HomeMy WebLinkAboutRES 23-283RESOLUTION NO, 23-283
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to approve the renewal of an
annual maintenance agreement with Bentek, Inc., of Palm Beach Gardens, Florida for use by all
departments in the amount of $57,549.00 beginning November 15, 2023.
The meeting at which this resolution was approved was in all things conducted in strict
compliance with the 'Texas Open Meetings Act, Texas Government Code, Chapter 551.
PASSED BY THE CITY COUNCIL of the City of Beaumor# this the 10thday of October,
- Mayor Roy West
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bentek
BFNTFK" MASTER SOFTWARE AS A SERVICE AGREEMENT
FOR END USERS
Thl, Master oftware as a Service Agreement for End Users ("Agreement") dated
f 3 2022 ("Effective Date") by and between Bentek, Inc., a Florida corporation,
with an address of 3500 Kyoto Gardens Drive, Palm Beach Gardens, FL 33410 ("Bentek") and City
of Beaumont, Texas, with an address of P,O. Box 3827, Beaumont, TX 77704 ("Customer").
WHEREAS:
1, Bentek is in the business of developing, licensing, supporting, and hosting software
applications for employee benefits enrollment and administration, the SaaS Solution (as defined
below),
2. Bentek agrees to provide to the Customer and the Customer agrees to accept a license to
use for its own internal business purposes only the SaaS Solution (as defined below) from Bentek
as specified in the applicable Exhibit A which is attached to this Agreement and incorporated
herein.
NOW THEREFORE, in consideration of the premises and the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1, Definitions,
(a) "Customer Data" means all electronic data or information submitted by Customer to
the SaaS Solution.
(b) "End Users" means individuals who are authorized by Custorimer to use the SaaS
Solution, for whom subscriptions to the SaaS Solution have been purchased as specified in the
applicable Order Form and who have been supplied user identifications and passwords by
Customer for by Bentek at Customer's request) and who may only access and use the SaaS
Solution so long as they receive employee benefits coverage through programs provided by the
Customer.
(c) "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful
or malicious code, files, scripts, agents or programs.
(d) "Order Form" means the ordering documents for purchases of subscriptions
hereunder, in the form of attached Exhibit A-1, including addenda thereto, that are entered into
between Customer and Bentek from time to time. Order Forms shall be deemed incorporated
herein by reference.
(e) "Professional Services" means the services provided by Bentek under the terms of the
Bentek Professional Services Agreement ("PSA") which are subject to a fee, and which include
assisting the Customer in populating the SaaS Solution with Customer Data.
(f) "SaaS Solution" rneans the online, Web -based applications and platform provided by
Bentek via http://www,mybentek.com and/or other designated websites as described in the
User Documentation, that are ordered by Customer under an Order Form, including associated
offline components as well as the Benefit Specification Document provided to Customer as part
of the services delivered under the PSA.
(g) "Tools" is defined as the scripts, software, and utilities which Bentek may use to
monitor and administer the SaaS Solution and to help resolve support requests.
(h) "User- Documentation" means the online user guide for the Services, accessible via
http://www.mybentek.com and/or other designated websites as described in the User
Documentation as updated from time to time.
2. License to the SaaS Solution.
(a) Grant and Scope of license. Bentek grants to Customer and Customer accepts a
personal, nontransferable, limited, non-exclusive, worldwide, license, to access and use the SaaS
Solution for Its internal business purposes only during the term of this Agreement. This license
automatically terminates upon Customer's breach of section 2(a) or 2(e).
(b) License flees. Customer agrees to pay the license fees as specified in the applicable Order
Form on the terms and conditions contained in this Agreement.
(c) Subscriptions for End Users. Licenses for use of the SaaS Solution are purchased as
subscriptions for specific End Users. Subscriptions for End Users are for designated End Users
and cannot be shared or used by more than one End User but may be reassigned to new End
Users replacing former End Users who no longer access the Services, so long as Customer (i)
provides prior written notice to Bentek and (11) Customer is current in all its payment obligations.
(d) Provision of SaaS Solution. Bentek shall: (1) provide to Customer basic support for the
SaaS Solution at no additional charge, and/or upgraded support if purchased separately, (11) use
reasonable commercial efforts to make the Services available 24 hours a day, 7 days a week,
except for: (1) planned downtime, in which event Bentek shall give at least 8 hours' notice via the
Services and which Bentek shall schedule to the extent practicable during the weekend hours
from 6:00 p.m. Eastern time Friday to 6:00 a.m. Eastern time Monday, or (2) any unavailability
caused by circumstances beyond Bentek's reasonable control, including without limitation, acts
of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other
labor problems, or Internet service provider failures or delays, and (111) provide the Services only
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in accordance with applicable laws and government regulations.
(e) Customer's Use of SaaS Solution. Customer shall (i) be responsible for all End User's
compliance with the terms of this Agreement; (€€) be solely responsible for the accuracy, quality,
integrity and non -infringement of Customer Data and the means by which Customer acquired
Customer Data, (iii) use reasonable commercial efforts to prevent unauthorized access to or use
of the SaaS Solution, and notify Bentek promptly of any such unauthorized access or use, and (iv)
use the SaaS Solution only in accordance with the terms of this Agreement, the User
Documentation and applicable laws and government regulations. Customer shall not (1) make
the SaaS Solution available to anyone other than land Users, (2) modify, adopt, translate,
reproduce, enhance, copy, or use the SaaS Solution in a manner that is illegal or violates the
terms of this Agreement, (3) use the SaaS Solution to store or transmit material which is
infringing, libelous, defamatory, tortious, unlawful, or violates privacy rights or data security
regulations, (4) use the SaaS Solution to store or transmit Malicious Code, (5) interfere with or
disrupt the integrity or performance of the SaaS Solution or third -party data contained therein,
(6) gain or attempt to gain unauthorized access to the SaaS Solution or their related systems or
networks, (7) intentionally cause excessive or unwanted traffic or resource consumption on the
related systems or network, access data not intended for the Customer, log into a server or
account that the Customer is not authorized to access, attempt to probe, scan or test the
vulnerability of the SaaS Solution, any system or the network or to breach the security or
authentication measures, or (8) decompile, reverse engineer or otherwise obtain the source code
of the SaaS Solution (each of the enumerated subparagraphs of this section 2(e) a "Prohibited
Act").
3. License to Customer Data. Customer hereby grants to, and Bentek hereby accepts a
world-wide, royalty -free, and non-exclusive, license to use the Customer Data to perform its
obligations during the terra of this Agreement.
4. Fees and Taxes.
(a) Fees. As consideration for the providing the SaaS Solution under this Agreement, the
Customer agrees to pay to Bentek the various fees (collectively, the "Fees") set out in the
applicable Order Form (Exhibit A-1) and in accordance with the terms and conditions set out
therein. The Customer's access to the SaaS Solution is contingent upon the Customer's
performance of its obligations under this Agreement including, without limitation, the payment
of all Fees. If any amount owing by Customer under this or any other Agreement is 30 days or
more days overdue, Bentek may, without limiting its other rights and remedies, suspend
Customer's access to the SaaS Solution until such amounts are paid in full; provided however that
Bentek shall not exercise its rights of suspension if the Customer has reasonably and in good faith
disputed such charges and is cooperating diligently and in good faith to resolve the dispute.
(b) Faxes. The Customer shall, unless it is exempt under regulation, be responsible for all
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sales, use, value added, or other taxes or duties, as applicable, payable with respect to the SaaS
Solution, Professional Services, or otherwise arising out of or in connection with this Agreement,
other than Bentek's income taxes. if Bentek pays such taxes on the Customer's behalf, the
Customer agrees to reimburse Bentek for such payment immediately upon demand. If any tax
in the nature of withholding taxes are payable on any sums payable to Bentek under this
Agreement, the Customer shall pay Bentek such amount as is necessary to ensure that the net
amount received by Bentek after such withholding shall be equal to the amount originally due.
The City's,(Customer's) purchasing department will provide a tax exempt certificate to Bentek
after project is approved in the budget because, as a local governmental entity, the City
(Customer) is tax exempt.
5. Professional Services.
Bentek's provision of Professional Services are governed by the terms of the Master Professional
Services Agreement (PSA) dated on or about the date of this Master SaaS Agreement, The
Customer shall be responsible for furnishing Bentek with all information determined by Bentek
to be necessary for the performance of the Support and Professional Services to be provided by
Bentek as specified in this Agreement and the PSA.
6. Ownership.
(a) Subject to the provisions of Section 7 hereof, Bentek owns all intellectual property rights,
including without limitation, copyrights, patents, trade secrets, moral rights, in and to the
support, Tools, and SaaS Solution, including all modifications, changes, enhancements, or
additions thereto by whomever made. The Customer agrees that, except for the purchase of
subscriptions for End Users to access the SaaS Solution in this Agreement (which is a license only),
nothing in this Agreement gives the Customer or any End User any right, title, or interest in, to or
under any of the software, network, systems, or any Intellectual property rights therein.
(b) Bentek shall own all right, title, and interest (including patent rights, copyrights, trade
secret rights, trademark rights and all other intellectual property rights throughout the world
relating to any and all suggestions, enhancement requests, recommendations, or feedback
provided by Customer and End Users relating to or arising out of the Tools, SaaS Solution, and
support. Customer for itself hereby makes, and shall cause End Users to make, all assignments
necessary to accomplish the foregoing ownership. Customer shall itself, and shall cause End
Users, to further assist Bentek, at Bentek's expense, to further evidence, record, and perfect such
assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. Customer
hereby irrevocably designates and appoints Bentek as its agents and attorneys -in -fact to act for
and in Customer's and its End Users' behalf to execute and file any document and to do all other
lawfully permitted acts to further the foregoing with the same legal force and effect as if executed
by Customer and End User.
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7. Customer Data.
(a) Protection of Customer Information, Bentek acknowledges and agrees that any Customer
Information, in whatever form, stored and/or processed on the network or systems hosting the
SaaS Solution, is and shall remain the sole property of the Customer, Bentek agrees that it will
not use any Customer Data for any purpose other than to perform its obligations under this
Agreement. Bentek agrees that either (i) upon request of and as directed by the Customer, or
(ii) upon the termination of this Agreement, Bentek shall either destroy or return such Customer
Data to the Customer In a standard file format as Bentek may reasonably determine. Bentek
shall take or cause to be taken the same efforts it 6xerelses in protecting the security of its
information, but in no event, shall Bentek exercise less than commercially reasonable
precautions to protect the security of Customer Data.
(b) Regulation of Customer Data, The Customer acknowledges and agrees that the Customer
and its End Users or its agents will be solely and exclusively responsible for the collection and
provision of all Customer Data including, without limitation, identifiable personal data regarding
the Customer's employees, End Users, or other individuals. The Customer shall not and shall
not permit its End Users or agents to provide Bentek with Customer Data or other data that
constitutes a Prohibited Act hereunder. The Customer acknowledges and agrees that Bentek is
under no obligation to review Customer Data to ensure either its accuracy or its compliance with
the terms and conditions of this subsection.
(c) Unauthorized Access. Bentek shall in no way be held liable for any loss of data or other
claims to the extent the same arise from unauthorized access to the systems, network, or SaaS
Solution by obtaining a username or password caused by a negligent or willful act of the
Customer, its End Users, or its agents.
(d) Business Associate Agreement. If Customer or a Third Party authorized by Customer
provides health information to Bentek to perform any services pursuant to this Agreement, and
to the extent that such health information constitutes Personal Health Information ("PHI") as that
term is defined in the Business Associate Agreement attached hereto and incorporated herein as
Exhibit B ("BAA"), then the terms of the BAA shall also apply with respect to such PHI.
8. Confidentiality.
(a) Definition. For purposes of this Agreement, "Confidential information" shall include, but
is not limited to, the following: any documentation and other tangible or intangible discoveries,
ideas, concepts, software, designs, drawings, specifications, source code, object code, diagrams,
flow charts, procedures and "know-how" comprising all or any portion of a computer program,
strategic and development plans or concepts, financial information, business plans, marketing
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plans, sales plans, marketing and sales strategies, data, business records, project records, market
reports, Customer Data, employee lists and business manuals, policies and procedures,
information relating to products, processes, technologies or theory and all other information
which may be disclosed by one party (the "Disclosing Party") to the other party (the "Receiving
Party"), or to which the Receiving Party may be provided access by a Disclosing Party, or others,
in accordance with this Agreement, or which is generated by the Disclosing Party as a result of or
In connection with bona fide business purposes of the Disclosing Party, which is not generally
available to the public.
(b) Obligation of Confidentiality. The Receiving Party covenants and agrees to receive and
hold the Confidential information in confidence. Without limiting the generality of the foregoing,
the Receiving Party covenants and agrees:
(i) to protect and safeguard the Disclosing Party's Confidential Information against
unauthorized use, publication or disclosure;
(10 not to use any of the Disclosing Party's Confidential Information except as
required for its performance under this Agreement;
(ill) not to, directly or indirectly, in any way, reveal, report, publish, disclose, transfer
or otherwise use any of the Disclosing Party's Confidential Information except as specifically
authorized by the Disclosing Party in accordance with this Agreement;
(lv) to restrict access to the Disclosing Party's Confidential Information to those of its
officers, directors, agents, attorneys, consultants, employees, contractors and partners who
clearly and demonstrably need such access to fulfill its obligations under this Agreement; .
(v) to advise in writing each of the persons to whom it provides access to any of the
Disclosing Party's Confidential Information, that such persons are strictly prohibited from making
any use, publishing or otherwise disclosing to others, or permitting others to use for their benefit
or to the detriment of the Disclosing Party, any of the Disclosing Party's Confidential Information,
and, upon the request of the Disclosing Party, to provide the Disclosing Party with a copy of a
written agreement to that effect signed by such persons; and
(vi) to comply with any other reasonable security measures requested in writing by
the Disclosing Party,
(c) Exceptions to Confidentiality Provisions. The -foregoing confidentiality obligations do not
apply;
(i) to the extent that the Confidential information is or becomes generally available
to the public other than as a result of a breach of this Agreement or any other obligation of
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confidentiality; and,
(Ii) to the extent that the Receiving Party is directly ordered by a court or required
under State or Federal law to disclose all or any part of the Confidential Information, provided,
however, that the party so ordered will give prompt notice to the other of any such order, or of
any legal or governmental proceeding that might result in such an order, and will not disclose
any Confidential Information until the other party has been provided with a reasonable
opportunity to limit or prevent such disclosure,
(d) Remedies for Breach. Each party acknowledges that any unauthorized disclosure or use
of Confidential Information may cause immediate and irreparable harm to the other, for which
damages may not be an adequate remedy, and as such, each party shall, in addition to any other
rights or remedies it may have in law or equity under this Agreement or otherwise, be entitled
to injunctive relief.
(e) Return of Confidential Information. Each of the parties agrees that immediately upon
request by the other, and in any event, immediately upon termination or expiration of this
Agreement, it shall deliver and return to the other all copies of Confidential Information
(including all copies thereof, in any form whatsoever) disclosed and/or in its possession, care or
control.
9, WARRANTIES AND DISCLAIMERS.
(a) LIMITED WARRANTY. Bentek warrants that (i) the SaaS Solution and Tools shall perform
substantially in accordance with the User Documentation; (ii) Bentek owns the Saa5 Solution and
Tools and/or has the express authority to license the SaaS Solution and Tools, (iii) as of the
Effective Cate, there are no known claims of infringement by the SaaS Solution or Tools. For any
breach of the warranty in section 9(a)(ii) and/or (iii), Bentek's entire liability and Customer's sole
and exclusive remedy is provided in section 15(a) and (c) below. For any breach of the warranty
in section 9(a)(1), Bentek's entire liability and Customer's sole and exclusive remedy is at Bentek's
option, either (1) to exercise reasonable efforts to correct such non -conformity in a manner
determined by Bentek, within 5 business days of receiving written notice from Customer
describing the nonconformity in reasonable detail; or (2) replace the SaaS Solution or Tools
containing the non -conformity, or (3) refund, pro-rata the fees received by Bentek for the SaaS
Solution or Tools containing the non -conformity, in which case the applicable Order Form which
corresponds to the subscriptions for the non -conforming SaaS Solution shall automatically
terminate upon the pro rata refund of fees paid for such subscriptions.
(b) Mutual Warranties. Each party represents and warrants that (1) it has the legal power to enter
Into this Agreement, and (ill it will not knowingly or intentionally transmit to the other party any
Malicious Code (except for Malicious Code previously transmitted to the warranting party by the
other party),
(c) Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BENTEK DISCLAIMS ALL
WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE
MAXIMUM EXTENT PERMITTED BY LAW WITH REGARD TO THE SAAS SOLUTION, SUPPORT,
AND ANY TOOLS WHICH MAY BE SOLD, LICENSED OR PROVIDED, INCLUDING THOSE AT NO
COST, PURSUANT TO THIS AGREEMENT,
10. Security.
(a) The Customer agrees that the Customer is solely responsible for (i) the confidentiality of
all Customer and End User passwords and all use or charges incurred from use of the SaaS
Solution, Professional Services, and support accessed from Bentek with the Customer's and End
Users' passwords, and (li) the content of all visual, written, or audible communications using the
Customer's account. Although Bentek is not responsible for any such communications, Bentek
may suspend any such communications of which Bentek is made aware of, at any time, and
Bentek shall provide prompt notice thereof to the Customer. The Customer agrees that the
Customer and Users will not use the SaaS Solution, Professional Services, Tools, support, related
systems, and network in a manner that constitutes a Prohibited Act.
11. Term and Termination.
(a) Term, This Agreement commences on the Effective Date and continues until all
subscriptions for End Users granted in accordance with this Agreement have expired or been
terminated. Subscriptions for End Users commence on the start date specified in the applicable
Order Form (Exhibit A-1) and continue for the subscription term specified therein. Except as
otherwise specified in the applicable Order Form, all End User subscriptions shall automatically
renew for additional periods equal to the then -expiring subscription term or one year (whichever
is shorter), unless either party gives the other notice of non -renewal at least 90 days before the
end of the relevant subscription term. The per -unit pricing during any such renewal term shall be
the same as that during the prior term unless Bentek provides written notice of a pricing increase
at least 90 days before the end of such prior term, in which case the pricing increase shall be
effective upon renewal and thereafter.
(b) Renewal. This Agreement shall be automatically renewed for additional one (1) year
periods (a "Renewal Term") on the same terms and conditions as provided herein (or as may be
otherwise negotiated between the parties) unless either party notifies the other in writing at
least 90 days prior to the end of the Term or a Renewal Term, as the case may be, that it has
elected to terminate this Agreement, In which case the Agreement shall terminate at the end of
the relevant Term.
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(c) Termination. This Agreement may be terminated by either party upon the occurrence of
any of the following events, which shall be deemed to be a breach of the terms of this Agreement:
(i) there is a material breach of this Agreement; provided that the party terminating
this Agreement shall first have given prior written notice to the other of its intent to terminate,
together with details of the default causing the termination, and the party receiving such notice
shall have been given 20 days to cure any such default;
(II) if either party ceases or threatens to cease to carry on its business, commits an
act of bankruptcy, becomes insolvent, makes an assignment or bull< sale of its assets, or proposes
a compromise or arrangement to its creditors;
(Ili) if any proceeding is taken with respect to a compromise or arrangement, or to
have either party declared bankrupt or wound up, or to have a receiver appointed with respect
to any part of the assets of a party, or if any encumbrancer takes possession of any part thereof
and such proceeding is not dismissed within 60 days of such proceeding being initiated, and with
respect to any encumbrancer, any default has not been cured within 60 days of the occurrence
of such default; or
(lv) Bentek may, at its sole option suspend the Customer's access to the Software,
Support, Services, System and/or Network, and/or terminate this Agreement immediately and
take any remedial action under any applicable law:
A, In the event that any Customer Data constitutes or may reasonably be
considered to constitute a Prohibited Act hereunder; or
B, The Customer, its End Users or its agent commits or suffers to be
committed a Prohibited Act hereunder.
(d) Events Upon Termination. Upon termination of this Agreement:
(i) the Customer shall pay to Bentek all amounts outstanding and owing to the
effective date of termination upon receipt of a final invoice from Bentek;
(ii) ' each of the parties shall deliver or destroy all Confidential Information of the
other, which is in its possession, care, or control to the other as provided in section 8(e);
(111) , each of the parties shall release the other from all obligations under this
Agreement except for obligations accrued and owing up to the effective date of termination and
those obligations which survive as provided in section 11(d)(iv);
(iv) the provisions in Section 5, 6, 7, 8, 9, 10, 11(d), 13, 14, 15, 16(j), (k), (1), and (m) of
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this Agreement shall continue in force following termination of this Agreement.
12. Inspection Right. During normal business hours during the Term or any Renewal Term,
Bentek or its authorized representative, shall have the right, upon reasonable advance written
notice, to audit and inspect the Customer's utilization of the Software and/or Services via
accessing the Customer's accounts, in order to verify compliance with the terms and conditions
of this Agreement. Bentek shall be solely responsible for the cost and expenses of such audit;
however, if Customer is not in compliance with this Agreement, then Customer shall be liable for
the cost and expenses of the audit,
13. Access. Bentek shall have the right to access the Software, Systems and Network for
purposes of maintenance, support, administration, invoicing and inspection, as reasonably
necessary in its sole discretion.
14. LIMITATIONS OF LIABILITY, DAMAGES, AND CAUSE OF ACTION
(a) Limited Liability, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, EXCLUDING ANY BREACH BY CUSTOMER OF SECTIONS 2(a), 2(e), 6, BREACH BY
BENTEK OF ANY OF ITS OBLIGATIONS WITH RESPECT TO PHI UNDER THE BAA AS REFERENCED
IN SECTION 7(d), OR ANY BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 8
OR SECTION 1.5 OF THIS AGREEMENT, NEITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES,
OR AGENTS SHALL. BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT
FORESEEABLE (INCLUDING, WITHOUT LIMITATION, LEGAL FEES) IN ANY WAY DUE TO,
RESULTING FROM, OR ARISING IN CONNECTION WITH THISAGREEMENT, REGARDLESS OF ANY
PARTY'S NEGLIGENCE OR FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE
FORM OF THE ACTION, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY
OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN THIS
AGREEMENT OR THE BAA, BENTEK SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY OR
ARISING FROM CUSTOMER'S AND END USER INTENTIONAL MISUSE OR NEGLIGENT USE OF (i)
USERNAMES AND PASSWORDS; (ii) CONFIDENTIAL INFORMATION; AND (ill) PHI; INCLUDING,
BUT NOT LIMITED TO, FAILURE OF CUSTOMER AND END USER TO PROTECT AGAINST
UNAUTHORIZED USE OF ANY OF THE FOREGOING,
(b) LIMITATION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER
ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER
HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $1,000 OR THE
AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE
FOREGOING SHALL NOT LIMIT CUSTOMER'S LIABILITY FOR BREACH OF SECTION 2(a) (GRANT
AND SCOPE OF LICENSE) AND/OR 2(e) (CUSTOMER'S USE OF SAAS SOLUTION), CUSTOMER'S
PAYMENT OBLIGATIONS UNDER SECTIONS 4 (FEES AND TAXES), BENTEK'S BREACH OF ANY OF
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ITS OBLIGATIONS WITH RESPECT TO PHI UNDER THE BAA AS REFERENCED IN SECTION 7(d)
(BUSINESS ASSOCIATE AGREEMENT) OF THIS AGREEMENT, BREACH OF A PARTY'S
OBLIGATIONS UNDER SECTION 8 (CONFIDENITALITY) OF THIS AGREEMENT, AND A PARTY'S
OBLIGATIONS OR BREACH OF ITS OBLIGATIONS UNDER SECTION 15 (INDEMNIFICATION) OF
THIS AGREEMENT.
(c) NO ACTION AGAINST EITHER PARTY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES
OR AGENTS, REGARDLESS OF FORM (INCLUDING NEGLIGENCE), ARISING OUT OF ANY CLAIMED
BREACH OF THIS AGREEMENT, USE OF THE SaaS SOLUTION OR IN ANY OTHER WAY RELATED
TO THIS AGREEMENT AS OUTLINED ABOVE MAY BE BROUGHT BY THE OTHER PARTY MORE
THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
15. Indemnification for Intellectual Property Claims,
(a) Indemnification of Customer. Bentek shall indemnify Customer against all claims, liabilities,
and costs, including reasonab[e attorneys' fees, reasonably incurred in the defense of any claim
brought against Customer by third parties alleging that Customer's and/or Its End Users' use of
the SaaS Solution or Tools infringes any United States patent, a copyright or trade secret,
provided that such indemnity shall not apply if the alleged infringement results from use of the
SaaS Solution or Tools other than in their respective unaltered forms as supplied by Bentek or
unlicensed activities or use not in compliance with this Agreement, and so long as Customer
promptly notifies Bentek in writing of any such claim and Bentek is permitted to control fully the
defense and any settlement of such claim as long as such settlement shall not include a financial
obligation on Customer, Customer shall cooperate fully in the defense of such claim and may
appear, at its own expense, through counsel reasonably acceptable to Bentek and may settle any
claim on a basis requiring Bentek to substitute for the SaaS Solution or Tools alternative
substantially equivalent non -infringing software and services. In the event Customer's continued
use of any SaaS Solution or Tools is prohibited by reason of infringement or misappropriation of
a valid United States patent, copyright, trademark, or trade secret, or if infringement is likely in
Bentek's opinion, Bentek may, at its sole option and at its expense, obtain the rights to continued
use of any such SaaS Solution or Tools; replace or modify such SaaS Solution or Tools so that they
are no longer infringing; or terminate the license to the SaaS or Tools involved and issue a pro
rata refund to the Customer.
(b) Additional Indemnification of Customer. Bentek will indemnify, defend, save and hold the
Customer harmless from and against any and all claims, suits, liabilities, losses, penalties or
damages, including court costs and attorneys' fees, to the extent that such claims, losses,
liabilities, damages and expenses arise out of or are based upon the gross negligence, fraudulent,
criminal or dishonest acts of Bentek or its employees or its agents in the performance of Bentek's
duties under this Agreement, except for any acts taken at the specific direction of the Customer.
Nothing in this Agreement extends the City's (Customer's) liability beyond the liability or
authority provided in the Constitution and laws of the State of Texas, and nothing herein
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constitutes or is intended to constitute a waiver of the City's (Customer's) or the State's sovereign
immunity to suit.
(c) THE PROVISIONS OF THIS SECTION 15 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF
THE INDEMNIFYING PARTY TO THE INDEMNIFIED PARTY WITH RESPECT TO THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS AND IS THE INDEMNIFIED PARTY'S SOLE AND EXCLUSIVE
REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD -PARTY INTELLECTUAL PROPERTY
RIGHTS UNDER THIS AGREEMENT, NOTWITHSTANDING THE FOREGOING, THIS PROVISION DOES
NOT APPLY TO THE BAR, WHICH PROVIDES FOR INDEMNIFICATION UNDER SECTION S OF THE
BAA.
16, General Provisions.
(a) Additional Subscriptions for the SaaS Solution and Support. All Fee changes and
agreements as to the provision of additional subscriptions for the SaaS Solution and support to
the Customer by Bentek, from time to time, shall be appended hereto as amended or
incorporated herein as additional Exhibits and shall be subject to the terms and conditions hereof
upon mutual and duly executed written agreement in accordance with the Agreement.
(b) Entire Agreement. This Agreement, inclusive of the Exhibits and any amendments or
additions thereto, constitutes the entire agreement and sets forth the entire understanding
between the parties hereto with respect to the subject matter hereof and supersedes all prior
agreements, covenants, arrangements, and discussions with respect thereto. In the event of an
inconsistency between the terms and conditions of this Agreement and any Exhibit now or
hereafter appended hereto, the terms of the applicable Exhibit shall govern to the extent
necessary to remedy such inconsistency.
(c) Marketing. Bentek will obtain Customer's written permission prior to -the use of
Customer's name, trademarks, and/or trade names ("Customer Marks") to identify the Customer
as a customer of Bentek on Bentek's website, and for use of such Customer Marks in Bentek's
corporate, promotional, and marketing literature.
(d) Relationship of Customer and Bentek. Nothing contained in this Agreement shall be
deemed or construed as creating a joint venture or partnership between the parties, no party is
by virtue of this Agreement, authorized as an agent, employee, or agent representative of the
other party,
(e) Non -Exclusivity. Nothing in this Agreement will be construed to prevent Bentek from
marketing, licensing, selling or otherwise providing the SaaS Solution and Professional Services
or any aspects of Bentek's technology or services to any third party,
(f) Modifications, No modification of, amendment, or addition to this Agreement is valid or
binding unless set forth in writing and fully executed by both parties hereto.
12
(g) Waiver. Any waiver of any right or remedy under this Agreement must be in writing and
signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such
right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as
a waiver of any right or remedy on any future occasion.
(h) No Assignment. This Agreement and any rights or obligations hereunder, shall not be
assigned, sublicensed, or otherwise transferred by the Customer without the prior written
consent of Bentek. Any transfer by merger, consolidation, or liquidation shall constitute an
assignment for purposes of this Agreement. Bentek may transfer or assign its rights and
obligations hereunder in the event of a change in ownership or control.
0) Inurement. This Agreement shall be binding upon and shall inure to the benefit of Bentek
and the Customer and each of their successors and permitted assigns.
(j) Governing Law. The rights and obligations of the parties and all interpretations and
performance of this Agreement shall be governed by and construed in accordance with the laws
of the State of Texas, without regard to conflicts of laws principles. The parties agree that the
provisions of the United Nations Convention on Contracts for the International Sale of Goods do
not apply to this Agreement. The parties hereby irrevocably consent to the exclusive jurisdiction
and venue of the state and federal courts located within Jefferson County, Texas.
(k) Notices. Any notices, demands and other communications hereunder shall be in writing
and shall be delivered, sent by facsimile transmission and by mail, registered or certified, return
receipt requested, postage prepaid, and addressed as follows:
(i) to Bentek, at:
3500 Kyoto Gardens Drive
Palm Beach Gardens, Florida 33410
Attn: Chief Financial Officer
Facsimile: (561) 626-6970
With a copy to (which shall not constitute notice):
Adam Fetterman, Esquire
The Fetterman Firm, PLLC
1231SW Sunset Trail
Palm City, FL 34990
Facsimile: (772)905-0671
(ii) to the Customer, at:
City of Beaumont
Attn.: Finance/Benefits
13
P,O, Box 3827
Beaumont, TX 77704
All notices shall be effective and deemed to be delivered (1) if mailed, on the fifth business day
following such mailing, unless there is an interruption in the mail, in which case it shall be deemed
to have been given when received; or (ii) if delivered or sent by facsimile, on the business day
following the date of dispatch or the date of transmission, as the case may be; provided that if
sent or delivered by facsimile, written confirmation of such transmission is sent or delivered via
regular certified or registered mail, Either party may change the address for notice by giving
written notice of such change to the other,party in the manner provided in this Section.
(1) Severability. if any provision of this Agreement is held to be unenforceable or illegal by a
court of competent jurisdiction, such provision shall be modified to the extent necessary to
render it enforceable, or shall be severed from this Agreement, and all other provisions of this
Agreement shall remain in full force and effect.
(m) Facsimile Transmission. This Agreement may be executed and delivered by facsimile or
other electronic means of transmission or by U.S. Mail, and upon receipt such transmission shall
be deemed delivery of an original.
(n) Counterparts, This Agreement may be executed in several counterparts each of which
when executed shall be deemed to be original, and such counterparts shall each constitute one
and the same Instrument and notwithstanding their date of execution shall be deemed to bear_
the day and year first above written.
(o) Force Majeure. Neither party to this Agreement shall be liable to the other for any failure
or delay in performance by circumstances beyond its control, including but not limited to, acts of
God, fire, labor difficulties or governmental action, provided that the party seeking to rely on
such circumstances gives written notice of such circumstances to the other party hereto and uses
reasonable efforts to overcome such circumstances.
CUSTOMER: CITY OF BEAUMONT, TEXAS BENTEK, INC.
c
By: By:
e Fink, Vice President of
Title: C1'f it'�'�r.en Title: roduct and Client Success
Elate: i - 2 - Date: August 16, 2022
14
EXHIBIT A-1.
ORDER FORM FOR SAAS SOLUTION
ADDENDUM TO THE MASTER SOFTWARE AS A SERVICE AGREEMENT FOR END USERS
BETWEEN BENTEK, INC. AND CITY OF BEAUMONT, TEXAS ("CUSTOMER")
This Exhibit A-1, Bentek Order Form for SaaS Solution between Bentek, Inc. ("Bentek") and City
of Beaumont, TEXAS ("Customer") is effective as of the date of execution by Bentek ("Services
Effective Date"). This is an Exhibit to the Master Software as a Service Agreement between
Bentek and Customer ("Master SaaS Agreement"), the terms of which are incorporated herein.
1.. Customer. The legal name, address, contact person, telephone number and e-mail address of
the Customer:
Legal Name:
City of Beaumont
Address:
P.O. Box 3827, Beaumont, TX 77704
Contact Name:
Susan Krystofiak, Benefits Administrator
Telephone Number:
(409)880-3741
E-mail Address:
Susan,I<rystoflak@beaumonttexas.gov
2. SaaS Solution. Customer orders the following annual subscriptions to the SaaS Solution and
agrees to pay the corresponding fees associated with the license:
Description User (Group), Fee
Bentek® Employee Benefits City of Beaumont, Texas See attached Bentek
Enrollment & Administration System pricing proposal.
3. Subscription Term. The term for the subscription for the Bentek SaaS Solution is five (5) years
subject to the provisions of Section 11 of the Master SaaS Agreement. The Subscription Term
may be extended by written mutual agreement between Customer and Bentek after year five
(5).
15
4. Pees. Pursuant to Section 4 of the Master SaaS Agreement, following are the payment terms
for the SaaS Solution:
Monthly
❑ Quarterly
11 Annually
An implementation fee is due and payable in advance, Payment obligations are non -cancelable
and fees paid are non-refundable.
5. Support. So long as Customer is compliant with the terms of the SaaS Agreement and is current
in all its payment obligations, Bentek shall provide Customer with telephone support between
the hours of 8:30 a.m. and 5:00 p.m., Eastern time. The support number is 888. 56ENTEK.
(888,523,6835). E-mail: support.@mybentek,com, Response is within one (1) business day.
CUSTOMER: CITY OF BEAUMONT, TEXAS
By:
Title: �� Y'/1
10,V.j
Date: J %'r) - 2^?
16
BENTEK, INC.
By:
J
Title: P
Date:
fink, Vice President of
duct and Client Success
August 16, 2022
BENTEK COST PROPOSAL
CITY
DESCRIPTION
PRICE PER
TOTAL.
MONTH
ANNUAL.
Bentek Care License includes;
Admin Community Portal
Benefits Administration
Electronic Data Interchange (EDI)
Life Event Module
New Hire Orientation Module
Open Enrollment Module
1,550 Total Lives
Open Enrollment Payroll Export
$4,166.58
$49,999.00
(Active, Retired, Cobra)
Pa rallAuditTool
Y
Payroll Integration - NavILIne
Personnel Import Tool
Standard Reporting
Report Building Tool
Standard COBRA Reporting
Standard Carrier Self -Billing
Professional Services and Software Licensing
System Maintenance and Upgrades
On -going Support and Service,
Q1 Incentives—.
Retiresweets"' Module
Initial Payroll/Carrier Data Audit
50%off one-time Implementation fee
25%off payroll Integration fee
Total Year One
$49,999.00
Total Year Two
$57,549.00
Total Year Three
$65,099.00
Total Year Four
$65,099.00
Total Year Five
$65,099.00
Optlonal Services
ACA Reporting only -- Greatland -1.95 Per Form $99 00
Yearn* (pay at lime of filing for actual:# of forms) set; -up fee
"Benlek clients will recelva a 1t °lo discount
Notes; Please refer to tire Bentek Master Professionol Services Agreement for additional details regarding the features described
herein. •Dn•going support and servlce includes unlimited administrator support and training, including product user guides,
webinars, enroll support and phone support between 8;30am and 5; 00pm EST,
**01 Incentive Program pricing Is valid If contract Is executed on or before Apr1130, 2022;
-506discount off one-time $10,000.00 implementotlon fee to be gold separately
-2556 discount payroll integration fee
-Includes Initial data audit
-Includes Retiresweeff Module
23 be'nttek
BfWM5 T[C101MOCY
EXHIBIT B
BUSINESS ASSOCIATE AGREEMENT (`BAA")
17
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (the "Agreefilent") by and between City of Beaumont, Texas
("Customer"), and Beater, Ine. ("BenteW') is made and entered into effective
2022,
RECITALS
WHEREAS, Customer is a "covered entity" as those terms are defined in 45 C.F,R. §
160.103; and
WHEREAS, Bentek provides consulting services to Customer; and
WHEREAS, as a result of such functions, Customer has identified Bentek as a "business
associate," as defined in 45 C.F.R. § 160.103, of Customer for purposes of the privacy and security
requirements under the Health Insurance Portability and Accountability Act of 1996, (HIPAA) as
amended by the Health Information Technology for Economic and Clinical Health Act (HITECH)
and the regulations issued thereunder; and
WHEREAS, Bentek acknowledges that it is a business associate, as defined in 45 CF.R. §
160,103, of Customer that may create, use, or disclose Protected Health Information or Electronic
Protected Health Information on behalf of Customer; and
WHEREAS, Customer desires to obtain written assurances that Bentek will safeguard
Protected Health Information or Electronic Protected Health Information created or received by
or on behalf of Customer.
NOW, THEREFORE, the parties agree as follows;
DEFINITIONS
1.1 "Breach" shall have the meaning set forth in 45 C.F.R. §164.402.
1.2 "Data Aggregation" shall have the meaning as the term "data aggregation" in 45 C.F. R.
§ 164.501.
1.3 "Designated Record Set" shall mean a group of health -related records about an Individual
as provided in 45 C.F.R. § 164.501.
1.4 "Electronic Health Record" shall mean an electronic record of health -related information
with respect to an Individual that Is created, gathered, managed, and consulted by
authorized healthcare clinicians and staff.
18
1.5 "Electronic Protected Health Information" or "Electronic PHI" means information that
Bentek or its agent, including a subcontractor, creates, receives, maintains, or transmits
from or on behalf of Customer that comes within paragraphs 1(i) or 1(ii) of the definition
of "protected health Information" at 45 C.F.R. § 160.103,
1.6 "Genetic Information" shall have the meaning assigned to such term in 45 C.F.R.
§ 7.60.103.
1.7 "HIPAA" shall mean the health information privacy provisions under the Health Insurance
Portability and Accountability Act of 1996, and regulations issued thereunder at 45 C.F.R.
Parts 160 and 164, as amended by HITECH.
1.8 "HITECH" shall mean the Health Information Technology for Economic and Clinical Health
Act and the regulations issued thereunder.
1.9 "Individual" shall mean a person who is the subject to the Protected Health Information
of the Customer and shall include a person who qualifies as the individuals personal
representative in accordance with 45 C.F.R. § 164.502(g).
1.10 "Limited Data Set" shall have the meaning assigned to such term in 45 C.F.R.
§164.514(e)(2).
1,11 "Protected Health Information" or "PHI" shall have the same meaning as the term
"protected health information" in 45 C.F.R. § 160.103, limited to the information created
or received by Bentek from or on behalf of Customer. Genetic Information shall be
considered PHI.
1.12 "Required by Law" shall mean a mandate contained in an applicable state, federal, or local
law that compels Customer (or business associates acting on behalf of Customer) to make
a use or disclosure of PHI that is enforceable in a court of law.
1.13 "Security Incident" means the attempted or successful unauthorized access, use,
disclosure, modification, or destruction of information or interference with system
operations in an information system, as defined at 45 C.F.R. § 164,304. However, certain
low risk attempts to breach network security, such as the incidents listed below, shall not
constitute a Security Incident under this Agreement, provided they do not penetrate the
perimeter, do not result in an actual breach of security and remain within the normal
incident level:
pings on the firewall;
port scans;
19
attempts to log on to a system or enter a database with an invalid
password or username;
denial -of -service attacks that do not result in a server being taken off-
line; and
• malware such as worms or viruses.
1.14 "Subcontractor" shall have the meaning as the term in 45 C.F.R. § 160,103.
1.15 "Unsecured Protected Health Information" or "Unsecured PHI" shall have the meaning
assigned to such term in 45 C.F.R. § 164.402 and guidance issued thereunder.
2. OBLIGATIONS OF THE PARTIES
2.1 Bentek shall safeguard all PHI and Electronic PHI created or received by Bentek on behalf
of Customer in accordance with HIPAA. Bentek shall implement administrative, physical
and technical safeguards that prevent use or disclosure of the Electronic Protected Health
Information other than as permitted by the Security Rules. Specifically, Bentek agrees to
implement policies and procedures in accordance with 45 C.F.R. § 164.316 that;
Prevent, detect, contain and correct security violations in accordance with the
administrative safeguards set forth in 45 C.F.R. § 164.308;
ii. Limit physical access to electronic information systems and the facility or facilities
in which they are housed, while ensuring that properly authorized access is
allowed in accordance with the physical safeguards set forth in 45 C.F.R.
§ 164.310; and
iii, Allow access to electronic information systems that maintain Electronic PHI to
only those persons or software programs that have been granted access rights in
accordance with the technical safeguards set forth in 45 C.F.R. § 164.312.
2.2 Bentek shall not use or disclose PHI or Electronic PHI except as permitted or required by
Article 3 of this Agreement or as Required by Law. Bentek shall notify Customer of all
requests for the disclosure of PHI and Electronic PHI from a law enforcement or
government official, or pursuant to a subpoena, court or administrative order, or other
legal request as soon as possible prior to making the requested disclosure. Bentek shall
provide to Customer all PHI and Electronic PHI necessary to respond to these requests as
soon as possible, but no later than ten (10) business days following its receipt of a written
request from Customer.
2.3 Customer shall provide to Bentek, and Bentek shall request from Customer, disclose to its
affiliates, subsidiaries, agents and subcontractors or other third parties, only a Limited
20
Data Set or, if necessary or otherwise permitted by HHS regulations, the minimum PHI or
Electronic PHI necessary to perform or fulfill a specific function required or permitted
under the Agreement. "Minimum necessary" shall he interpreted in accordance with
HITECH, and in any event shall not include any direct identifiers of individuals such as
names, street addresses, phone numbers or social security numbers, except for a unique
identifier assigned by Customer as necessary for the strategic analysis.
2.4 Bentek shall comply with all granted restrictions on the use and/or- disclosure of PHI,
pursuant to 45 C.F.R. § 164.522(a), upon written notice from Customer; provided,
however, that Customer shall not grant any restriction that affects Bentek's use or
disclosure of PHI without first consulting with Bentek.
2.5 Bentek shall comply with all granted requests for confidential communication of PHI,
pursuant to 45 C.F.R. § 164.522(b), upon written notice from Customer.
2.6 Bentek shall report to Customer any use or disclosure of PHI not permitted by this
Agreement of which Bentek becomes aware within fifteen (15) business days of its
becoming aware, and will take such corrective action necessary, or as reasonably directed
by Customer, in order to prevent and minimize damage to any Individual and to prevent
any further such occurrences.
2.7 Following the discovery of a Breach of Unsecured PHI, Bentek shall notify the Customer
without unreasonable delay and in no case no later than fifteen (15) days after discovery
of the Breach. The notification shall include the identification of each Individual whose
Unsecured PHI has been or is reasonably believed by Bentek to have been accessed,
acquired, used or disclosed during the Breach. Bentek shall provide the Customer with
any other available information that the Customer requires to notify affected individuals
under the Privacy Rule,
2.8 Bentek shall make reasonable efforts to mitigate, to the extent practicable or as
reasonably directed by Customer, any harmful effect that is known to Bentek resulting
from a breach of this Agreement or HIPAA that is directly caused by Bentek.
2.9 Bentek shall report to Customer any Security Incident within five (5) business days of
when it becomes aware of such Security incident. Bentek shall mitigate to the extent
practicable or as reasonably directed by Customer any harmful effect that is known to
Bentek of a Security Incident by Bentek.
2.10 Bentek shall take reasonable steps to ensure that any Subcontractor performing services
for Customer agrees in writing to the same restrictions and conditions that apply to
Bentek regarding its creation, use, and disclosure of PHI and Electronic PHI in accordance
with 45 C.F.R. §§ 164.308(b)(2), 164.502(e)(1)(ii) and 164.504(e)(5). Bentek shall, upon
written request from Customer, provide a list of any Subcontractors with whom Bentek
21
has contracted to perform services for Customer. Bentek shall advise Customer if any
Subcontractor breaches its agreement with Bentek with respect to the disclosure or use
of PHI or Electronic PHI. If Bentek knows of a pattern of activity or practice of its
Subcontractor that constitutes a material breach or violation of the Subcontractor's
duties and obligations under its agreement with the Subcontractor ("Subcontractor
Material Breach"), Bentek shall cure the breach or provide a reasonable period for
Subcontractor to cure the Subcontractor Material Breach; provided, however, that if
Bentek cannot, or Subcontractor does not, cure the Subcontractor Material Breach within
such period, Bentek shall terminate the agreement with Subcontractor, if feasible, at the
end of such period.
2.11 Bentek shall, upon written request from Customer, provide to Customer a copy of any PHI
or Electronic PHI in a designated Record Set, as defined in 45 C.F.R. § 164.501, created or
maintained by Bentek, and not also maintained by Customer, within thirty (30) days of
receipt of the request.
2.12 Bentek shall, upon written request from Customer, make any amendment to PHI in a
Designated Record Set maintained by Bentek within thirty (30) days of receipt of the
request unless Bentek can establish to Customer's satisfaction that the PHI at issue is
accurate and complete.
2.13 if an Individual's PHI is held in an Electronic Health Record, Bentek shall provide requested
copies in electronic format to the individual or to an entity or person designated by the
Individual, provided such designation is clearly and conspicuously made by the Individual
or Customer.
2.14 Bentek shall make Its internal practices, written policies and procedures, books, records,
and other documents relating to the use and disclosure of PHI and/or Electronic PHI
created or maintained by Bentek on behalf of Customer available to the Secretary of the
Department of Health and Human Services, or his or her designee, for purposes of the
Secretary determining Customer's compliance with HIPAA.
115 Bentek shall make available the information required to provide an accounting of
disclosures made on and after the Effective pate, as necessary for Customer to comply
with 45 C.F.R. § 164.528, within twenty (20) business days of receipt of the request.
Bentek shall provide one such accounting within a twelve-month period without charge
but may make a reasonable charge for any additional such accountings within the same
twelve-month period.
2.16 Bentek shall maintain all records, other than those records that are also maintained by
Customer, for six (6) years from the date created or last in effect, whichever is later, as
necessary for Customer to comply with 45 C.F.R. § 164.530(j)(2),
22
3. PERMITTED UsEs or PHI
3.1 Bentek may use and disclose PHI and Electronic PHI as necessary to provide services to
Customer, subject to Section 2.3 of this Agreement and consistent with the requirements
of H I PAA.
3.2 Bentek may use and disclose PHI and Electronic PHI as necessary for the proper
management and administration of Bentek or to carry out Bentek's legal responsibilities,
subject to Section 2.4 of this Agreement and consistent with the requirements of HIPAA;
provided, however, that Bentek may disclose the PHI and Electronic PHI for such purposes
only ifs
i. the disclosure is Required by Law, or
ii. Bentek obtains reasonable assurances that the party to whom the PHI or
Electronic PHI is disclosed (a) will protect the confidentiality of the PHI and
Electronic PHI, (b) will not further disclose the PHI or Electronic PHI except as
Required by Law or for the purposes for which it was disclosed to the other party,
and (c) will report any improper use or disclosure of the PHI and/or Electronic PHI
to Bentek.
3.3 Except as otherwise limited in this Agreement, and to the extent provided for under this
Agreement, Bentek may use PHI and Electronic PHI to provide Data Aggregation services
to Customer, as permitted by 42 C,F.R. § 164.504(e)(2)(1)(B),
4. TERMINATION of AGREEMENT
4.1 Except as described in Section 4.3, this Agreement shall continue in effect so long as
Bentek provides service to Customer involving maintaining, using or disclosing PHI or
Electronic PHI, or otherwise retains a copy of PHI or Electronic PHI provided to Bentek by
Customer.
4.2 Customer may terminate this Agreement at any time if Customer discovers that Bentek
has materially breached any provision of this Agreement.
4.3 If Bentek becomes aware of a pattern of activity or practice of the Customer that
constitutes a material breach or violation of the Customer's duties and obligations under
the Agreement, Bentek shall take reasonable steps and provide a period of thirty (30)
calendar days for the Customer to cure the material breach or violation. If the Customer
does not cure the material breach or violation within such 30-day period, Bentek shall
terminate the Agreement, if feasible, at the end of such 30-day period.
4.4 Upon the expiration of Customer's relationship with Bentek, and contingent upon the
payment of all outstanding fees, Bentek shall return PHI and Electronic PHI to Customer
23
or Customer's designated agent upon Customer's request. If return of all PHI and
Electronic PHI is not feasible, the provisions of this Agreement shall continue to apply to
Bentek until such time as all PHI and Electronic PHI is either returned to Customer or
destroyed pursuant to Bentek's document retention policy, provided that Bentek shall
limit further use of PHI and Electronic PHI only to those purposes that make the
destruction or return of the PHI and Electronic PHI infeasible. Following the expiration of
the relationship, Bentek agrees not to disclose PHI and Electronic PHI except to Customer
or as Required by Law.
5. NOTICES
Whenever, under this Agreement, Bentek is required to give notice to Customer, such notice shall
be sent via First Class Mail to:
City of Beaumont
P.O. Box 3827
Beaumont, TX 77704
Attention: Privacy Officer & Finance/Benefits
Whenever, under this Agreement, Customer is required to give notice to Belitek, such notice shall
be sent via First Class Mail to:
Bentek, Inc.
3500 Kyoto Gardens Drive
Palm Beach Gardens, FL 33410
Attention: Privacy Officer
G. INDEMNIFICATION
Bentek agrees to indemnify Customer, and any employees, directors, officers of Customer
(collectively "Customer Indemnitees"), against all actual and direct losses resulting front or in
connection with any breach of this Agreement by Bentek, or its partners, employees, or other
members of its workforce. Actual and direct losses shall include, but shall not be limited to,
judgments, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys' fees)
which are imposed upon or incurred by Customer Indemnitees by reason of any suit, claim, action,
investigation, or demand by any Individual, government entity, or third party. This obligation to
indemnify shall survive the termination of this Agreement.
24
7. NOTHING IN TiliS A.GRIaEMENT EXTENDSTHE, CITY'S (CUSTOMS, R'S) LIABILITY BEYOND
THE LIABILM OR AUTHORITY PROVIDED IN THI; CONSTITUTION AND LAWS OI' THE
STATE OF TEXAS, AND NOTHING HEREIN CONSTITUTES OR IS INTCNRED TO CONSTITUTE
A WAIVER QI- TIME CITY'S(CUSTOMER'S) OR THE STATE'S SOVEREIGN IMMUNITY TO
SUIT.AMENDMENT
The parties agree to negotiate in good faith any amendments necessary to conform this Agreement
to changes in applicable law. Bentelc further agrees to promptly attempt to amend its agreements
with its subcontractors and agents to conform to the terms of this Agreement. In the event Bentelc
is unable to amend this Agreement or Its agreements with its subcontractors in a way that is
sufficient to satisfy the requirements under HIPAA, Customer may terminate this Agreement in
accordance with Section 4 Upon thirty (30) days Whitten notice.
8. TERMS OF AGREEMENT GOVERN
Any ambiguity in this Agreement shall be resolved in away that permits compliance with l"IIPAA.
In the event of a conflict between the terms of this Agreement and any other contract or agreement
between Customer and Bentelc, this Agreement shall govern.
9. REGULATORY REFERENCES
A reference in this Agreement to a section in the Privacy Rules or Security Rules means the section
as in effect or as amended, and for which compliance is required.
IN WITNESS HEREOF, the parties have executed this Agreement by their respective duly
authorized officers or representatives,
CUSTOMER; CITY OF BEAUMONT, TEXAS BENTEK, INC.
By;
By;
Title; ,I �/ }�y` Title:
Date; ��� r Date;
25
August 16, 2022