isolved Benefit Services, provides employers services designed to assist with various administrative services related to certain employer benefit plans ("Benefit Plan(s)") sponsored and maintained by the client (the "Employer"), for the benefit of employees and their eligible dependents covered under the Plan ("Covered Individuals"). These General Terms and Conditions shall be read in conjunction with and incorporated into each Service Agreement (together, the "Agreement"). isolved Benefit Services will only provide the services specifically chosen by Employer and set forth in the applicable Service Agreement. In consideration of the mutual promises set forth herein, it is agreed by and between isolved Benefit Services and Employer (the "Parties") as follows:
A. Term
The Agreement shall commence on the date the Service Agreement is executed by each of the parties (the "Effective Date") and shall continue until the one year anniversary of the Service Date (as defined below), provided, the term of this Agreement shall automatically renew for one year periods on the anniversary of the Service Date until such time as the Agreement is terminated pursuant to paragraph P. below. The "Service Date" shall be the later of (i) the date isolved Benefit Services assigns as the Service Date or (ii) the date service is first provided to Employer.
B. Scope of Agreement; Relationship of Parties
This Agreement will establish an independent contractor relationship. isolved Benefit Services is not an agent or employee of Employer (for purposes of establishing Principal-Agent relationships), and employees of Employer are not entitled to any of the benefits of employment granted by isolved Benefit Services to its own employees. isolved Benefit Services is not the Plan Administrator or a Plan Fiduciary of the Benefit Plans, as those terms are defined in ERISA. It is understood that isolved Benefit Services is free to perform similar services for other employers while this Agreement is effective. Employer is solely responsible for establishment and operation of the Benefit Plans for which isolved Benefit Services provides related services in accordance with this Agreement. Employer has sole discretionary authority and responsibility for construing and interpreting the provisions of the Benefit Plans and deciding all legal and other questions of fact arising under the Plans. It is Employer’s sole responsibility and duty to ensure compliance with all applicable laws and regulations, and isolved Benefit Services’s provision of services under any Service Agreement does not relieve Employer of this obligation. isolved Benefit Services is responsible for providing services that comply with applicable law and regulations that assists Employer with Employer’s obligations under such Benefit Plans to the extent set forth herein. Subject to isolved Benefit Services’s responsibilities under subsection N, Employer understands that it is the responsibility of Employer to pay any fee or penalty assessed by the Internal Revenue Service, the Department of Labor or other state or federal regulatory agency. Employer acknowledges that isolved Benefit Services is not an accounting or law firm and no services provided by isolved Benefit Services in accordance with any Service Agreement will be construed by Employer as tax or legal advice as a result of providing such services.
All duties performed by isolved Benefit Services will be nondiscretionary in nature and will be performed in accordance with the terms of the Benefit Plans established by Employer and isolved Benefit Services’s standard operating procedures. isolved Benefit Services has no discretionary authority with respect to interpreting the terms of the Benefit Plans
C. Authorization
Employer hereby authorizes isolved Benefit Services to perform any and all acts and deeds necessary to perform the duties as set forth in this Agreement, including but not limited to, enlisting the services of a third party to assist isolved Benefit Services with its duties hereunder. Such third parties have agreed to confidentiality requirements consistent with isolved Benefit Services’s responsibilities under this Agreement. isolved Benefit Services will indemnify and hold Employer harmless for all direct monetary damages of a compensatory nature arising from the intentional and grossly negligent acts of the third party related to services provided by any such third party. If Employer requests isolved Benefit Services to act in a manner that isolved Benefit Services reasonably believes is inconsistent with this Agreement and/or applicable law, isolved Benefit Services reserves the right to refuse such a request.
D. Information from Employer
isolved Benefit Services will establish various methods from various providers for transferring information to and from isolved Benefit Services for purposes of providing the services. Employer must use one of the methods established by isolved Benefit Services and, if applicable, agrees to be subject to and to comply in all respects with each any third party provider’s privacy and use restrictions for such methods chosen. Employer also agrees to comply at all times with isolved Benefit Services’s terms of use and privacy policies in effect from time to time on its website. Employer will furnish the information reasonably determined by isolved Benefit Services to be necessary to satisfy its responsibilities under this Agreement. Such information will be provided to isolved Benefit Services in the time and in the manner agreed to by Employer and isolved Benefit Services. Employer understands that isolved Benefit Services cannot accurately perform its duties under this Agreement without accurate and timely information and that isolved Benefit Services shall have no liability to Employer or any Covered Individual as a consequence of inaccurate and/or untimely information provided to isolved Benefit Services by Employer, its designee, or another existing or former service provider. isolved Benefit Services will have no obligation to credit Employer for any claims expenses or administrative fees incurred or paid to isolved Benefit Services as a consequence of isolved Benefit Services receiving inaccurate or untimely information. Employer agrees to pay isolved Benefit Services the standard hourly rate set forth in Section 4 of the applicable Service Agreement for any corrections that must be made as a result of such inaccurate or untimely information. isolved Benefit Services will assume that all such information provided to isolved Benefit Services by Employer, its designee or another existing or former service provider is complete and accurate and is under no duty to question the completeness or accuracy of such information. Employer will review any information and/or reports provided by isolved Benefit Services in accordance with this Agreement as soon as possible after Employer has received such information and Employer will notify isolved Benefit Services of any errors in such information and/or reports as soon as possible after its review but in any event within five (5) business days.
E. Confidentiality and Disclosure
Employer and isolved Benefit Services each acknowledge that each party has, and will continue to, reveal and disclose to the other, information that is proprietary and/or confidential to such party. Employer and isolved Benefit Services agree that each party will (a) keep such proprietary and/or confidential information of the other party in strict confidence; (b) not disclose confidential information of the other party to any third parties or to any of its employees not having a legitimate need to know such information; and (c) will not use confidential information of the other party for any purpose not directly related to and necessary for the performance of its obligations under this Agreement (unless required to do so by a court of competent jurisdiction or a regulatory body having authority to require such disclosure).
"Confidential Information shall not include information that (a) is or becomes generally available to the public without the fault or negligence of the party receiving the information; or (b) if the unrestricted use of such information by the party receiving or disclosing the information has been expressly authorized in writing and in advance by an authorized representative of the other party. For purposes of this Section, confidential information is any information in written, human-readable, machine-readable or electronically recorded form (and identified as confidential and/or proprietary or words of similar import) and information disclosed orally in connection with this Agreement, and identified as confidential and/or proprietary (or words of similar import); and programs, policies, practices, procedures, files, records and correspondence concerning the Parties’ respective businesses or finances. This provision related to confidentiality shall survive the termination of any and/or all Agreement(s). Employer agrees that Employer shall not disclose to any other party, nor shall Employer use for Employer’s own benefit, the details or written evidence of services provided by isolved Benefit Services hereunder without the express prior written consent of isolved Benefit Services.
Both Parties agree to use and disclose Protected Health Information (as that term is defined in 45 C.F.R. 160.103), only as set forth in the Business Associate Agreement
F. Audits
Employer (or its designated agent) may perform no more than one (1) audit of isolved Benefit Services’s records specifically related to performance of isolved Benefit Services under this Agreement, each year, subject to reasonable prior written notice to isolved Benefit Services. Audits must be performed during isolved Benefit Services’s normal working hours. isolved Benefit Services may require Employer and its agent to sign a confidentiality agreement provided by isolved Benefit Services. Employer acknowledges and agrees that if Employer requests an audit, Employer will reimburse isolved Benefit Services for isolved Benefit Services’s reasonable expenses, including copying and labor costs, in assisting Employer to perform the audit.
G. Electronic Administrative Services
isolved Benefit Services may provide certain electronic administrative services as set forth in this Agreement. isolved Benefit Services shall not be deemed in default of this Agreement nor held responsible for any cessation, interruption or delay in the performance of its obligations to provide such services hereunder due to causes beyond its reasonable control, including, but not limited to, natural disaster, act of God, labor controversy, civil disturbance, disruption of the public markets, terrorism, war or armed conflict, or the inability to obtain sufficient materials or services required in the conduct of its business, including Internet access, or any change in or the adoption of any law, judgment or decree.
H. Payments to isolved Benefit Services
Employer warrants and represents that any payments made by Employer or by Covered Individuals for purposes of paying Benefit Plan claims or premiums are not made to isolved Benefit Services from a separate fund, account or trust bearing the name of a Benefit Plan or that of any Covered Individuals thereof. Employer agrees that any trust requirements, to the extent applicable, are Employer’s sole responsibility. Any premium payments collected by isolved Benefit Services from Employer or a Covered Individual under the Premium Collection Services component of the Federal COBRA, USERRA, and State Continuation Coverage Administration Service will be handled as set out in the Federal COBRA, USERRA, and State Continuation Coverage Administration Additional Service Agreement available at https://www.isolved Benefit Services.com/legal/index. Payments received from Employer to pay eligible claims under the Fringe Benefit Plan Administration Services will be handled as set out in the Fringe Benefit Plan Administration Additional Service Agreement available at https://www.isolved Benefit Services.com/legal/index. HSA contributions made by HSA Account Holders and Employers will be handled as set out in the Health Savings Account Administration Additional Service Agreement available at https://www.isolved Benefit Services.com/legal/index. isolved Benefit Services will regularly invoice Employer. Employer shall pay all fees for services set forth on isolved Benefit Services’s invoice or, if not stated, within thirty days from the invoice date. Fees are subject to change without notice at isolved Benefit Services’s discretion which reasons may include as the result of changes to the Benefit Plans or applicable law that alter the nature or scope of the services provided.
I. Bonding
To the extent required by applicable law, isolved Benefit Services will maintain a fidelity bond covering all isolved Benefit Services’s employees who handle plan funds in accordance with this Agreement. This bond covers the handling of plan funds from dishonesty, theft, forgery or alteration and unexplained disappearance.
J. Communications
All legal notices between the Parties shall be sent by e-mail with guaranteed overnight mail similar service with tracing capability or first class United States mail and shall be deemed provided when sent except as otherwise set forth in this Agreement. Employer agrees that isolved Benefit Services communicates confidential, protected, privileged or otherwise sensitive information to Employer through a named contact designated by Employer set forth in the Service Agreement, which contact may be changed by email notice to isolved Benefit Services (the "Primary Contact"). As a result, Employer agrees that Employer is responsible for all damages or costs arising from communication to such Primary Contact, including if Employer failed to notify isolved Benefit Services that the named contact was no longer a Primary Contact.
K. Entire Agreement
This Agreement (including documents specifically incorporated into and made a part of this Agreement by reference) embodies the whole agreement of the Parties, and shall supersede all previous communications, representations or agreements, either verbal or written, between the Parties hereto. There are no promises, terms, conditions or obligations other than those contained herein and under any applicable Service Agreement. Failure by Employer or isolved Benefit Services to insist upon strict performance of any provision of this Agreement will not modify such provision, render it unenforceable, or waive any subsequent breach. This Agreement shall be construed under the laws of the State of Michigan. If any part, section, clause, or provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other part, section, clause, or provision thereof.
L. Amendments, Waivers and Modifications
This Agreement may be amended only by written agreement of Employer and isolved Benefit Services.
M. Assignment
Employer may not assign any of its rights under this Agreement to any third party without the prior written consent of isolved Benefit Services. For purposes hereof, a change of control of more than fifty percent (50%) of Employer’s direct or indirect equity ownership, whether by merger, sale of equity securities or otherwise, shall constitute an assignment of this Agreement by Employer. isolved Benefit Services may assign any or all of its rights under this Agreement to any Affiliate of isolved Benefit Services.
N. Indemnification and Liability
O. Benefit Plan Claims
isolved Benefit Services does not insure or underwrite the Benefit Plan liability of Employer and is not financially responsible for the claims and/or expenses incident to the Benefit Plans. isolved Benefit Services has no duty or obligation to defend any legal action or proceeding brought to recover benefits under the Benefit Plans; however, isolved Benefit Services will provide to Employer and/or Employer’s legal counsel, upon request and subject to any limitations described in this Agreement, any documentation in isolved Benefit Services’s possession that may relate to such claim for benefits and/or expenses.
P. Termination of Agreement
Either party may terminate all or part of this Agreement for any reason effective no earlier than 30 days after written notice is provided to the other party. This Agreement will automatically terminate on the earliest of the following dates.
Termination of this Agreement shall not terminate the rights or obligations of either party arising prior to the effective date of such termination. Employer shall timely pay in full fees for all services provided prior to the date of termination. All fees paid are non-refundable and annual or monthly service fees paid shall not be returned upon termination, for any reason.
Q. Recordkeeping
isolved Benefit Services will maintain the usual and customary books, records and documents, including electronic records in isolved Benefit Services’s possession, for the greater of the term of this Agreement plus 30 days or eight years following the date the record was created or received by isolved Benefit Services. During this period, Employer has the right to access isolved Benefit Services’s records related to the Employer, upon reasonable request and at the expense of Employer.