TERMS AND CONDITIONS
These terms and conditions (these “Terms and Conditions”) are between Pension Benefit Information, LLC (d/b/a PBI Research Services; d/b/a Risk Compliance Performance Solutions; d/b/a RCP Solutions), a Delaware limited liability company (“PBI”), and the client described in the applicable Transmittal Form (as defined below) (“Client”). Each of PBI and the Client are a “Party” and together, they are the “Parties.” These Terms and Conditions are effective as of the last date signed by a Party on the applicable Transmittal Form.
WHEREAS, PBI provides death audit, location and other related services designed to assist clients with their compliance obligations and fraud prevention; and
WHEREAS, Client desires to obtain death audit, location and/or other related services from PBI, and PBI desires to perform such services.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements contained in these Terms and Conditions, the Parties to these Terms and Conditions hereby agree as follows:
1. Scope of Services. Client orders Services (as defined below) from PBI by entering into a mutually signed “Transmittal Form” under these Terms and Conditions. For clarity, a mutually signed statement of work and/or a mutually signed agreement between the Parties are Transmittal Forms. PBI agrees to provide the death audit, location and other related services and data and to grant the licenses, all as set forth in these Terms and Conditions and a Transmittal Form (collectively, the “Services”). For clarity, the definition of “Services” includes all data delivered therewith (including but not limited to data that is PBI IP or Third-Party Data (each as defined below)). Each Transmittal Form (and each order entered into thereunder) is hereby incorporated by reference into these Terms and Conditions and all references to these Terms and Conditions shall be deemed to include the Transmittal Form. From time to time, Client may submit or upload processing files to PBI and such processing files (and the Services related thereto) shall be subject to these Terms and Conditions and Client’s applicable Transmittal Form (or order entered into thereunder) for the Services provided. In the event of conflict between these Terms and Conditions and any order, purchase document, invoice, addendum, amendment, agreement, or contract provided by Client (“Client Document”), these Terms and Conditions shall govern unless the Client Document is mutually signed and expressly states that it amends these Terms and Conditions. For clarity, a purchase order or invoice created by Client shall not be a Transmittal Form nor shall it modify, amend, or alter these Terms and Conditions even if entered into after the date hereof.
2. Performance. PBI will use commercially reasonable efforts to deliver the Services requested by Client under a Transmittal Form and to compile information gathered from selected public or government records and other sources used in the provision of the Services. PBI reserves the right to add materials and features to, and to discontinue offering any of the materials and features that are currently a part of, the Services. In the event that PBI discontinues a material portion (except for Third-Party Data (as defined below)) of the materials and features that Client regularly uses in the ordinary course of its business, and such materials and features are included in a Transmittal Form, PBI will refund any pre-paid fees to Client for the discontinued materials and/or features. For clarity, the availability of Third-Party Data may change from time to time. PBI shall not be required to deliver, nor shall Client request PBI to deliver, Services related to individuals residing outside of the United States.
3. Fees and Taxes.
a. Fees. In consideration of PBI providing the Services, Client shall pay PBI the fees set forth in the applicable Transmittal Form If Client fails to pay PBI the fees when due, then, in addition to all other remedies available under these Terms and Conditions, a Transmittal Form, or at law, PBI may immediately suspend the Services or terminate these Terms and Conditions and any Transmittal Form.
b. Taxes. The charges for all Services are exclusive of any state, local, or otherwise applicable sales, use, or similar taxes. If any such taxes are applicable, they shall be charged to Client’s account. Client is not responsible for any taxes charged on PBI’s income.
4. Compliance with Law. Each Party shall comply with, and cause its employees who access the Services to comply with, laws and regulations applicable to the Services in all material respects. Each Party is solely responsible for its own compliance obligations. PBI expressly disclaims that the Services are, and no Services shall be deemed to be, regulatory, compliance, legal or tax advice, counsel or opinion.
a. PBI’s Data Security Controls. PBI shall maintain data privacy and security controls that are designed to protect the security of the Services and the data in PBI’s control including, without limitation, physical, network, application security and development, and data leakage prevention.
b. PBI’s Third-Party Review of Security Controls. PBI shall complete the following with a third-party service provider: annual SOC 2, Type 2 Audit (or an equivalent or successor); annual application penetration test; and monthly network vulnerability scan. PBI shall reasonably remediate findings identified in such audit, test, or scan. Upon request and subject to the obligations of confidentiality set forth in these Terms and Conditions, PBI shall deliver the reports described in this subsection to Client.
c. Business Continuity. PBI shall maintain business continuity and disaster recovery policies and procedures and shall annually test such policies (“Business Continuity Plan”). PBI shall reasonably remediate findings identified in such test. Upon request and subject to the obligations of confidentiality set forth in these Terms and Conditions, PBI shall deliver the Business Continuity Plan and annual test results described in this subsection to Client.
d. Encryption. PBI shall encrypt the production data maintained in the applications used to provide the Services while at rest and in transit.
e. Production Data Maintained in the U.S. PBI shall maintain the production data in the applications used to provide the Services within the United States of America at all times.
f. Security Requirements. Each Party acknowledges that the information entered into and/or accessed through the Services may include personally identifiable information and it is each Party’s obligation to keep all such information confidential and secure. Accordingly, each Party (as applicable) shall (a) restrict access to Services and the information contained therein to those employees who have a need to know as part of their official duties; (b) take commercially reasonable measures to prevent unauthorized access to, or use of, the Services or data received therefrom, whether in electronic form or hard copy, by any person or entity; and (c) with respect to Client, unless otherwise required by law or pursuant to a Party’s policies, purge all bulk information received through the Services, whether stored electronically or on hard copy by a Party, within ninety (90) days of initial receipt in order to prevent such bulk data from being made into a competing product with the Services. Each Party will implement policies and procedures to prevent unauthorized use of its user IDs (where such user IDs permit access to the other Party’s systems or applications or data (as applicable)) (“User IDs”), in connection with the Services. The designated administrator of Client’s account with PBI shall be responsible for appropriate use, access and protection of User IDs. Each Party will promptly notify the other Party, in writing if such Party reasonably suspects or confirms that one of its User IDs has been (x) lost, stolen, compromised, misused or used, accessed, (y) acquired in an unauthorized manner or by any unauthorized person, or (z) used for any purpose other than legitimate business reasons. Subject to Section 8, each Party shall remain liable for all costs associated therewith and shall further reimburse the other Party for any expenses it incurs due to such Party’s failure to prevent such impermissible use or access of User IDs and/or the Services or the other Party’s data, or any actions required as a result thereof.
g. Security Event. If the Services include personally identifiable information (including, but not limited to, social security numbers, driver’s license numbers or dates of birth), the following shall apply: upon unauthorized acquisition of or access to such personally identifiable information, including but not limited to that which is due to use by an unauthorized person or due to unauthorized use (a “Security Event”), then the Party discovering the Security Event shall promptly notify the other Party. In the event of a Security Event, the Party whose data is subject to the Security Event, where the Security Event was caused by the other Party, may take immediate action, including termination of these Terms and Conditions and any Transmittal Form.
a. Restricted Data License Grant. Client understands that the data PBI discloses in the Services may include data from third-party data providers, including but not limited to government and commercial data sources (“Third-Party Data”). PBI’s ability to license Third-Party Data to Client under a Transmittal Form is subject to the restricted license granted to PBI by such Third-Party Data providers. PBI hereby grants to Client a restricted license to use the Services set forth in a Transmittal Form solely for Client’s own internal business purposes subject to the applicable Flow Down Obligations (defined below in Section 16) and Restrictions on Use (as defined below) (collectively, the “Restricted Data License Grant”). If Client is a third-party administrator and discloses such status on the Transmittal Form (“TPA”), then Client may disclose the data in the Services to its TPA customers identified on the applicable Transmittal Form (“Client’s Customers”). Such disclosure may only be in the course of providing TPA services, provided that Client’s disclosure to the applicable Client’s Customer shall require such Client’s Customer to comply with the Restricted Data License Grant and use the data included in the Services solely for internal business purposes. Client shall be responsible and liable for Client’s Customers’ compliance with these Terms and Conditions and use of the data disclosed in the Services, including but not limited to, compliance with the Restricted Data License Grant (as if Client’s Customer were Client).
b. Restrictions on Use. Client represents and warrants that (“Restrictions on Use”):
i. Client has the right to disclose the data disclosed by Client to PBI under a Transmittal Form, and Client has the right to receive the data disclosed by PBI to Client under a Transmittal Form.
ii. All of Client’s use of the Services shall be for only legitimate business purposes relating to its business and as otherwise governed by these Terms and Conditions.
iii. Client shall not use the Services for marketing purposes or resell or broker the Services to any third-party and shall not use, and shall prevent its users from using, the Services for personal (non-business) purposes.
iv. Client shall not use the Services to provide data processing services to third-parties or evaluate the data of or for third-parties, without PBI’s prior written approval.
v. Client shall not access the Services from Internet Protocol addresses located outside of the United States and its territories without PBI’s prior written approval.
vi. Client shall not use the Services to create a competing product.
c. Restrictions on Medical Segment Use. Client represents and warrants that it shall not use the data it receives under these Terms and Conditions or any Transmittal Form for a Prohibited Medical Segment Use, and Client shall not directly or indirectly resell the data it receives under these Terms and Conditions or any Transmittal Form to any Person for a Prohibited Medical Segment Use. For purposes of this subsection c.: “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity; and “Prohibited Medical Segment Use” means (i) the use of the data by a biopharma, life sciences or biotech firm (“Bio Firms”) to perform or provide research, data, analysis or related support for the development, commercialization, marketing, approval or reimbursement of pharmaceutical and medical devices and (ii) the direct or indirect sale by data aggregators of research datasets to Bio Firms which will be used to perform research, analysis or related support for the development, commercialization, marketing, approval or reimbursement of pharmaceutical and medical devices. The restrictions in this subsection c. shall continue in perpetuity.
d. Additional Terms Related to the Restricted License. Client agrees that, if PBI determines or reasonably suspects that Client is violating any provision of these Terms and Conditions, PBI may take immediate action, including, without limitation, terminating the delivery of, and the license to use the Services. PBI may at any time mask or cease to provide Client access to any Services or portions thereof which PBI may deem, in PBI’s sole discretion, to be sensitive or restricted information (subject to the second to the last sentence of Section 2).
e. Client Licenses to PBI
i. Client hereby grants PBI a license to process data and other information, including Client’s Confidential Information (as defined below) as applicable, provided by Client to PBI and to disclose such data to its affiliates and vendors to process such data or to perform or improve the Services.
ii. Client hereby grants PBI a license to use the Client’s Confidential Information (including but not limited data and information provided by Client to PBI under a Transmittal Form) for internal, statistical, and analytical purposes, subject to Section 7.b.
iii. Client hereby grants PBI a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its users relating to the Services (each, a “Submission”). PBI shall not be required to compensate Client for any such Submission.
f. Deliverables. Client shall own all right and title to the reports (the “Deliverables”), if any, delivered by PBI, (i) subject to the Restricted Data License Grant set forth in this Section 6, (ii) subject to PBI’s rights to the underlying data that it provides (as set forth in Section 7.a.) that might be included in the Deliverables, and (iii) excluding PBI IP (as defined below). To the extent PBI IP is incorporated into a Deliverable, PBI hereby grants Client a nontransferable, nonsublicenseable, fully paid up, limited license to use PBI IP solely for internal business purposes and subject to these Terms and Conditions. If Client is a TPA, Client may disclose PBI IP to the applicable Client’s Customer set forth on a Transmittal Form, provided that Client’s disclosure to such Client’s Customer shall be solely for Client’s Customer internal business purposes.
7. Intellectual Property; Confidentiality.
a. Intellectual Property Rights. Each Party agrees that it shall not reproduce, retransmit, republish, or otherwise transfer for any commercial purposes the other Party’s information, or with respect to the Client, PBI’s Services programs or computer applications. Each Party acknowledges that such Party (and/or its Third-Party Data providers) shall retain all right, title, and interest under applicable contractual, copyright, patent, trademark, Trade Secret (as defined below) and related laws in and to the data and information that it provides, and with respect to PBI, PBI (and/or its Third-Party Data providers) shall retain such rights, title and interest in the Services. Each Party shall use such materials in a manner consistent with the other Party’s interests and the terms and conditions herein, and shall notify the other Party of any threatened or actual infringement of a Party’s rights. For clarity, PBI maintains all right, title, and interest to and in of all of its software, source code, object code, systems, services, data, death matches made in its applications or systems or confirmed through PBI’s business processes, and forms of Deliverables (including but not limited to all components, modifications and derivations thereof) that PBI offers to its customers generally (“PBI IP”), and PBI expressly reserves all rights not expressly granted to Client in these Terms and Conditions.
b. Confidentiality. Client and PBI acknowledge that they each may have access to confidential information of the disclosing party (“Disclosing Party”) relating to the Disclosing Party’s business including, without limitation, personally identifiable information, technical, financial, strategies and related information, computer programs, algorithms, know-how, processes, ideas, inventions (whether patentable or not), schematics, Trade Secrets (as defined below) and other information (whether written or oral), and in the case of PBI’s information, product information, product development plans, forecasts, data contained in Services, vendor assessment materials, policies and procedures, descriptions of technical controls and other business information (“Confidential Information”). Confidential Information shall not include information that: (i) is or becomes (through no improper action or inaction by the Receiving Party (as defined below)) generally known to the public; (ii) was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (iii) was lawfully disclosed to Receiving Party by a third-party and received in good faith and without any duty of confidentiality by the Receiving Party or the third-party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party by employees of the Receiving Party who have had no access to such Confidential Information. “Trade Secret” shall be deemed to include any information which gives the Disclosing Party an advantage over competitors who do not have access to such information as well as all information that fits the definition of “trade secret” set forth in applicable law. Each receiving party (“Receiving Party”) agrees not to divulge any Confidential Information or information derived therefrom to any third-party (except as set forth in these Terms and Conditions) and shall protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care it uses to protect the confidentiality of its own confidential information and trade secrets, but in no event less than a reasonable degree of care. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information solely to the extent required by subpoena, court order or other governmental authority, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such subpoena, court order or other governmental authority so as to allow the Disclosing Party to have an opportunity to obtain a protective order to prohibit or restrict such disclosure at its sole cost and expense. Confidential Information disclosed pursuant to subpoena, court order or other governmental authority shall otherwise remain subject to the terms applicable to Confidential Information. Each Party’s obligations with respect to Confidential Information shall continue for the term of these Terms and Conditions and for a period of five (5) years thereafter, provided however, that with respect to Trade Secrets, each Party’s obligations shall continue for so long as such Confidential Information continues to constitute a Trade Secret.
c. Government Clients. If Client is a government entity or is otherwise subject to a federal, state, or local freedom of information act or similar statute or regulation (“FOIA”), then Client agrees that the confidentiality obligations of these Terms and Conditions prevent Client from disclosing the Services (and data included therein) in response to a FOIA request.
8. Warranties/Limitation of Liability.
a. Disclaimer of Warranties. Client accepts all information “AS IS.” Client acknowledges and agrees that PBI obtains data from third-party sources, which may or may not be completely thorough and accurate, and that PBI does not make and hereby disclaims any warranty, express or implied, with respect to the Services. PBI does not guarantee or warrant the correctness, completeness, merchantability, or fitness for a particular purpose of the Services or information provided therein. In no event shall PBI be liable for any indirect, incidental, or consequential damages, however arising, incurred by Client from receipt or use of information delivered hereunder or the unavailability thereof. Due to the nature of public record information, the public records and commercially available data sources used in the Services may contain errors. Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. PBI’s Services are not the source of data, nor are they a comprehensive compilation of the data. PBI’s Services may contain links to third-party websites not under PBI’s control or operation. PBI may provide any such links only as a convenience, and PBI does not endorse, is not responsible for, and does not have control over the contents of any linked website or any link contained within a linked website. Use of third-party content on a linked website may be subject to such third-party’s terms and conditions. Client accepts all risk of clicking on a linked website and is solely responsible for its use of content contained on any such linked website. For certain Services, PBI’s personnel use proprietary methods to determine whether death data from multiple sources is relevant to a particular individual (“Death Matching”) and because of the inherent limitations in the data relied upon, PBI shall not be responsible or liable for any inaccurate or incomplete Death Matching. Death Matching is an analysis attributable to PBI and does not represent a finding or conclusion on behalf of PBI’s data sources. Client shall not rely on PBI for the accuracy or completeness of information supplied through the Services. Before relying on any data, it should be independently verified.
b. Limitation of Liability – General Cap and Disclaimer. Neither PBI, nor its subsidiaries and affiliates, any Third-Party Data provider, nor any PBI vendor, shall be liable to Client for any loss or injury arising out of, related to, or caused in whole or in part by PBI’s acts or omissions in procuring, compiling, collecting, reporting, communicating, interpreting, delivering, or performing the Services. If, notwithstanding the foregoing, liability can be imposed on PBI, then Client agrees that, except as set forth in subsection c. below, PBI’s aggregate liability for any and all losses or injuries arising out of or related to any act or omission of PBI in connection with anything to be done or furnished under these Terms and Conditions, or related thereto, regardless of the cause of the loss or injury, and regardless of the nature of the legal or equitable right claimed to have been violated, shall never exceed the fees paid by Client to PBI in the twelve (12) months immediately prior to the incident giving rise to the applicable liability; and Client covenants and promises that it will not sue PBI for an amount greater than such sum even if Client and/or third-parties were advised of the possibility of such damages and that it will not seek punitive damages in any suit against PBI.
c. Limitation of Liability – Increased Cap for IP Indemnification or Security Breach. PBI’s aggregate liability for any and all losses or injuries arising out of or related to Section 9.c. or a Security Event caused by PBI’s negligence, regardless of the cause of the loss or injury, and regardless of the nature of the legal or equitable right claimed to have been violated, shall never exceed the fees paid by Client to PBI in the thirty-six (36) months immediately prior to the incident giving rise to the applicable liability; and Client covenants and promises that it will not sue PBI for an amount greater than such sum even if Client and/or third-parties were advised of the possibility of such damages and that it will not seek punitive damages in any suit against PBI.
d. Limitation of Liability for Business Associate Agreements. Notwithstanding anything to the contrary in a Business Associate Agreement (as defined below), the limitation of liability set forth in Sections 8.b. and 8.c. apply to any business associate agreement (“Business Associate Agreement”) entered into by Client and PBI whether dated before or after the applicable Transmittal Form. In the event of a conflict between these Terms and Conditions and the Business Associate Agreement regarding limitation of liability, these Terms and Conditions prevail.
a. General Indemnification by Client. Client hereby agrees to protect, indemnify, defend, and hold harmless PBI from and against any and all third-party costs, claims, demands, damages, losses, liabilities, and attorneys’ fees and costs arising from or in any way related to (a) use of information received by Client (or any third-party receiving such information from, through or at the direction of Client) furnished by or through PBI; (b) Client’s material breach of any terms, conditions, representations or certifications in these Terms and Conditions or a Transmittal Form; (c) any Security Event of PBI’s data caused by Client; and (d) noncompliance with these Terms and Conditions by Client’s Customers (where Client is a TPA).
b. General Indemnification by PBI. Subject to Section 8, PBI hereby agrees to protect, indemnify, defend, and hold harmless Client from and against any and all third-party costs, claims, demands, damages, losses, liabilities, and attorneys’ fees and costs arising from or in any way related to (a) PBI’s material breach of any terms, conditions, representations or certifications in these Terms and Conditions; and (b) any Security Event of Client’s data caused by PBI.
c. Intellectual Property Indemnification by PBI. Subject to Section 8, PBI hereby agrees to protect, indemnify, defend, and hold harmless Client from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys’ fees and costs) arising from or in connection with any third-party claim that the Services or data contained therein (except for Third-Party Data or third-party materials), when used in accordance with these Terms and Conditions, infringe a United States patent or United States registered copyright, subject to subsection d. below. Notwithstanding the foregoing, PBI will not have any duty to indemnify, defend or hold harmless Client with respect to any claim of infringement resulting from (1) Client’s misuse of the Services; (2) Client’s failure to use any corrections made available by PBI; (3) Client’s use of the Services in combination with any product or information not provided or authorized in writing by PBI; (4) any information, direction, specification or materials provided by Client or any third-party; or (5) claims based on data provided by third-parties. If an injunction or order is issued restricting the use or distribution of any part of the Services, or if PBI determines that any part of PBI Services is likely to become the subject of a claim of infringement or violation of any proprietary right of any third-party, PBI may in its sole discretion and at its option (A) procure for Client the right to continue using the Services; (B) replace or modify the Services so that they become non-infringing, provided such modification or replacement does not materially alter or affect the use or operation of the Services; or (C) terminate these Terms and Conditions and refund any fees relating to the future use of the Services. The foregoing remedies constitute Client’s sole and exclusive remedies and PBI’s entire liability with respect to infringement claims or actions.
d. Indemnification Procedures. A Party seeking indemnification (the “Indemnified Party”) under this Section 9 must (i) promptly give written notice of any claim to the other Party (the “Indemnifying Party”) and (ii) provide any assistance which the Indemnifying Party may reasonably request for the defense of the claim. The Indemnifying Party has the right to control the defense or settlement of the claim; provided, however, that the Indemnified Party shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.
10. Term. The term of these Terms and Conditions shall begin on the Effective Date and continue until there are no Transmittal Form(s) in effect. PBI may terminate these Terms and Conditions or any Transmittal Form(s) upon written notice to Client.
11. Client’s Audit Rights. From time to time, upon reasonable advance notice, PBI shall provide Client or its designee with access to the locations from which the Services are being performed, and all data and records relating to the Services for the purpose of performing audits or inspections (i) to comply with regulatory requirements or requests by Regulators, (ii) to determine if the Services are in compliance with the terms of the Terms and Conditions, and (iii) to determine the accuracy of the charges. Upon request, PBI will provide Client with its standard vendor due diligence materials. Client may request that PBI complete Client’s vendor due diligence questionnaires, assessments or audits and PBI’s completion or participation in the completion of such questionnaires, assessments or audits shall be at Client’s expense and subject to the confidentiality obligations of these Terms and Conditions.
12. Maintenance of Records. Client shall be responsible for maintaining all records related to the Services. PBI shall not be obligated to retain Client’s data (including but not limited to Client’s Confidential Information and personally identifiable information) and may delete Client’s data, in accordance with PBI’s data destruction policy, after completion of the Services provided as applicable to the specific data. Neither PBI, nor its subsidiaries and affiliates, any Third-Party Data provider, nor any PBI vendor, shall be liable to Client for any loss or injury arising out of, related to, or caused in whole or in part by PBI’s deletion of data or the Services provided with respect to such data as set forth in this section. If, notwithstanding the foregoing, liability can be imposed on PBI, then Client agrees that PBI’s aggregate liability shall be as set forth in Section 8 of these Terms and Conditions.
13. Background Checks. Each Party shall require background checks of employees or users who access the Client’s data (with respect to PBI) and the Services (with respect to Client). Specifically, PBI’s background checks include: drug screening; social security trace; education (highest degree earned); employment verification; federal, state and county criminal background checks; multi-state jurisdictional criminal records locator; Denied Persons List; FDIC; Federal Reserve; National Credit Union; Office of Thrift; NASD; OFAC; Terrorist Watchlist; Excluded Parties List System; FDA debarment; and Federal Criminal Records.
14. Insurance. PBI shall maintain, at all times during the term of these Terms and Conditions the insurance policies described herein with carriers rated no less than “A” by AM Best. PBI shall deliver certificates of insurance to the Client upon request. As of the date hereof, PBI maintains the following insurance coverages (with carriers rated at least A X):
a. All worker’s compensation insurance coverages required by federal, state or local law;
b. Commercial general liability insurance with a limit of two million dollars ($2,000,000) in the aggregate;
c. An umbrella policy with a limit of five million dollars ($5,000,000) in the aggregate that is in excess of coverage provided under PBI’s general liability insurance;
e. Errors & omissions insurance with total limits of fifteen million dollars ($15,000,000) in the aggregate;
f. Cyber liability and technology errors & omissions insurance in a limit of five million dollars ($5,000,000) in the aggregate.
Upon Client’s written request, Client shall be an additional insured with a waiver of subrogation on the general liability insurance described under Section 14.b. above.
15. Survival of Terms and Conditions; Statute of Limitations. Provisions hereof related to fees and taxes (to the extent payment obligations remain) (Section 3); security event (Section 5.g.); licenses (Section 6); intellectual property and confidentiality (Section 7); warranties and limitation of liability (Section 8); indemnification (Section 9); audit rights (Section 11 for three years); maintenance of records (Section 12); survival (Section 15); Third-Party Data provider obligations (Section 17); privacy principles (Section 18); governing law and forum (Section 27); miscellaneous (Section 28); and no third party beneficiaries (Section 29) shall survive any termination of these Terms and Conditions or any Transmittal Form. Client must file any Action no later than the earlier of (i) twelve (12) months after delivery of the specific Services related to the event giving rise to the claim or (ii) the termination of these Terms and Conditions. Client hereby waives the right to file any Action under any longer statute of limitations. “Action” shall mean any claim, demand, request, claim for indemnity, lawsuit, or proceeding arising directly or indirectly under these Terms and Conditions or a Transmittal Form.
16. Employee Training. Each Party shall train its employees on the obligations under these Terms and Conditions prior to allowing access to Services. In addition, as of the date hereof, PBI requires the following training of its employees on an annual basis: US data privacy and security, information security, and HIPAA.
17. Third-Party Data Provider Obligations.
a. Third-Party Flow Down Requirements. Client understands that PBI obtains Third-Party Data from third-party data providers that require PBI to flow-down certain obligations as available on PBI’s website (at http://www.pbinfo.com/dmf-data-terms/ and http://www.pbinfo.com/third-party-data-terms/) (the “Flow Down Obligations”). The Flow Down Obligations (as amended from time to time and made available at the URLs listed above) are hereby incorporated by reference to the extent applicable to the Services.
b. Client Credentialing.
i. Client acknowledges that PBI is required to credential PBI’s clients prior to permitting access to the Services. Client represents and warrants that the information about Client (1) on a Transmittal Form or (2) provided during the credentialing process or in connection with the purchase of Services under a Transmittal Form (the “Client Credentialing”) is accurate and complete in all material respects. The Client Credentialing is hereby incorporated by reference.
ii. Client shall notify PBI immediately of any changes to the information on a Transmittal Form or the Client Credentialing, and PBI may terminate these Terms and Conditions if such changes are material as reasonably determined by PBI. Client is required to promptly notify PBI of a change in ownership of Client’s company, any change in the name of Client’s company, and/or any change in the physical address of Client’s company. Furthermore, Client acknowledges and agrees that, as part of the credentialing process, Client’s credit report(s) may be requested by PBI in accordance with Federal Fair Credit Reporting Act from one (1) or more consumer reporting agencies. Upon Client’s request, Client will be informed of whether any credit report was requested, and the name and address of the credit reporting agency that furnished the report to PBI.
19. Consents. Client represents and warrants that it has obtained all required consents, approvals, permits, or authorizations required for its engagement of PBI to perform the Services.
20. PBI Reporting Platform. PBI maintains proprietary, web-based applications that are used to provide death data, location and research services to PBI’s clients (the “PBI Reporting Platform”). PBI maintains all ownership rights with respect to the PBI Reporting Platform. During the term of these Terms and Conditions and any Transmittal Form, Client and its authorized users (as identified in an end user agreement or requested in writing to be permitted access from time to time) shall have the right to access and use the PBI Reporting Platform solely for Client’s own internal business purposes as permitted by the then current functionality of the PBI Reporting Platform and as necessary to use the Services. Client shall be responsible for its authorized users use of the Services and compliance with these Terms and Conditions and any Transmittal Form. Client shall not, and shall ensure its users shall not, (i) cause any code, files, scripts, agents or programs intended to do harm, including, for example viruses, worms, time bombs and Trojan horses, or other harmful code to be entered into the PBI Reporting Platform, (ii) interfere with or disrupt the integrity or performance of the Services or the PBI Reporting Platform, (iii) attempt to gain unauthorized access to the PBI Reporting Platform, or PBI’s systems or networks, or (iv) copy any part, feature, function or user interface of the PBI Reporting Platform.
21. Publicity. Without PBI’s written consent, Client will not (a) name PBI or refer to its use of the Services in any press releases, advertisements, promotional or marketing materials, or (b) make any other third-party disclosures regarding PBI or Client’s use of the Services. Notwithstanding the foregoing, a business referral in the ordinary course shall not be deemed to violate this Section 19.
22. Relationship of the Parties. Neither Party shall, at any time, represent that it is the authorized agent or representative of the other Party. PBI provides the Services solely as an independent contractor of Client.
23. Notices. All demands, notices, reports, and/or communications under these Terms and Conditions shall be in writing and shall be deemed to have been duly given if delivered in person, or duly sent by overnight mail, postage prepaid, to such Party at the address set forth below, or such other address as shall be designated by such person in a written notice to the other Party to these Terms and Conditions, or if to Client, (a) electronically to the electronic mail address (i) included in the Client Credentialing or (ii) of active users of PBI’s systems, (b) by secure website designated by such Party, or (c) at the address specified on the applicable Transmittal Form.
If to PBI:
Pension Benefit Information, LLC
900 Larkspur Landing Circle, Suite 201
Larkspur, CA 94939
Attention: Legal Notice
With a copy to:
Pension Benefit Information, LLC
333 S. 7th Street, Suite 2400
Minneapolis, MN 55402
Attention: Legal Department
24. Updates to Terms and Conditions. By receipt of the Services, Client agrees to, and shall comply with, changes to the Flow Down Obligations or Principles, changes in pricing, and changes to other provisions of these Terms and Conditions as PBI shall make from time to time (“Updates”) with notice to Client via e-mail, by posting on PBI websites, through the Services, online “click wrap” amendments, facsimile, mail, invoice announcements, or other written notification. PBI may, at any time, impose restrictions and/or prohibitions on the Client’s use of the Services or certain data (“Restrictions”). Client understands that such Updates or Restrictions in access may be the result of a modification in PBI policy, a modification of third-party agreements, a modification in industry standards, a Security Event or a change in law or regulation, or the interpretation thereof. Upon notification by PBI of any Update or Restriction (with notice as set forth in the first sentence of this Section 22), Client agrees to comply with such Update or Restriction; provided, that Client may terminate these Terms and Conditions within thirty (30) days of receiving notice of a material Update or Restriction from PBI.
25. Force Majeure. The Parties will not incur any liability to each other or to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms and Conditions (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the Parties. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, any irregularity in the announcing or posting of updated data files by the applicable agency, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, and explosions.
26. Entire Terms and Conditions. Except as otherwise provided herein, these Terms and Conditions constitute the final written agreement and understanding of the Parties and is intended as a complete and exclusive statement of the terms of the agreement, which shall supersede all other representations, agreements, and understandings, whether oral or written, which relate to the use of the Services and all matters within the scope of these Terms and Conditions. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in these Terms and Conditions shall, with respect to the Services and all matters within the scope of these Terms and Conditions supersede any separate non-disclosure or confidentiality agreement that is or may in the future be entered into by the Parties hereto. Any new, other, or different terms supplied by the Client beyond the terms contained herein, including those contained in purchase orders or confirmations issued by the Client, are specifically and expressly rejected by PBI unless PBI agrees to them in a signed writing specifically including those new, other, or different terms. The terms contained herein shall supersede and govern in the event of a conflict between these terms and any new, other, or different terms in any other writing. These Terms and Conditions can be executed in counterparts and faxed or electronic signatures will be deemed originals.
27. Governing Law; Forum. THESE TERMS AND CONDITIONS SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THESE TERMS AND CONDITIONS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS WILL BE ADJUDICATED EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN HENNEPIN COUNTY, MINNESOTA.
28. Miscellaneous. If any provision of these Terms and Conditions or any exhibit shall be held by a court of competent jurisdiction to be contrary to law, invalid or otherwise unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and in any event the remaining provisions of these Terms and Conditions shall remain in full force and effect. The headings in these Terms and Conditions are inserted for reference and convenience only and shall not enter into the interpretation hereof.
29. No Third Party Beneficiaries. This Agreement will inure to the benefit of and be binding upon the Parties to these Terms and Conditions, and their respective successors and permitted assigns, and no other person or entity (including any other person or entity with a direct or indirect interest in any pension, annuity, insurance policy, benefit plan, or other similar plans or policies) will have any right, remedy or obligation under this Agreement. The Parties agree that participants, pensioners, beneficiaries, policy owners, insureds, annuitants, legal representatives, benefits administrators, and any other similar persons or entities are not third-party beneficiaries to this Agreement, and that neither Party will claim such to be a third-party beneficiary.
Last Updated: 5/13/2020
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