewith to be coterminous with the term of this Agreement and to have such agreement be covered by the terms and provisions hereof. (c) From time -to -time and in compliance with applicable federal and state laws, DBI may monitor and/or record calls which are made to and from the customer service line for quality assurance and training purposes, and/or to ensure that DBI's services fully comply with the terms of this Agreement. DBI shall provide a customer service line toll-free number Monday through Friday Central Time Zone for use during DBI normal business hours: Clients 7:00 a.m. to 7:00 p.m. Participants 6:00 a.m. to 9:00 p.m. (d) DBI 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). (e) DBI may delegate or subcontract any portion of DBI services to a third party. For those DBI services that are delegated or subcontracted, DBI shall remain fully responsible to Employer for compliance with all applicable provisions of this Agreement or any executed or applicable business associate agreement between the parties. No portion of DBI services shall be delegated or subcontracted to any third party located outside of the United States. (f) Employer acknowledges and agrees that the services provided by DBI pursuant to this Agreement relate to enrollment and disenrollment and that these services to the extent permitted under HIPAA shall be deemed to be performed by DBI on behalf of Employer in Employer's capacity as the sponsor of an employee welfare benefit plan. Employer further acknowledges and agrees that DBI may use or disclose enrollment or disenrollment information that it receives from Employer with respect to a particular HSA participant to provide the HSA participant access to additional services at no cost to Employer. (g) Notwithstanding anything to the contrary contained herein, neither party shall be liable or deemed to be in default under or in breach of this Agreement for failure to perform or delay in the performance of any of their respective obligations under this Agreement to the extent that such failure or delay results from any act of God, military operation, terrorist attack, widespread and prolonged loss of use of the Internet, national emergency, government restrictions, or disruption of the financial markets. The affected party shall use all commercially reasonable efforts to remedy any inability to perform under this Agreement. (h) If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by the other party. (i) If any provision of this Agreement is found to be unenforceable or invalid, such determination shall not affect any other provision, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein, and the parties will negotiate a mutually acceptable replacement provision consistent with the parties' original intent. (j) This Agreement shall be governed and interpreted by the laws of the State of Idaho. In the event of any conflict of laws, the laws of the State of Idaho shall prevail. (k) Excluding all matters pertaining to the collection of amounts due to DBI arising out of the services provided, the parties agree that as a precursor to any litigation, any dispute arising out of or related to this Agreement may be submitted to a mutually agreed upon American Arbitration Association ('AAAA') mediator for non- binding confidential mediation in a location mutually agreeable between the parties. Notwithstanding the foregoing, this provision shall not prevent either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of their dispute relating to this Agreement. (1) Any notice required or permitted to be given under this Agreement shall be deemed delivered to the address set forth in this Agreement or such other physical or electronic address as specified by the party: (i) when received if delivered by hand; (ii) the next business day if placed with a reputable express carrier for delivery during the morning of the following business day; (iii) three (3) days after deposit in the U.S. mail for delivery, postage prepaid; or (d) when received if delivered electronically. DBI: 4321 20th Avenue South, Fargo, ND 58103, Attention: Chief Compliance Officer. (m) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings regarding the subject matter hereof, whether written or verbal. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties. 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. 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. (n) This Agreement may not be assigned by either party without the prior written consent of the other unless in connection with a change in control, merger, acquisition or sale of all or substantially all of the party's assets and provided that the surviving entity has agreed to be bound by this Agreement and has notified the other party in writing within thirty (30) days of the assignment. If consent is required, the parties shall not unreasonably withhold consent. (o) Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive. (p) The parties agree that in performing their responsibilities under this Agreement, they are in the position of independent contractors. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partner or joint venture or any association for profit between Employer and DBI. (q) In the event of DBI's resignation or inability to serve, Employer may appoint a successor. In such situations, the replacement of DBI shall be considered a termination of this Agreement, and the termination provisions of Article 11 shall remain effective and controlling. (r) Neither DBI nor Employer, when dealing with the other party in relation to the HSA Program, shall be obliged to determine the other party's authority to act pursuant to this Agreement. (s) Employer may subscribe to DBI's non-discrimination testing portal per the Discovery Teststm Subscription Addendum. DISCOVERY TESTS SUBSCRIPTION ADDENDUM Discovery Teststm ("Discovery Tests') is DBI's non-discrimination testing portal available on LEAPtm To the extent Employer desires to access Discovery Tests for testing one or more of its Plans, the following additional provisions shall apply with respect to non-discrimination testing. 1 DBI Non -Discrimination Testing 1.1 Plan Testing The benefit plan or plans covered for services are limited to Premium Only Plan (POP), Premium Only Plan and Flexible Spending Account (POPFSA), Health Reimbursement Arrangement (HRA), and/or Self -Insured Medical Plan (SIMP), for which DBI provides access to Tests (individually and collectively, as the context may require, all of the foregoing shall be referred to as the "Plan'. 1.2 Test Templates Tests. DBI provides Employer non-exclusive, non -transferable, non -assignable right to access and use of Discovery 1.3 Non -Discrimination Testing Report DBI provides a final testing report with test results and recommendations for correcting failed Discovery Tests. The report is made available through Discovery Tests, which is a tool designed to help Employer evaluate Employer's compliance with applicable domestic law and regulation. 1.4 Template Information Retention DBI deletes the data inputted or uploaded into Discovery Tests and the resulting completed templates ten (10) calendar days after submission by Employer. 1.5 Report Retention DBI retains the testing report for at least eight (8) years from the date the report is created under this Addendum. 1.6 Disclaimers All templates are subject to periodic updates and revision. DBI does not insure or underwrite Employer's liability to provide benefits under the Plan or provide services other than those stated in this Addendum. DBI is not liable nor will DBI use its own 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, DBI or the Plan. 2 Employer Responsibilities 2.1 System of Record Employer's HRIS/payroll system is the system of record for non-discrimination testing information. Employer must provide DBI with the information necessary to perform the standard non-discrimination testing services and in the file format required by DBI. 2.2 Compliance It is the sole responsibility of Employer to assure compliance with all legal reporting and disclosure requirements, including non-discrimination testing rules. 2.3 Authorized Users Employer shall not make Discovery Tests available to any person or entity other than its authorized users. Employer shall maintain a written, current list of authorized users and shall provide the list to DBI upon request. 2.4 Protection of Discovery Tests Employer agrees to take all reasonable steps to protect Discovery Tests from unauthorized copying, possession, access or use. Upon -Employer becoming aware of any such unauthorized copying, possession, access or use, Employer shall promptly notify DBI and assist DBI in preventing the recurrence thereof, and shall cooperate with DBI in any litigation or proceedings reasonably necessary to protect its rights. 2.5 Secure Passwords Employer shall ensure that each authorized user maintains a secure password for its use of the testing portal and keeps its password confidential. Employer shall immediately notify DBI of any compromise of any secured password of any authorized user, and shall cooperate with DBI in any manner deemed reasonably necessary to protect its rights. 2.6 Viruses and Improper Materials Employer shall not knowingly access, store, distribute, upload, or transmit any viruses, or any material during the course of its use of Discovery Tests that is unlawful, harmful, threatening, defamatory, libelous, obscene, infringing, harassing or racially or ethnically offensive; promotes or facilitates any unlawful activity; depicts sexually explicit images; discriminates on the basis of nationality, race, gender, color, religious belief or other characteristic protected by applicable law; or causes damage or injury to any person or property. 2.7 Employer Data Employer owns all right, title and interest in and to and is solely responsible for the reliability, integrity, accuracy, quality, and lawfulness of data inputted and/or uploaded into Discovery Tests. DBI has no obligation to back up or archive any data and Employer is solely responsible therefor. 2.8 Test Results Employer acknowledges that any reports, test results, and all other information that Employer obtains as a result of using Discovery Tests is based solely on the data of Employer and/or its authorized users provided by or on behalf of Employer; DBI is not liable for any inaccuracies or invalid results or reports based on such data; and Employer expressly assumes all risk and liability with respect to its use and interpretation of such reports, results, and other information obtained from Employer's use of Discovery Tests. Although Discovery Tests is a tool designed to help Employer evaluate Employer's compliance with applicable domestic law and regulation, all legal, regulatory and administrative matters related in any way to Employer, its data, authorized users or its Plan, and the compliance of any of the foregoing with applicable domestic law, are the sole responsibility of Employer, and DBI has no liability or responsibility therefor. Employer further acknowledges and agrees that DBI does not provide legal or tax advice with respect to these matters and that Employer must obtain its own legal and tax advice pertaining in any way to such matters. 2.9 Employer Systems 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. 2.10 Unauthorized Access Employer acknowledges and agrees that DBI is not liable to Employer, Employer's employees or any other third party for any consequences, losses or damages resulting from unauthorized access to or use of its data while such data is housed on Employer's data network. 3 Confidential Information and Intellectual Property 3.1 Confidentiality of Employer Data DBI shall maintain appropriate administrative, physical, and technical safeguards and security measures for protection of the confidentiality of Employer data and for the detection and prevention of unauthorized access to Employer data housed on DBI's data network. DBI shall not disclose any Employer data except as compelled by law in accordance with this Section 3 or as expressly permitted in writing by Employer. DBI agrees that all Employer data shall be stored on computer servers located within the United States and shall not be transferred to any computer servers located outside of the United States without the prior written consent of Employer. 3.2 Information Security Each party agrees to use industry standard current firewall and virus -protection software. 3.3 Remedies upon Breach Each party agrees that the other party may have no adequate remedy at law if there is a breach or threatened breach of this Section 3 and, accordingly, that either party is entitled (in addition to any legal or equitable remedies available to such party) to seek injunctive or other equitable relief to prevent or remedy such breach. 3.4 Ownership As between the parties, the parties agree that the confidential information of the other party is, and will remain, the properly of such other party. The receiving party obtains no right, title, interest, or license in or to any of the confidential information of the disclosing party except for the rights expressly set forth in this Addendum. 3.5 No Return of Data Employer acknowledges that DBI has no obligation to maintain Employer data relating to this Addendum. Accordingly, DBI does not return any data to Employer or make any such data available for download by Employer after the termination or expiration of the Agreement. 4 Warranties and Remedies 4.1 Limited Warranties DBI warrants that Discovery Tests will perform materially in accordance with the data submitted and the functionality of Discovery Tests will not be materially decreased during the Term. 4.2 Exclusions Notwithstanding the foregoing, DBI does not warrant, and specifically disclaims, that Employer's access to or use of Discovery Tests and the DBI Technology will be uninterrupted or error -free or that the information obtained by Employer through Discovery Tests will meet Employer's requirements. Further, DBI is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Employer data or any other data or information over communications networks and facilities, including the Internet, and Employer acknowledges that Discovery Tests and the resulting information may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Employer further acknowledges that it is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to DBI's data center and all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to Employer's network connections or telecommunications links or that are caused by the Internet. 4.3 Exclusive Remedies Employer shall promptly notify DBI in writing of any nonconformity to the functionality described herein. DBI is not obligated to correct any such nonconformity if Employer fails to promptly notify DBI in writing, which notice must provide a detailed description of the specific existence and nature of the alleged nonconformity upon Employer's discovery thereof. Provided the nonconformity giving rise to the warranty claim exists, Employer's sole and exclusive remedy in relation to its access to Discovery Tests and DBI's entire liability for any such conformity is as follows: DBI shall as promptly as practicable, and in any event within thirty (30) days after DBI's receipt of Employer's written notice if applicable, correct such nonconformity or provide Employer with a plan reasonably acceptable to Employer for correcting the nonconformity at DBI's expense and in a reasonably timely fashion. If neither can be accomplished with reasonable commercial efforts from DBI, DBI will notify Employer, whereupon Employer may cancel the Discovery Tests subscription and return all materials and related documentation to DBI. If Employer elects not to cancel the subscription as provided in this Section 4.3, Employer waives all rights for the applicable breach of the warranty set forth herein. 4.4 Disclaimer of Warranty THE LIMITED WARRANTIES SET FORTH HEREIN CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE SERVICES, DISCOVERY TESTSt-, AND THE DBI TECHNOLOGY. THE LIMITED WARRANTIES ARE IN LIEU OF, AND DBI SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. UPON ANY INTERRUPTION, DELAY OR FAILURE OF ACCESS TO DISCOVERY TESTStm AND THE DBI TECHNOLOGY, DBI'S SOLE OBLIGATION IS TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE PROBLEM AND/OR RESUME SUCH ACCESS AS SOON AS PRACTICABLE.