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HomeMy WebLinkAboutC-8021-2 - Master Consulting Services AgreementIs MASTER CONSULTING SERVICES AGREEMENT This MASTER CONSULTING SERVICES AGREEMENT ("Master Agreement") is entered into effective as of the i5 day of 201,'2, ("Effective Date") by and among CITY OF NEWPORT BEACH, CALIFORNIA (hereinafter "Client") and AMERICAN FIDELITY ADMINISTRATIVE SERVICES, LLC (hereinafter "Consultant"). WHEREAS, the parties desire for Consultant to provide services to Client with respect to certain employee benefit plans sponsored by Client ("Client's Plans") and under the terms set forth herein; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Scope. This Master Agreement is comprised of the general terms and conditions set forth herein (the "Terms and Conditions") and each properly executed Scope of Work ("SOW") to be attached hereto and incorporated by reference herein. Consultant shall provide certain services to Client as specified in a SOW (the "Services"). Each time Client engages Consultant to perform services, a new SOW shall be prepared specifying the scope of the services specific to that engagement. Consultant shall have the right, at all times, to perform similar services for other person(s) or business entities. 2. Term. The term of this Master Agreement shall commence on the Effective Date and shall continue in full force and effect for one year. 3. Fees and Records. In consideration of Services performed, Client agrees to pay Consultant in accordance with each SOW. Unless otherwise expressly set forth in any given SOW, Client shall be responsible for actual out-of-pocket expenses (e.g., overnight charges, extensive reproduction costs) and travel costs incurred by Consultant in connection with its provision of the Services. Client shall also be responsible for all sales taxes and other similar tax obligations in connection with its receipt of the Services from Consultant. Such expenses, taxes, and other obligations shall be owed above and beyond any professional fees. If Client is exempt from paying sales tax, a tax exemption certificate shall be provided to Consultant. Until such certificate is received, Consultant will charge applicable sales tax on the invoices. 4. Invoicing and Payment. Consultant will deliver an invoice to Client for fees and expenses each month unless otherwise specified in the SOW. Payment of the amounts indicated on the invoice is due upon receipt of the invoice. Payment will be made within per annum thirty (30) days of receipt of an invoice ("Due Date"). Interest in the amount of 5% per annum, or the maximum amount allowable under the law, will be charged on all amounts due and owing after the Due Date. 5. Client Resources and Data. In addition to any responsibilities imposed on Client as specifically set forth in a SOW, Client agrees that Consultant shall have ready access to Client's staff and resources as necessary to perform the Services pursuant to a SOW. In addition, Client will provide to Consultant all data necessary to complete the Services specified in a SOW, in a format agreed to by both parties. In the performance of the Services, Consultant may rely upon, and will have no obligation to independently verify the accuracy, completeness, or authenticity of, any written instructions or information provided to Consultant by the Client or its designated representatives and reasonably believed by Consultant to be genuine and authorized by the Client. In addition, if Consultant receives inaccurate, incomplete, or improperly formatted information, any additional time and expense required to correct the information will be billed to Client as additional Services. 6. Relationship of Parties. a. Consultant is, and shall at all times remain, an independent contractor with respect to the Client. Consultant and each of Consultant's employees, principals, and subcontractors shall not be deemed for any purpose to be Client's employees; and they shall not be entitled to any claims, rights, benefits and privileges to which an employee of Client or any of its respective affiliates may be entitled under any retirement, pension, insurance, medical or other plans which may now be in effect or which may hereafter be adopted. Client is not responsible to any governing body or to Consultant for paying or withholding payroll taxes and other employee expenses related to payments made to Consultant. Notwithstanding anything to the contrary, this Master Agreement does not, and shall not be deemed to, constitute a partnership or joint venture between the parties and neither party nor any of their respective directors, officers, employees or agents shall, by virtue of the performance of their obligations under this Master Agreement, be deemed to be an agent or employee of the other. No party has the authority to bind another party except to the extent approved in writing by the party to be bound. b. Notwithstanding any provision in this Master Agreement to the contrary, the Client agrees and acknowledges that (i) this Master Agreement, any SOW executed pursuant to this Master Agreement or the performance by the Consultant hereunder are not intended in any way to impose on Consultant or any of its affiliates a fiduciary status under the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or any other applicable law; and (ii) this Master Agreement does not provide Consultant, and the Client will not cause or permit Consultant to assume, without prior written consent of Consultant, any (A) discretionary authority or discretionary control respecting management of any "employee benefit plan" within the meaning of Section 3(3) of ERISA (an "ERISA Plan"), (B) authority or control respecting management or disposition of the assets of any ERISA Plan, or (C) discretionary authority or discretionary responsibility in the administration of any ERISA Plan. C. The Client acknowledges and agrees that the Services do not and shall not constitute the practice of law, accountancy or any other profession by the Consultant and that the Consultant has recommended to Client that all work performed by Consultant be reviewed by Client's independent tax and legal counsel. All compliance assistance work performed by Consultant will relate to compliance with federal laws imposing obligations with respect to Client's Plans. The parties agree that Consultant will not consider any State laws or regulations unless specifically set forth in a SOW. Finally, any Federal tax information provided in writing pursuant to this Master Agreement is not intended or written, and cannot be used, for the purpose of (i) avoiding penalties imposed by the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any transaction or matter that is contained in our written work products. Consultant shall rely upon information provided by Client and will not have a duty to verify accuracy of such information. Intellectual Property. a. Any patented or otherwise legally protectable invention, process, discovery, technique, know-how, proprietary method or copyrightable expression (1) belonging to and used by Consultant or its contractors for the benefit of Client in connection with this Agreement, or (2) made or developed by Consultant during the course of providing the Services hereunder, shall remain and be the property of Consultant. However, Consultant shall not receive any royalty related to the use of such invention in providing the Services to Client. b. All documents produced by Consultant in any form, including the electronic versions thereof ("Deliverables"), are instruments of service of Consultant. The copyright and other intellectual property rights in all documents and expressions (including without limitation any memoranda, spreadsheets, drawings, maps or computer programs) prepared or compiled by Consultant hereunder shall remain vested in Consultant; however, Client shall have a free, non -transferable license to use such of those documents as are supplied hereunder for those purposes specified in and subject to the terms of the SOW and for Client's internal use only. Without limiting the foregoing, Client shall not provide such Deliverables to any third person without the written consent of the Consultant. Any liability arising out of use of Deliverables by Client for purposes other than for which they were created or out of use by any third party shall be the responsibility of Client, who shall indemnify Consultant against all claims, costs, damages, expenses or losses arising out of such unauthorized use. 8. Confidential Information. In connection with the Services, each party will have access to confidential information including, but not limited to trade secrets, data, business plans, customer information, marketing information, and financial matters which are made available by the other party or the other party's clients (collectively, "Confidential Information"). Each party shall protect Confidential Information in the same manner as it protects its own Confidential Information of like kind, but in no event less than a reasonable degree of care. The receiving party will only use the Confidential Information to exercise its rights or carry out its obligations under this Master Agreement. The receiving party will restrict access to Confidential Information to only its employees or consultants who require such access in the course of their assigned duties and responsibilities and who have been informed of the receiving party's obligations of confidence and have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set forth herein. In the event that any Confidential Information is required to be disclosed pursuant to any law, code or regulation, if permitted by law, the receiving party will give the disclosing party immediate notice thereof and will use its efforts to seek or to cooperate with the disclosing party in seeking a protective order with respect thereto. Upon termination of this Master Agreement, Confidential Information shall be returned to the disclosing party or certified as destroyed at the disclosing party's option. 9. Performance of Services. a. Consultant shall, subject to the provisions of this Master Agreement, including without limitation the obligations of the Client to provide accurate information and to pay the Consultant's compensation hereunder, and upon timely receipt of all data, information, approvals, site access or other information or assistance to be provided by Client, cavy out and complete the Services specifically agreed upon in this Master Agreement or in a SOW. b. Consultant has the full power and authority to enter into and perform this Master Agreement. C. Consultant agrees that the Services will be performed in a professional and timely manner in accordance with accepted industry standards. 10. HIPAA Compliance. a. The parties agree that their respective actions pursuant to the terms of this Master Agreement shall be in full compliance with all applicable law including without limitation the Health Insurance Portability and Accountability Act of 1996 as amended ("HIPAA") and all regulations promulgated thereunder. Without limiting the foregoing, if and to the extent any of the Services involve disclosures or transmissions to or the creation or use of Protected Health Information by Consultant related to Client's Plans, the parties shall enter into a Business Associate Agreement prior to any such transmission, disclosure, creation or use. Clients agrees to (i) notify Consultant prior to any transmission or other disclosure of Protected Health Information to Consultant and request Consultant to enter into the Business Associate Agreement, and (ii) cause any third person who may transmit or otherwise disclose Protected Health Information to Consultant on behalf of Client to abide by the terms of this paragraph. As used herein, Protected Health Information means any and all information considered "protected health information" under 45 C.F.R. 160.103 limited to the information created, received or transmitted by Consultant from or on behalf of Client pursuant to this Agreement as hereafter amended. 11. Termination. a. Each party ("Terminating Party") may terminate this Master Agreement if the other party breaches any material term or condition of this Master Agreement provided that the Terminating Party gave written notice to the other party of the need to correct a breach of a material obligation under this Master Agreement, which notice included sufficient detail to allow the other party to identify and correct the breach, and the other party failed to take reasonable steps to remedy the breach within thirty (30) days of receipt of Terminating Party's written notice. Each of the parties hereto may also terminate for convenience by providing sixty (60) days prior written notice of the same to the other party. b. Such termination shall not relieve Client of the payment of any and all amounts owing to Consultant under this Master Agreement through the date of termination and any reasonable de -mobilization cost. 12. Disputes, Limitation of Liability and Indemnification. a. Dispute Resolution. In the event of a dispute, Client agrees to inform Consultant of such dispute and the parties agree to make a good faith attempt to reach a mutually acceptable resolution. If they are unable to reach agreement, then each party is free to seek legal recourse. b. Disclaimer. OTHER THAN AS PROVIDED HEREIN NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE OR INTENDED RELATED TO THE SERVICES PROVIDED. ANY AND ALL CLAIMS SHALL BE MADE WITHIN TWO (2) YEARS FROM THE DATE OF ANY ALLEGED FAULT OR ERROR OR SHALL BE FOREVER BARRED. C. Limit of Liability. IN RECOGNITION OF THE RELATIVE RISKS RELATED TO THE SERVICES PROVIDED AND THE CONSIDERATION TO BE RECEIVED BY THE CONSULTANT FOR SUCH SERVICES, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CONSULTANT'S MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS UNDER ANY THEORY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY OF THE SERVICES PROVIDED TO CLIENT PURSUANT TO THIS AGREEMENT INCLUDING WITHOUT LIMITATION, ANY LIABILITY FOR NEGLIGENCE SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO CONSULTANT BY CLIENT IN THE THREE (3) MONTH PERIOD PRIOR TO THE DATE OF LOSS WITH RESPECT TO THE SERVICES DIRECTLY RELATING TO AND FORMING THE BASIS OF SUCH CLAIM. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL CONSULTANT BE LIABLE TO CLIENT OR ANY THIRD PERSON FOR ANY TAX, PENALTY OR FEE IMPOSED ON CLIENT OR ANY THIRD PERSON BY ANY GOVERNMENTAL AUTHORITY EVEN IF THE SOURCE OF SUCH TAX, PENALTY OR FEE IS THE SERVICES OR/AND DELIVERABLES OR ANY DEFECT IN EITHER OF THEM. d. Indemnification. To the fullest extent permissible by law, Client will indemnify and hold Consultant and its personnel, contractors and third -party suppliers of services and tools (including computer software) harmless from any and all claims, liabilities, and expenses relating to negligent actions or omissions, or breach of contract by Client or its personnel. Consultant agrees to indemnify, and hold harmless the Client, officers and employees from and against all claims, liabilities, judgments and expenses arising from personal or bodily injuries, and/or property damage directly caused by negligence This section shall survive termination of this Master Agreement. 13. Miscellaneous. a. Notices. All notices hereunder shall be in writing and shall be sent by certified mail, return receipt requested, or by overnight courier service, to the notice address set forth below each party's signature, or to such other addresses as may be stipulated in writing by the parties. Unless otherwise provided, notice shall be effective on the date it is officially recorded as delivered by return receipt or equivalent. b. Entire Agreement; Amendment. This Master Agreement, incorporated agreements and each properly executed SOW supersede all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. This Master Agreement may not be amended except by written instrument executed by both parties. In the event of a conflict between the terms of any given SOW and this Master Agreement, the terms of this Master Agreement shall control, unless such SOW expressly states that it is amending the terms of the Master Agreement with respect to such SOW. The invalidity or unenforceability of any provision of this Master Agreement shall in no way affect the validity or enforceability of any other provision of this Master Agreement. C. Assignment and Sub -Contracting. Consultant may sub -contract the Services hereunder. Consultant may also, for the benefit of Client, retain any necessary independent third -party actuarial experts, in connection with performance of the Services hereunder. Client may not assign the Services or any other rights hereunder or under a SOW without Consultant's written consent. d. Force Majeure. If either party is prevented from performing any of its duties and obligations hereunder (other than duties or obligations with respect to payment) in a timely manner by reason of any act of God, strike, labor dispute, flood, public disaster, equipment or technical malfunctions or failures, power failures or interruptions or any other reason beyond its reasonable control, such condition shall be deemed to be a valid excuse for delay of performance or for nonperformance of any such duty or obligation for the period during which such conditions exist. e. No Waiver. The waiver of any breach or failure of a term or condition of this Master Agreement by any party shall not be construed as a waiver of any subsequent breach or failure of the same term or condition, or a waiver of any other breach or failure of a term or condition of this Master Agreement. f. Governing Law. This Master Agreement and all SOW's shall be governed by, and construed in accordance with, the laws of the State of Oklahoma applicable to contracts made and performed in Oklahoma without regard to conflict of laws principles. The parties hereto submit to the exclusive jurisdiction of the appropriate court in Oklahoma City, for the purpose of resolving any dispute relating to the subject matter of this Master Agreement or the relationship between the parties pursuant to this Master Agreement. g. Counterparts. This Master Agreement and any SOW may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement. The parties may utilize electronic means (including facsimile) to execute and transmit this Master Agreement and SOWS and all such electronically executed and/or transmitted copies shall be deemed as valid as originals. h. Severability. If any term of this Master Agreement or a SOW is held invalid or unenforceable for any reason, the parties agree that such invalidity will not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision. WHEREFORE, for the purpose of being bound, the parties execute this Master Agreement by their duly authorized representatives as of the date first set forth above. Agreed By: CITY OF NEWPORT BEACH, CALIFORNIA Name: Barbara J. Salvini Title: Human Resources Director Signature: VAA" VAK Notice Address: V City of Newport Beach, California 100 Civic Center Drive Newport Beach, CA 92660 APPROVED AS TO FOFIM: CITY ATTORNEY'S OFFICE Date: 0-13117 By: Aaron C. Harp, City Attorney AL - An= Attest: ( r L.eliani 1. Bflpprp� 1N Date: AMERICAN FIDELITY ADMINISTRATIVE SERVICES LLC Name: Mary Nash r Title: Chief Op, e ti r Officer 4� I{ Signature: Notice Address: American Fidelity Administrative Services, LLC Attn: Manager 9000 Cameron Parkway Oklahoma City, OK 73114 American Fidelity LAW Department 9000 Cameron Parkway Oklahoma City, OK 73114 ("CONSULTANT" or "we" or "us" or "our") PROJECT: Patient Protection and Affordable Care Act ("ACA") Compliance: Time and Eligibility Tracking (" and Employer Reporting ("Reporting Service"; the Tracking Service and Reporting Service may be referred to individually as a "Service" or together as the "Services") A. TERMS AND CONDITIONS. This statement of work ("SOW") is made and entered into effective as of the latest date signed below (the "Effective Date"). This SOW is subject to the terms and conditions of the Master Agreement. B. SERVICE DATES. This SOW will begin on the Effective Date and will continue for a period of twelve (12) months. This SOW will renew upon agreement of the parties for additional 12 - month periods. If Client does not renew this SOW, but continues submitting Data (as defined herein), Client understands that Client will be responsible for payment of all Fees (as defined herein) related to processing of submitted Data. C. SERVICES AND DELIVERABLES 1. TIME AND ELIGIBILITY TRACKING. Consultant shall provide CIient with access to the Tracking Service, which includes access to use certain computer programming (the "Program'), for the purpose of tracking, monitoring and reporting hours worked by Client's current and former employees. Such tracking shall assist Client in determining which of its employees is eligible for health coverage and when such employee became eligible. 2. ACA REPORTING, Consultant shall provide Client with access to the Reporting Service Program to facilitate Client's creation of the 1094-C and 1095-C Forms (collectively, the "Forms'), which satisfy certain reporting requirements of Client to the Internal Revenue Service ("IRS") and certain disclosure requirements to Client's employees as required under Sections 6055 and 6056 of the Internal Revenue Code of 1986, as amended (the "Code"). Services provided early in the subsequent calendar year to assist with generating and filing the Forms for an earlier Applicable Reporting Year will be considered part of the Service for the earlier Applicable Reporting Year. As used herein, an "Applicable Reporting Year" means a single calendar year for which the Client is required to generate the Forms. CONSULTANT SERVICE. Consultant shall provide consultation with Client to help Client understand the application and rules of Section 4980H of the Code, which is referred to as the Employer Mandate Penalty, and Sections 6055 and 6056 of the Code, and then gather the information needed to implement the Services. D. RESTRICTIONS AND RESPONSIBILITIES CONCERNING THE SERVICES. 1. Client acknowledges and agrees that it retains all responsibility to submit required information to the IRS and to provide disclosure documentation to its employees. 2. Client acknowledges and agrees that Client is solely responsible for timely submission, accuracy, and completeness of all Data required to be input into the applicable Service. a. "Data" for purposes of this SOW is defined as demographic data (for employees, former employees, and covered family members subject to reporting under Code Sections 6055 and 6056), plan data, enrollment data, hours of service (records of hours worked and hours for which payment is made or due) data, and health plan coverage data. Consultant has no responsibility or obligation to determine if Data is accurate or complete. b. "Timely Submission" for purposes of this SOW is defined as follows i. Submitting initial test Data within two weeks of the implementation call; ii. Submitting final test Data within one week of receiving correspondence on the initial Data; and iii. Submitting ongoing Data at least monthly as described in the following section. c. Client shall provide the necessary information required for the Services and shall provide such information to the Program on a monthly basis. Client's failure to upload Data monthly may jeopardize satisfaction of Client's reporting obligation to the IRS. 3. Client shall identify in writing the person or persons who will be authorized to access the Services on Client's behalf (the "Authorized Users"). Client shall ensure that only Authorized Users receive the access codes to the Program; Client shall also provide Authorized Users with procedures for use established by Consultant. Client agrees that Client is solely responsible for access to Client's Data in violation of such procedures and Consultant shall have no responsibility, obligation or liability for any unauthorized access to the Client's Data resulting from a failure to follow Consultant's procedures. 4. As part of the Services, Consultant shall grant Client a limited, personal, non-exclusive, non -transferable and non -assignable license to use the Program defined herein and related documentation (the "Documentation"), The license granted under this SOW is limited to the terms and purpose set forth herein and may be revoked by Consultant for Client's failure to comply with the provisions of this SOW. Client may not (a) sell, license, reproduce or otherwise transfer or allow the transfer of the Program, or any backup copy, to third parties; (b) use the Program in any manner inconsistent with the rights granted herein; (c) modify or create derivative works of the Program; or (d) decompile, reverse engineer, disassemble, analyze, modify, adapt, convert, or create derivative works from the Program. These restrictions shall survive the termination of this SOW. E. FEES AND EXPENSES. 1. TRACKING FEES. Client agrees to pay the amounts below per month for each employee whose hours are monitored through the Tracking Service. Tracking Fees shall be invoiced on or about the 10th day of each month. "PEPM" refers to "per employee per month". Group size up to 999 Employees $0.85 PEPM Group size 1000-1999 Employees $0.75 PEPM Group size 2000-3999 Employees $0.65 PEPM Group size 4000+ Employees $0.55 PEPM 1, REPORTING FEES, Client shall pay an annual fee of $995.00 for the Reporting Service, plus $3.50 per employee for whom a 1095 form is generated. Half of the total expected reporting fees shall be due in August of the Applicable Reporting Year, with the balance billed at the beginning of the next calendar year. The Annual Fee assumes that Client has (1) Federal Tax Identification Number or Employer Identification Number (EIN) for the Reporting Service. Additional Federal Tax Identification Numbers or Employer Identification Numbers than one (1) may require additional fees. 2. FEE INCREASES. Consultant reserves the right to amend the fees described in this SOW by providing the Client at least sixty (60) days' written notice of any fee changes. 3. In the event that Client executes this SOW but terminates the Services prior to the initial upload of Data as described in Section D(2)(b)(i) hereof, Client shall pay Consultant its hourly rate for time spent on Client's behalf prior to Client's termination. F. TERMINATION OF SOW, 1. Upon a breach of a material term or condition of this SOW, the non -breaching party shall provide notice to the other, which notice shall describe the breach in sufficient detail for the breaching party to identify and correct it. If the breaching party fails to take reasonable steps to remedy the breach within thirty (30) days of the written notice, the non -breaching party may terminate the SOW. 2. Either party may terminate this SOW for convenience by providing thirty (30) days' prior written notice of the same to the other party. 3. Termination of this SOW shall not terminate the rights or obligations of either party arising prior to the effective date of such termination. G. COPYRIGHT AND PROPRIETARY INFORMATION. 1. Consultant reserves all intellectual property rights with respect to the Services, Program, and Documentation and any copies of same under all applicable national and international laws and treaties for the protection of intellectual property rights, including, but not limited to, trade secrets, copyrights, trademarks and patents. Any rights not expressly granted to Client in this SOW are retained by Consultant. 2. Immediately upon becoming aware of any unauthorized use, copying, reproduction or disclosure of the Program or Documentation, Client shall notify Consultant in writing. H. LIMITED WARRANTY/DISCLAIMERS. 1. Subject to the limitation of liability provisions contained in the Master Agreement and as set forth in this SOW, Consultant warrants that it has sufficient rights to grant Client the rights to access the Services pursuant to this SOW. No warranty is made that the Services will be uninterrupted or error -free. Client is solely responsible for all Data input. Consultant expressly disclaims any and all liability resulting from inadequate, incomplete or improper Data input. This warranty is limited to the term of this SOW. 2. THE PRECEDING WARRANTY IS THE ONLY WARRANTY RELATED TO THE SERVICES, DOCUMENTATION AND SUPPORT SERVICES AND IS MADE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON - INFRINGEMENT. 3. If an implied warranty or condition is created by Client's jurisdiction and federal or state law prohibits disclaimer of it, Client may also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (90 DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some jurisdictions do not allow limitations on how long an implied warranty or condition lasts; so, the above limitation may not apply to you, This limited warranty gives Client specific legal rights. Client may have other rights, which vary from jurisdiction to jurisdiction. 4. Client understands and acknowledges that Client is solely responsible, among other things, for: (a) all uses of the Services using user names or passwords assigned to you; (b) provision of or input of Data into the Services or Program; (c) confirmation of the accuracy of the Data input into and received from the Services; and (d) compliance with all applicable laws associated with the use of the Data. I. LIMITATION OF LIABILITIES. 1. SUBJECT TO THE LIMITATION OF LIABILITY AND OTHER TERMS CONTAINED IN THE MASTER AGREEMENT, CONSULTANT'S ENTIRE LIABILITY AND CLIENT'S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS LIMITED WARRANTY OR FOR ANY OTHER BREACH OF TRIS AGREEMENT OR FOR ANY OTHER LIABILITY RELATING TO THE PROGRAM SHALL BE LIMITED TO EITHER (A) CORRECTION OF ERRORS IN THE OPERATION OF THE PROGRAM OR (B) REFUND OF FEES, CLIENT WILL RECEIVE ONE OF THE TWO REMEDIES, SELECTED BY CONSULTANT IN ITS SOLE DISCRETION, WITHOUT CHARGE. 2. IN NO EVENT WILL CONSULTANT OR ANY OF ITS AFFILIATES HAVE ANY OBLIGATION OR LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOSS OF OR DAMAGE TO DATA, PROFITS OR BUSINESS INTERRUPTION LOSSES, ARISING FROM OR RELATED TO THE PROGRAM, THE SERVICES OR THE DOCUMENTATION, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. CONSULTANT'S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO CONSULTANT UNDER THIS AGREEMENT. [EXECUTION PAGE FOLLOWS] The parties hereby agree and consent to the terms and conditions of this SOW and acknowledge such by executing the SOW below. APPROVED AS TO FORM: CITY ATTO13NE�Y'S OFFICE Date:.�3 7 U Att e Mani I. B lC AGREED BY: CITY OF NEWPORT BEACH, CALIFORNIA Name: Barbara J. lvini Title: Human so ces Director Date: Human 1'1 Notice Address: City of Newport Beach, California 100 Civic Center Drive Newport Beach, CA 92660 AMERICAN FIDELITY ADMINISTRATIVE SERVICES, LLC f, Name: 1 ary Nh Title: Chief Ex e4 er Date: 17 Notice Address: American Fidelity Administrative Services, LLC Attn: Manager 9000 Cameron Parkway Oklahoma City, OK 73114 :►o American Fidelity LAW Department P.O. Box 25523 Oklahoma City, OK 73125