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CONTRACT 6192 Vender Agreement
WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential 02021 ® All Rights Reserved WEX Health, inc, City of El Segundo - Vdr. Agr. No. 6192 ADMINISTRATIVE SERVICES APPLICATION CITY OF EL SEGUNDO ("Employer') hereby requests the administrative services indicated below from WEX Health, Inc. d/b/a WEX, formerly known as Discovery Benefits, LLC ("WEX'J. If not signed below prior to the Effective Date, Employer's consent to the terms and conditions set forth in the attached agreements will be presumed and deemed to have been obtained upon submission of Employer data through the DBI portal, the DBI design guide or any other DBI authorized format. N/A Arrears Bill x COBRA x Direct Bill N/A Education Assistance Program N/A Health Savings Account N/A Premium Conversion Plan x Reimbursement Account N/A Non -Discrimination Testing Subscription x HIPAA Business Associate (acknowledged by the Employer as the sponsor on behalf of and as an authorized representative of the group health plan or plans) SIGNATURE The services shall be subject to the corresponding terms and conditions set forth in the attached agreements, accepted and entered into as of 12/01/2021 ("Effective Date'). Employer Authorized ignature Rebecca Redyk Name APPRC1AS TO FORM: CITY ATT RNEY COBRA - Monthly Fee Schedule City of El Segundo - Vdr. Agr. No. 6192 Effective Date 12/01/2021 or later if services start different months Fee Amount Fee Minimum Freauency Bill To $0.60 $85.00 Monthly Customer Fees per Covered Employee The 2% additional premium for administrative costs is retained by WEX If the 2% additional premium is not chargeable to COBRA Continuants due to state or local law, WEX will include the 2% additional premium on a monthly invoice to the Employer, and the Employer will pay such amount as part of the COBRA administrative fee. Fee Amount Fee Minimum Freauencv Bill To COBRA SPM - Monthly $4.50 $0.00 Monthly Customer Fees per SPM Enrollment per month FSA - Monthly Fee Amount Fee Minimum Frequency Bill To $3.75 $0.00 Monthly Customer Fees per FSA Participant per month Includes Dependent Care & Benefits Debit Card Spouse, dependent, and replacement Benefits Debit Cards available at no additional fee HRA - Monthly Fee Amount Fee Minimum Frey Bill To $3.75 $50.00 Monthly Customer Fees per HRA Participant per month Includes Benefits Debit Card Spouse, dependent, and replacement Benefits Debit Cards available at no additional fee Fees are guaranteed until 01/01/2027 ("Rate Expiration Date"). Printing and postage are included for standard material and mailings. Additional charges/fees will apply for non-standard mailings and/or expedited requests. WebEx meetings are included at no additional fee. Enrollment meetings (optional) are $350 per day plus travel expenses. If Employer/Customer has contracted with a third party whereby the third party pays WEX's fees on Employer's behalf, WEX's fees will be invoiced to that third party and are due within thirty (30) days after the date the invoice is received. If the third party fails to pay WEX, Employer remains responsible to pay WEX's fees. Fee rates may be based on a third -party discount. If WEX's fees are no longer to be paid by the third party on Employer's behalf, guarantees could be voided and the fee schedule revised. 561574964 43034 WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 COBRA ADMINISTRATIVE SERVICES AGREEMENT RECITALS Employer has established one or more health plans that include medical, dental, vision, employee assistance plan, health flexible spending arrangement, and/or health reimbursement arrangement benefits (such plans, individually and collectively as the context may require, are herein referred to as the "Plan") for its employees. Employer desires to retain WEX as an independent contractor to administer certain elements of its obligations under COBRA and WEX desires to assist Employer in the administration of such COBRA obligations. "COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the related regulation and interpretations by the Department of Labor and the Internal Revenue Service. WEX and Employer agree that WEX shall assist in the administration of Employer's COBRA obligations based on the terms and conditions set forth in this COBRA Administrative Services Agreement ("this Agreement % including, without limitation that: • Employer is the administrator of the Plan. WEX is an independent contractor in relation to Employer and to the Plan and may act as an agent and/or designee on behalf of Employer. • Employer remains responsible for maintaining the Plan, including the establishment of eligibility and the payment of the benefits owed or established under the Plan to its participants. • WEX is to provide the agreed upon services without assuming any liability for the performance of any other services beyond those set forth below. The above -stated recitals are accurate, true, and correct and are incorporated herein and made a part hereof by this reference. Now, therefore, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows. ARTICLE 1 WEX ADMINISTRATIVE SERVICES 1.1 Except for those obligations that are Employer's responsibility under this Agreement, WEX shall assume responsibility for the proper interpretation, application, and administration of COBRA rules and regulations for the Plan for COBRA administration under WEX's control. 1.2 WEX services under this Agreement are limited to the benefit plans selected for services by Employer via the WEX portal or design guide. 1.3 WEX shall have no responsibility or duty with respect to any plan where complete information about that plan is not provided. 1.4 WEX's responsibilities and duties with respect to the Plan are limited to those expressly provided in this Agreement. 1.5 WEX shall consult with Employer regarding the interpretation and application of regulations concerning COBRA administration as they apply to the Plan. 1.6 Upon timely receipt of the required information from Employer and within the applicable time frame required by COBRA or upon the effective date of coverage, whichever is later, WEX shall send, via "Accountable Mail" WEX's standard initial rights notification letter (also known as the general rights notice or the initial notice) to newly Covered employees and spouses informing them of their rights under COBRA. "Accountable Mail" means mail that provides documented proof that the letter or notice was mailed and the date of such mailing to the recipient at the recipient's last known address and meets COBRA regulation requirements, but does not mean that delivery is tracked. WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WIX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 "Covered" means participating in any plan offered by Employer that is subject to COBRA and selected by Employer for services under this Agreement. If information is not timely received from Employer, WEX shall send the notice described in this Section 1.6 as soon as administratively practicable after receiving the information. Consequently, however, such notice may not be provided within the time frame required by COBRA. If complete information is not provided, such notice also may be incomplete. 1_7 Upon commencement of the services provided herein, if requested by Employer, WEX will mail its standard initial rights notification letter to all Covered employees and spouses. In order for WEX to complete this mailing, Employer must provide the information requested by WEX in a timely manner. 1_8 Upon timely receipt of complete information from Employer, WEX shall send via Accountable Mail within the applicable time frame required by COBRA, WEX's standard qualifying event eligibility and election notice to all qualified beneficiaries who have a qualifying event. If complete information is not timely received from Employer, WEX shall send the notice described in the preceding sentence as soon as administratively practicable after receiving complete information, however, such notice may not be provided within the applicable time frame required by COBRA. The terms "qualifying event" and "qualified beneficiary" shall have the meanings given to them under COBRA. 19 Except to the extent prohibited by state or local law, COBRA continuation coverage premiums will include an additional 2% for administrative costs. In addition to the monthly administrative fee per Covered employee under this Agreement, WEX will retain the 2% additional premium allowed by COBRA for administrative costs charged to qualified beneficiaries electing or participating in COBRA continuation coverage ("COBRA Continuants'. 1.10 WEX shall mail WEX's portal login notice and standard payment coupons to COBRA Continuants after COBRA continuation coverage is elected and the first COBRA premium payment has been received. 1.11 WEX shall provide COBRA Continuants the option to make their COBRA premium payments by check or via automatic recurring ACH (automated clearing house electronic funds -transfer system) at no additional charge. 1.12 WEX shall provide COBRA Continuants the option to make their COBRA premium payments online with a credit card or by a single -occurrence ACH request. To the extent permitted by law and the applicable credit card operating rules and regulations, an additional online convenience processing fee charged by the online third - party vendor and payable by the third -party beneficiaries (or Employer, if Employer so elects) will apply to these payment methods. The convenience processing fee is collected by WEX and remitted to the third -party vendor. 1.13 WEX shall deposit COBRA premium payments in a custodial account for the benefit of Employer in the manner described in Article 3. 1.14 WEX shall collect, track, process, and remit to Employer (or remit to the third party designated by Employer to act in the place of Employer for the purpose of remittance) the COBRA premium payments paid by COBRA Continuants, Employer or a third party. 115 A remit to carrier option ("Remit to Carrier'D is available at the option of Employer. In order for WEX to implement this option, Employer must submit a completed WEX COBRA ACH direct payments form to WEX. In addition, each applicable carrier must submit a completed WEX COBRA carrier remittance form to WEX. WEX will reserve the right to discontinue Remit to Carrier if the separate billing statement that includes only COBRA Continuants is not received from the carrier. Section 2.8 addresses Employer responsibilities for this option. 1.16 WEX shall coordinate with Employer and its insurers and third party administrators (collectively "carrier" or "carriers'D to answer questions pertaining to COBRA continuation coverage eligibility and COBRA premium payment status. WD( Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Heath, Inc City of El Segundo - Vdr. Agr. No. 6192 1.17 Using WEX's standard forms and letters, WEX shall communicate with COBRA Continuants concerning change of address, premium rate and benefit changes, COBRA continuation coverage eligibility status, Medicare eligibility, advance -termination notice for the individual conversion, individual conversion and private insurance options, and verification of termination. 1.18 WEX shall provide Employer real-time, online access to information related to the status of qualified beneficiaries and COBRA Continuants. 1.19 WEX shall provide this information required in the event of an IRS or other third -party audit: • The written compliance procedures used by WEX in the administration of COBRA. • Samples of WEX forms and notices. • WEX records that pertain to a qualified beneficiary's actual qualifying event or election or COBRA Continuant's continuation of coverage. • A description of how WEX administers COBRA coverage. 1.20 WEX shall provide Employer with the web portal login information so that Employer may notify WEX when an employee, spouse or dependent is initially added to coverage under the Plan and when an employee, spouse or dependent has experienced a qualifying event and is eligible for COBRA continuation coverage under the Plan. 1.21 WEX shall provide Employer with the file format required by WEX so that Employer may upload employee demographic, benefit, and qualifying event information using the employer web portal. 1.22 WEX shall provide a customer service line toll -free number for use during WEX normal business hours to answer questions and address issues concerning COBRA regulation, COBRA compliance, and COBRA premium payments. Monday through Friday Central Time Zone Employers 7:00 a.m. to 7:00 p.m. Qualified Beneficiaries 6:00 a.m. to 9:00 p.m. In compliance with applicable federal and state law, WEX may monitor and/or record calls that are made to and from the customer service line for quality assurance and training purposes and/or to ensure that WEX's services fully comply with the terms of this Agreement. 1.23 WEX shall notify a COBRA Continuant if COBRA coverage terminates earlier than the end of the maximum period of coverage applicable to the qualifying event that entitled the individual to COBRA continuation coverage. The notice will be provided as soon as administratively practicable after WEX determines that the COBRA continuation coverage will be terminated early. 1.24 WEX shall extend the maximum COBRA continuation coverage period in cases of disability and second qualifying events as allowed under COBRA. 1.25 WEX shall provide its standard system generated open enrollment/premium rate change letter during open enrollment. If requested by Employer, WEX will provide qualified beneficiaries with a link to additional plan and benefit description materials provided by Employer through the web portal for qualified beneficiary and COBRA Continuant viewing and printing. 1.26 Plan Records and Data (a) Written and electronic records containing personal information are securely destroyed or deleted consistent with business needs or legal retention requirements. (b) Per business records needs and associated retention and secure destruction periods, WEX shall retain a copy of all information (as information is defined in Section 2.22, excluding emails or similar electronic communications destroyed in the ordinary course of business pursuant to WEX policy) for WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 at least seven (7) years from the date the record is created at WEX, including, without limitation, a record of all assets and transactions involving the Custodial Account (defined in Article 3). (c) Following the termination of this Agreement, WEX shall cooperate with Employer or Employer's subsequent service provider to effect an orderly transition of services provided under this Agreement and, within a reasonable time, will release to Employer a copy of data, records, and files in WEX's standard format. (d) Upon termination of this Agreement, WEX shall be entitled to retain a copy of all information, including any data, records, and files released by WEX pursuant to this Section 1.26 and continue to use and disclose such information for claims, audits, and legal and contractual compliance purposes to the extent permitted by law and any executed or applicable business associate agreement between the parties. 1.27 Information Security P�°o_gr_arn, WEX represents and warrants that it has implemented and maintains a written and comprehensive information security program, and complies with all applicable domestic law and regulation, including without limitation, any privacy and data security law and regulatory requirements under applicable state law. 1.28 Subcontracting WEX may delegate or subcontract any portion of WEX services. For those WEX services that are delegated or subcontracted, WEX shall remain fully responsible to Employer for compliance with all applicable provisions of this Agreement or of any executed or applicable business associate agreement between the parties. No portion of WEX administrative services shall be delegated or subcontracted to an entity located outside the United States. 1.29 Audit Rights Employer may audit or inspect any transactions, procedures, records, and participant files relating to Covered employees or COBRA Continuants, at WEX's offices and at a time reasonably acceptable to WEX, upon providing ten (10) business days' advance written notice to WEX and at Employer's expense. Unless otherwise required by legal and/or regulatory compliance, audits must be completed within six (6) months following the date the audit begins. 1.30 Confidendality of Plan Information WEX shall keep confidential all information that it obtains concerning the Plan. Other than in the due course of business, such information shall not be disclosed to a third party without prior approval of Employer or as otherwise provided in Article 4. Employer may request that WEX share Plan information and other data with a vendor of the Plan or Employer. WEX shall consider all reasonable requests, however, prior to releasing or sharing any Plan information or other data, Employer represents that it will enter into a business associate agreement and/or confidentiality and data sharing agreement with the vendor. For confidential or protected information transmitted by a vendor of the Plan to WEX, Employer must enter into a business associate agreement and/or confidentiality and data sharing agreement with the vendor. 1.31 Benchmarks WEX may, in its discretion, prepare and deliver to Employer benchmarks or other metrics showing the experience of Employer and its participants with the services provided herein as compared to other employers. WEX will develop any such benchmarks or metrics through the use of data that has been aggregated and de - identified consistent with any executed or applicable business associate agreement between the parties. WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 1.32 Limited Warranty WEX represents and warrants to Employer that the WEX Services shall be performed in a professional manner consistent with generally accepted industry standards and applicable law. 1.33 Disclaimer WEX does not insure or underwrite Employer's liability to provide benefits under the Plan. WEX shall not be liable or obligated to use its funds for payment of benefits under the Plan, including, without limitation, where such payment of benefits is sought as damages in an action against Employer, WEX or the Plan. Employer shall promptly reimburse WEX for any benefit payments made using WEX funds. 1.34 Mon -Discrimination Testing and Additional Product and Service Solutions Employer may subscribe to WEX's non-discrimination testing and request additional products and services solutions from WEX. ARTICLE 2 EMPLOYER RESPONSIBILITIES 2.1 Employer shall provide accurate Covered employee counts to WEX on a monthly basis or as requested by WEX. Employer shall have thirty (30) days from the date of the invoice to correct a Covered employee count for credit or refund. Employer represents and warrants the accuracy of any information Employer provides to WEX regarding Covered employee counts. 2.2 Employer shall provide complete demographic and benefit information to WEX for its current COBRA Continuants on or by the date agreed upon during the implementation process. 2.3 Employer shall enter or upload an electronic file via the employer web portal containing complete demographic and benefit election information within seven (7) days of employees, their spouses, and/or dependents obtaining coverage under the Plan. 2.4 Employer shall notify WEX within seven (7) days of any initial qualifying event or the date coverage is lost due to the qualifying event once Employer is notified with respect to an employee, spouse or dependent. 2.5 Employer shall notify WEX within seven (7) days of a second qualifying event should Employer be notified of a second qualifying event that occurs with respect to an employee, spouse or dependent. 2.6 The foregoing seven (7) day notice timelines address all potential notice requirements. However, notwithstanding the foregoing, no matter when received, WEX will process the notice. 2.7 Unless directed otherwise by WEX, Employer shall provide notice of a qualifying event by entering the required qualifying event information directly into the employer web portal or by uploading an electronic file via the employer web portal. Employer is solely responsible for determining whether an employee, spouse or dependent has experienced an initial qualifying event under the Plan and the date of the qualifying event. 2.8 For Remit to Carrier, Employer shall be solely responsible for its carrier to send a separate billing statement to WEX that includes only COBRA Continuants. 2.9 For Remit to Carrier, Employer shall submit a completed WEX COBRA ACH Direct Payments form to WEX. Failure to submit a completed WEX COBRA ACH Direct Payments form will result in WEX remitting COBRA premium payments to Employer. Employer is at all times responsible to pay to WEX its portion of the premium, where applicable, prior to WEX remitting premiums to the carrier. 2.10 Employer (or the third party designated by Employer to act in the place of Employer for the purpose of remittance) shall be responsible for reconciling carrier billings with the online reports provided by WEX through the employer web portal. The parties acknowledge that carriers often restrict the ability to retroactively terminate COBRA coverage (even in cases of non-payment of premiums by the COBRA Continuant). WEX WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential c@2021 • All Rights Reserved WEX Heath, Inc City of El Segundo - Vdr. Agr. No. 6192 shall not be liable for paying any loss or damage (including premiums) to Employer with respect to any retroactive termination of COBRA coverage, provided that WEX has performed in accordance with this Agreement. WEX reserves the right to decline to implement any retroactive changes in premium rates requested by Employer, retroactive beyond thirty (30) days. 2.11 Employer shall be responsible for selecting a determination period and establishing and advising WEX of the applicable premium rates to be charged for COBRA continuation coverage. Employer must notify WEX in writing at least forty-five (45) days in advance of the applicable billing date of: (a) any changes in premium rates affecting COBRA coverage under the Plan; and (b) any changes in premium rates during an open enrollment period, so that WEX has time to process the changes prior to the effective date. 2.12 WEX acknowledges that carriers may not always provide information about premium rate changes in a timely manner. If Employer is unable to notify WEX in writing at least forty-five (45) days in advance of the applicable billing date of any changes in premium rates, WEX will make commercially reasonable efforts to process the changes prior to the effective date. 2.13 Employer shall be solely responsible for any differences in premium payments when notification of a premium rate change is not provided to WEX at least forty-five (45) days in advance, causing payments made by COBRA Continuants to be incorrect for the new determination period. 2.14 Employer shall advise WEX of any material changes in the benefits and options provided by the Plan. 2.15 Employer shall be responsible for its compliance with the Patient Protection and Affordable Care Act of 2010 C PPACA'�, the Employee Retirement Income Security Act of 1974 (" ERISA'), the Health Insurance Portability and Accountability Act of 1996 ("HIPAA'), the Internal Revenue Code (the "Code', each as amended from time -to -time, and other applicable law and regulation. 2.16 Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses, and expenses (including reasonable attorney fees) and expressly releases all claims against WEX in connection with any claim or cause of action arising out of 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 WEX) to comply with the PPACA, COBRA, ERISA, HIPAA, the Code or any other applicable law or regulation. 2.17 Employer shall review and be responsible for the payment of all claims under the Plan and ERISA, including, without limitation, claims and appeals for benefits and claims and appeals for eligibility determinations under the Plan. WEX is not responsible to receive or review claims for benefits under the Plan and shall not be liable for the payment of any claims for benefits in connection with the Plan, including, without limitation, where sought as damages in an action against Employer or the Plan or for any activity or occurrences prior to the Effective Date of this Agreement, provided that such activity or occurrence did not result from the services performed by WEX in accordance with this Agreement. 2.18 Employer shall maintain and provide written internal compliance procedures used for notifying WEX of a newly covered employee, spouse or dependent, a qualifying event, a report of terminations for each tax year, or when there are premium rate and benefit changes in the event of an IRS or any third -party audit. 2.19 Employer shall provide for the release of information necessary for COBRA compliance and administration under this Agreement. 2.20 Employer shall provide plan and benefit descriptions (e.g., Summary of Benefits and Coverage (SBC), Summary Plan Description (SPD), and benefit plan booklets, etc.) to qualified beneficiaries during open enrollment. WEX's standard process is to provide a link to these additional materials through the qualified beneficiary web portal for viewing and printing. If requested by Employer, WEX may include these additional materials with its standard open enrollment/rate change letter as long as Employer provides WEX with an electronic PDF image of the additional open enrollment materials. A handling fee of $1.50 per page (duplex) will apply for these additional materials. WEX will allow up to twenty-five (25) duplexed pages, including the standard open enrollment/rate change letter. WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. 2.21 Employer acknowledges and agrees that WEX shall„ (a) Have no duty with respect to the funding of premiums by Employer or qualified beneficiaries who elect COBRA; (b) Not be liable for paying any premiums of a qualified beneficiary to a carrier or Employer to the extent that WEX did not receive the corresponding payment from the qualified beneficiary, Employer or third party; (c) Not be liable for any failure of Employer to remit to a carrier any funds Employer receives from WEX; (d) Not be liable for any failure of Employer to reconcile its carrier billings to online reports provided by WEX through the employer web portal; (e) Not be liable for any retroactive premium rate changes requested by Employer; (f) Not be liable for any failure of Employer to modify its carrier billings and notify carriers of a COBRA Continuant's termination from COBRA coverage when WEX remits premiums paid by COBRA Continuants to Employer; (g) Not be responsible for failure of delivery of any notice mailed by WEX using the qualified beneficiary information provided to WEX by Employer, which failure is due to the use of said information; and (h) Not be responsible for any loss or damage suffered by any participant, COBRA Continuant, Employer or Plan, should WEX fail to give a required notice or a complete notice because WEX did not receive notice of an event for which a notice was required, WEX did not receive complete information, or WEX received incorrect information. 2.22 E plo ei:.Information and Instructions (a) WEX shall be fully protected in relying upon representations and communications made by or on behalf of Employer in effecting its obligations under this Agreement. (b) WEX is entitled to rely on the most current information in its possession when providing services under this Agreement. (c) WEX shall provide the services in accordance with this Agreement based on information that is provided to WEX by Employer, Covered employee or qualified beneficiary. For this purpose, "information" means all data, records and other information supplied to WEX, obtained by WEX or produced by WEX (based on data, records or other information supplied to, or obtained by, WEX) in connection with performing the services pursuant to this Agreement, regardless of the form of the information or the manner in which the information is provided to WEX. (d) In engaging WEX to perform the services under this Agreement, Employer has authorized and instructed WEX in this Agreement to implement WEX's standard administrative forms and procedures. (e) WEX is not responsible for any acts or omissions it makes in reliance upon the direction or consent of Employer, Covered employee or a qualified beneficiary or inaccurate, misleading or incomplete information from Employer or any third party. (f) If Employer instructs WEX with a specific written request (in a format acceptable to WEX) to provide services in a manner other than in accordance with WEX's standard forms and procedures, WEX may (but need not) comply with such an instruction. This would include, but is not limited to, any Employer instruction to add a vendor link to the consumer portal. To the extent that WEX complies with such an instruction, Employer and not WEX shall be solely responsible for WEX's action so taken, and Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses and expenses (including reasonable attorney fees) and expressly releases all claims against WEX in connection with any claim or cause of action, which results from or in connection with WEX complying WD( Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 with Employer's specific written instruction to provide services in a manner other than in accordance with WEX's standard procedures. (g) Employer is responsible for the integrity of data in the files. Therefore, complete and accurate information from Employer is required in order for WEX to perform the services set forth herein. (h) Employer agrees not to use the full social security number in the employee identification number field. 2.23 Ennoloyer's, Electronic Account For access to the services provided by WEX via an online account or other electronic means ("Employer's Electronic Account', Employer is solely responsible for: (a) Designating who is authorized to have access to Employer's Electronic Account; (b) Safeguarding all of Employer's passwords, usernames, logins or other security features used to access Employer's Electronic Account ("Electronic Account Access'; (c) Employer's use of Employer's Electronic Account under any usernames, logins or passwords; (d) Ensuring that use of Employer's Electronic Account complies fully with the provisions of this Agreement; (e) Any unauthorized access of Employer's Electronic Account due to Employer's actions or inactions, including, without limitation, Employer's failure to safeguard Employer's Electronic Account or Electronic Account Access; and (f) The maintenance and routine review of its computing and electronic system usage records (i.e., log files) and the security of its own data, data storage, computing devices, other electronic systems, and network connectivity. 2.24 Plan Tax Obligations The Plan and/or Employer on behalf of the Plan is responsible for any state or federal tax, fee, assessment, surcharge and/or penalty imposed, assessed or levied against or with respect to the Plan and/or WEX relating to the Plan or the services provided by WEX pursuant to this Agreement, including those imposed pursuant to PPACA. This includes the funding, remittance, and determination of the amount due for PPACA required taxes and fees. In the event that WEX is required to pay or elects to pay any such tax, fee, assessment, surcharge and/or penalty on behalf of Employer, WEX shall report the payment to Employer along with documentation of the payment and Employer shall promptly reimburse WEX for the full amount or for Employer's proportionate share of such amount, as determined by WEX, except as provided in Section 7.3. This reimbursement would be in addition to the fees described in Section 6.1. Employer is at all times responsible for the tax consequences of the establishment and operation of the Plan. Further, the parties agree that WEX does not provide any legal, tax or accounting advice to the Plan and/or Employer. WEX is at all times responsible for all the taxes based upon its net income and its property ownership. 2.25 Enumeration S ,stem Identifier If required, Employer is solely responsible to the Plan to obtain or assign the standard unique Health Plan Identifier ("HPID'I or Other Entity Identifier ("OEID') or to update the enumeration system per 45 CFR § 162.508. WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 2.26 Acknowled ernent Employer acknowledges and agrees that the services provided by WEX pursuant to this Agreement relate to enrollment and disenrollment in the Plan and that these services to the extent permitted under HIPAA shall be deemed to be performed by WEX on behalf of Employer in its capacity as the sponsor of the Plan. 2.27 Carrier Notifications WEX's standard practice is to notify the applicable carrier of a qualified beneficiary's enrollment in, changes to or termination from COBRA coverage. However, if instead, Employer instructs WEX to send all such notifications to Employer or to a third party other than the applicable carrier, Employer: (a) is responsible to ensure the carrier is updated in a timely manner; (b) is responsible to provide urgent updates to the carriers in a timely manner as necessary; (c) accepts all responsibility and liability for the carrier notifications; and (d) expressly releases all claims against WEX in connection with the carrier notifications and agrees to hold WEX harmless from and against all liability, damages, costs, losses and expenses (including reasonable attorney fees) that result from the failure or alleged failure of Employer, its officers and employees, and any other entity (other than WEX) in connection with such carrier notifications. 2.28 Coveracie EI"[ciibili Employer shall be solely responsible for its carrier compliance with COBRA continuation coverage regulatory guidelines that allow for retroactive changes or terminations for qualified beneficiary or COBRA Continuant coverage eligibility beyond sixty (60) days. ARTICLE 3 CUSTODIAL ACCOUNT By signing this Agreement, Employer appoints WEX as custodian of Employer funds for the purposes and upon the terms and conditions set forth in this Agreement, and WEX accepts such appointment and agrees to act as custodian hereunder and to hold any Employer funds received hereunder in accordance with the terms and conditions set forth in this Agreement. 3.2 Custodial Account WEX maintains one or more depository accounts (the "Custodial Account' at a bank designated by WEX and holds in such Custodial Account all COBRA continuation premiums received from COBRA Continuants or on their behalf from third parties, less any portion of the premium payment that constitutes administrative fees payable by the COBRA Continuant. Upon deposit, such premiums shall become Employer funds (less any applicable fees or other costs as set forth in this Agreement). For administrative convenience and to reduce costs, WEX shall hold Employer funds together with similar funds from other employers in a single Custodial Account (or one or more Custodial Accounts as determined by WEX). WEX shall maintain records as to the exact amount of funds allocated to each employer. Each employer has a legal right to the specific amount of its funds held in the Custodial Account for such employer. At all times, the assets comprising each employer's funds in the Custodial Account shall be considered a separate subaccount for purposes of this Agreement. Depending upon the context, the term "Custodial Account" as used herein shall refer to either the separate subaccount for Employer or all of the subaccounts for all employers in the aggregate. 3_3 Employer Funds Employer and WEX intend and agree that the funds transferred to the Custodial Account shall be comprised of and shall remain the general assets of Employer. The COBRA continuation premiums received from COBRA Continuants are after-tax contributions relieved from the ERISA trust requirements. Except to the extent that outstanding checks have been written or withdrawals made against the Custodial Account balance on behalf of Employer, and subject to Section 6.3, Employer funds may be withdrawn by Employer at any time (less WEX Health, Inc Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc City of El Segundo - Vdr. Agr. No. 6192 any applicable fees or other costs as set forth in this Agreement) and are subject to Employer's general creditors in the same manner as funds deposited in Employer's ordinary checking accounts. 3.4 Disbursements WEX shall forward the COBRA continuation premiums (less the 2% additional premium allowed by COBRA for administrative costs charged to COBRA Continuants) from the Custodial Account to the applicable carrier or to Employer or Employer's designee as directed by Employer and in accordance with this Agreement. WEX shall neither have nor shall be deemed to have any discretion, control or authority with respect to the disposition of Employer Funds. 3.5, Interest Earned Employer acknowledges and understands that from time to time, WEX may receive earnings and interest on the funds held in the Custodial Account and that any such earnings or interest shall be part of WEX's compensation. Employer acknowledges and understands that fees otherwise charged by WEX for services under this Agreement may be greater if WEX did not retain such earnings and interest on these funds. The period during which interest may be earned begins on the date Employer funds are deposited into the Custodial Account and continues for as long as Employer funds remain in the Custodial Account. Funds shall be disbursed on a first -in, first -out basis. WEX does not track nor can it report interest earned for a single employer. WEX absorbs other bank charges, such as transmission charges, within the fees. 3.6 Maintenance of Records Upon Employer's written request, WEX shall provide Employer with an accounting of all Employer assets, transfers, and transactions activity involving the Custodial Account, including a description of all receipts, disbursements, and other transactions. ARTICLE 4 CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY For purposes of this Article 4, "confidential business information" shall mean any business information identified by either party as "confidential" and/or "proprietary", or which, under the circumstances, ought to be treated as confidential or proprietary, including non-public information related to the disclosing parry's business, service methods, software, documentation, financial information, prices, and product plans. Neither WEX nor Employer shall disclose confidential business information of the other party. The receiving party shall use reasonable care to protect the confidential business information and ensure it is maintained in confidence, and in no event use less than the same degree of care as it employs to safeguard its own confidential business information of like kind. The foregoing obligation shall not apply to any information that: (a) is at the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (b) is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving party; (c) was known to the receiving party at the time of disclosure; (d) was generated independently by the receiving party; or (e) is required to be disclosed by law, subpoena or other process. WEX may disclose Employer's or the Plan's confidential business information to a governmental agency or other third party to the extent necessary for WEX to perform its obligations under this Agreement or if Employer has given WEX written authorization to do so. WDC Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc City of El Segundo - Vdr. Agr. No. 6192 Although WEX may have confidential business information processed, managed, and/or stored with subcontractors or third panties, it remains fully responsible to Employer for the confidentiality obligations set forth herein. 4.2 Financial Statements and Audit Information If Employer requests access to certain financial statements and/or service organization control audit reports or other audit information of WEX for the purpose of reviewing the financial, operating, and business condition of WEX, and WEX agrees to provide such information, Employer's acceptance of or access to such confidential information shall constitute its agreement with the following: • Employer shall maintain the information (whether communicated by means of oral, electronic or written disclosures) in confidence and shall not use the same for its own benefit, or for any purpose other than the furtherance of its review, or disclose the same to any third party. • Employer may disclose the information to its own officers, employees, and agents on a need -to -know basis for the purposes of its review. • Employer shall use reasonable care to protect the information and to ensure that it is maintained in confidence, and in no event use less than the same degree of care as Employer uses to safeguard its own confidential information. • If Employer is a state agency or otherwise subject to a freedom of information type statute, the information shall be treated as confidential and exempt from disclosure in accordance with applicable law, as the information contains sensitive proprietary business information and data defined as trade secret information that would not otherwise be publicly available and that disclosure of this information to the public, including WEX's competitors, would likely result in substantial harm to WEX's competitive positions and also contains confidential supervisory information and personal information relating to directors, officers, and major shareholders of WEX, the disclosure of which would constitute an unwarranted invasion of personal privacy. 4_3 Igtelietual Property All materials, including, without limitation, documents, forms (including data collection forms provided by WEX), brochures, and online content ("Materials") furnished by WEX to Employer are licensed, not sold. Employer is granted a personal, non -transferable, and nonexclusive license to use Materials solely for Employer's own internal business use. Employer does not have the right to copy, distribute, reproduce, alter, display or use these Materials or any WEX trademarks for any other purpose other than its own internal business use. Employer shall use commercially reasonable efforts to prevent and protect the content of Materials from unauthorized use. Employer's license to use Materials ends on the termination date of this Agreement. Upon termination, Employer agrees to destroy Materials or, if requested by WEX, to return them to WEX, except to the extent Employer is required by law to maintain copies of such Materials. WEX retains exclusive ownership rights to and reserves the right to independently use its experience and know-how, including processes, ideas, concepts, techniques, and software acquired prior to or developed in the course of performing services under this Agreement. 4_4 Application Each party agrees that its obligations contained in this Article 4 apply also to its parent, subsidiary, and affiliated companies, if any, and to similarly bind all successors, employees, and representatives. WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 proprietary & Confidential 02021 • All Rights Reserved WEX Health, Inc. ARTICLE 5 TERM AND TERMINATION 5.1 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'. 5.2 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 Section 5.3 or Section 5.4 or Section 5.5. 5.3 Notwithstanding the foregoing, this Agreement may be terminated at any time during the Initial Term or any renewal term by Employer or by WEX without cause and without liability with written notice of the intention to terminate to be effective as of a date certain set forth in the written notice, not fewer than sixty (60) days following the date of such notice. 5.4 This Agreement may be terminated upon written notice: (a) If any law is enacted or interpreted to prohibit the continuance of this Agreement, upon the effective date of such law or interpretation; (b) If any fee (to the extent not subject to a good faith dispute) for any service provided by WEX to Employer remains unpaid to WEX beyond thirty (30) days past the due date, upon written notification by WEX to Employer that WEX intends to exercise its option to enforce this provision; or (c) Due to (i) a parry's filing for bankruptcy, (ii) a parry's making any assignment for the benefit of creditors, (iii) a parry's consenting to the appointment of a trustee or receiver, (iv) a party's insolvency, as defined by Applicable Law, or (v) the filing of an involuntary petition against Employer under the Federal Bankruptcy Code or any similar state or federal law which remains un-dismissed for a period of forty-five (45) days. 5.5 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 to terminate this Agreement as of any future date designated in the notice. 5.6 Employer shall pay all fees not subject to a good faith dispute that have accrued up to the date of the termination of this Agreement within thirty (30) days after the date of the termination. 5.7 Upon termination of this Agreement, any funds in the Custodial Account that have not been disbursed in accordance with the terms and conditions of this Agreement shall be returned to Employer less any applicable undisputed unpaid fees, costs or expenses as set forth in this Agreement. 5.8 If this Agreement is terminated under Sections 5.3 or 5.4, WEX will cease the performance of any further services under this Agreement unless both parties agree in writing that certain services shall continue for an additional period. Upon prepayment, if requested by WEX, of the fees for this additional period or upon continued monthly invoicing, WEX will continue the processing of qualifying events, initial notices, the collection and tracking of COBRA premium payments, forwarding premiums to Employer and processing and reporting of COBRA elections and terminations with respect to those qualified beneficiaries who incurred a qualifying event prior to the date of termination of this Agreement. 59„ Upon the completion of the later of the Agreement, or any period of further services, WEX will cease the performance of these COBRA administration services and Employer shall be immediately responsible for all aspects of COBRA administration. WEX shall return to Employer any Employer funds in the Custodial Account. However, the return of such funds shall remain subject to the completion of a final accounting of all account activities, as well as the deduction of undisputed unpaid fees and other expenses under this Agreement or any other agreement between the parties. As necessary, WEX shall have the immediate right to demand and pursue collection of any unpaid fees, reimbursements or other amounts that are due and owing to WEX as of the date of termination pursuant to the terms of this Agreement or any other agreement between the parties. WEX Health, Inc Services Agreement Updated: March 2021 ProprWtary & Confidential ©2021 • All Rights Reserved WIX Health, Inc City of El Segundo - Vdr. Agr. No. 6192 ARTICLE 6 COST OF SERVICES 6.1 Administrative Services Fees (a) Employer shall pay WEX a fee for its services under this Agreement. This fee shall be payable in accordance with the fee schedule attached hereto. Fees are invoiced monthly and are due within thirty (30) days of the invoice date. If Employer disputes in good faith any portion of the fees invoiced, Employer shall provide WEX with written notice of any disputed fees together with a complete written explanation of the reasons for the dispute (the "Dispute Notice') within thirty (30) days of the invoice date. The parties shall work together in good faith to reach a mutually agreeable resolution of the dispute identified in the Dispute Notice for a period of ten (10) days following the date of the Dispute Notice. (b) As part of the administrative fees under this Agreement, WEX shall also retain the 2% additional premium allowed by COBRA for administrative costs charged to COBRA Continuants. If state or local law prevents COBRA Continuants from being charged the additional 2% premium, then the additional 2% premium shall become a fee paid by the Employer to WEX for its services under this Agreement. This fee shall be payable in accordance with the fee schedule attached hereto. Such fee will be invoiced monthly and will be due within thirty (30) days of the invoice date. (c) Notwithstanding the foregoing, WEX reserves the right to: • Charge for the provision of additional services that were neither included in nor contemplated by this Agreement on the Effective Date; • Charge for proprietary technology and services; Increase fees based on additional costs imposed on WEX, such as significant postal rate or bank fee increases or substantiated increased costs due to legislative or regulatory changes, domestic or foreign, actually incurred in performing its services; and • Pass through any fees charged to WEX by a vendor of Employer. WEX shall provide Employer with reasonable prior written notice of such charges or increases. (d) On or after the rate expiration date indicated on the fee schedule, WEX reserves the right to amend the fee schedule with at least sixty (60) days' advance written notice. If Employer is unwilling to accept the changes to the fee schedule, Employer may terminate this Agreement by providing notice to WEX no later than the effective date of the fee schedule amendment. (e) Fees quoted assume that WEX's standard software and systems will be compatible with Employer's software and systems and with any prior service provider's software and systems so that the services can be readily performed without any modifications or alterations of WEX's software and systems. In the unusual event that costs are incurred by WEX to integrate the WEX services with Employer's software and systems and/or in migrating the data from the prior service provider to WEX's systems, those costs may be charged separately on a time and materials basis or as otherwise provided under a separate agreement between the parties. Employer represents and warrants that if someone other than Employer is paying WEX's fees on behalf of Employer, the making of such payment shall not violate any applicable anti -rebating law and agrees to hold WEX harmless (including reasonable attorney's fees) from all losses that result from Employer's breach of this provision. WEX Health, Inc. services Agreement Updated: March 2021 Proprietary & Confidential 02021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 6.3 Past Due Fees Notwithstanding anything in this Agreement or any other agreement between the parties to the contrary, if Employer fails to pay WEX any amount (except for amounts subject to a good faith dispute) that is due as a result of the services provided by WEX to Employer under this Agreement or any other agreement between the parties, WEX shall be permitted to deduct the undisputed amount from any funds held by WEX that were received from Employer. This right of offset shall be in addition to any other remedies that WEX may have in this Agreement or any other agreement between the parties with respect to such non-payment, including, without limitation, any right to terminate this Agreement or a right of recoupment, regardless of whether the past due amount is paid in full as a result of the offset or recoupment rights provided herein. ARTICLE 7 GENERAL 7.1 Limitations ofI-iabili Notwithstanding any other provision in this Agreement to the contrary, the total cumulative liability of WEX to Employer for all claims, actions, or suits however caused arising out of or in connection with this Agreement shall be limited to direct damages and shall not exceed the greater of: (a) the amount of fees received by WEX from Employer under this Agreement for the twelve (12) months prior to the occurrence of the event giving rise to any such claims, actions or suits; or (b) amounts payable and actually paid to Employer or WEX resulting from Employer's claim, as applicable, under the insurance policies provided for under Section 7.2 of this Agreement. In no event shall either party be liable to the other for consequential, special, exemplary, punitive, indirect or incidental damages, including, but not limited to, any damages resulting from loss of use, or loss of profits arising out of or in connection with this Agreement, whether in an action based on contract, tort (including negligence) or any other legal theory whether existing as of the Effective Date or subsequently developed, even if the party has been advised of the possibility or foreseeability of such damages. No action under this Agreement may be brought by either party more than two (2) years after the cause of action has accrued. WEX and Employer expressly agree that the limitations of liability in this Section 7.1 represent an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by WEX to Employer and is an essential element of the basis of the bargain between the parties. 7.22 Insurance During the term of this Agreement, WEX 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. WEX maintains commercial crime insurance, including employee dishonesty coverage with policy limits of not less than $5,000,000. Upon request, WEX shall provide Employer with a certificate or certificates of insurance reflecting such insurance coverages. 7.3 Indemnification (a) Subject to the limitations in Section 7.1, WEX will indemnify, defend and hold harmless Employer (and its respective officers, directors, employees, authorized representatives, successors, and permitted assigns) from and against all Charges, liability, damages, costs, losses, penalties, expenses and reasonable attorney's fees (collectively, "Losses'D incurred by Employer 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 WEX'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. WEX Health, Inc. Services Agreement Updated: March 2021 Prop r*Wry & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 (b) In addition to Sections 2.16, 2.22, 2.27, and 6.2, Employer will indemnify, defend and hold harmless WEX (and its respective officers, directors, employees, authorized representatives, successors, and permitted assigns) from and against all Losses incurred by WEX 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 subsection, Employer agrees that WEX 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. (c) The party seeking indemnification under Sections 7.3(a) or 7.3(b) 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 Section 7.3 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 attorney fees, of the defense shall become Losses subject to indemnification under this Section 7.3 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 Section 7.3 by the indemnifying party. (d) For purposes of this Section 7.3, "Charges" means: (i) excise taxes imposed under Code Section 4980B (26 USC § 4980B), subject to the provisions of the aggregate limitations set forth in Code Section 4980B and the right of the assessed party to challenge the Internal Revenue Service with respect to all or part of the imposition of such excise taxes; and/or (ii) penalties (in an amount up to $110 per day) that are imposed by a court under Section 502(c)(1) of ERISA (29 USC § 1132) and that are paid. Charges shall not include the payment of the claims for benefits under the terms of the Plan. ARTICLE 8 MISCELLANEOUS 8,.1 Number, Where the context of this Agreement requires, the singular shall include the plural and vice versa. 8_2 Force Majeure Notwithstanding anything to the contrary contained herein, neither party shall be responsible or liable if the performance of its obligations hereunder is hindered or adversely affected or becomes impossible or impracticable, as a result of an event or effect that the party could not have anticipated or controlled or for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, lockouts, strikes, work stoppages WIX Health, Inc Services Agreement Updated: March 2021 PropHetary & Confidential ©2021 • All Rights Reserved WIX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 or other labor disruption, accidents, epidemics, pandemics, quarantines, war (whether declared or undeclared), acts of war or terrorism (whether foreign or domestic in origin), insurrection, sabotage, riot, a decree of health emergency, national emergencies or other man-made emergency, civil or military disturbances including any law, regulation, order or other action by any governmental authority, nuclear or natural disasters or acts of God, interruptions, loss or malfunctions of utility, transportation, communications or computer (software and hardware) services, including the disruption or outage of the Internet, or disruption of financial markets or banking functions (a "Force Majeure Event'. A party affected by a Force Majeure Event shall as soon as reasonably practicable after the occurrence of the Force Majeure Event or the occurrence of harm resulting from such a Force Majeure Event that causes the party to be unable to perform: (a) provide written notice to the other party of the nature and extent of any such Force Majeure Event; and (b) use commercially reasonable efforts to remedy any inability to perform due to such a Force Majeure Event. 8.3 Waiver 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. 8.4 Severability If any provision of this Agreement is determined 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. 8.5 Governing Law This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the internal laws of the State of North Dakota (without regard to the laws of conflict that might otherwise apply) as to all matters, including without limitation, matters of validity, interpretation, construction, effect, performance, enforcement and remedies. Excluding all matters pertaining to the collection of amounts due to WEX arising out of the services provided, any claim, controversy or dispute arising out of, or relating to, this Agreement, in addition to disputes about invoices per Section 6.1, first promptly shall be settled by managers with direct day-to-day responsibility under this Agreement, and if not so settled, promptly shall be addressed by executives of the parties who have authority to settle the dispute. A party wishing to raise a dispute shall give prompt written notice to the other party, and the good faith attempt to resolve the dispute, as described in the foregoing sentence, shall take place within thirty (30) days thereafter. Engaging in the dispute resolution process described in this Section 8.6 shall be a condition precedent to proceeding with litigation. 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. To the extent this Agreement must be enforced in a court of law, the parties agree that it can only be brought in the United States District Court for the District of North Dakota, and both parties consent to such jurisdiction and venue. 8.7 iver of Jur�r�W To the extent this Agreement must be enforced in a court of law, each party hereto irrevocably waives all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, provided, however, that for judicial economy purposes, if a party desires to implead or otherwise add the other party to a third -party claim and such third -party claim is already a jury trial, the WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ®2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 foregoing waiver of jury trial shall not apply. The waiver may not apply in any criminal case without the written consent of the defendant. 8.8 Notice 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: (a) when received if delivered by hand; (b) the next business day if placed with a reputable express carrier for delivery during the morning of the following business day; (c) three (3) days after deposit in the U.S. mail for delivery, postage prepaid; or (d) when received if delivered electronically. WEX: 82 Hopmeadow Street, Simsbury, CT 06089, Attention: General Counsel. 8.9 Entire Agreement 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, whether written or verbal. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order, payment processing agreement, or other document relating to the services provided by WEX herein, the terms and conditions of this Agreement shall control. Further, the terms and conditions of this Agreement shall prevail over any additional terms contained in any such purchase order, payment processing agreement, or other document. Any amendment to this Agreement must be in writing and consented to 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, permitted assigns, and successors in interest. Unless expressly set forth in this Agreement, nothing in this Agreement is intended to confer, and nothing herein shall confer upon any person other than the parties hereto, any rights, remedies, obligations or liabilities whatsoever. 8.10 Assignment This Agreement may not be assigned by either party without the prior written consent of the other unless to an affiliate or in connection with a change in control, merger, acquisition or sale of all or substantially all of the parry'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 following the date of the assignment. If consent is required, the parties shall not unreasonably withhold or delay consent. 8.11 Survival Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive. 8.12 Relationship of the Parties Employer and WEX acknowledge and agree that WEX is retained under this Agreement as an independent contractor of Employer to assist Employer with its obligations to comply with the continuation coverage provisions of COBRA, and that WEX is not a fiduciary under ERISA and lacks any discretion hereunder. Employer agrees that use of or offset of amounts in the Custodial Account to pay for fees or other amounts due to WEX under this Agreement shall constitute an Employer action that is authorized by Employer under this Agreement. Employer agrees that such actions are not discretionary acts of WEX and do not create fiduciary status for WEX. 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 WEX. 8.13 Authority Neither WEX nor Employer, when dealing with the other party in relation to the Plan, shall be obliged to determine the other parry's authority to act pursuant to this Agreement. WEX Health, Inc Services Agreement Updated: March 2021 proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 DIRECT BILL ADMINISTRATIVE SERVICES AGREEMENT RECITALS Employer has established one or more group health plans (such plans, individually and collectively as the context may require, are herein referred to as the "Plan"), which may be modified or amended from time to time; and The Plan provides coverage for certain eligible individuals and their eligible dependents subject to payment of required contributions toward the cost of such coverage; and Employer now wishes to retain the services of WEX for purposes of assisting it in billing for the required contributions or "premiums" and WEX is willing to provide such services ("Direct Bill Services') in return for certain fees and consideration. WEX shall assume no liability for the performance of any other services beyond those set forth in this Direct Bill Administrative Services Agreement (this "Agreement'). The above -stated recitals are accurate, true, and correct and are incorporated herein and made a part hereof by this reference. Now, therefore, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows. ARTICLE 1 WEX ADMINISTRATIVE SERVICES 1.1 WEX shall assist Employer in the administration of the Direct Bill Services as selected and communicated by Employer in the WEX implementation process. WEX's duties shall be limited to those expressly provided in this Agreement or subsequently agreed to in writing by WEX and Employer. 1.2 "Member" means any individual eligible to participate in and be covered by the Plan (or portion thereof) that is included in the Direct Bill Services, including medical, dental, vision, and any other benefit plan that qualifies for Plan coverage. 1.3 Upon receipt of complete information from Employer (as determined by WEX), WEX shall send WEX's standard notification letter to new Members informing them of their rights under the Plan. 1.4 WEX shall mail its member portal login notice and standard premium payment coupons to Members. 1.5 WEX shall provide to Members the option to pay premiums by check. 1.6 WEX shall provide to Members the option to make premium payments via automatic recurring ACH (an electronic funds -transfer system run by the National Automated Clearing House Association). 1.7 WEX shall provide to Members the option to make premium payments online with a credit card or via a single - occurrence ACH request. To the extent permitted by law and the applicable credit card operating rules and regulations, a reasonable additional processing fee charged by the online third -party vendor and payable by the Members will apply to these payment methods. The fee is collected by WEX and remitted to the third - party vendor. 1.8 WEX shall collect, track, process, and remit the premiums paid by Members in accordance with the terms and conditions of this Agreement, including, without limitation, Article 3. 1.9 WEX shall deposit premium payments in a Custodial Account (as defined in Article 3) for the benefit of Employer in the manner described in Article 3. 1.10 WEX shall coordinate with Employer and its insurance carriers to answer questions pertaining to a Member's eligibility and payment status. WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. 1.11 Using WEX's standard communications, WEX shall maintain communication with Members who participate in coverage concerning eligibility status, termination, and benefit and rate changes. 1.12 WEX shall provide Employer real-time, online access to information related to the status of Member payment and coverage, and for notifying WEX when a Member is enrolled in or has terminated from Plan coverage. 1.13 WEX shall supply Employer with the initial login information for accessing the employer web portal. 1.14 WEX shall supply Employer with the required file format for uploading Member demographic and benefit information to the employer web portal. 1.15 WEX shall provide Members real-time, online access to information related to the status of their premium payments and coverage. 1.16 WEX shall provide a customer service line toll -free number for use during WEX normal business hours to answer questions about Direct Bill and premium payments. Monday through Friday Central Time Zone Employers 7:00 a.m. to 7:00 p.m. Members 6:00 a.m. to 9:00 p.m. In compliance with applicable federal and state law, WEX may monitor and/or record calls that are made to and from the customer service line for quality assurance and training purposes and/or to ensure that WEX's services fully comply with the terms of this Agreement. 1.17 WEX shall notify a Member when coverage terminates earlier than the end of the maximum period of coverage applicable to the Plan that entitled the individual to coverage. The notice will be provided as soon as administratively practicable after WEX determines that Plan coverage will be terminated early. 1.18 WEX shall send WEX's standard system generated open enrollment/rate change letter during open enrollment. If requested by Employer, WEX will provide Members with a link to additional plan and benefit description materials provided by Employer through the member web portal for member viewing and printing. 1.19 Per business records needs and associated retention and secure destruction periods, WEX shall retain a copy of all information (as information is defined in Section 2.14, excluding emails or similar electronic communications destroyed in the ordinary course of business pursuant to WEX policy) for at least seven (7) years from the date the record is created at WEX, including, without limitation, a record of all assets and transactions involving the Custodial Account (defined in Article 3). 1.20 WEX represents and warrants that it has implemented and maintains a written and comprehensive information security program and complies with all applicable law and regulation, including, without limitation, state privacy and data security law and regulation, such as the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00). 1.21 WEX may delegate or subcontract any portion of WEX services. For those WEX services that are delegated or subcontracted, WEX shall remain fully responsible to Employer for compliance with all applicable provisions of this Agreement or of any executed or applicable business associate agreement between the parties. No portion of WEX services shall be delegated or subcontracted to an entity located outside of the United States. 1.22 Employer may inspect any transactions, procedures, records, and participant files relating to Members, at WEX's offices and at a time reasonably acceptable to WEX, upon providing ten (10) business days' advance written notice to WEX. 1.23 Benchmarks WEX may, in its discretion, prepare and deliver to Employer benchmarks or other metrics showing the experience of Employer and its participants with the services provided herein as compared to other employers. WEX Health, Inc Services Agreement Updated: March 2021 Pmpdet ya & ConfidentiM ©2021 • M Rights' Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 WEX will develop any such benchmarks or metrics through the use of data that has been aggregated and de - identified consistent with any executed or applicable business associate agreement between the parties. 1.24 Limited Warranty WEX represents and warrants to Employer that the WEX services shall be performed in a professional manner consistent with generally accepted industry standards and applicable law. 1.25 Disclaimer WEX does not insure or underwrite Employer's liability to provide benefits under the Plan. WEX shall not be liable or obligated to use its funds for payment of benefits under the Plan, including, without limitation, where such payment of benefits is sought as damages in an action against Employer, WEX or the Plan. Employer shall promptly reimburse WEX for any benefit payments made using WEX funds. 1.26 'Non Discrimination Testing and Additional Product and Service Solutions Employer may subscribe to WEX's non-discrimination testing and request additional products and services solutions from WEX. ARTICLE 2 EMPLOYER RESPONSIBILITIES 2.1 Employer shall provide to WEX accurate Member counts on a monthly basis or as requested by WEX. Employer warrants the accuracy of any information Employer provides to WEX regarding Member counts. 2.2 Employer shall provide to WEX complete demographic and benefit information for Members receiving Plan coverage under Employer's Plan upon the inception of this Agreement, allowing WEX to take over the administration of individuals currently on coverage under the Plan. 2.3 Employer shall enter information or upload an electronic file via the employer web portal containing complete demographic and benefit election information for newly covered Members within seven (7) days of obtaining coverage under the Plan. 2.4 Employer shall advise WEX of the applicable premium rates to be charged for Plan coverage. Employer shall notify WEX in writing at least forty-five (45) days in advance of the applicable billing date of: (a) any changes in premium rates affecting Plan coverage and (b) any changes in premiums applicable to Members during an open enrollment period. If Employer is unable to notify WEX in writing at least forty-five (45) days in advance of the applicable billing date of any changes in premium rates, WEX will make commercially reasonable efforts to process the changes prior to the effective date. 25 Employer shall reconcile Employer's insurance carrier or third party administrator billings with the online reports provided by WEX through the employer web portal. Most insurers restrict the ability to retroactively terminate coverage even in cases of non-payment of premiums by the Member. WEX shall not be liable for paying any loss or damage (including premiums) to Employer with respect to any retroactive termination of coverage due to Employer's failure to reconcile and/or Employer advancing payment of premium on behalf of any Member and not due to WEX's failure to perform in accordance with this Agreement. 2.6 Employer shall be responsible for differences in premium payments paid by Members when notification of rate changes is not provided to WEX at least forty-five (45) days in advance, causing payments made by Members to be incorrect. 2.7 Employer shall be responsible for advising WEX of any material changes in the benefits and options provided by the Plan. 2.8 Employer shall be responsible for complying with the Patient Protection and Affordable Care Act ("PPACA'� of 2010, the Employee Retirement Income Security Act of 1974 ("ERISA'j, the Health Insurance Portability and Accountability Act of 1996 (" HIPAA'�, the Internal Revenue Code (the "Code', each as amended from time - to -time ,and other applicable law and regulation with respect to the Plan, other than for the Direct Bill Services WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 and HIPAA responsibilities assumed by WEX under this Agreement or the business associate agreement entered into between the parties. 2.9, Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses, and expenses (including reasonable attorney fees) and expressly releases all claims against WEX in connection with any claim or cause of action for any activity or occurrence prior to the Effective Date of this Agreement that results from the failure or alleged failure of Employer, its officers and employees, and any other entity related to or performing services on behalf of Employer to comply with the PPACA, ERISA, HIPAA, the Code or any other applicable law or regulation. 2.10 Employer shall review and be responsible for payment of all claims under the Plan and ERISA, including, without limitation, claims and appeals for benefits and claims and appeals for eligibility determinations under the Plan. WEX is not responsible to receive or review claims or appeals for benefits or eligibility under the Plan, and WEX is not liable for the payment or funding of any claims for benefits in connection with the Plan, including, without limitation, where sought as damages in an action against Employer or the Plan or for any occurrences prior to the Effective Date of this Agreement, provided that such failure did not result from the services performed by WEX in accordance with this Agreement. 2.11 Employer shall provide the release of the information necessary for Direct Bill administration under this Agreement. 2.12 As applicable only, Employer shall provide plan and benefit descriptions (e.g., Summary of Benefits and Coverage (SBC), Summary Plan Description (SPD) and benefit plan booklets, etc.) to Members during open enrollment. WEX's standard process is to provide a link to these additional materials through the participant web portal for Member viewing and printing. If requested by Employer, WEX may include these additional materials with its standard open enrollment/rate change letter as long as Employer provides WEX with an electronic PDF image of the additional open enrollment materials. A handling fee of $1.50 per page (duplex) will apply for these additional materials. WEX will allow for a total of up to twenty-five (25) duplexed pages, including the standard open enrollment/rate change letter. 2.13 Employer acknowledges and agrees that under this Agreement, WEX shall: (a) Have no duty with respect to the payment or funding of premiums or contributions by Employer or Members who elect Plan coverage. (b) Not be liable for paying any premiums or contributions of a Member to an insurer or third party administrator of the Plan to the extent that WEX did not receive the corresponding payment from the Member or third party. (c) Not be liable for any failure of Employer to remit to the insurers or third party administrators of the Plan any funds Employer receives from WEX. (d) Not be liable for any failure of Employer to reconcile its carrier or third party administrator billings to online reports provided by WEX through the employer web portal. (e) Not be liable for any failure of Employer to modify its carrier or third party administrator billing and notify insurers and administrators of a Member's termination from coverage when WEX remits premiums or contributions paid by continuants to Employer. (f) Not be responsible for failure of delivery of any notice mailed by WEX using the Member information provided to WEX by Employer as of the applicable time, which failure is due to that information. (g) Not be responsible for any loss or damage suffered by any Member, Employer or the Plan, should WEX fail to give a required notice because WEX did not receive complete notice of an event for which a notice was required or the proper address to which the notice was to be sent. (h) Not be responsible for payments not made during or after grace periods if Employer instructs WEX to ignore grace periods. WEX Health, Inc Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated. March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. 2.14 Employer Information and Instructions (a) WEX shall be fully protected in relying upon representations and communications made by or on behalf of Employer in effecting its obligations under this Agreement. (b) WEX is entitled to rely on the most current information in its possession when providing services under this Agreement. (c) WEX shall provide the services in accordance with this Agreement based on information that is provided to WEX by Employer or Member. For this purpose, "information" means all data, records, and other information supplied to WEX, obtained by WEX or produced by WEX (based on data, records or other information supplied to, or obtained by, WEX) in connection with performing the services pursuant to this Agreement, regardless of the form of the information or the manner in which the information is provided to WEX. (d) In engaging WEX to perform the services under this Agreement, Employer has authorized and instructed WEX in this Agreement to implement WEX's standard administrative forms and procedures to provide services in accordance with this Agreement. (e) WEX is not responsible for any acts or omissions it makes in reliance upon: (i) the direction or consent of Employer or a Member; or (ii) inaccurate, misleading or incomplete information. (f) Employer and WEX agree that if Employer instructs WEX with a specific written request (in a format acceptable to WEX) to provide services in a manner other than in accordance with WEX's standard forms and procedures, WEX may (but need not) comply with such an instruction. This would include, but is not limited to, any Employer instruction to add a vendor link to the consumer portal. To the extent that WEX complies with such instructions, Employer and not WEX shall be solely responsible for WEX's action so taken, and Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses, and expenses (including reasonable attorney fees) and expressly releases all claims against WEX in connection with any claim or cause of action, which results from or in connection with WEX complying with Employer's specific written instruction to provide services in a manner other than in accordance with WEX's standard procedures. (g) Employer is responsible for the integrity of data in the files. Therefore, complete and accurate information from Employer is required in order for WEX to perform the services set forth herein. (h) Employer agrees not to use the full social security number in the employee identification number field. 2.15 Emollover's Electronic Account For access to the services provided by WEX via an online account or other electronic means ("Employer's Electronic Account'), Employer is solely responsible for: (a) Designating who is authorized to have access to Employer's Electronic Account; (b) Safeguarding all of Employer's passwords, usernames, logins or other security features used to access Employer's Electronic Account ("Electronic Account Access'; (c) Employer's use of Employer's Electronic Account under any usernames, logins or passwords; (d) Ensuring that use of Employer's Electronic Account complies fully with the provisions of this Agreement; and (e) Any unauthorized access of Employer's Electronic Account due to Employer's actions or inactions, including, without limitation, Employer's failure to safeguard Employer's Electronic Account or Electronic Account Access. WEX Health, Inc Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 (f) The maintenance and routine review of its computing and electronic system usage records (i.e., log files) and the security of its own data, data storage, computing devices, other electronic systems, and network connectivity. «. « The Plan and/or Employer on behalf of the Plan is responsible for any state or federal tax, fee, assessment, surcharge and/or penalty imposed, assessed or levied against or with respect to the Plan and/or WEX relating to the Plan or the services provided by WEX pursuant to this Agreement, including those imposed pursuant to PPACA. This includes the funding, remittance, and determination of the amount due for PPACA required taxes and fees. In the event that WEX is required to pay or elects to pay any such tax, fee, assessment, surcharge and/or penalty on behalf of Employer, WEX shall report the payment to Employer and Employer shall promptly reimburse WEX for the full amount or for Employer's proportionate share of such amount, as determined by WEX, except as provided in Section 7.3. This reimbursement would be in addition to the fees described in Section 6.1. Further, the parties agree that WEX does not provide any legal, tax or accounting advice to the Plan and/or Employer. WEX is at all times responsible for all the taxes based upon its net income and its property ownership. 2.17 Enumeration Svstem Identifier If required, Employer is solely responsible to the Plan to obtain or assign the standard unique Health Plan Identifier ("HPID'� or Other Entity Identifier ("OEID') or to update the enumeration system per 45 CFR § 162.508. 2.18 PSknowled emer?'t,. Employer acknowledges and agrees that the services provided by WEX pursuant to this Agreement relate to enrollment and disenrollment in the Plan, and that these services, to the extent permitted under HIPAA, shall be deemed to be performed by WEX on behalf of Employer, in its capacity as the sponsor of the Plan. 2.19 Carrier Notifications As applicable only, WEX's standard practice is to notify the Carrier of a Member's enrollment in, changes to or termination from coverage. If Employer instructs WEX to instead send all such notifications to Employer or to a third party other than the carrier, Employer: (a) is responsible to ensure the carrier is updated in a timely manner; (b) is responsible to provide urgent updates to the carriers in a timely manner as necessary; (c) accepts all responsibility and liability for the carrier notifications; and (d) expressly releases all claims against WEX in connection with the carrier notifications and agrees to hold WEX harmless from and against all liability, damages, costs, losses and expenses (including attorney fees) that result from the failure or alleged failure of Employer, its officers and employees, and any other entity (other than WEX) in connection with such carrier notifications. ARTICLE 3 CUSTODIAL ACCOUNT 3.1 By signing this Agreement, Employer appoints WEX as custodian for the purposes and upon the terms and conditions set forth in this Agreement, and WEX accepts such appointment and agrees to act as custodian hereunder and to hold any Employer funds received hereunder in accordance with the terms and conditions set forth in this Agreement. 3.2 WEX maintains one or more depository accounts (the "Custodial Account'l at a bank designated by WEX and holds in such account all premiums and contributions received from Members, less any portion of the funds that constitutes administrative fees payable by the Member. Upon deposit, such premiums and contributions shall become Employer funds (less any applicable fees or other costs as set forth in this Agreement). For administrative convenience and to reduce costs, WEX shall hold Employer funds of Employer together with similar funds from other employers in the Custodial Account (or one or more Custodial Accounts). WEX shall maintain records as to the exact amount of funds of each employer. Each employer has a legal right to the specific amount of funds held in the Custodial Account. WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 33 Employer and WEX intend and agree that Employer funds are and shall remain the general assets of Employer, are not the general assets of WEX and are not plan assets within the meaning of ERISA. Except to the extent that outstanding checks have been written against the account on behalf of Employer, and subject to Section 6.3, Employer funds may be withdrawn by Employer at any time and are subject to Employer's creditors in the same manner as funds deposited in Employer's ordinary checking accounts. 3_4 WEX shall forward premiums and contributions from the Custodial Account to Employer or Employer's designee as directed by Employer and in accordance with this Agreement and Employer's Plan. WEX shall neither have nor shall be deemed to exercise any discretion, control or authority with respect to the disposition of Employer funds. 3_5 Employer acknowledges and understands that from time to time, WEX may receive earnings and interest on the funds held in the Custodial Account and that any such earnings or interest shall be part of WEX's compensation. 3_6 Employer acknowledges and understands that fees otherwise charged by WEX for services under this Agreement would be greater if WEX did not retain such earnings and interest on these funds. 3.7 WEX does not track nor can it report interest earned for a single employer. WEX absorbs other bank charges, such as transmission charges, within the fees. 3.8 The period during which interest may be earned begins on the date Employer funds are deposited into the Custodial Account and continues for as long as Employer funds remain in the Custodial Account. Funds shall be disbursed on a first -in, first -out basis. 3_9 Upon Employer's written request, WEX shall provide Employer with information relating to all Employer assets, transfers, and transactions activity involving the Custodial Account, including a description of all receipts, disbursements, and other transactions. ARTICLE 4 CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY 4.1 eneral Obligations For purposes of this Article 4, "confidential business information" shall mean any business information identified by either party as "confidential" and/or "proprietary", or which, under the circumstances, ought to be treated as confidential or proprietary, including non-public information related to the disclosing parry's business, service methods, software, documentation, financial information, prices, and product plans. Neither WEX nor Employer shall disclose confidential business information of the other party. The receiving party shall use reasonable care to protect the confidential business information and ensure it is maintained in confidence, and in no event use less than the same degree of care as it employs to safeguard its own confidential business information of like kind. The foregoing obligation shall not apply to any information that: (a) is at the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (b) is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving party; (c) was known to the receiving party at the time of disclosure; (d) was generated independently by the receiving party; or (e) is required to be disclosed by law, subpoena or other process. WEX may disclose Employer's or the Plan's confidential business information to a governmental agency or other third party to the extent necessary for WEX to perform its obligations under this Agreement or if Employer has given WEX written authorization to do so. Although WEX may have confidential business information processed, managed, and/or stored with subcontractors or third parties, it remains fully responsible to Employer for the confidentiality obligations set forth herein. WEX Health, Inc Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Rese„a wed WEX Health, Inc. 4.2 Financial Statements and Audit Information If Employer requests access to certain financial statements and/or service organization control audit reports or other audit information of WEX for the purpose of reviewing the financial, operating, and business condition of WEX, and WEX agrees to provide such information, Employer's acceptance of or access to such confidential information shall constitute its agreement with the following: Employer shall maintain the information (whether communicated by means of oral, electronic or written disclosures) in confidence and shall not use the same for its own benefit, or for any purpose other than the furtherance of its review, or disclose the same to any third party. • Employer may disclose the information to its own officers, employees, and agents on a need -to -know basis for the purposes of its review. Employer shall use reasonable care to protect the information and to ensure that it is maintained in confidence, and in no event use less than the same degree of care as Employer uses to safeguard its own confidential information. If Employer is a state agency or otherwise subject to a freedom of information type statute, the information shall be treated as confidential and exempt from disclosure in accordance with the applicable law and the information contains sensitive proprietary business information and data defined as trade secret information that would not otherwise be publicly available, and that disclosure of this information to the public, including WEX's competitors, would likely result in substantial harm to WEX's competitive positions and also contains confidential supervisory information and personal information relating to directors, officers, and major shareholders of WEX, the disclosure of which would constitute an unwarranted invasion of personal privacy. All materials, including, without limitation, documents, forms (including data collection forms provided by WEX), brochures, and online content ("Materials") furnished by WEX to Employer are licensed, not sold. Employer is granted a personal, non -transferable, and nonexclusive license to use Materials solely for Employer's own internal business use. Employer does not have the right to copy, distribute, reproduce, alter, display or use these Materials or any WEX trademarks for any other purpose other than its own internal business use. Employer shall use commercially reasonable efforts to prevent and protect the content of Materials from unauthorized use. Employer's license to use Materials ends on the termination date of this Agreement. Upon termination, Employer agrees to destroy Materials or, if requested by WEX, to return them to WEX, except to the extent Employer is required by law to maintain copies of such Materials. WEX retains exclusive ownership rights to and reserves the right to independently use its experience and know-how, including processes, ideas, concepts, and techniques acquired prior to or developed in the course of performing services under this Agreement. 4.4 Application Each party agrees that its obligations contained in this Article 4 apply also to its parent, subsidiary, and affiliated companies, if any, and to similarly bind all successors, employees, and representatives. ARTICLE 5 TERM OF THE AGREEMENT 5.1 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'D. 5.2 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 Section 5.3 or Section 5.4 or Section 5.5. WEX Health, Inc. Services Agreernent City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. 5.3 This Agreement may be terminated at any time during the Initial Term or any renewal term by Employer or by WEX without cause and without liability with written notice of the intention to terminate to be effective as of a date certain set forth in the written notice, not be fewer than sixty (60) days from the date of such notice. 5_4 This Agreement may be terminated upon written notice: (a) If any law is enacted or interpreted to prohibit the continuance of this Agreement, upon the effective date of such law or interpretation; (b) If any fee (to the extent not subject to a good faith dispute) for any service provided by WEX to Employer remains unpaid to WEX beyond thirty (30) days past the due date, upon written notification by WEX to Employer that WEX intends to exercise its option to enforce this provision; or (c) Due to (i) a parry's filing for bankruptcy, (ii) a parry's making any assignment for the benefit of creditors, (iii) a parry's consenting to the appointment of a trustee or receiver, (iv) a parry's insolvency, as defined by Applicable Law, or (v) the filing of an involuntary petition against Employer under the Federal Bankruptcy Code or any similar state or federal law which remains un-dismissed for a period of forty-five (45) days. 5-.5 If either party is in default under any provision of this Agreement other than a payment default, the other party may give written notice to the other 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 this Agreement as of any future date designated in the Termination Notice. 5.6 Employer shall pay all fees not subject to a good faith dispute that have accrued up to the date of the termination within thirty (30) days after the date of the termination. 5.7 Upon termination of this Agreement, any funds in the Custodial Account that have not been disbursed to Employer in accordance with the terms and conditions of this Agreement shall be returned to Employer less any applicable undisputed fees, costs or expenses as set forth in this Agreement. However, the return of such funds shall remain subject to the completion of a final accounting of all account activities, as well as the deduction of undisputed unpaid fees and other expenses under this Agreement or any other agreement between the parties. As necessary, WEX shall have the immediate right to demand and pursue collection of any unpaid fees, reimbursements or other amounts that are due and owing to WEX as of the date of termination pursuant to the terms of this Agreement or any other agreement between the parties. 58 When this Agreement is terminated under Section 5.3 or Section 5.4, WEX will immediately cease the performance of any further services under this Agreement unless both parties agree that WEX shall continue performing services for an additional period. Upon prepayment, if requested by WEX, of the fees for this additional period or continued monthly invoicing, WEX will continue the processing, collection, and tracking of Member premiums and contributions, forwarding premiums and contributions to Employer, and processing and reporting of Direct Bill elections and terminations. However, the return of such funds shall remain subject to the completion of a final accounting of all account activities, as well as the deduction of undisputed unpaid fees and other expenses under this Agreement or any other agreement between the parties. As necessary, WEX shall have the immediate right to demand and pursue collection of any unpaid fees, reimbursements or other amounts that are due and owing to WEX as of the date of termination pursuant to the terms of this Agreement or any other agreement between the parties. ARTICLE 6 COST OF SERVICES 6.1 Flan Administrative Services Fees (a) Employer shall pay WEX a fee for its services under this Agreement. This fee shall be payable in accordance with the fee schedule attached hereto. Fees are invoiced monthly and are due within thirty (30) days of the invoice date. If Employer disputes in good faith any portion of the fees invoiced, Employer shall provide WEX with written notice of any disputed fees together with a complete written WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 explanation of the reasons for the dispute (the "Dispute Notice') within thirty (30) days of the invoice date. The parties shall work together in good faith to reach a mutually agreeable resolution of the dispute identified in the Dispute Notice for a period of ten (10) days following the date of the Dispute Notice. The parties shall work together in good faith to reach a mutually agreeable resolution of the dispute identified in the Dispute Notice for a period of ten (10) days following the date of the Dispute Notice. (b) On or after the rate expiration date indicated on the fee schedule, WEX reserves the right to amend the fee schedule with at least sixty (60) days' advance written notice. If Employer is unwilling to accept the changes to the fee schedule, Employer may terminate this Agreement by providing notice to WEX no later than the effective date of the fee schedule amendment. (c) Fees quoted assume that WEX standard software, procedures, and systems will be compatible with Employer's software and systems and with any prior service provider's software and systems so that the services can be readily performed without any modifications or alterations of WEX's software and systems. If costs are incurred by WEX to enhance or integrate its services with Employer's software and systems and/or in migrating the data from the prior service provider to WEX's systems, those costs may be charged separately on a time and materials basis or as otherwise provided under a separate agreement between the parties. (d) Notwithstanding the foregoing, WEX reserves the right to: • Charge for the provision of additional services that were neither included in nor contemplated by this Agreement on the Effective Date; • Charge for proprietary technology and services; • Increase fees based on additional costs imposed on WEX, such as significant postal rate or bank fee increases or substantiated increased costs due to legislative or regulatory changes, domestic or foreign, actually incurred in performing its services; and • Pass through any fees charged to WEX by a vendor of Employer. WEX shall provide Employer with reasonable prior written notice of such charges or increases. Employer represents and warrants that if someone other than Employer is paying WEX's fees on behalf of Employer, the making of such payment shall not violate any applicable anti -rebating law, and agrees to hold WEX harmless (including reasonable attorney fees) from all losses that result from Employer's breach of this provision. 6_3 Past Due Fees Notwithstanding anything in this Agreement or any other agreement between the parties to the contrary, if Employer fails to pay WEX any amount (except for amounts subject to a good faith dispute) that is due as a result of the services provided by WEX to Employer under this Agreement or any other agreement between the parties, WEX shall be permitted to deduct the amount from any funds received from Employer. This right of offset shall be in addition to any other remedies WEX may have at law or equity or in this Agreement or any other agreement between the parties with respect to such non-payment, including, without limitation, any right to terminate this Agreement or a right of recoupment, regardless of whether the past -due amount is paid in full as a result of the offset or recoupment rights provided herein. ARTICLE 7 GENERAL 7.1 Limitations of Liability Notwithstanding any other provision in this Agreement to the contrary, the total cumulative liability of WEX to Employer for all claims, actions, or suits however caused arising out of or in connection with this Agreement WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc City of El Segundo - Vdr. Agr. No. 6192 shall be limited to direct damages and shall not exceed the greater of: (a) the amount of fees received by WEX from Employer under this Agreement for the twelve (12) months prior to the occurrence of the event giving rise to any such claims, actions or suits; or (b) amounts payable and actually paid to Employer or WEX resulting from Employer's claim, as applicable, under the insurance policies provided for under Section 7.2 of this Agreement. In no event shall either party be liable to the other for consequential, special, exemplary, punitive, indirect or incidental damages, including, but not limited to, any damages resulting from loss of use or loss of profits arising out of or in connection with this Agreement, whether in an action based on contract, tort (including negligence) or any other legal theory whether existing as of the Effective Date or subsequently developed, even if the party has been advised of the possibility or foreseeability of such damages. No action under this Agreement may be brought by either party more than two (2) years after the cause of action has accrued. WEX and Employer expressly agree that the limitations of liability in this Section 7.1 represent an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by WEX to Employer and is an essential element of the basis of the bargain between the parties. 7.2 Insurance During the term of this Agreement, WEX 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. WEX maintains commercial crime insurance, including employee dishonesty coverage with policy limits of not less than $5,000,000. Upon request, WEX shall provide Employer with a certificate or certificates of insurance reflecting such insurance coverages. 7.3 Indemnification (a) Subject to the limitations in Section 7.1, WEX will indemnify, defend and hold harmless Employer (and its respective officers, directors, employees, authorized representatives, successors, and permitted assigns) from and against all Charges, 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 WEX'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. (b) In addition to Sections 2.9, 2.14, 2.19, and 6.2, Employer will indemnify, defend and hold harmless WEX (and its respective officers, directors, employees, authorized representatives, successors, and permitted assigns) from and against all Losses incurred by WEX 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 subsection, Employer agrees that WEX 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. (c) The party seeking indemnification under Sections 7.3(a) or 7.3(b) 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 WD( Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 party have been materially prejudiced by the failure of the other party to provide notice within the required time period. The indemnifying parry 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 Section 7.3 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 Section 7.3 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 parry, and such settlement or compromise that relates to monetary compensation shall become Losses subject to indemnification under this Section 7.3 by the indemnifying party. (d) For purposes of this Section 7.3, "Charges" means: (i) excise taxes imposed under Code Section 4980B (26 USC § 498013), subject to the provisions of the aggregate limitations set forth in Code Section 4980B and the right of the assessed party to challenge the Internal Revenue Service with respect to all or part of the imposition of such excise taxes; and/or (ii) penalties (in an amount up to $110 per day) that are imposed by a court under Section 502(c)(1) of ERISA (29 USC § 1132) and that are paid. Charges shall not include the payment of the claims for benefits under the terms of the Plan. ARTICLE 8 MISCELLANEOUS 881 Number Where the context of this Agreement requires, the singular shall include the plural and vice versa. 8.2 Force Maieure Notwithstanding anything to the contrary contained herein, neither party shall be responsible or liable if the performance of its obligations hereunder is hindered or adversely affected or becomes impossible or impracticable, as a result of an event or effect that the party could not have anticipated or controlled or for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, lockouts, strikes, work stoppages or other labor disruption, accidents, epidemics, pandemics, quarantines, war (whether declared or undeclared), acts of war or terrorism (whether foreign or domestic in origin), insurrection, sabotage, riot, a decree of health emergency, national emergencies or other man-made emergency, civil or military disturbances including any law, regulation, order or other action by any governmental authority, nuclear or natural disasters or acts of God, interruptions, loss or malfunctions of utility, transportation, communications or computer (software and hardware) services, including the disruption or outage of the Internet, or disruption of financial markets or banking functions (a "Force Majeure Event'. A party affected by a Force Majeure Event shall as soon as reasonably practicable after the occurrence of the Force Majeure Event or the occurrence of harm resulting from such a Force Majeure Event that causes the party to be unable to perform: (a) provide written notice to the other party of the nature and extent of any such Force Majeure Event; and (b) use commercially reasonable efforts to remedy any inability to perform due to such a Force Majeure Event. 8.3 Waiver 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. City of El Segundo - Vdr. Agr. No. 6192 WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential @2021 • All Rights Reserved Health, Inc. 8.4 Severability If any provision of this Agreement is determined 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. 8.5 Governing Law This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the internal laws of the State of North Dakota (without regard to the laws of conflict that might otherwise apply) as to all matters, including without limitation, matters of validity, interpretation, construction, effect, performance, enforcement and remedies. Excluding all matters pertaining to the collection of amounts due to WEX arising out of the services provided, any claim, controversy or dispute arising out of, or relating to, this Agreement, in addition to disputes about invoices per Section 6.1, first promptly shall be settled by managers with direct day-to-day responsibility under this Agreement, and if not so settled, promptly shall be addressed by executives of the parties who have authority to settle the dispute. A party wishing to raise a dispute shall give prompt written notice to the other party, and the good faith attempt to resolve the dispute, as described in the foregoing sentence, shall take place within thirty (30) days thereafter. Engaging in the dispute resolution process described in this Section 8.6 shall be a condition precedent to proceeding with litigation. 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. To the extent this Agreement must be enforced in a court of law, the parties agree that it can only be brought in the United States District Court for the District of North Dakota, and both parties consent to such jurisdiction and venue. 8.7 Waives of Jury Trial, To the extent this Agreement must be enforced in a court of law, each party hereto irrevocably waives all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, provided, however, that for judicial economy purposes, if a party desires to implead or otherwise add the other party to a third -party claim and such third party claim is already a jury trial, the foregoing waiver of jury trial shall not apply. The waiver may not apply in any criminal case without the written consent of the defendant. 8.8 Notice 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: (a) when received if delivered by hand; (b) the next business day if placed with a reputable express carrier for delivery during the morning of the following business day; (c) three (3) days after deposit in the U.S. mail for delivery, postage prepaid; or (d) when received if delivered electronically. WEX: 82 Hopmeadow Street, Simsbury, CT 06089, Attention: General Counsel. 8.9 Entire Aare went 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, whether written or verbal. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order, payment processing agreement, or other document relating to the services provided by WEX herein, the terms and conditions of this Agreement shall control. Further, the terms and conditions of this Agreement shall prevail over any additional terms contained in any such purchase order, WEX Health, Inc. Services Agreement U ` I: March 2021 Proprietary & CoOdential ©2021 • All Rights Reserved WEX Health, Im City of El Segundo - Vdr. Agr. No. 6192 payment processing agreement, or other document. Any amendment to this Agreement must be in writing and consented to 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, permitted assigns, and successors in interest. Unless expressly set forth in this Agreement, nothing in this Agreement is intended to confer, and nothing herein shall confer upon any person other than the parties hereto, any rights, remedies, obligations or liabilities whatsoever. 8.10 Assignment This Agreement may not be assigned by either party without the prior written consent of the other unless to an affiliate or in connection with a change in control, merger, acquisition or sale of all or substantially all of the parry'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 following the date of the assignment. If consent is required, the parties shall not unreasonably withhold or delay consent. 8.11 Survival Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive. 8.12 Relationship of the Parties 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 WEX. 8.13 Authority Neither WEX nor Employer, when dealing with the other party in relation to the Plan, shall be obliged to determine the other parry's authority to act pursuant to this Agreement. WEX Health, Inc. Services Agreement Updated: March 2021 proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 REIMBURSEMENT ACCOUNT ADMINISTRATIVE SERVICES AGREEMENT RECITALS Employer has adopted an Internal Revenue Code (together with its implementing regulations, in each case as amended) (the "Code's Section 125 (26 USC § 125) Cafeteria Plan (the "125 Plan' for its eligible employees. Included in the 125 Plan is one or more of the following plans or arrangements: a health flexible spending arrangement ("Health FSA'; a dependent care flexible spending arrangement ("Dependent Care FSA' (a health FSA and a Dependent Care FSA are referred to collectively as an "FSA'; and/or a limited purpose health flexible spending arrangement ("Limited Health FSA'. Employer may have also adopted one or more of the following for its eligible employees: a health reimbursement arrangement ("HRA') Code Section 105 (26 USC § 105); a limited purpose health reimbursement arrangement ("Limited HRA'� Code Section 105 (26 USC § 105); and/or a transportation fringe benefit plan spending account C'TSA" or "Commuter's qualified under Code Section 132(f) (26 USC § 132(f)). Employer may have also adopted other spending or reimbursement account benefits or post -tax benefits that are not subject to the Code. Individually and collectively, as the context may require, the foregoing plans or other arrangements maintained by Employer shall be referred to as the "Plan." Employer desires WEX to assist in its administration of the Plan, and WEX desires to assist Employer in the administration of the Plan. WEX and Employer agree that WEX shall assist in the administration of the Plan based on the terms and conditions set forth in this Reimbursement Account Administrative Services Agreement ("this Agreement', including, without limitation that: • Employer has established the Plan for the exclusive benefit of its employees. • Employer is the administrator of the Plan (the "Plan Administrator'). • Employer remains the administrator of the Plan and is responsible for the operation and maintenance of the Plan, including the establishment of eligibility and benefits and funding the payment of benefits owed to participants under the Plan. • WEX is an independent contractor in relation to Employer and to the Plan and acts as an agent on behalf of Employer in rendering services for Employer pursuant to this Agreement. • WEX is to provide the agreed upon services without assuming any liability for the performance of any other services beyond those set forth below. The above -stated recitals are accurate, true, and correct and are incorporated herein and made a part hereof by this reference. Now, therefore, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: ARTICLE 1 WEX ADMINISTRATIVE SERVICES 1.1 Plan Administration Assistance WEX shall assist Employer in the administration of the Plan as provided in this Agreement. WEX's duties with respect to the Plan are limited to those expressly provided for in this Agreement. A Plan covered for services under this Agreement are limited to those selected by Employer via the WEX portal or design guide. WEX Health, Inc Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 �, ewy & Confidential ©2021 • All Rights Reserved WEX Health, Inc If a plan is not selected, the plan is not covered for services under this Agreement, and WEX shall have no responsibility or duty with respect to such plan. 1.2 Plan Documents Assistance (a) Upon request, WEX will assist Employer in the establishment and operation of the Plan by providing, for review by Employer, WEX's standard documents, including a plan document, a summary plan description ("SPD'J, if applicable, and other standard documents relating to the administration of a plan. (b) Employer is under no obligation to use WEX's standard documents in establishing and maintaining its Plan. (c) WEX's standard documents are based on WEX's internal policies and procedures, which may change from time to time, and the legal and regulatory requirements then in effect. (d) It is Employer's responsibility to determine whether WEX's standard documents are legally compliant for Employer's purposes, in compliance with the requirements of its Plan, are appropriately completed, and are appropriately and timely adopted by Employer. (e) Employer must provide WEX with an executed copy of its plan document. (f) When there is a change in applicable domestic law or regulation or when requested by Employer due to Employer changing plan design, WEX will provide Employer with its standard plan amendments. (g) It is Employer's responsibility to determine whether WEX's standard plan amendments or other revisions are legally compliant for Employer's purposes, in compliance with the requirements of its Plan, are appropriately completed, and are appropriately and timely adopted by Employer. (h) Employer must provide WEX with an executed copy of its amended plan document. (i) For the establishment of HRAs, Limited HRAs, and TSAs, WEX provides a prototype plan with an agreement, that once adopted, becomes Employer's HRA, Limited HRA or TSA plan document. 0) For the establishment of other spending or reimbursement account benefits or post -tax benefits that are not subject to the Code, WEX does not provide a standard plan document or a prototype plan with an agreement. 1.3 Recordkeeoina WEX shall assist Employer in the development and maintenance of administrative and recordkeeping systems for the Plan. WEX's recordkeeping services are listed in the Services and Recordkeeping Addendum. 1.4 Information for Employer Di�closure and Plan Re ortng WEX shall provide Employer with general information about disclosure and Plan reporting requirements that relate to the Plan and the information maintained by WEX that is necessary for Employer to prepare the annual Form 5500. WEX shall not be responsible for the accuracy of any information provided by Employer nor shall WEX be responsible for determining the level of compliance required by the Plan. It is the sole responsibility of Employer to comply with all legal disclosure and Plan reporting requirements. 1.5 VPkA"EX Reporting to Em toy er WEX shall provide the following reports to Employer: • Employer Funding Report (daily or monthly — the frequency of this report is dependent on the funding method selected) WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. • Payment History Report (on demand) • Enrollment Report (monthly and on demand) • Account Balance Detail Report (monthly and on demand) • Payroll Deduction Report (frequency based on payroll frequency for auto -post employers) • Statement of fees due to WEX (monthly invoice) 16 Forms WEX shall provide Employer forms for use in administering the Plan. The forms are available within the online account. All forms and all user guide information will be subject to periodic updates and revision. WEX shall also provide Employer instructions and forms for use in the processing of benefit claims under the Plan. 1.7 Plan Payments Using funds received from Employer, WEX shall pay the amounts due as a result of the operation of the Plan and in compliance with the participant's current Plan elections. 1.8 Claims Processing (a) WEX shall process claims received from Employer or from Plan participants on a daily basis during regular business hours (6:00 a.m. to 6:00 p.m. Central Time Zone, Monday through Friday excluding holidays). (b) WEX shall arrange for the payment of approved reimbursement requests as provided in the Plan. (c) WEX shall process any initial claim for benefits made under the Plan provided the claim is submitted in accordance with the terms of the Plan, the SPD, and any reasonable rules established by WEX and communicated to Employer and participants. (d) WEX will accept or deny (in whole or in part) an initial claim for benefits after making such investigation as it deems necessary. (e) To the extent WEX determines that a participant is entitled to the claimed benefits under the Plan, WEX will arrange for the proper payment from the Plan using the funds provided by Employer. (f) To the extent WEX determines that a participant is not entitled to claimed benefits under the Plan, WEX shall provide to such participant a written notification of its decision as soon as administratively practicable after the claim was received by WEX, subject to the requirements of Section 503 of the Employee Retirement Income Security Act of 1974 ("ERISA'� (29 USC § 1133) and 29 CFR § 2590.715-2719. (g) WEX shall be responsible for making the decision to accept or deny (in whole or in part) all appeals of denied benefit claims consistent with Section 503 of ERISA (29 USC § 1133) and 29 CFR § 2590.715-2719. (h) WEX shall be responsible for notifying the participant of its decision regarding an appeal consistent with Section 503 of ERISA (29 USC § 1133) and 29 CFR § 2590.715-2719. (i) In making decisions regarding claims for benefits and appeals of denied benefit claims, WEX shall have discretionary authority to construe and interpret the terms of the Plan and to determine whether a benefit claim is properly payable under the Plan. U) Notwithstanding anything herein to the contrary, Employer shall be responsible for all eligibility claims, eligibility appeals, and eligibility determinations with respect to eligibility of an individual to participate in a Plan. WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. (k) To the extent that WEX provides written non-English assistance to a participant during the course of claims processing as required by Section 503 of ERISA (29 USC § 1133) and 29 CFR § 2590.715-2719, Employer shall reimburse WEX for the related fees and expenses, if any. 1_9 Fiduciaryputie WEX performs fiduciary duties under the Plan only to the extent described in Section 1.8 and is a fiduciary under ERISA for the claim review and claim appeal determinations for those plans or arrangements that are subject to ERISA. 1.10 Emplo ey r Funds and Custodial Account, Funds received by WEX from Employer for the payment of Plan benefits shall be held in the Custodial Account pursuant to Article 3. 1.11 Direct Load Pavments for TSA As applicable, using Plan funds, and based on instructions received from the participant, WEX shall pay employer - provided transportation benefits through electronic media by transmitting funds to a participant's smartcard or account with the transit authority. Only pre-tax participant contributions are eligible for use with the transit authority smartcard. A transactional processing fee could be incurred. 1.12 Overpayment Re v&N If WEX determines that it has paid benefits to an ineligible person or paid more than the appropriate amount, WEX shall, with Employer's full cooperation, undertake a good faith effort to recover such erroneous payment. For purposes of this provision, WEX shall have the sole discretion to determine what constitutes a "good faith effort," which effort may vary from time to time depending upon the circumstances of the overpayment, but may include WEX's attempt to contact the participant twice via letter, phone, email or another means about the recovery of the payment at issue. 1.13 Unused Amounts and Unclaimed Amounts Except for those amounts subject to any Health FSA carryover elected by the Plan in accordance with the Internal Revenue Service FIRS') Notice 2013-71 (as such guidance may be modified or updated), all amounts that remain unused in an FSA account or a TSA after the end of the period specified by the Plan during which a participant can make a claim plus any periods for appeal or claim dispute shall be forfeited by the participant and returned to Employer less any undisputed fees and expenses due and owing to WEX under this Agreement. The direct terms of an applicable Plan may alter the forfeiture provisions of this Section 1.13 only with respect to a Plan participant. Any amounts unclaimed by participants, including any unclaimed reimbursement checks (or other similar methods of payment) that have been issued but remain unendorsed or uncashed and unpaid after the end of the plan year's run - out period elected by the Plan, shall be returned to Employer less any undisputed fees and expenses due and owing to WEX under this Agreement. Employer shall be responsible to report unclaimed amounts in accordance with applicable state law unless otherwise forfeited under the terms of the Plan. 1.14 Retention and Release of Plan Data, Records an, d Files (a) Written and electronic records containing personal information are securely destroyed or deleted consistent with business needs or legal retention requirements. (b) Per business records needs and associated retention and secure destruction periods, WEX retains a copy of all information (as information is defined in Section 2.14, excluding emails or similar electronic communications destroyed in the ordinary course of business pursuant to WEX policy) for at least seven (7) years from the date created at WEX, including, without limitation, a record of all assets and transactions involving the Custodial Account (defined in Article 3). (c) Following the termination of this Agreement, WEX shall cooperate with Employer or Employer's subsequent service provider to 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 WEX's standard format. WD( Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 proprietary & Confidential ©2021 • All Rights Reserved WDC Health, Im (d) Upon termination of this Agreement, WEX is entitled to retain a copy of all information including the data, records, and files released by WEX pursuant to Section 1.14(c) and to use and disclose such information for claims, audits, and legal and contractual compliance purposes to the extent permitted by law and any executed or applicable business associate agreement between the parties. 1.15 Notice of Litigation WEX shall notify Employer promptly of any summons, complaint or other communication concerning threatened litigation or any inquiry by any governmental agency that is related to the Plan unless such notification would be a violation of applicable law. 1.16 Conhd nt ality of Plan Information WEX shall keep confidential all information that it obtains concerning the Plan. Other than in the due course of business, such information shall not be disclosed to a third party without prior approval of Employer or as otherwise provided in Article 4. Employer may request that WEX share Plan information and other data with another vendor of the Plan or Employer. WEX shall consider all reasonable requests, however, prior to releasing or sharing any Plan information or other data with another vendor, Employer must enter into a business associate agreement and/or a confidentiality and data sharing agreement with the vendor and make a copy of such agreement available to WEX upon request. For confidential or protected information transmitted by a vendor of the Plan to WEX, Employer must enter into a business associate agreement and/or a confidentiality and data sharing agreement with the vendor. 1.17 Audit (a) During the term of this Agreement, and at any time within six (6) months following its termination, Employer (or a mutually agreeable third -party auditor) may audit WEX to determine whether WEX is fulfilling its obligations under this Agreement with respect to processing claims for benefits. (b) The audit shall be limited to such processing claims for benefits information relating to the calendar year in which the audit begins and/or the immediately preceding calendar year. (c) WEX will provide timely inquiry and feedback regarding the sample size and sampling methodology as it relates to the objective of the audit. (d) Unless otherwise required by legal and/or regulatory compliance, the audit must be completed within six (6) months following the date the audit begins. (e) The place, time, type, duration, and frequency of any audit must be reasonable and mutually agreeable. (0 Employer shall pay or cause to be paid any expenses that it incurs in connection with the audit, including WEX's then current internal billing rate for audit related tasks. (g) Any audit will be subject to these additional requirements: (i) Employer must provide WEX with a sixty (60) day advance written notice of its intent to audit. (ii) Employer must utilize individuals to conduct the audit who are qualified by appropriate training and experience for such work; who will perform their review in accordance with published administrative safeguards and procedures against unauthorized use or disclosure (in the audit report or otherwise) of any individually identifiable information (including health care information) contained in the information audited; and who will not make or retain any record of payment identifying information concerning WB( Health, Inc. Services Agreement updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 treatment of drug or alcohol abuse, mental/nervous disorders, HIV/AIDS or genetic markers in connection with the audit ("Auditor'. (iii) At least thirty (30) days in advance of the commencement of the audit, Employer must provide WEX with a complete and accurate list of the transactions to be selected for audit, along with the specific service for which each transaction or item is being tested. The sample must be based on a statistically valid random sampling methodology (e.g., systematic random sampling, simple random sampling, or stratified random sampling). (iv) The Auditor must provide its draft findings to WEX before a final audit report is presented to Employer. The draft findings will be the basis for discussion between the Auditor and WEX to resolve any disagreement and to summarize the audit findings. (v) The Auditor must provide its final audit report to WEX before delivery to Employer and allow WEX to include with the final audit report a supplementary statement containing facts that WEX considers pertinent to the audit. (vi) The Auditor must provide WEX with a complete copy of the final audit report that is delivered to Employer. (vii) The audit will be subject to proprietary and confidentiality protections. Before the audit commences, Employer and any third -party auditor shall execute a non -disclosure and confidentiality agreement, the scope of which shall be reasonable and shall be determined by WEX. (viii) There must be no conflict of interest that would prevent the Auditor from performing an independent audit. Auditors retained exclusively by Employer may not be compensated on the basis of a contingency fee or a percentage of overpayments identified. 1.18 Red Flags Rule For the purposes of this Section 1.18, "Red Flags Rule" means regulation adopted by various federal agencies, including the Federal Trade Commission, in connection with the detection, prevention, and mitigation of identity theft and located at 72 Fed. Reg. 63718 (November 9, 2007), as amended. For the purposes of this Section 1.18, "Covered Services" means the services provided by WEX with respect to the plans selected by Employer and as described in the Debit Card Services Addendum that allow Plan participants to pay for eligible expenses under the Plan with a debit card or other stored -value card and any other services provided by WEX pursuant to this Agreement that fall under the protections of the Red Flags Rule as determined by WEX in its sole discretion. To the extent applicable, WEX shall comply with the Red Flags Rule with respect to Covered Services. As part of its Red Flags Rule compliance, WEX shall adopt, maintain, and use appropriate and commercially reasonable rules, procedures, and safeguards to detect and identify red flags and to prevent and mitigate identity theft as required by the Red Flags Rule. The parties agree that if a breach of unsecured protected health information (as defined in any executed or applicable business associate agreement between the parties) occurs and a violation of the Red Flags Rule occurs with respect to the same incident, both the Red Flags Rule and the provisions of any executed or applicable business associate agreement between the parties shall apply, except that the notice requirements of any executed or applicable business associate agreement between the parties shall satisfy any notice obligations under the Red Flags Rule and this Section 1.18. This Section 1.18 shall be null and void to the extent action is taken by U.S. Congress or a federal agency to exempt the Covered Services (or third -party administrators that provide Covered Services) from the Red Flags Rule. WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WED( Health, Inc. 1.19 Information Security Pro ram City of El Segundo - Vdr. Agr. No. 6192 WEX represents and warrants that it has implemented and maintains a written and comprehensive information security program, and complies with all applicable domestic law and regulation. 1.20 Total Control and Discretion ,,, Aura thority Except as otherwise expressly provided in this Agreement, Employer has total control and discretionary authority over the Plan and the manner in which the Plan is operated. WEX serves as Employer's agent only for the processing of qualifying expense/reimbursement requests as provided under this Agreement. 1.21 External Review To the extent that the external review requirements set forth in 29 CFR § 2590.715-2719 apply to the Plan, WEX shall serve as a conduit for external review requests, meaning WEX will send appropriate information to, and cooperate fully with, the external review organization conducting the review. Any cost, fee or expense related to the review or request for review shall be paid by Employer. If WEX pays any such cost, fee or expense on behalf of Employer, Employer shall reimburse WEX promptly upon request. 1.22 Subcontracting WEX may delegate or subcontract any portion of WEX services. For those WEX services that are delegated or subcontracted, WEX shall remain fully responsible to Employer for compliance with all applicable provisions of this Agreement or of any executed or applicable business associate agreement between the parties. No portion of WEX administrative services shall be delegated or subcontracted to an entity located outside the United States. 1.23 Benchmarks WEX may, in its discretion, prepare and deliver to Employer benchmarks or other metrics showing the experience of Employer and its participants with the services provided herein as compared to other employers. WEX will develop any such benchmarks or metrics through the use of data that has been aggregated and de -identified consistent with any executed or applicable business associate agreement between the parties. 1.24 Limited Warranty WEX represents and warrants that the WEX services shall be performed in a professional manner consistent with generally accepted industry standards and applicable law. 1.25 Disclaimer WEX does not insure or underwrite Employer's liability to provide benefits under the Plan. WEX shall not be liable or obligated to use its funds for payment of benefits under the Plan, including, without limitation, where such payment of benefits is sought as damages in an action against Employer, WEX or the Plan. Employer shall promptly reimburse WEX for any benefit payments made using WEX funds. 1.26 Non -Discrimination Testing and Additional Product and Service Solutions In order to run the non-discrimination tests, Employer must provide WEX with all information requested and in WEX's file format. Employer's Human Resource Information System ("HRIS'l and payroll systems are the systems of record and all information requested for testing must be provided to WEX from the Employer's systems. Failure to provide the information required will result in incomplete test results. Employer is responsible to initiate any corrective action required in the event the plan is deemed discriminatory. WEX warrants that the test will perform materially in accordance with the data submitted and that the functionality of test will not be materially decreased during the term of this Agreement. Employer may subscribe to WEX's expanded non-discrimination testing and request other additional products and services solutions from WEX. WEX Health, Inc. services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. ARTICLE 2 EMPLOYER RESPONSIBILITIES 2.1 Cho, mpliancg with Lags Plan Compliance. Although WEX serves as Employer's agent for services rendered pursuant to this Agreement, Employer remains responsible for compliance of the Plan itself with the Patient Protection and Affordable Care Act of 2010 (the "PPACA'�, ERISA, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA'�, each as amended from time -to -time, the Code, and any other law or regulation, domestic or foreign, as applicable. Employer Compliance. Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses and expenses (including reasonable attorney fees) that result 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 WEX) to comply with PPACA, ERISA, HIPAA, the Code, and any other law or regulation, domestic or foreign, as applicable, or the provisions of this Agreement. Medicare Secondary Payer Information. Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses and expenses (including reasonable attorney fees) that result 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 WEX) to provide WEX with the required information for proper and timely reporting under the Medicare Secondary Payer ("MSP'D for Employer's HRA participants where WEX acts as Responsible Reporting Entity ("RRE'� for any HRA offered by Employer. Prior Activity or Occurrence. Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses, and expenses (including reasonable attorney fees) and expressly releases all claims against WEX in connection with any claim or cause of action for any activity or occurrence prior to the 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 WEX) to comply with ERISA, the Code, and any other applicable law or regulation. 2.2 Plan _Documents Employer is responsible for the final content of all Plan materials and documents. It is Employer's responsibility to ensure that the Plan documents and any amendments to the Plan documents are legally compliant for Employer's purposes, appropriately completed, in compliance with the requirements of the Plan, and appropriately and timely adopted by Employer. Employer shall file with the appropriate governmental agencies all required returns, reports, documents, and other papers relating to the Plan. Employer shall distribute to its employees participating in the Plan all materials and documents as required under applicable law. 2.3 Summ ryPlan Description To the extent applicable, Employer shall distribute to its employees participating in the Plan a copy of the SPD and/or the summary of benefits and coverage. 2.4 Plan Amendments Employer shall notify WEX of any contemplated amendment to the Plan. Under no circumstances may Employer alter WEX's services or obligations under the Agreement through an amendment to the Plan without the prior written notice to and acceptance of WEX. WEX has no obligation to provide any Plan amendments to Employer other than described in Section 1.2. 2.5 Plan Eliciblity Employer shall provide WEX a record of all employees who are eligible to participate in the Plan and notify WEX of any changes on a monthly basis. Employer shall also provide WEX with the demographic and related information that WEX may need to perform its services under this Agreement. WEX Health, Inc Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Propdetary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. Employer shall be solely responsible for determining which of its employees are eligible to participate in the respective plan, to collect the required information from those employees, and to inform WEX of such eligible employees. Employer shall be responsible to collect and to provide to WEX, in an electronic format, all reasonably required information to ensure compliance with the MSP rules and regulations where WEX acts as RRE for an HRA offered by Employer. Employer shall assist in the enrollment of the employees in the Plan, cooperate with WEX regarding the proper settlement of claims, and transmit inquiries pertaining to the Plan to WEX. Late notification of Plan eligibility or incorrect Plan eligibility provided by Employer to WEX may result in erroneous plan benefit payments, for which Employer shall be solely responsible. Employer shall also be responsible for collecting any such erroneous payments from the employee. If there are insufficient Employer funds available to restore the erroneous payments or if the requested reimbursement of funds would otherwise cause the Minimum Account Balance deposit (if applicable) to become insufficient, WEX may suspend services under this Agreement and request immediate restoration of funds from Employer. 2.7 Funds Employer shall deposit funds in the Custodial Account to be used to pay benefits and expenses under the Plan as agreed to herein and in accordance with the Plan documents. Funds deposited in the Custodial Account shall consist solely of general assets of Employer. Participant contributions, if any, made by employees to the Plan through salary reduction or otherwise, shall be used to reimburse Employer for the funds advanced by Employer to pay benefits under the Plan. Employer has the sole responsibility and liability for the funding of all benefits under the Plan. 2_8 Claims -Based Fu,ndina Method, If Employer selects the claims -based funding method to pay claims, Employer gives WEX approval to withdraw applicable amounts from Employer's designated United States bank account to deposit in the Custodial Account from which disbursements can be made on Employer's behalf for payment of qualifying expenses, which are otherwise specified by Employer in its Plan document or as provided for under the Code. 2_9 Deduction/Contribution-Based Funding -Method This funding method may be available for certain types of plans and certain employer groups. For the contribution - based funding method to pay claims, if selected, Employer establishes a pre -determined initial deposit amount that will adequately fund the reasonable needs of the Plan to be deposited into the Custodial Account (the "Minimum Account Balance's from which disbursements can be made on Employer's behalf for payment of qualifying expenses. If the deposited amount falls below the Minimum Account Balance, Employer will be notified of the deficiency and will be required to provide additional funds until such time the Minimum Account Balance can be restored. 2.10 Debit Card Payments, All participants in a Health FSA, Dependent Care FSA, a comprehensive HRA or a TSA (as applicable) shall automatically receive one or more debit cards or similar electronic payment technology, for which the terms of the Debit Card Services Addendum shall control. 2.11 Ownership of Acaunt�Assg s All funds from Employer deposited in the Custodial Account remain Employer's general assets. WEX shall be responsible for administering the funds in accordance with the terms of this Agreement. Funds are disbursed from the Custodial Account by WEX or any of its designees only for an allowable Plan expense as determined by Employer or a representative of Employer (including WEX) or as otherwise required by a court of competent jurisdiction. WEX Health, Inc. Services Agreement Updated: March 2021 prWfetary & Confidential ©2021 • All Rights Reserved WDC Health, Inc City of El Segundo - Vdr. Agr. No. 6192 2.12 Fraud Against the Plan Employer is solely responsible for making the Plan whole if fraud is committed against the Plan by its employees, Plan participants or any third party (other than WEX). WEX will assist in pursuing or remedying such fraud using its standard procedures. 2.13 Plan Fiduciary (a) Except as provided in Section 1.9, Employer agrees that WEX is not a named fiduciary, or a Plan fiduciary under the Plan as such terms are described under ERISA. WEX shall have no power or authority to waive, alter, breach or modify any terms and conditions of the Plan. WEX shall make payments or distributions from the Custodial Account in accordance with the framework of policies, interpretations, rules, practices, and procedures set forth in the Plan, this Agreement, and as otherwise agreed upon or directed by Employer. (b) Except as provided in Section 1.9, WEX neither shall have nor shall be deemed to exercise any discretion, control or authority with respect to the disposition of Employer funds. Employer agrees that the use of, offset or recoupment of funds in the Custodial Account to pay undisputed fees or other undisputed amounts due to WEX pursuant to this Agreement constitutes Employer action that is authorized by Employer under this Agreement and agrees that such actions are not discretionary acts of WEX and do not create a fiduciary status for WEX. (c) WEX agrees that it will perform services on the Plan's behalf as set forth in this Agreement, including any addenda to this Agreement. However, WEX will not undertake any duties or responsibilities, regardless of whether they are set forth in the Plan, if such actions are in violation of any applicable domestic law or regulation. 2.14 Em to er Information and Instructions (a) WEX shall be fully protected in relying upon representations and communications made by or on behalf of Employer in effecting its obligations under this Agreement. (b) WEX is entitled to rely on the most current information in its possession when providing services under this Agreement. (c) WEX shall provide the services in accordance with this Agreement based on information that is provided to WEX by Employer. For this purpose, the term "information" means all data, records, and other information supplied to WEX, obtained by WEX or produced by WEX (based on data, records or other information supplied to or obtained by WEX) in connection with performing the services pursuant to this Agreement, regardless of the form of the information or the manner in which the information is provided to WEX. (d) In engaging WEX to perform the services under this Agreement, Employer has authorized and instructed WEX to implement WEX's standard administrative forms and procedures. (e) WEX is not responsible for any acts or omissions it makes in reliance upon the direction or consent of Employer or inaccurate, misleading or incomplete information from Employer or any third party. (f) If Employer instructs WEX with a specific written request (in a format acceptable to WEX) to provide services in a manner other than in accordance with WEX's standard forms and procedures, WEX may (but need not) comply with such an instruction. This would include, but is not limited to, any Employer instruction to add a vendor link to the participant's online account. To the extent that WEX complies with such an instruction, Employer and not WEX shall be solely responsible for WEX's action so taken, and Employer agrees to hold WEX harmless from and against all liability, damages, costs, losses, and expenses (including reasonable attorney fees) and expressly releases all claims against WEX in connection with any claim or cause of action, which results from or in connection with WEX complying with Employer's specific written instruction to provide services in a manner other than in accordance with WEX's standard procedures. (g) Employer is responsible for the integrity of data in the files. Therefore, complete and accurate information from Employer or a vendor on behalf of Employer is required in order for WEX to perform the services set forth herein. WD( Health, Inc. Services Agreement Updated: March 2021 Proprietary & confidential ©2021 • All Rights Reserved WD( Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 (h) Employer agrees not to use the full social security number in the employee identification number field. (i) Employer warrants the accuracy of the information provided by or on behalf of Employer to WEX regarding the participant count. 2.15Employer's Electroniccount If Employer chooses to access the services provided by WEX via an online account or other electronic means ("Employer's Electronic Account', Employer is solely responsible for: (a) Designating who is authorized to have access to Employer's Electronic Account; (b) Safeguarding all of Employer's passwords, usernames, logins or other security features used to access Employer's Electronic Account CElectronic Account Access'; (c) Employer's use of Employer's Electronic Account under any usernames, logins or passwords; (d) Ensuring that use of Employer's Electronic Account complies fully with the provisions of this Agreement; and (e) Any unauthorized access or use of Employer's Electronic Account caused by Employer's actions or inactions, including, without limitation, its failure to safeguard the Employer's Electronic Account or Electronic Account Access. Employer is solely responsible for the maintenance and routine review of its computing and electronic system usage records (i.e., log files) and the security of its own data, data storage, computing devices, other electronic systems, and network connectivity. Employer acknowledges and agrees that WEX has no control over and is not liable to Employer, Employer's employees or any other third party for any consequences, losses or damages resulting from unauthorized access or use of the Employer's Electronic Account as set forth in this Section 2.15. 9MANNOMM400= The Plan and/or Employer on behalf of the Plan is responsible for any state, federal or foreign tax, fee, assessment, surcharge and/or penalty imposed, assessed or levied against or with respect to the Plan and/or WEX relating to the Plan or the services provided by WEX pursuant to this Agreement, including those imposed pursuant to PPACA. This includes the funding, remittance, and determination of the amount due for PPACA required taxes and fees. In the event that WEX is required to pay any such tax, fee, assessment, surcharge and/or penalty on behalf of Employer, WEX shall report the payment to Employer along with documentation of the payment, and Employer shall promptly reimburse WEX for the full amount or for Employer's proportionate share of such amount, except as provided in Section 7.3. This reimbursement would be in addition to the fees described in Section 6.1. Employer is at all times responsible for the tax consequences of the establishment and operation of the Plan. Further, the parties agree that WEX does not provide any legal, tax or accounting advice to the Plan and/or Employer. WEX is at all times responsible for all the taxes based upon its net income and its property ownership. 2.17 Enumeration System Identifier If required, Employer is solely responsible to the Plan to obtain or assign the standard unique Health Plan Identifier ("HPID'� or Other Entity Identifier ("OEID') or to update the enumeration system per 45 CFR § 162.508. 2.18 Acknowledgment Employer acknowledges and agrees that the services provided by WEX pursuant to this Agreement relate to enrollment and disenrollment in the Plan and that these services to the extent permitted under HIPAA shall be deemed to be performed by WEX on behalf of Employer in its capacity as the sponsor of the Plan. WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc ARTICLE 3 CUSTODIAL ACCOUNT 3_1 A intm nt and Acceptance of Custodian By signing this Agreement, Employer appoints WEX as custodian of Employer funds for the purposes and upon the terms and conditions set forth in this Agreement, and WEX accepts such appointment and agrees to act as custodian hereunder and to hold any Employer funds received hereunder in accordance with the terms and conditions set forth in this Agreement. 3.2 Custodial Account WEX maintains one or more depository accounts ("Custodial Account') at a bank designated by WEX and holds in such Custodial Account all funds initially received from Employer plus any additional funds that may be received from Employer for Custodial Account from time to time. For administrative convenience and to reduce costs, WEX shall hold funds received from Employer together with similar funds from other employers in a single Custodial Account (or one or more Custodial Accounts as determined by WEX). WEX shall maintain records as to the exact amount of funds attributable to each employer so that each employer has a legal right to the specific amount of its funds held in the Custodial Account (less any applicable fees, costs or expenses as set forth in this Agreement). At all times, the assets comprising each employer's funds in the Custodial Account shall be considered a separate subaccount for purposes of this Agreement. Depending upon the context, the term "Custodial Account" as used herein shall refer to either the separate subaccount for Employer or all of the subaccounts for all employers in the aggregate. 3.3 Employer Funds WEX and Employer intend and agree that all funds received from Employer for deposit in the Custodial Account shall be comprised of and shall remain Employer's general assets. In no event will funds received from Employer and deposited in the Custodial Account constitute or include participant or employee contributions to employee benefit plans, whether made by salary reduction or otherwise, as those terms have their general meaning under ERISA. Except to the extent that outstanding checks have been written or withdrawals have been made against the Custodial Account balance on behalf of Employer, and subject to Section 6.3, all funds received from Employer and deposited in the Custodial Account may be withdrawn by Employer at any time (less applicable fees, costs or expenses as set forth in this Agreement) and are subject to the claims of Employer's general creditors in the same manner as funds deposited in Employer's ordinary checking accounts. Notwithstanding the foregoing, this Agreement does not alter or eliminate any separate obligation of Employer to fund and maintain the Minimum Account Balance in the Custodial Account as described in Section 2.9. 3.4 Disbursements WEX shall make payments or distributions from the Custodial Account in accordance with the framework of policies, interpretations, rules, practices, and procedures established by WEX for this purpose and as set forth in the Plan or as otherwise agreed upon or directed by Employer. WEX shall neither have nor shall be deemed to have any discretion, control or other authority with respect to the disposition of Employer funds. 3,5 Interest Earned Employer acknowledges and understands that from time to time, WEX may receive earnings and interest on the funds held in the Custodial Account and that any such earnings or interest shall be part of WEX's compensation. Employer acknowledges and understands that fees otherwise charged by WEX for services under this Agreement would be greater if WEX did not retain such earnings and interest on these funds. The period during which interest may be earned begins on the date Employer funds are deposited into the Custodial Account and continues for as long as Employer funds remain in the Custodial Account. Funds shall be disbursed on a first -in, first -out basis. WEX does not track nor can it report interest earned for a single employer. WEX absorbs other bank charges, such as transmission charges, within the fees. WEX Health, Inc Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WSC Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 3.6 Maintenance of Records Upon Employer's written request, WEX shall provide Employer with an accounting of all Employer assets, transfers, and transaction activity involving the Custodial Account in relation to Employer, including a description of all receipts, payments or disbursements, and other transactions. ARTICLE 4 CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY 4.1 General Obligations For purposes of this Article 4, "confidential business information" shall mean any business information identified by either party as "confidential" and/or "proprietary", or which, under the circumstances, ought to be treated as confidential or proprietary, including non-public information related to the disclosing party's business, service methods, software, documentation, financial information, prices, and product plans. Neither WEX nor Employer shall disclose confidential business information of the other party. The receiving party shall use reasonable care to protect the confidential business information and ensure it is maintained in confidence, and in no event use less than the same degree of care as it employs to safeguard its own confidential business information of like kind. The foregoing obligation shall not apply to any information that: (a) is at the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (b) is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving party; (c) was known to the receiving party at the time of disclosure; (d) was generated independently by the receiving party; or (e) is required to be disclosed by law, subpoena or other process. WEX may disclose Employer's or the Plan's confidential business information to a governmental agency or other third party to the extent necessary for WEX to perform its obligations under this Agreement or if Employer has given WEX written authorization to do so. Although WEX may have confidential business information processed, managed, and/or stored with subcontractors or third parties, it remains fully responsible to Employer for the confidentiality obligations set forth herein. 4.2 Financial Statements and Audit Information If Employer requests access to certain financial statements and/or service organization control audit reports or other audit information of WEX for the purpose of reviewing the financial, operating, and business condition of WEX, and WEX agrees to provide such information, Employer's acceptance of or access to such confidential information shall constitute its agreement with the following: • Employer shall maintain the information (whether communicated by means of oral, electronic or written disclosures) in confidence and shall not use the same for its own benefit, or for any purpose other than the furtherance of its review, or disclose the same to any third party. • Employer may disclose the information to its own officers, employees and agents on a need -to -know basis for the purposes of its review. • Employer shall use reasonable care to protect the information and to ensure that it is maintained in confidence, and in no event use less than the same degree of care as Employer uses to safeguard its own confidential information. • If Employer is a state agency or otherwise subject to a freedom of information type statute, the information shall be treated as confidential and exempt from disclosure in accordance with applicable law, as the information contains sensitive proprietary business information and data defined as trade secret information that would not otherwise be publicly available and that disclosure of this information to the public, including WEX's competitors, would likely result in substantial harm to WEX's competitive positions and also contains confidential supervisory information and personal information relating to directors, officers, and major shareholders of WEX, the disclosure of which would constitute an unwarranted invasion of personal privacy. WD( Health, Inc Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 4_3 inteilectual_w Ewes, All materials, including, without limitation, documents, forms (including data collection forms provided by WEX), brochures, and online content ("Materials") furnished by WEX to Employer are licensed, not sold. Employer is granted a personal, non -transferable, and nonexclusive license to use Materials solely for Employer's own internal business use. Employer does not have the right to copy, distribute, reproduce, alter, display or use these Materials or any WEX trademarks for any other purpose other than its own internal business use. Employer shall use commercially reasonable efforts to prevent and protect the content of Materials from unauthorized use. Employer's license to use Materials ends on the termination date of this Agreement. Upon termination, Employer agrees to destroy Materials or, if requested by WEX, to return them to WEX, except to the extent Employer is required by law to maintain copies of such Materials. WEX retains exclusive ownership rights to and reserves the right to independently use its experience and know-how, including processes, ideas, concepts, techniques, and software acquired prior to or developed in the course of performing services under this Agreement. 4.4 Application Each party agrees that its obligations contained in this Article 4 apply also to its parent, subsidiary, and affiliated companies, if any, and to similarly bind all successors, employees, and agents. ARTICLE 5 TERM AND TERMINATION OF THE AGREEMENT 5_1 The term of this Agreement shall commence as of the Effective Date and shall continue for a period of twelve (12) months ("Initial Term'D. 5_2 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 5. 5_3 Notwithstanding the foregoing, this Agreement may be terminated at any time during the Initial Term or any renewal term by Employer or by WEX without cause and without liability with written notice of the intention to terminate to be effective as of a date certain set forth in the written notice not fewer than sixty (60) days from the date of such notice. 5_4 All obligations of WEX relating to payment of claims under the Plan will be terminated on the effective date of termination given in the written termination notice, regardless of when the claim for such benefit is incurred. 5_5 This Agreement may be terminated upon written notice: (a) If any law is enacted or interpreted to prohibit the continuance of this Agreement, upon the effective date of such law or interpretation; (b) If any fee (to the extent not subject to a good faith dispute) for any service provided by WEX to Employer remains unpaid to WEX beyond thirty (30) days past the due date, upon written notification by WEX to Employer that WEX intends to exercise its option to enforce this provision; (c) Due to (i) a party's filing for bankruptcy, (ii) a party's making any assignment for the benefit of creditors, (iii) a parry's consenting to the appointment of a trustee or receiver, (iv) a parry's insolvency, as defined by Applicable Law, or (v) the filing of an involuntary petition against Employer under the Federal Bankruptcy Code or any similar state or federal law which remains un-dismissed for a period of forty-five (45) days; (d) If at any time Employer fails to provide funds for the payment of Plan benefits; or (e) If Employer fails to provide the required information in a timely manner to ensure compliance with the MSP reporting required for HRAs. WEX Health, ir,c. Services Agreemarrt City of El Segundo - Vdr. Agr. No. 6192 Updated: Mardi 2021 Proprkory & Oarrfldential 021 w AA mitts Re—w-rued WEX Health, Im 5.6 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 to terminate this Agreement as of any future date designated in the notice. WEX may suspend services under this Agreement, as applicable, until Employer restores the Minimum Account Balance. 5.7 If this Agreement is terminated under Section 5.3 or Section 5.5, WEX will cease the performance of services. If, however, the parties agree in writing that this Agreement shall continue while WEX performs services during a run - out period (and upon prepayment for such run -out period if requested by WEX), WEX will continue to process qualifying expense reimbursements and to provide general Plan administration and services with respect to any claims that are received by WEX on or before the run -out period end date. The terms of this Agreement will remain in force and effect during any such run -out period. 5.8 Upon the termination of this Agreement, or any specified run -out period, WEX will cease the processing of any claims that are received, and Employer shall be immediately responsible for all aspects of its Plan, including the processing of all claims, annual reporting, and general plan administration. WEX shall return to Employer any funds in the Custodial Account that have not been used for Plan benefit payments along with any unpaid or other pending payment requests and/or subsequent claims that are received after the end date of any specified run -out period. Such return shall remain subject to the completion of a final accounting of all account activities, as well as the deduction of any undisputed unpaid fees and other expenses under this Agreement or any other agreement between the parties. WEX shall have the immediate right to demand and pursue collection of any unpaid fees, reimbursements or other amounts that are due and owing to WEX as of the date of termination under the terms of this Agreement or any other agreement between the parties. 5.9 Within sixty (60) days after the later of the termination of this Agreement or the specified run -out period, WEX shall prepare and deliver to Employer a complete and final accounting and report of the financial status of the Plan as of the date of termination, together with all books and records in WEX's possession and control pertaining to the administration of the Plan, all claims files (including any pending and unpaid claims), and all reports pertaining to the Plan. ARTICLE 6 COST OF SERVICES 6.1 Plan Administrative Service Fees (a) Employer shall pay WEX a fee for its services rendered pursuant to this Agreement in accordance with the fee schedule attached hereto. Fees are invoiced monthly and are due within thirty (30) days of the invoice date. If Employer disputes in good faith any portion of the fees invoiced, Employer shall provide WEX with written notice of any disputed fees together with a complete written explanation of the reasons for the dispute (the "Dispute Notice' within thirty (30) days of the invoice date. The parties shall work together in good faith to reach a mutually agreeable resolution of the dispute identified in the Dispute Notice for a period of ten (10) days following the date of the Dispute Notice. (b) Employer shall have thirty (30) days from the date of the invoice to correct a participant count for credit or refund. (c) On or after the rate expiration date indicated on the fee schedule, WEX reserves the right to amend the fee schedule with at least sixty (60) days' advance written notice. If Employer is unwilling to accept the changes to the fee schedule, Employer may terminate this Agreement by providing notice to WEX no later than the effective date of the fee schedule amendment. (d) Fees quoted assume that WEX standard software, procedures, and systems will be compatible with Employer's software and systems and with any prior service provider's software and systems so that the services can be readily performed without any modifications or alterations of WEX's software and systems. If costs are incurred by WEX to enhance or integrate its services with Employer's software and systems and/or in migrating the data from the prior service provider to WEX's systems, those costs may be charged separately on a time and materials basis or as otherwise provided under a separate agreement between the parties. WEX Health, Inc Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WIX Health, Inc. (e) Notwithstanding the foregoing, WEX reserves the right to: • Charge for the provision of additional products or services that were neither included in nor contemplated by this Agreement on the Effective Date; • Charge for proprietary technology and services; • Increase fees based on additional costs imposed on WEX, such as significant postal rate or bank fee increases or substantiated increased costs due to legislative or regulatory changes, domestic or foreign, actually incurred in performing its services; and • Pass through any fees charged to WEX by a vendor of Employer. WEX shall provide Employer with reasonable prior written notice of such charges or increases. Employer represents and warrants that if someone other than Employer is making the payment of WEX's fees on behalf of Employer, the making of such payment does not violate any applicable anti -rebating law. Employer agrees to hold WEX harmless and not liable and release it from all liability whatsoever from all losses and expenses that result from Employer's breach of this provision. 63 Past Due Fees Notwithstanding anything in this Agreement or any other agreement between the parties to the contrary, if Employer fails to pay WEX, any amount (except for amounts subject to a good faith dispute) that is due as a result of the services provided by WEX to Employer under this Agreement or any other agreement between the parties, WEX shall be permitted to deduct (in accordance with Section 2.13(b)) the undisputed amount from any funds held by WEX that were received from Employer. This right of offset shall be in addition to any other remedies that WEX may have under this Agreement or any other agreement between the parties with respect to such non-payment, including, without limitation, any right to terminate this Agreement or right of recoupment, regardless of whether the past due amount is paid in full as a result of the offset or any recoupment rights provided herein. 6_4 Participant Count for Billing.Eg cis The participant count for billing purposes is determined by WEX on a monthly basis. A participant is counted for billing purposes if their account is being administered by WEX under the Plan, which may include a carryover and/or applicable grace period, a run -out period, and/or a zero dollar balance. ARTICLE 7 GENERAL 7.1 Limitations of Liabillt Notwithstanding any other provision in this Agreement to the contrary, the total cumulative liability of WEX to Employer for all claims, actions, or suits however caused arising out of or in connection with this Agreement shall be limited to direct damages and shall not exceed the greater of: (a) the amount of fees received by WEX from Employer under this Agreement for the twelve (12) months prior to the occurrence of the event giving rise to any such claims, actions or suits; or (b) amounts payable and actually paid to Employer or WEX resulting from Employer's claim, as applicable, under the insurance policies provided for under Section 7.2 of this Agreement. In no event shall either party be liable to the other for consequential, special, exemplary, punitive, indirect or incidental damages, including, but not limited to, any damages resulting from loss of use or loss of profits arising out of or in connection with this Agreement, whether in an action based on contract, tort (including negligence) or any other legal theory whether existing as of the Effective Date or subsequently developed, even if the party has been advised of the possibility or foreseeability of such damages. WD( Health, Inc Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Propderary a s nnfi n 'd ©2021 • All Rights Reserved WEX Health, Inc. No action under this Agreement may be brought by either party more than two (2) years after the cause of action has accrued. WEX and Employer expressly agree that the limitations of liability in this Section 7.1 represent an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by WEX to Employer and is an essential element of the basis of the bargain between the parties. 72 Insurance During the term of this Agreement, WEX 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. WEX maintains commercial crime insurance, including employee dishonesty coverage with policy limits of not less than $5,000,000. Upon request, WEX shall provide Employer with a certificate or certificates of insurance reflecting such insurance coverages. 7.3 Indemnification (a) Subject to the limitations in Section 7.1, WEX will indemnify, defend and hold harmless Employer (and its respective officers, directors, employees, authorized representatives, successors, and permitted assigns) from and against all liability, damages, costs, losses, penalties, expenses and reasonable attorney fees (collectively, "Losses'D incurred by Employer 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 WEX'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. (b) In addition to Sections 2.1, 2.14, 6.2 and 7.4, Employer will indemnify, defend and hold harmless WEX (and its respective officers, directors, employees, authorized representatives, successors, and permitted assigns) from and against all Losses incurred by WEX 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 subsection, Employer agrees that WEX 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. (c) The party seeking indemnification under Sections 7.3(a) or 7.3(b) 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 Section 7.3 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 Section 7.3 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 WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. compromise that relates to monetary compensation shall become Losses subject to indemnification under this Section 7.3 by the indemnifying party. 7.4 Flan Benefits Liti ation (a) Against WEX. If a demand is asserted or litigation or an administrative proceeding is commenced by a Plan participant or beneficiary, an employee of Employer, or a federal or state agency against WEX, or against the Employer, the Plan Administrator and/or the Plan and WEX jointly, related to the services provided by WEX or benefits provided under the Plan, including the administration, processing or determination of a claim for Plan benefits ("Plan Benefits Litigation', WEX shall select and retain counsel to represent WEX's interest. In actions asserted against Employer and/or the Plan Administrator and WEX, and provided no conflict of interest arises between the parties, as shall reasonably be determined by WEX, WEX agrees to joint defense counsel. Employer shall pay or cause to be paid all reasonable attorneys' fees and costs incurred by WEX in defense of the Plan Benefits Litigation, to the extent such demand, litigation, or administrative proceeding does not arise out of WEX'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. The failure to provide notice of Plan Benefits Litigation does not relieve Employer of the obligation to pay or cause to be paid WEX's attorneys' fees and costs. WEX and Employer and/or the Plan Administrator shall cooperate fully with each other in the defense of the Plan Benefits Litigation. (b) Against Employer. If Plan Benefits Litigation is commenced against Employer, the Plan Administrator and/or the Plan, but to which WEX is not a party, Employer and/or the Plan Administrator shall select and retain counsel and shall be responsible for all reasonable attorney fees and costs in connection with Plan Benefits Litigation. WEX shall provide reasonable cooperation in the defense of Plan Benefits Litigation arising out of matters relating to this Agreement, but shall retain the right to select and retain counsel to represent WEX's interests, if any, and reasonable attorney fees and costs incurred by WEX in defense of the Plan Benefits Litigation shall be paid or reimbursed by Employer. (c) Plan Benefits. Notwithstanding any provision in this Agreement to the contrary, Employer is responsible for the full amount of any Plan benefits paid as a result of Plan Benefits Litigation. Furthermore, to the extent a party exercises its rights with respect to Plan Benefits Litigation pursuant to this Section 7.4, there is no requirement to also proceed pursuant to Section 7.3. ARTICLE 8 MISCELLANEOUS 8.1, Number Where the context of this Agreement requires, the singular shall include the plural and vice versa. 8.2 Force Maieure Notwithstanding anything to the contrary contained herein, neither party shall be responsible or liable if the performance of its obligations hereunder is hindered or adversely affected or becomes impossible or impracticable, as a result of an event or effect that the party could not have anticipated or controlled or for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, lockouts, strikes, work stoppages or other labor disruption, accidents, epidemics, pandemics, quarantines, war (whether declared or undeclared), acts of war or terrorism (whether foreign or domestic in origin), insurrection, sabotage, riot, a decree of health emergency, national emergencies or other man-made emergency, civil or military disturbances including any law, regulation, order or other action by any governmental authority, nuclear or natural disasters or acts of God, interruptions, loss or malfunctions of utility, transportation, communications or computer (software and hardware) services, including the disruption or outage of the Internet, or disruption of financial markets or banking functions (a "Force Majeure Event'). A party affected by a Force Majeure Event shall as soon as reasonably practicable after the occurrence of the Force Majeure Event or the occurrence of harm resulting from such a Force Majeure Event that causes the party to be unable to perform: (a) provide written notice to the other party of the nature and extent of any such Force Majeure Event; and (b) use commercially reasonable efforts to remedy any inability to perform due to such a Force Majeure Event. WEX Health, Inc Sergi Agreement Updated: Mardi 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 8.3 Waiver 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. 8.4 Severability If any provision of this Agreement is determined by a court 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. 8_5 Governing Law This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the internal laws of the State of North Dakota (without regard to the laws of conflict that might otherwise apply) as to all matters, including without limitation, matters of validity, interpretation, construction, effect, performance, enforcement and remedies. Excluding all matters pertaining to the collection of amounts due to WEX arising out of the services provided, any claim, controversy or dispute arising out of, or relating to, this Agreement, in addition to disputes about invoices per Section 6.1, first promptly shall be settled by managers with direct day-to-day responsibility under this Agreement, and if not so settled, promptly shall be addressed by executives of the parties who have authority to settle the dispute. A party wishing to raise a dispute shall give prompt written notice to the other party, and the good faith attempt to resolve the dispute, as described in the foregoing sentence, shall take place within thirty (30) days thereafter. Engaging in the dispute resolution process described in this Section 8.6 shall be a condition precedent to proceeding with litigation. 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. To the extent this Agreement must be enforced in a court of law, the parties agree that it can only be brought in the United States District Court for the District of North Dakota, and both parties consent to such jurisdiction and venue. 8.7 Waiver of Juty Trial To the extent this Agreement must be enforced in a court of law, each of the parties hereto irrevocably waives all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, provided, however, that for judicial economy purposes, if a party desires to implead or otherwise add the other party to a third -party claim and such third -party claim is already a jury trial, the foregoing waiver of jury trial shall not apply. The waiver may not apply in any criminal case without the written consent of the defendant. 8.8 Notice 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: (a) when received if delivered by hand; (b) the next business day if placed with a reputable express carrier for delivery during the morning of the following business day; (c) three (3) days after deposit in the U.S. mail for delivery, postage prepaid; or (d) when received if delivered electronically. WEX: 82 Hopmeadow Street, Simsbury, CT 06089, Attention: General Counsel. 8.9 ;ntir A re�iw 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, whether written or verbal. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order, payment processing agreement, or other document relating to the services provided by WEX herein, the terms and conditions of this Agreement shall control. Further, the terms and conditions of this Agreement shall prevail over any WEX Health, Inc Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. additional terms contained in any such purchase order, payment processing agreement, or other document. Any amendment to this Agreement must be in writing and consented to 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, permitted assigns, and successors in interest. Unless expressly set forth in this Agreement, nothing in this Agreement is intended to confer, and nothing herein shall confer upon any person other than the parties hereto, any rights, remedies, obligations or liabilities whatsoever. 8.10 Assignment This Agreement may not be assigned by either party without the prior written consent of the other unless to an affiliate or in connection with a change in control, merger, acquisition or sale of all or substantially all of the parry'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 following the date of the assignment. If consent is required, the parties shall not unreasonably withhold or delay consent. 8.11 Survival Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive. 8.12 Relationshipof th , Parties 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 WEX. 8.13 Successor In the event of WEX's resignation or inability to serve, Employer may appoint a successor. In such situations, the replacement of WEX shall be considered a termination of this Agreement and the termination provisions of Article 5 shall remain effective and controlling. 8.14 Authority Neither WEX nor Employer, when dealing with the other party in relation to the Plan, shall be obliged to determine the other parry's authority to act pursuant to this Agreement. WEX Health, Inc. Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 SERVICES AND RECORDKEEPING ADDENDUM Services and Recordkeeping as Applicable Adjudicate FSA, HRA and Parking reimbursement requests Included Administration for 21/2 month grace period extension Included Automatic email to participant when claims received and reimbursement is made Included Claims -Based Funding Included Deduction/Contribution-Based Funding as available Included Daily processing of claims for reimbursement Included Debit card Included Employee group meetings AdditimMfee may apply IIAS compliant debit card Included Issue direct deposit to participant savings or checking accounts Included Issue reimbursement checks to participants Included Maintain and update employee FSA/HRA/TSA records Electronic open enrollment materials or online enrollment presentation (Health FSA and Dependent Care FSA Only) Included Included Plan design and set up Postage for standard mailings Included Included Process claims during plan year run -out period Included Reconcile records to employer's payroll, if applicable Included Web enrollment Included Reporting and Communication — Employer Standard reporting available on status of account balances Included Reporting and Communication — Participant Account balance notice sent 60 days prior to end of plan year (Health and Dependent Care FSA Only) Included Communication concerning ineligible claims Included Open Enrollment Guides/Handouts Included Online access to account information 24/7 Included Emailed notice of account statement available Included Statement included with each reimbursement check Included Toll -free customer service line Monday through Friday Central Time Zone Employers 7:00 a.m. to 7:00 p.m. Participants 6:00 a.m. to 9:00 p.m. In compliance with United States federal and state law, WEX may monitor and/or record calls that are made to and from the customer service line for quality assurance and training purposes and/or to ensure that WEX's services fully comply with the terms of the Agreement. Included Compliance Standard plan document (Section 125, FSA, HRA and TSA only) Included Standard plan document and summary plan description updates Standard summary plan description Included Included Information for annual 5500 Filing (Health FSA and HRA) Standard KeyDCAP Non -Discrimination Testing: Cafeteria Plan 25% Key Employee Concentration Dependent Care More than 5% Owners Concentration Dependent Care 55% Average Benefits Included Included Expanded Non -Discrimination Subscription Testing: Premium Only Plan (POP), Flexible Spending Account (FSA), Health Reimbursement Arrangement (HRA), Self -Insured Medical Plan (SIMP) Addidamal fee may apply WEX Health, Inc Services Agreement Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 To the extent that debit cards are used for the reimbursement accounts, the following applies with respect to the debit card services: 1 Definitions for the purposes of this Addendum: 1.1 "Card Transaction" means the presentation of the debit card for payment of Qualified Services. 1.2 For a Health FSA and/or HRA, "Qualified Services" means all related goods and services within the meaning of the term "medical care" or "medical expense" as defined in Code Section 213 (26 USC § 213) and the rulings and Treasury regulations thereunder to the extent that such goods and services are allowable for the Account in question. 1.3 For a TSA, "Qualified Services" means parking, transit passes, and commuter highway vehicle, within the meaning of Code Section 132(f) (26 USC § 132(f)) as it relates to qualified transportation plans. 1.4 "Account" means the FSA account, HRA account, and/or TSA as the context requires and as elected by Employer as part of the Agreement. 1.5 "Employee" means those employees eligible to participate in the Plan. 1.6 Plan participants or "Participant" means Employees who are entitled to account coverage based on the Employer's plan document. 2 General Provisions of Debit Card Services 2.1 WEX is responsible to provide debit card services to Participants, including: Updating Participant records; Maintaining accurate account balances and deposit information; Activating and deactivating the debit cards; Canceling the debit cards; Responding to Participant inquiries; and Providing appropriate notices of actions taken. 2.2 WEX agrees to reasonably ensure compliance with proper use of the debit card and take whatever action is necessary to investigate and resolve errors in Card Transactions that are asserted by Participants within five (5) business days of notice of an assertion. 2.3 WEX agrees to cancel access to a Participant's Account when a debit card is reported as lost or stolen. 2.4 WEX agrees to deactivate a Participant's debit card upon notice from Employer of ineligibility or termination. If Employer fails to provide notice, Employer will be responsible for any ensuing Card Transactions. 2.5 WEX will make available to Employer, for distribution to the Participants, information as to the proper use of the debit card. 2.6 Employer acknowledges that it must, in accordance with applicable law, facilitate an after-tax payroll deduction in those instances where the debit card was used to pay for an ineligible expense and the participant failed to reimburse the Plan or the ineligible expense could not be offset with an eligible expense. 2.7 Employer agrees to notify WEX immediately upon suspicion or confirmation of inappropriate or fraudulent debit card use. 2.8 The liability for payment of claims falls on Employer or the Participant. Additional Card Transaction costs, if any, are paid by Employer or Participant. WEX Health, Inc. Services Agreement City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. 2.9 WEX standard administrative procedures may be different for Card Transactions with respect to a health FSA, HRA, and TSA and with respect to a group or groups of Card Transactions. 3 Settlement Provisions of Debut Card Services 3.1 Employer has, in conjunction with this Agreement, executed and delivered to WEX an Authorization Agreement for Automated Clearing House (ACH) Direct Payments, which authorizes the issuer of the debit cards ("Issuer") to debit the account of the depository financial institution designated by Employer in said Agreement as more fully set forth therein. This information may be delivered or collected via or within an online form. 3.2 Each business day, Issuer is authorized to debit the account in the amount required to settle all Card Transactions ("Daily Settlement Amount") and the collected and available funds in the account must be greater than or equal to the Daily Settlement Amount for the previous business day. 3.3 Employer shall reimburse/pay Issuer for all Card Transactions irrespective of whether any authorization for a Card Transaction was made in accordance with the terms of the Plan. 3.4 If Employer fails to fund the account to settle with Issuer for Card Transactions, fails to reimburse/pay Issuer for all Card Transactions, or breaches its obligations to Issuer, Issuer may, at its option, suspend or terminate all debit cards or change the method by which Employer may settle with Issuer for Card Transactions. 3.5 Employer acknowledges that Issuer is not a party to the Agreement and Issuer has no obligation or responsibility to process and or adjudicate benefit claims. Issuer's function is to issue debit cards and to make settlements arising from Card Transactions based solely on the information provided to it by the debit card processor. 4 Miscellaneous Provisions of Debit Card Services 4.1 Card Transactions will be settled directly to the account at the depository financial institution designated by Employer and on record with WEX. 4.2 Changes to the account information must be made via the submission to WEX of a new Authorization Agreement for Automated Clearing House (ACH) Direct Payments. This information may be delivered or collected via or within an online form. 4.3 Said authorization remains in full force and effect until WEX and Issuer receive written notification to revoke it in such time and manner as to afford WEX, Issuer, and the depository financial institution designated by Employer a reasonable opportunity to act on it. 4.4 Employer acknowledges that the Issuer shall be deemed to be a third party beneficiary with respect to Sections 3 and 4 of this Addendum with full rights to rely upon and enforce the provisions thereof. 4.5 Employer acknowledges that the origination of ACH transactions to the account must comply with the provisions of United States law. 4.6 Unless otherwise stated, all provisions of the Agreement apply to the debit card services. WIX Health, Inc Updated: March 2021 Proprietary & Confidendal ©2021 • All Rights Reserved WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 BUSINESS ASSOCIATE AGREEMENT RECITALS WHEREAS, WEX provides certain administrative services, activities or functions in connection with the Plan ("Services' pursuant to a services agreement ("Services Agreement') between WEX and Employer (also "Sponsor'; and WHEREAS, the parties desire to enter into this Business Associate Agreement (this "Agreement', effective upon the earlier of the respective Services Agreement effective date or the date of first receipt of PHI from the Plan or Sponsor by WEX, as set forth below for the purpose of addressing the following law, as amended and clarified by the HIPAA Omnibus Rule or any regulation, rule or guidance that may be issued after the effective date of this Agreement: • The Health Information Technology for Economic and Clinical Health Act ("HITECH Act') enacted as part of the American Recovery and Reinvestment Act of 2009 and the regulations promulgated thereunder relating to the privacy and security of protected health information; • The "Standards for Privacy of Individually Identifiable Health Information," 45 CFR Part 160 (specifically recognizing here 45 CFR Part 160, Subparts C, D, and E ("Enforcement Rule'l) and Part 164, Subparts A and E ("Privacy Rule'); • The "Standards for Electronic Transactions," 45 CFR Part 160, Subpart A and Part 162, Subpart A and Subparts I through R ("Electronic Transaction Rule'; • The "Security Standards for the Protection of Electronic Protected Health Information," 45 CFR Part 160 and Part 164, Subparts A and C ("Security Rule'; and • The "Standards for Breach Notification for Unsecured Protected Health Information," 45 CFR Part 160 and Part 164, Subparts A and D ("Breach Notification Rule'. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Plan and WEX agree as follows: ARTICLE 1 DEFINITIONS 1.1 "Agent" shall have the meaning given to it in Section 2.5. As provided by the Health Insurance Portability and Accountability Act, as amended ("HIPAA'), an Agent and a Subcontractor are two separate types of arrangements. 12 "Breach" shall have the meaning given to it by 45 CFR § 164.402. 1.3 "Business Associate" shall have the meaning given to it by 45 CFR § 160.103. 1_4 "Designated Record Set" shall have the meaning given to it by 45 CFR § 164.501. 1.5 "Health Care Operations" shall have the same meaning given to it in 45 CFR § 164.501, 1.6 "HIPAA" shall mean, collectively, the Privacy Rule, the Electronic Transaction Rule, the Security Rule, and/or the Breach Notification Rule, each as amended and clarified by the HIPAA Omnibus Rule. 1.7 "HIPAA Omnibus Rule" shall mean the "Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules under the Health Information Technology for Economic and Clinical Health Act (the HITECH Act) and the Genetic Information Nondiscrimination Act (GINA)," 78 Federal Register 5566 (January 25, 2013). 18 "Individual" shall mean the person who is the subject of PHI and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g). WEX Health, Inc City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WEX Health, Inc. 1_9 "Individual Rights Requests" shall mean requests under Article 3. 1.10 "Payment" shall have the same meaning given to it in 45 CFR § 164.501. 1.11 "PHI" or " protected health information", defined at 45 CFR § 160.103, shall mean any information, whether oral or recorded in any form or medium, that: (i) relates to the past, present or future physical or mental health or condition of an Individual; the provision of health care to an Individual; or the past, present or future payment for the provision of health care to an Individual; and (ii) identifies the Individual or with respect to which there is a reasonable basis to believe the information can be used to identify the Individual. 1.12 "Plan" shall have the same meaning given to it as the group health plan or plans of the Sponsor as set forth in 45 CFR § 160.103. 1.13, "Plan Administration Functions" shall have the same meaning given to it in 45 CFR § 164.504. 1.14 "Plan Administrator" shall mean the entity, individual, group or committee appointed by the Sponsor, or its successor or successors with the authority to administer the Plan. 1.15 "Privacy Official" shall mean the person designated by the Plan to serve as its privacy official within the meaning of 45 CFR § 164.530(a), and any person to whom the Privacy Official has delegated any of his or her duties or responsibilities. 1.16 "Protected Information" shall mean PHI received from the Plan or created, received, maintained or transmitted by WEX on behalf of the Plan. 1.17 "Required by Law" shall have the same meaning given to it in 45 CFR § 164.103. 1.18 "Secretary" shall mean the Secretary of the United States Department of Health and Human Services. 1�19 "Services" shall mean the activities, functions, and/or services that WEX from time to time renders to or on behalf of the Plan to the extent that those activities, functions, and/or services are covered by HIPAA. 1.20 "Subcontractor" shall have the same meaning given to it in 45 CFR § 160.103. 1.21 "Unsecured PHI" shall mean Protected Information that is not secured through the use of a technology or methodology that renders such Protected Information unusable, unreadable or indecipherable to unauthorized individuals as specified in 45 CFR § 164.402. ARTICLE 2 OBLIGATIONS AND ACTIVITIES OF WEX 21 Status of WEX. WEX acknowledges and agrees that it is a Business Associate of the Plan for purposes of the Privacy Rule. 2.2 Permitted Uses and Disclosures of Protected Information. (a) Permitted Uses. WEX shall not use Protected Information other than as permitted by this Agreement. WEX may use Protected Information: (i) in connection with the performance, management and administration of the Services; (ii) for the proper business management and administration of WEX; (iii) to carry out WEX's legal responsibilities; (iv) to report violations of law consistent with 45 CFR § 164.5020); (v) to the extent and for any purpose authorized by an Individual under 45 CFR § 164.508; and (vi) for any purpose provided that no data is identifiable and data has been de -identified pursuant to 45 CFR § 164.514(b) (including the separate de -identification guidance issued by the Secretary on November 26, 2012). Notwithstanding the foregoing sentence, WEX shall not use Protected Information in any manner that violates the Privacy Rule, or that would violate the Privacy Rule if so used by the Plan (except for the purposes specified under 45 CFR § 164.504(e)(2)(i)(A) and (B)). (b) Permitted Disclosures,. WEX shall not disclose Protected Information other than as permitted by this Agreement. WEX may disclose Protected Information: (i) in connection with the performance, WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • AM Rights Reserved WEX Health, Inc. management and administration of the Services; (ii) to report violations of law consistent with 45 CFR § 164.5020); (iii) to the extent and for any purpose authorized by an Individual under 45 CFR § 164.508; and (iv) for any purpose provided that no data is identifiable and data has been de -identified pursuant to 45 CFR § 164.514(b) (including the separate de -identification guidance issued by the Secretary on November 26, 2012). In addition, WEX may also disclose Protected Information to a third party for the proper business management and administration of WEX and to carry out WEX's legal responsibilities, provided that the disclosure is Required by Law or WEX obtains, prior to the disclosure: (i) reasonable assurances from the third party that the Protected Information will be held confidentially and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the third party; and (ii) an agreement from the third party that the third party will notify WEX immediately of any instances in which it knows the confidentiality of the information has been breached. Further, WEX shall disclose, upon request, Protected Information to the Sponsor for Plan Administration Functions and to designated Sponsor employees (or designated Business Associates of the Plan) who are working for or on behalf of the Plan for purposes of Payment and Health Care Operations (including claims assistance activities) consistent with 45 CFR § 164.506(c)(1). Notwithstanding the foregoing, WEX shall not disclose Protected Information in any manner that violates the Privacy Rule, or that would violate the Privacy Rule if so disclosed by the Plan (except for the purposes specified under 45 CFR § 164.504(e)(2)(i)(A) and (B)). (c) Minimum Necessary. To the extent required by the Privacy Rule, WEX shall only request, use, and/or disclose the minimum amount of Protected Information necessary to accomplish the purpose of the request, use, and/or disclosure. For this purpose, the determination of what constitutes the minimum necessary amount of Protected Information shall be determined in accordance with Section 164.502(b) of the Privacy Rule. (d) Direct Application of P sMac Rules. WEX shall not use and/or disclose Protected Information or provide any Services that require the use and/or disclosure of Protected Information unless such use and/or disclosure directly complies with this Section 2.2 and Sections 164.502(a)(3) and 164.504(e) of the Privacy Rule. (e) GINA Provisions. Notwithstanding subsections (a) through (c) above, WEX shall not use and/or disclose Protected Information that is genetic information for underwriting purposes, as set forth in 45 CFR § 164.502(a)(5). 2.3 Safeguards. WEX shall maintain and use appropriate and commercially reasonable safeguards to prevent use and/or disclosure of Protected Information other than as permitted or required in this Agreement. 2_4 Report of Prohibited Use or Disclosure. If WEX becomes aware of a prohibited use or disclosure of an Individual's Protected Information by WEX and the use or disclosure violated the provisions of this Agreement, WEX must inform the Privacy Official regarding the prohibited use or disclosure of the Individual's Protected Information. To the extent that a use or disclosure described in this Section 2.4 also constitutes a Breach of Unsecured PHI, the provisions of this Section 2.4 shall not apply, but rather the provisions of Section 2.8 shall apply. 2.5 Ag.q.nat, nd Subcontractors. WEX shall require each of its authorized representatives, agents, and entities (collectively, "Agents'l to whom WEX provides Protected Information on behalf of the Plan to agree to observe the restrictions on use and disclosure of the Protected Information imposed upon WEX by this Agreement and the Privacy Rule. In addition, WEX shall enter into a business associate agreement with each of its Subcontractors which meets the requirements of the Privacy Rule, including the requirements set forth in 45 CFR § 164.504(e). 2_6 Access_by Secretary. WEX shall make available to the Secretary WEX's internal practices, books, and records (including its policies and procedures) relating to WEX's use and disclosure of Protected Information for the purpose of enabling the Secretary to assess the Plan's and/or WEX's compliance with HIPAA. WEX shall inform the Privacy Official of any request sent by the Secretary on behalf of the Plan that is received by WEX, unless it is prohibited by applicable law from doing so. 2.7 Mitigation. WEX agrees to mitigate, to the extent practicable, any harmful effect that is known to WEX of a use or disclosure of Protected Information by WEX in violation of the requirements of this Agreement and provide any notice and remediation that either WEX or the Plan is required to provide by any applicable law in connection with such actual or suspected Breach. Where a Breach involves PHI data elements that reasonably could lead to identity theft, WEX shall provide credit monitoring or other commercially -reasonable identity theft mitigation service for the affected individuals for one year. WEX Health, Inc. Updated: Mara, 2021 City of El Segundo - Vdr. Agr. No. 6192 Pearl- etary & Confidential ©2021 • All Rights We Wed WEX Health, Inc. 2.8 Notice of Breach of Unsecured PHI. (a) WEX Requirements,. Upon WEX's discovery of a Breach of Unsecured PHI by WEX, WEX shall — (1) Pursuant to the requirements set forth in subsection (c) below, provide written notice of the Breach to the Privacy Official, as soon as administratively practicable, but no later than ten (10) business days after the Breach is discovered, and (2) Pursuant to the requirements set forth in subsection (b) below, provide written notice of the Breach, on behalf of the Plan, without unreasonable delay and in no case later than sixty (60) calendar days after discovery of a Breach as authorized under 45 CFR § 164.404 or such later date as is authorized under 45 CFR § 164.412 to: (i) each Individual whose Unsecured PHI has been, or is reasonably believed by WEX to have been, accessed, acquired, used or disclosed as a result of the Breach; (ii) the media to the extent required under 45 CFR § 164.406; and (iii) the Secretary to the extent required under 45 CFR § 164.408 (unless the Plan has elected to provide this notification and has informed WEX); and (3) If the Breach involves less than 500 individuals, maintain a log or other documentation of the Breach which contains such information as would be required to be included if the log were maintained by the Plan pursuant to 45 CFR § 164.408, and provide such log to the Plan within five (5) business days of the Plan's written request. (b) Notice Requirements,. This subsection (b) provides the following special rules that shall each be applicable to the provisions of Section 2.8(a)(2) — (1) The date that a Breach is discovered shall be determined by WEX, in its sole discretion, in accordance with the Breach Notification Rule. (2) The content, form, and delivery of each of the notices required by Section 2.8(a)(2) shall comply in all respects with the breach notification provisions applicable to the Plan, as set forth in the Breach Notification Rule. (3) WEX shall send the notices described in Section 2.8(a)(2)(i) to each Individual using the address on file with WEX (or as may be otherwise provided by the Plan). If the notice to any Individual is returned as undeliverable, WEX shall make one additional attempt to deliver the notice to the Individual using such information as is reasonably available to it, or shall take other action required by the Breach Notification Rule. (4) With respect to notices required under Section 2.8(a)(2)(i) and (ii), WEX and the Privacy Official shall cooperate in all respects regarding the drafting and the content of the notices. To that end, before sending any notice to any Individual or the media under Section 2.8(a)(2)(i) or (ii), WEX shall first provide a draft of the notice to the Privacy Official. The Privacy Official shall have ten (10) business days (plus any reasonable extensions) to either approve WEX's draft of the notice or revise the language of the notice. Alternatively, the Privacy Official may elect to draft the notice for review by WEX. Once WEX and the Privacy Official agree on the final content of the notice, WEX shall send the notice to the Individuals and/or the media based on the requirements of the Breach Notification Rule. (c) Pruv ± Official Notice. The notice to the Privacy Official pursuant to Section 2.8(a)(1) shall include any information available to WEX that is required to be included in a notification to an Individual under 45 CFR § 164.404(c). To the extent that WEX does not have the information to be provided in the prior sentence when it is required to notify the Privacy Official, WEX shall provide such information as soon as administratively practicable after such information becomes available. Upon the Plan's written request, WEX shall provide such additional information regarding the Breach as may be reasonably requested from time -to -time by the Plan. WEX Health, Inc City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. (d) Notice Fees,. WEX reserves the right to charge reasonable, cost based fees for sending the notices required by this Section 2.8 should a Breach be due to actions on the part of the Sponsor, the Plan or any other entity (other than WEX, its Agents or Subcontractors). (e) Remuneration. WEX shall not directly or indirectly receive any remuneration in exchange for PHI or Use or Disclose PHI for marketing or fundraising purposes. ARTICLE 3 INDIVIDUAL RIGHTS REQUIREMENTS (a) General. WEX agrees to maintain a Designated Record Set for the Plan in a manner and form that will allow the Plan to provide access and amendment rights to an Individual with respect to the Individual's Protected Information in conformance with 45 CFR §§ 164.524 and 164.526. (b) Access to Protected Inforrnafi on. Upon request from the Plan, WEX shall process and respond to a request by an Individual for access to an Individual's Protected Information that is maintained by WEX in a Designated Record Set pursuant to 45 CFR § 164.524 (an "Access Request'. WEX shall respond to such Access Request by furnishing such Protected Information to the Plan within a timeframe that reasonably allows the Plan to satisfy the timeframes required by 45 CFR § 164.524. If the Protected Information that is requested is maintained electronically and the Individual requests an electronic copy of such information, WEX will provide access to the information in an electronic format that complies with 45 CFR § 164.524(c)(2)(ii). Thereafter, the Plan will be responsible for sending such information to the Individual. (c) Amendment to, Protected Information. Upon request from the Plan, WEX shall process a request by an Individual for amendment to an Individual's Protected Information that is maintained by WEX in a Designated Record Set pursuant to 45 CFR § 164.526 (an "Amendment Request'. WEX shall process such Amendment Request within a timeframe that reasonably allows the Plan to satisfy the timeframes required by 45 CFR § 164.526. (d) CoordinationWith Privacy Official. WEX shall coordinate and cooperate with the Privacy Official (or any other person designated by the Plan Administrator for this purpose) regarding all processing, recordkeeping, and documentation issues relating to Access Requests and Amendment Requests. Notwithstanding the foregoing, WEX shall not be obligated to coordinate with the Privacy Official if an Individual files an Access Request or an Amendment Request with WEX and such request is directed solely to WEX. 3.2 Accounting of Disclosures of Protected Information. (a) Documentation of Disclosures. WEX agrees to document and maintain a log of any and all disclosures from and after the date or dates required by 45 CFR § 164.528 made by WEX of Protected Information in a manner and form that will allow the Plan to provide to an Individual an accounting of disclosures or other applicable report of the Individual's Protected Information in compliance with and based on the requirements of 45 CFR § 164.528. (b) Accoutirdgau!,. ems. Upon request from the Plan, WEX shall process and respond to a request by an Individual for an accounting of disclosures or other applicable report of an Individual's Protected Information pursuant to the requirements of 45 CFR § 164.528 (an "Accounting Request'). WEX shall furnish such accounting relating to the Accounting Request to the Plan within a timeframe that reasonably allows the Plan to satisfy the timeframes required by 45 CFR § 164.528. Thereafter, the Plan will be responsible for sending such information to the Individual. (c) Coordination wvl,thi_Privac Official. WEX shall coordinate and cooperate with the Privacy Official (or any other person designated by the Plan Administrator for this purpose) regarding all processing, recordkeeping, and documentation issues relating to Accounting Requests. Notwithstanding the foregoing, WEX shall not be obligated to coordinate with the Privacy Official if an Individual files an Accounting Request with WEX and such request is directed solely to WEX. wD( Health, Inc City of El Segundo - Vdr. Agr. No. 6192 Updated: Mardi 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. 3.3 Privacy Protection Reg -Vests. (a) Restriction ,Requests on Uses and Disclosures. The Plan and WEX on behalf of the Plan shall not agree to a restriction on the use or disclosure of Protected Information pursuant to 45 CFR § 164.522(a) without first consulting with the other party. WEX is not obligated to implement any restriction, if such restriction would hinder Health Care Operations or the Services WEX provides to the Plan, unless such restriction would otherwise be required by 45 CFR § 164.522(a). (b) Confidential Communication Requests. ests. WEX shall implement any reasonable requests by Individuals relating to a request to receive communications of Protected Information by alternative means or at alternative locations to the extent required by 45 CFR § 164.522(b). (c) Coordinabon with P iy y i~Sffcial. WEX shall coordinate and cooperate with the Privacy Official (or any other person designated by the Plan Administrator for this purpose) regarding all processing, recordkeeping, and documentation issues relating to requests under this Section 3.3. ARTICLE 4 ELECTRONIC TRANSACTION RULE 4.1 Business Associate Reouirements. WEX acknowledges that it is a Business Associate of the Plan for purposes of the Electronic Transaction Rule. WEX agrees that it shall comply with all Electronic Transaction Rule requirements that may be applicable to WEX with respect to the Services it provides to and on behalf of the Plan. WEX shall also require each of its Agents and Subcontractors to whom WEX provides Protected Information that is received from, or created or received by WEX on behalf of the Plan, to provide assurances, in writing, that they will comply with the applicable requirements of the Electronic Transaction Rule. 4.2 SDOnsor Transmissions,. The Sponsor hereby represents and warrants that all electronic transmissions with respect to the Plan between the Sponsor (either directly or through its designated agent) and WEX relating to enrollment and disenrollment information and premium payment information as each are covered by the Electronic Transaction Rule are sent or received by the Sponsor (either directly or through its designated agent) in the Sponsor's capacity as an employer and are not sent or received by the Plan or are not subject to HIPAA for other reasons, such as that the information is an employment record and not PHI. ARTICLE 5 OBLIGATIONS OF PLAN 5.1 Privacy Notice. Upon request, the Plan will provide WEX with a copy of its notice of privacy practices pursuant to 45 CFR § 164.520. 5.2 Authorizations. The Plan will notify WEX of any changes in or revocations of Individual authorizations for use or disclosure of Protected Information to the extent that such changes or revocations may affect WEX's use or disclosure of Protected Information. 5_.33 Officials. The Plan will notify WEX of the current name and contact information of the Plan Administrator, the Privacy Official, and any other person that has the authority to act on behalf of the Plan with respect to the provisions contained in this Agreement. 5.4 Plan. Sponsor represents that its Plan documents include specific provisions to restrict the use or disclosure of PHI and to ensure adequate procedural safeguards and accounting mechanisms for such uses or disclosures, in accordance with the Privacy Rule. 5.5 Standard Requirements for Crowlp Health Plans. The Plan represents and warrants that: (a) its plan documents, in accordance with 45 CFR § 164.504(f), allow the Plan to receive Protected Information; (b) it has received a certification from the Sponsor in accordance with 45 CFR § 164.504(f)(2)(ii) and will provide a copy of such certification to WEX upon request; (c) the plan document amendments permit the Plan to receive Protected Information (including detailed invoices, reports, and statements from WEX); and (d) the Plan has determined, through its own policies and procedures and in compliance with 45 CFR § 164.502(b), that the Protected Information that it receives from WEX (including the detailed invoices, reports, and statements) contains the minimum information necessary for the Plan to carry out its Payment and Health Care Operations activities. WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • AM Rights R WDC Health, Inc. 5.6 Sponsor agrees and understands that the Plan is independently responsible for the security of all PHI in its possession (electronic or otherwise), including all PHI that it receives from outside sources including the Business Associate. ARTICLE 6 AMENDMENT AND TERMINATION 6.1 Amendment. No change, modification or attempted waiver of any of the provisions of this Agreement shall be binding upon any party hereto unless reduced to writing and signed by both parties. WEX agrees to take such action as is necessary to amend this Agreement from time to time as the Plan reasonably determines necessary to comply with HIPAA, or any other applicable law, rule or regulation. 6_2 Term. The Term of this Agreement shall be effective on the Effective Date (unless otherwise noted herein) and shall terminate when all of the Protected Information received from the Plan, or created or received by WEX on behalf of the Plan, is destroyed in accordance with the Plan's authorization or is returned to the Plan (or its designated agents) pursuant to Section 6.4. 6.3 Termination. If one party to this Agreement ("Non -Breaching Party'D has knowledge of a material violation of this Agreement by the other party to this Agreement ("Breaching Party'l, as determined in good faith by the Non -Breaching Party, the Non -Breaching Party must promptly: (a) Provide an opportunity for the Breaching Party to end and to cure the material violation within a reasonable time specified by the Non -Breaching Party, and if the Breaching Party does not end and cure the material violation within such time (including reasonable extensions that the Non -Breaching Party determines are necessary) to the satisfaction of the Non -Breaching Party, the Non -Breaching Party shall immediately terminate the Services rendered by WEX and any agreement or contract related thereto; or (b) If a cure is not possible as determined by the Non -Breaching Party in its sole discretion, the Non -Breaching Party shall immediately terminate the Services rendered by WEX and any agreement or contract related thereto. 6.4 Effect of Termination. Upon termination pursuant to Section 6.3, the Plan within a reasonable time thereafter must inform WEX to either destroy or return to the Plan (or any agents designated by the Plan) the Protected Information that WEX and its Agents and Subcontractors maintain in any form, and WEX and its Agents and Subcontractors shall retain no copies of the Protected Information. However, in many situations WEX maintains one or more backup copies of Protected Information for auditing, data management, and other related purposes and WEX has determined that destruction of all copies of Protected Information that it maintains is infeasible. Therefore, after termination of the Services and pursuant to 45 CFR § 164.504(e)(2)(ii)(J), this Agreement shall remain in effect, and WEX shall continue to observe and shall ensure that its Agents and Subcontractors continue to observe its obligations under this Agreement to the extent copies of the Protected Information are retained by WEX and shall limit further uses and disclosures of Protected Information to the purposes that make its return or destruction infeasible and that are consistent with the Privacy Rule. ARTICLE 7 ELECTRONIC SECURITY STANDARDS 7.1 Definitions. When used in this Article, the following terms shall have the meanings set forth as follows: (a) "Electronic Media" shall have the meaning given to it in 45 CFR § 160.103. (b) "Electronic Protected Information" shall mean Protected Information received from the Plan or created, received, maintained or transmitted by WEX on behalf of the Plan that is transmitted by Electronic Media or maintained in Electronic Media. (c) "Security Incident" shall have the meaning given to it in 45 CFR § 164.304, WEX Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 Updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WIX Health, Inc. 7_2 Requirements. Pursuant to 45 CFR § 164.314(a)(2)(i), WEX shall: (a) Comply with the applicable requirements of the Security Rule, including the requirement that WEX implement, maintain and document administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of Electronic Protected Information to the extent required by the Security Rule; (b) Report (pursuant to the terms and conditions of Section 7.3) to the Privacy Official (or such other person designated for this purpose) any Security Incident of which WEX becomes aware and which occurred during the applicable reporting period; (c) Require each of its Agents to whom WEX provides Electronic Protected Information to agree to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the Electronic Protected Information that is provided to the Agent to the extent required by the Security Rule; and (d) Enter into a contract or other arrangement with each of its Subcontractors that create, receive, maintain or transmit Electronic Protected Information on behalf of WEX pursuant to which the Subcontractor agrees to comply with the applicable requirements of the Security Rule. 7.3 8e ortin Protocois. All reports required by Section 7.2(b) shall be provided pursuant to the terms and conditions specified in this section. (a) Attglrlpted SecwL ty Incidents. Reporting for any Security Incident involving the attempted unauthorized access, use, disclosure, modification or destruction of Electronic Protected Information (collectively, an "Attempted Security Incident') shall be provided pursuant to the standard reporting protocols of WEX (as determined by WEX). (b) Successful Secuft Inci ent. Reporting for any Security Incident involving the successful unauthorized access, use, disclosure, modification or destruction of Electronic Protected Information (collectively, a "Successful Security Incident's shall be provided to the Plan pursuant to the standard reporting protocols of WEX (as determined by WEX), provided that: (i) the reports shall at a minimum include the date of the incident, the parties involved (if known, including the names of Individuals affected), a description of the Successful Security Incident, a description of the Electronic Protected Information involved in the incident, and any action taken to mitigate the impact of the Successful Security Incident and/or prevent its future recurrence; and (ii) the reports shall satisfy the minimum requirements for Security Incident reporting that may be required from time to time by the Secretary. In addition, Successful Security Incidents shall be reported to the Plan as soon as administratively practicable after the occurrence of the incident taking into account the severity and nature of the incident. Notwithstanding the foregoing, the Plan may request details about one or more Successful Security Incidents, and WEX shall have thirty (30) days thereafter to furnish the requested information. (c) Breach of Unsecured PHI. To the extent that a Security Incident described in this Section 7.3 also constitutes a Breach of Unsecured PHI, the provisions of this Section 7.3 shall not apply, but rather the provisions of Section 2.8 shall apply. 7.4 Mitigation. WEX agrees to mitigate, to the extent practicable, any harmful effect that is known to WEX relating to any Successful Security Incident and provide any notice and remediation that either WEX or the Plan is required to provide by any applicable law in connection with such Security Incident. Where the Security Incident involves data elements that reasonably could lead to identity theft, WEX shall provide credit monitoring or other commercially -reasonable identity theft mitigation service for the affected individuals for one year. 7_5 Access by Secreta . WEX shall make available to the Secretary WEX's internal practices, books and records (including its policies and procedures) relating to the safeguards established by WEX with respect to Electronic Protected Information for the purpose of enabling the Secretary to assess WEX and/or the Plan's compliance with the Security Rule. WEX shall inform the Privacy Official of any request sent by the Secretary on behalf of the Plan that is received by WEX, unless WEX is prevented by applicable law from doing so. WEX Health, Inc. updated: March 2021 Proprietary & Confidential ©2021 • All Rights Reserved WD( Health, Inc. City of El Segundo - Vdr. Agr. No. 6192 ARTICLE 8 GENERAL 8_1 Other Agr em�errts;. The Plan and WEX acknowledge and affirm that this Agreement is in no way intended to address or cover all aspects of the relationship of the Plan and WEX and of the Services that are rendered by WEX to and on behalf of the Plan. Rather, this Agreement deals only with those matters that are specifically addressed herein. Further, this Agreement supersedes any prior business associate agreements entered into by WEX and the Plan (or any predecessor to the Plan), and shall apply to all Protected Information existing as of the effective date of this Agreement or created or received thereafter while this Agreement is in effect. 882, Indemnification. Any indemnification relating to violations of this Agreement by WEX or the Plan (or the Sponsor on behalf of the Plan) shall be addressed to the extent applicable by the respective Services Agreement. 8.3 Severability. The provisions of this Agreement shall be severable, and the invalidity or unenforceability of any provision (or part thereof) of this Agreement shall in no way affect the validity or enforceability of any other provisions (or remaining part thereof). If any part of any provision contained in this Agreement is determined by a court of competent jurisdiction, or by any administrative tribunal, to be invalid, illegal or incapable of being enforced, then the court or tribunal shall interpret such provisions in a manner so as to enforce them to the fullest extent of the law. 8_4 Interpretation. The provisions of this Agreement shall be interpreted in a manner intended to achieve compliance with HIPAA. Whenever the Agreement uses the term "including" followed by a specific item or items, or there is a passage having a similar effect, such passages of the Agreement shall be construed as if the phrase "without limitation" followed such term (or otherwise applied to such passage in a manner that avoids limitations on its breadth of application). Where the term "and/or" is used in this Agreement, the provision that includes the term shall have the meaning the provision would have if "and" replaced "and/or," but it shall also have the meaning the provision would have if "or" replaced "and/or." Any reference to a section or provision of HIPAA shall include any amendment or clarification of such section or provision contained in the HIPAA Omnibus Rule and any regulation, rule or guidance issued by the Secretary following the effective date of this Agreement. 8.5 Binding Effect. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, assigns and successors in interest. The Plan shall have the right to assign this Agreement to any successor or surviving health plan, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by any such assignee. 8..66 No Third-PartyBeneficiaries. Nothing express or implied in this Agreement is intended to confer, and nothing herein shall confer, upon any person other than the parties hereto any rights, remedies, obligations or liabilities whatsoever. 8.7 Applicable Law and j] pute . The provisions of this Agreement shall be construed and administered to, and its validity and enforceability determined under HIPAA. To the extent that HIPAA is not applicable in a particular circumstance, the provisions of this Agreement shall be construed and administered to, and its validity and enforceability determined under the Employee Retirement Income Security Act of 1974, as amended (ERISA'�. In the event that HIPAA and ERISA do not preempt state law in a particular circumstance, the laws of the State of North Dakota shall govern. In the event of any conflict of state laws, the laws of the State of North Dakota shall prevail. The parties agree that any claim or action arising from this Agreement can only be brought in the United States District Court for the District of North Dakota, and both parties consent to such jurisdiction and venue. Any disputes between the parties arising under this Agreement shall be resolved in accordance with the dispute resolution procedures, if any, set forth in the respective Services Agreement. 8.8 State Privacy and Security Laws. (a) General. Pursuant to 45 CFR § 160.203, WEX and the Plan acknowledge that HIPAA only preempts state laws which are contrary to a HIPAA standard, requirement or implementation specification, provided that state laws which relate to the privacy of Protected Information and are more stringent than the Privacy Rule are not preempted. Accordingly, the parties acknowledge that certain State Privacy Laws affecting the privacy and/or security of personally identifiable information (e.g., name, address, age, and social security number) relating to a Plan participant or beneficiary ("Privacy Restricted Data'D may apply to the Services provided by WEX to the extent such State Privacy Laws are not preempted by HIPAA. For purposes of this Section 8.8, "State Privacy Laws" shall mean WEX Health, Inc. Updated: March 2021 City of El Segundo - Vdr. Agr. No. 6192 Proprietary & Confidential ©2021 • All Rights Resv d WD( Health, Inc. any applicable state and local privacy laws governing the creation, collection, storage, maintenance, access, modification, transmission, use or disclosure of Privacy Restricted Data. (b) State Privacy_Laws. All Privacy Restricted Data created, collected, received or obtained by or on behalf of WEX in the course of performing its Services shall be created, collected, received, obtained, stored, maintained, accessed, modified, transmitted, used, and disclosed in accordance with any and all applicable State Privacy Laws. WEX shall at all times perform the Services in accordance with the State Privacy Laws and as not to cause the Sponsor or the Plan to be in violation of the State Privacy Laws. WEX shall be fully responsible for any creation, collection, receipt, access, storage, maintenance, modification, transmission, use, and disclosure of Privacy Restricted Data performed by or on behalf of WEX that is in violation of any State Privacy Laws. WEX shall remedy and mitigate the damages of any breach of privacy, security, integrity or confidentiality with respect to the unauthorized creation, collection, receipt, storage, maintenance, access, modification, transmission, use or disclosure (a "State Breach' of Privacy Restricted Data that is or may be in violation of any State Privacy Laws. (c) Notification. WEX shall notify the Privacy Official (using the procedures that apply to Breaches of Unsecured PHI under Section 2.8(c)) of any State Breaches by or on behalf of WEX of Privacy Restricted Data that is or may be in violation of any State Privacy Laws. In addition, WEX shall also notify the affected Plan participants and beneficiaries (using the procedures that apply to Breaches of Unsecured PHI under Section 2.8(b)) of any State Breaches by or on behalf of WEX of Privacy Restricted Data that is in violation of any State Privacy Laws and any state or local governmental agencies, authorities or other entities, but only to the extent required by such State Privacy Laws. (d) HIPAA Coordination. The parties acknowledge that in certain situations the provisions of both Section 2.8 and this Section 8.8 shall apply. If both Sections 2.8 and 8.8 apply in a given situation, WEX shall comply with both Sections 2.8 and 8.8 to the extent applicable. 8.9 Obligation ofPlan and WEX. To the extent that WEX carries out the HIPAA obligations of the Plan (including the obligations set forth in Section 2.8 and Article 3), WEX shall comply with the applicable requirements of HIPAA as they apply to the Plan in the performance of such obligations on behalf of the Plan.