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HomeMy WebLinkAboutExhibit - Service AgreementMARSH CLEARSIGHT Software as a Service Agreement for Click here to enter text. FEBRUARY 9, 2018 This document and any recommendations, analysis, or advice provided by Marsh ClearSight herein (collectively, the "information") are intended solely for the entity identified as the recipient herein ("you"). This document contains proprietary, confidential information of Marsh ClearSight and may not be shared with any third party, including any insurance producer, without Marsh ClearSight's prior written consent or as otherwise authorized by Marsh ClearSight. Any statements concerning legal matters are not to be relied upon as legal advice, for which you should consult your own professional advisors. Any modeling, analytics or projections are subject to inherent uncertainty, and the Information could be materially affected if any underlying assumptions, conditions, information, or factors are inaccurate or incomplete or should change. Except as may be expressly set forth in the Agreement, Marsh ClearSight makes no representation or warranty in or with respect to this document, shall have no obligation to update the Information and shall have no liability to you or any other party with regard to the Information. 001 MARSH MARSH CLEARSIGHT CONFIDENTIAL INFORMATION SOFTWARE AS A SERVICE AGREEMENT This SOFTWARE AS A SERVICE AGREEMENT (this "Agreement") is entered into as of April 1, 2018 (the "Effective Date") by and between Marsh ClearSight LLC, a Delaware limited liability company with offices at 540 West Madison Street, Chicago, Illinois 60661 ("Marsh ClearSight"), and The City of Miami, Florida, a Florida municipal corporation with offices at 444 SW 2nd Avenue, 6th Floor, Miami, Florida 33130 ("the City" or "Client"). In consideration of the mutual agreements contained herein and intending to be legally bound hereby, Marsh ClearSight and the City hereby agree to all of the following terms and conditions, 1. Definitions. (a) "Affiliate" shall mean, with respect to a party, its ultimate parent company and all or entities under common control of such parent company (through direct or indirect ownership of more than fifty percent (50%) of the voting stock or rights, by control of a majority of the directors of the corporation, by contract or arrangement, or otherwise). (b) "Application Documentation" shall mean, in Web -based form, each of the manuals, user guides, technical specification documents and other instructional and reference materials generally distributed by Marsh ClearSight regarding the SaaS Application, all as updated and redistributed by Marsh ClearSight from time to time. (c) "Client Data" shall mean the data provided or inputted by or on behalf of the City, including personally identifiable information, for use with the SaaS Application, excluding any Confidential Information of Marsh ClearSight. (d) "Confidential Information" shall mean, collectively, this Agreement, as well as all confidential and proprietary information of a party, including, without limitation, regarding a party's business plans and strategies; products and technology; software, source code and object code; clients or prospective clients; data models; data conversion and processing logic; inventions, developments, formulae and processes; know-how, show -how, discoveries, improvements, works of authorship, concepts, mask works, and ideas, or expressions thereof, whether or not subject to patents, copyright, trademark, trade secret protection or other intellectual property right protection (in the United States or elsewhere); and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically or in writing. Client Data shall be considered Confidential Information of the City. (e) "Fees" shall mean the applicable access, usage, implementation, conversion, customization, consulting, maintenance, support and services fees payable pursuant to this Agreement, including as set forth in the Products and Services Schedule. (f) "Marsh ClearSight Technology" shall mean the SaaS Application and Application Documentation. (g) "Products and Services Schedule" shall mean the terms pursuant to which Marsh ClearSight shall provide and the City shall purchase the Services, which is attached hereto as Exhibit A. (h) "Proprietary Rights" shall mean all copyright, patent, trademark, trade secret and other intellectual property and proprietary rights. (i) "Restricted Entity" shall mean any individual, partnership, limited liability company, corporation, joint venture, trust, association or other entity owned or controlled by, or acting as an agent for, any individual or entity with whom a U.S. citizen, national, or company organized under the laws of or operating in any state or territory of the U.S. is prohibited from engaging in any transactions by U.S. laws, including without limitation, an individual on the Specially Designated Nationals List published by the United States Department of the Treasury's Office of Foreign Assets Control ("OFAC"), or any other individual or entity with whom or which transactions are prohibited by OFAC regulations. (j) "SaaS Application" shall mean the online Web -based application described in the Products and Services Schedule and provided by Marsh ClearSight to The City under this Agreement via http://www.marshclearsight.com and/or other Web sites designated by Marsh ClearSight including, without limitation, access to associated offline application components as well as all updates, upgrades, new versions, modifications, subsequent releases of such Web -based application or different Web - based applications, platforms or editions. FORM Marsh ClearSight SOFTWARE AS A SERVICE AGREEMENT - SAAS TEMPLATE Version: August 14, 2017 MAP H CONFIDENTIAL INFORMATION (k) "Service Provider" shall mean a third -party service provider of the City's or of its Affiliate(s) that provides services on behalf of and for the City or its Affiliate(s) (and not as a service bureau). (I) "Services" shall mean the implementation, support, maintenance, programming and other services specified in the Statement(s) of Work, work orders or services addenda, or otherwise provided by Marsh ClearSight pursuant to this Agreement, including the Products and Services Schedule. (m) "Statement of Work" shall mean a Statement of Work entered into by the parties submitted on a form issued by Marsh ClearSight and signed by the City that includes the type and details of the specific Services ordered by the City; such Statement(s) of work shall be acknowledged to be incorporated by reference into this Agreement. (n) "User" shall mean an individual (including an employee or agent of a Service Provider) using or accessing the SaaS Application. 2. SaaS Application Usage Guidelines and Restrictions. (a) Usage Guidelines. Subject to all the terms and conditions of this Agreement, Marsh ClearSight hereby grants to the City, for the term set forth in the applicable Statements) of Work, a non-exclusive, non -transferable, non -assignable, non- sublicensable, limited right for the City and its Affiliates (subject to Sections 2(d) and (e)) to access, display and use the Marsh ClearSight Technology solely for the internal business purposes of the City and its Affiliates and to manage information relating only to the City and its Affiliates, but not any third parties, and not for any other purpose or in any other manner. (b) Usage Restrictions. Nothing in this Agreement shall be construed as a grant to the City of any right to, and the City shall not, and shall not permit any third party to: (i) reproduce any of the Marsh ClearSight Technology or any portion thereof except as authorized by Marsh ClearSight; (ii) distribute, disclose or allow use of any of the Marsh ClearSight Technology, or any portion thereof, in any format, through any timesharing service, service bureau, network or by any other means, to or by any third party; (iii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Marsh ClearSight Technology in any manner; (iv) create derivative works from, modify or alter any of the Marsh ClearSight Technology in any manner whatsoever; (v) use the SaaS Application or any component thereof (excluding Client Data) to construct a database of any kind or to improve the quality of any data sold or contributed by the City to any third party; (vi) store the SaaS Application (excluding Client Data), in its entirety or in any part in databases for access by the City or any third party; (vii) distribute any database systems containing data (excluding Client Data) obtained from the SaaS Application; (viii) create Internet "links" to or from the SaaS Application or "frame" or "mirror" any of Marsh ClearSight's content which forms part of the SaaS Application (for the avoidance of doubt, creation of corporate Intranet "links" to the SaaS Application is not a violation of this Section 2(b)(viii)}; (ix) use or access the Marsh ClearSight Technology in a manner, or act otherwise in any manner, that could damage, disable, overburden, or impair any Marsh ClearSight servers or the networks connected to any Marsh ClearSight server; (x) interfere with any third party's use and enjoyment of the Marsh ClearSight Technology; or (xi) attempt to gain unauthorized access to the Marsh ClearSight Technology, accounts, computer systems, or networks connected to any Marsh ClearSight server through hacking, password mining, or any other means. (c) Users. The number of permitted Users shall be as set forth in the Products and Services Schedule. The City acknowledges and agrees that each User shall access and use the Marsh ClearSight Technology through a unique and reasonably secure username/user identification and password. Except for the City's and its Affiliates' system administrators where reasonably necessary for administrative or security purposes, no User may use the username/user identification or password of any other User. (d) Third Party Access. Subject to Section 2(e), the City shall also have the right for the City and Affiliates to permit its Service Providers to access, display and use the Marsh ClearSight Technology solely for the benefit of the City and its Affiliates, and in accordance with the terms and conditions of this Agreement, provided that: (i) except as otherwise expressly agreed by Marsh ClearSight in writing, no such Service Provider is engaged in, or is an affiliate or subsidiary of any individual or entity engaged in, the business of providing software or software -as -a - service for the management of risk, claims or compliance matters; (ii) The City shall provide thirty (30) days' advance written notice of such Service Provider to Marsh ClearSight and Marsh ClearSight does not object to such Service Provider within fifteen (15) days of Marsh ClearSight's receipt of such notice from the City; and 2 CONFIDENTIAL INFORMATION (iii) no Service Provider shall have any right to access, display or use the Marsh ClearSight Technology unless the Service Provider has agreed in writing in advance: (1) to be bound by at least the same restrictions with respect to the Marsh ClearSight Technology as the City, and (2) to use, access and display the Marsh ClearSight Technology solely for the benefit of the City or the City's Affiliates and as necessary to perform the Service Provider's authorized duties for or on behalf of the City or its Affiliates. (e) Affiliates, Service Providers; Generally. The City acknowledges and agrees that: (i) those of the City's Affiliates who will be using, accessing or displaying the Marsh ClearSight Technology shall be set forth on Schedule 2(e)(i), as amended from time to time, of this Agreement. The City shall provide an updated list of such Affiliates to Marsh ClearSight semi-annually if there are any changes or additions to such list of the City's Affiliates; (ii) any rights granted hereunder with respect to the Marsh ClearSight Technology to any of the City's Affiliates and Service Providers shall expire or terminate immediately upon the expiration or termination of the Agreement in accordance with its terms; (iii) ail access and use of the Marsh ClearSight Technology by the City's Affiliates and Service Providers shall be subject to all of the terms and conditions of this Agreement; (iv) The City shall be fully responsible for (1) ensuring the compliance of all such the City's Affiliates and Service Providers with the terms and conditions of this Agreement; and (2) all violations of the terms or conditions of this Agreement by the City's Affiliates and Service Providers; and (v) Each of the City's Affiliates shall have the right to enter into separate Statements of Work for such Affiliate's access and use of the SaaS Application and the Services to be performed by Marsh ClearSight for the benefit of such Affiliate. Any such Statement of Work shall be acknowledged to be incorporated by reference into this Agreement and shall be subject to the terms and conditions of this Agreement. (f) Proprietary Rights. As between the City and Marsh ClearSight, the City acknowledges that Marsh ClearSight is the exclusive owner of all right, title and interest in and to all Marsh ClearSight Technology and all Proprietary Rights related thereto, regardless of any participation or collaboration by the City in the design, development or implementation of any such Marsh ClearSight Technology. No title or ownership of Proprietary Rights in and to the Marsh ClearSight Technology, or any component thereof, is transferred to the City, its Affiliates or any third parties hereunder. To the extent that any such Proprietary Rights do not otherwise vest in Marsh ClearSight or its licensors, the City hereby agrees to promptly assign such Proprietary Rights to Marsh ClearSight or its licensors, and to do all other acts reasonably necessary to perfect Marsh ClearSight's or its licensors' ownership thereof, without additional consideration of any kind. (g) Notices of infringement; Assistance. In the event the City discovers or is notified of an actual or suspected infringement or misappropriation of the rights of Marsh ClearSight or its licensors in or to the Marsh ClearSight Technology, or any component thereof, or any unauthorized disclosure of, access to, or use of the Marsh ClearSight Technology (each, an "Infringement"), the City shall: (i) immediately notify Marsh ClearSight of such known or suspected Infringement; and (ii) terminate such Infringement if and to the extent within the City's or its Affiliates' control. (h) Proprietary Notices. The City shall not remove any copyright, patent, trademark or other proprietary or restrictive notice or legend contained in any of the Marsh ClearSight Technology, and the City shall reproduce all such notices and legends on all copies of the Marsh Clearsight Technology that are permitted to be made hereunder. the City further agrees to reasonably cooperate with and assist Marsh ClearSight (at Marsh ClearSight's sole expense) in protecting, enforcing and defending Marsh ClearSight's rights in and to the Marsh ClearSight Technology. (i) The City's Obligations. In furtherance of the foregoing, the City shall: (i) provide Marsh ClearSight with reasonable access to the City's premises as appropriate to enable Marsh ClearSight to perform its obligations hereunder; (ii) provide adequate resources to participate in or facilitate the performance of the Services; (iii) timely participate in meetings relating to the Services; (iv) assign personnel with relevant training and experience to work in consultation with Marsh ClearSight, if applicable; (v) provide the equipment and software (including obtaining any third party software licenses) required to operate the SaaS Application in accordance with, and to otherwise comply with, the hardware/software specifications for the SaaS Application; (vi) safeguard the user ID's, passwords and other security data and methods furnished to the City in connection with the SaaS Application and prevent unauthorized access to or use of the Marsh ClearSight Technology; (vii) be responsible 3 CONFIDENTIAL INFORMATION for all maintenance and compliance with laws, if applicable, of the City networks, equipment and system security required or appropriate in connection with the SaaS Application; (viii) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Data; (ix) transmit, and cause its Affiliates and Service providers to transmit, Client Data in an encrypted format, to be mutually agreed by the parties, if Client Data is transmitted by electronic transfer or sent in physical media by or on behalf of the City; and (x) take such other actions as are required of the City pursuant to this Agreement, including without limitation, the Products and Services Schedule. (j) The City's Warranty; Client Data. The parties acknowledge and agree that during the term of this Agreement the City, its Affiliates, the Service Providers or other third parties may disclose certain Client Data, including personally identifiable data regarding employees or other individuals, to Marsh ClearSight for the benefit of the City or its Affiliates, the City represents and warrants to Marsh ClearSight that: (i) the City, its Affiliates, the Service Providers and such other third parties are authorized to disclose the Client Data to Marsh ClearSight for use pursuant to this Agreement; (ii) such disclosure does not and shall not violate applicable law or, if applicable, the City's or its Affiliates' agreements with or privacy notices to individuals with respect to whom the Client Data relates; and (iii) the City shall not request Marsh ClearSight to use, disclose or otherwise process Client Data in any manner that would not be permissible under applicable law or, if applicable, the City's or its Affiliates' agreements with or privacy notices to individuals with respect to whom the Client Data relates, if done by the City. (k) Non -Marsh ClearSight Events. The City acknowledges and agrees that Marsh ClearSight shall not be responsible or liable for any delay or failure in its performance of any duties or obligations pursuant to this Agreement, including, without limitation, under the Products and Services Schedule or schedule hereunder, if such delays or failures result or arise from any Non -Marsh ClearSight Events. "Non -Marsh ClearSight Events" shall mean, collectively: any (i) act or omission of the City, its Affiliates or the Service Providers, including without limitation, any delays by the City in its performance or cooperation with respect to the obligations set forth in Section 2(i) or the Products and Services Schedule; (ii) failures of the City's or third party equipment or software (other than the SaaS Application); or (iii) Force Majeure Event (as defined below). 1 Services. During the term of this Agreement, Marsh ClearSight or its Affiliates shall perform the Services set forth in the applicable Statement(s) of Work incorporated by reference into this Agreement in accordance with the terms of this Agreement, including the Products and Services Schedule. 4. Fees and Payments. (a) Fees. The City shall pay to Marsh ClearSight the fees set forth in the applicable Statement(s) of Work incorporated by reference into this Agreement or as otherwise agreed in writing by the parties. Fees for additional services or expenses, if any, will be invoiced monthly as incurred. (b) Expenses. The City shall reimburse Marsh ClearSight for all reasonable, documented out of pocket travel, lodging, meal and other expenses reasonably incurred by Marsh ClearSight in the course of performing the Services. (c) Taxes. The City shall be liable for any taxes (including but not limited to federal manufacturers' and retailers' excise, state and local sales and use taxes, and personal property taxes), public charges, tariffs, and export and import duties, however designated, and any interest and penalties thereon, arising under this Agreement, other than taxes based on Marsh ClearSight's income. Any taxes assessable on the City's use of the SaaS Application and from which the City is not legally exempt shall also be borne by the City. All such taxes shall be included in amounts invoiced to the City. Within fifteen (15) days of the Effective Date, the City shall provide to Marsh ClearSight a copy of the City's current certificate of tax exempt status. (d) Payments. All Fees under this Agreement shall be payable by the City pursuant to and in accordance with the Payment Schedule set forth in the Statement of Work or as otherwise agreed by the parties, and shall be made in arrears based upon work performed to the satisfaction of the City within forty-five (45) days after receipt of Marsh ClearSight's invoice for Services performed pursuant to the State of Florida's Prompt Payment Act, § 218.70 — 218.79, Florida Statutes, and other applicable laws, which shall be accompanied by sufficient supporting documents and contain sufficient details, to allow a proper audit of expenditures, should the City require one to be performed. Invoices shall be sufficiently detailed so as to comply with the "Florida Prompt Payment Act," § 218.70 — 218.79, Florida Statutes, and other applicable laws. No advance or future payments will be made at any time. Except as provided in Sections 6(b), all Fees paid hereunder are non-refundable. If The City does not pay an invoice by the later of seventy-five (75) days after its due date or fifteen (15) days after notice that Marsh ClearSight demands immediate payment, Marsh ClearSight may at its sole discretion suspend the City's services or 4 CONFIDENTIAL INFORMATION terminate this Agreement. Upon termination, this Agreement and all of the City's rights hereunder will terminate without further notice. 5. Confidentiality. (a) Confidential Information. Each party acknowledges and agrees that during the term of this Agreement it may be furnished with or otherwise have access to Confidential Information of the other party. The party that has received Confidential Information (the "Receiving Party"), in fulfilling its obligations under this Section 5, shall exercise the same degree of care and protection with respect to the Confidential Information of the party that has disclosed Confidential Information to the Receiving Party (the "Disclosing Party") that it exercises with respect to its own Confidential Information, but in no event shall the Receiving Party exercise less than a reasonable standard of care. The Receiving Party shall only use, access and disclose Confidential Information as necessary to fulfill its obligations under this Agreement, including the Products and Services Schedule, or in exercise of its rights expressly granted hereunder. Receiving Party shall not directly or indirectly disclose, sell, copy, distribute, republish, create derivative works from, demonstrate or allow any third party to have access to any of Disclosing Party's Confidential Information; provided, however, that: (i)(1) Receiving Party may disclose the Disclosing Party's Confidential Information to its Affiliates who have a need to know, and (2) Marsh ClearSight shall have a right to disclose the City's Confidential Information to the City's Affiliates and Service Providers, and Marsh ClearSight's employees and other agents; and (ii) all use of the Disclosing Party's Confidential information shall be subject to all the restrictions set forth in this Agreement. (b) Exclusions. The following information shall not be considered Confidential Information subject to this Section 5: (i) information that is publicly available or later becomes available other than through a breach of this Agreement; (ii) information that is known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or (iii) information that is subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality. If the Receiving Party is required by law to disclose any portion of the Disclosing Party's Confidential information, including, without limitation, pursuant to the terms of a subpoena, court order or otherwise by applicable law, Receiving Party shall give prior timely notice of such disclosure to Disclosing Party to permit Disclosing Party to seek a protective or similar order, and, absent the entry of such an order, Receiving Party shall disclose only such Confidential information as is necessary be disclosed in response to such subpoena, court order or other similar document. (c) Survival. The obligations set forth in this Section 5 shall expire two (2) years after termination or expiration of this Agreement; provided, however, that the confidentiality obligations for Confidential Information constituting trade secrets (as determined under applicable law) shall survive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret. 6. Term and Termination. (a) Term. This Agreement shall commence upon the Effective Date and remain in effect for three (3) years, unless terminated sooner in accordance with this Section 6 (the "initial Term"). Thereafter, this Agreement shall automatically renew for additional three (3)-year periods (each, a "Renewal Term") unless either party gives the other party notice of its election to non -renew at least one hundred twenty (120) days prior to the end of the then -current Term provided that: (i) The City is not in breach of this Agreement and is current on all amounts due Marsh ClearSight under this Agreement; (ii) The City acknowledges and agrees that: (1) each such Renewal Term will be at Marsh ClearSight's then -current rates; (2) the SaaS Application available to the City and supported by Marsh ClearSight during any Renewal Term may be a different version or release than as available and supported during the prior term; and (3) the City will also be responsible for all Fees and expenses associated with any additional Services agreed upon between the parties at Marsh ClearSight's then -current rates; and (iii) Notwithstanding the foregoing, the City will also be responsible for all other applicable Fees and expenses associated with any additional access to the SaaS Application and Services agreed upon between the parties at Marsh ClearSight's then -current rates. The Initial Term and each Renewal Term shall collectively be referred to as the "Term." Each Statement of Work shall be in effect for the term set forth within that Statement of Work, 5 CONFIDENTIAL INFORMATION (b) Termination. This Agreement may be terminated by: (i) Marsh ClearSight pursuant to Section 4(d); or (ii) either party if the other party breaches any material term and fails to cure such breach within thirty (30) days after receipt of written notice thereof. If the City terminates the Agreement for Marsh ClearSight's breach in accordance with this Section 6(b), Marsh ClearSight shall refund to the City, within forty-five (45) days of the effective date of such termination, any prepaid but unearned Fees paid to Marsh ClearSight in advance by the City. (c) Events Upon Expiration, Termination. Upon the expiration or termination of this Agreement for any reason, The City shall: (i) promptly cease all use of the Marsh ClearSight Technology; (ii) promptly discontinue providing access to and remove all links to the Marsh ClearSight Technology; (iii) within ten (10) business clays after expiration or earlier termination of this Agreement, return to Marsh ClearSight, or upon Marsh ClearSight's request, destroy, all copies of the Marsh ClearSight Technology in the City's, its Affiliates and the Service Providers' possession or control; and (iv) within fifteen (15) business days after expiration or earlier termination of this Agreement, certify in writing to Marsh ClearSight that it has done all of the foregoing. Upon any expiration or termination of this Agreement, Marsh ClearSight shall invoice The City for all accrued Fees, including, without limitation, the full amount of any implementation fees specified in the applicable Statement of Work, and all reimbursable expenses, and The City shall pay the invoiced amounts, including from previously issued invoices, in accordance with Section 4(d) herein. (d) Survival. Except as otherwise set forth herein, in the event of termination of this Agreement for any reason, the provisions of Sections 2(f) and (j), 5, 6(c), 7(e) and (f), 8, 9, 10, 11, 13 and 14, as well as all payment obligations, shall survive. 7. Limited Warranties and Disclaimer. (a) SaaS Application Warranty. Marsh ClearSight warrants that the SaaS Application will perform in all material respects in accordance with the Application Documentation when used in accordance with the terms of this Agreement on the hardware and with the third -party software specified by Marsh ClearSight from time to time. The City's sole remedy for any breach by Marsh ClearSight of the warranty provided in this Section 7(a) shall be replacement of the nonconforming functionality in the SaaS Application, at Marsh ClearSight's sole expense, as described herein. If the City discovers that any functionality in the SaaS Application fails to conform to the warranty provided in this Section 7{a), the City shall give Marsh ClearSight written notice of such nonconformity after delivery of the SaaS Application or component thereof to the City and promptly after such discovery (and, in no event later than five {5) business days after expiration of the Warranty Period (as defined below)). Marsh ClearSight shall deliver to the City replacement the SaaS Application, a work -around and/or an error/bug fix as may be necessary to correct the nonconformity. In the event that the City gives Marsh ClearSight notice of an apparent nonconformity that Marsh ClearSight reasonably determines is not due to any fault or failure of the SaaS Application to conform to the warranty provided herein, all time spent by Marsh ClearSight resulting in such determination, including time spent attempting to correct the problem, shall be charged against the City's client service hours, or, if client service hours have been exhausted, charged to the City at Marsh ClearSight's then current hourly rate for such services. (b) Services. Marsh ClearSight represents and warrants that the Services shall be performed in a professional and commercially reasonable manner consistent with the standard of care exercised by Marsh ClearSight in performing similar services for other clients. the City's remedy for breach of this warranty shall be re -performance of the nonconforming Services, provided that Marsh ClearSight must have received written notice of the nonconformity from the City after the original performance of the Services by Marsh ClearSight. (c) Virus. Marsh ClearSight warrants that, to the best of Marsh ClearSight's knowledge, prior to its access by the City, the SaaS Application does not contain any programming devices (e.g., viruses, key locks, back doors, trap doors, etc.) which would: (i) disrupt the use of the SaaS Application or any system, equipment or software to which the City's networks are interfaced or connected; or (ii) destroy or damage data or make data inaccessible or delayed, except for file and purge routines necessary to the routine maintenance of the SaaS Application (collectively, "Disabling Code"). Marsh ClearSight will use reasonable practices and security procedures necessary to avoid insertion of Disabling Code prior to the delivery of the SaaS Application to the City and, as the City's remedy, shall remove any such Disabling Code so inserted, at Marsh ClearSight's cost and expense. (d) Authority. Each party represents and warrants that it has full power and authority to enter into this Agreement and grant the rights granted herein. (e) Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, MARSH CLEARSIGHT MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE MARSH CLEARSIGHT 6 CONFIDENTIAL INFORMATION TECHNOLOGY OR SERVICES, INCLUDING QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON -INFRINGEMENT. NO MARSH CLEARSIGHT AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THIS AGREEMENT. Marsh ClearSight or its Affiliates may provide the City with modeling and/or business analytics services, including hazard Toss and catastrophe modeling, loss forecasting and triangles, adverse event simulation, scenario and portfolio risk analysis, decision mapping, risk bearing and risk retention tolerance analysis and insurance program evaluation analysis ("Modeling and Analytics"). Modeling and Analytics services will be based upon a number of assumptions, conditions and factors. If any of them or any information provided to Marsh Clearsight or its Affiliates are inaccurate or incomplete or should change, the Modeling and Analytics provided by Marsh ClearSight or its Affiliates could be materially affected. These services are subject to inherent uncertainty, and actual results may differ materially from that projected by Marsh Clearsight or its Affiliates. They are provided solely for the the City's benefit, and do not constitute, and are not intended to be a substitute for, actuarial, accounting or legal advice. Neither Marsh ClearSight nor its Affiliates shall have liability to any third party in connection with these services or to the the City with regard to any services performed or provided by a third party. Except as permitted under this Agreement and required by public records law pursuant to Chapter 119, Florida Statutes, the the City shall not share any of the Modeling and Analytics work product with a third party without Marsh ClearSight's prior written consent. the City agrees and acknowledges that Marsh ClearSight or its Affiliates shall not be responsible for: (i) any acts, omissions, delays, inaccuracies, errors or any other failure caused by the City's, its Affiliates' or any Service Providers' computer systems, hardware or software (other than the SaaS Application), including by interfaces with such third party software, or any inaccuracies that such systems may cause within the SaaS Application; (ii) any inaccuracies in or failures of the SaaS Application to conform to the Application Documentation arising out of the use of a version or release of the SaaS Application other than the most recent version or release provided to the City by Marsh ClearSight; (iii) any data that Marsh ClearSight receives from the City or third party sources and including the data's accuracy or completeness, or the City's claim handling decisions; (iv) the City's failure to encrypt Client Data; (v) The City's failure to use available security features within the SaaS Application; or (vi) the SaaS Application to the extent it is modified by anyone other than Marsh ClearSight. To the extent the SaaS Application utilizes Internet systems to transmit data or communications, Marsh ClearSight disclaims any liability for interception of any such data or communications, including of encrypted data not solely due to Marsh ClearSight's breach of its obligations hereunder. the City agrees that Marsh ClearSight shall have no responsibility or liability for any damages arising in connection with access to or use of the Marsh ClearSight Technology by the City, its Affiliates, or Service Providers other than as authorized by this Agreement. Marsh Clearsight is also not responsible for the security, reliability or continued availability of the telephone lines and equipment outside of Marsh ClearSight's direct control used to access the SaaS Application. (f) Third -Party Websites. The content of third party Websites, systems, products or advertisements that may be linked to the SaaS Application are not maintained or controlled by Marsh Clearsight. Marsh ClearSight is not responsible for the availability, content or accuracy of third party Websites, systems or goods that may be linked to, or advertised on, the SaaS Application. Marsh ClearSight does not have any responsibility for, nor: (i) make any warranty, express or implied, with respect to the use of the links provided on, or to, the SaaS Application; (ii) guarantee the accuracy, completeness, usefulness or adequacy of any other Websites, systems, products or advertisements that may be linked to or referenced in the SaaS Application; or (iii) make any endorsement, express or implied, of any other Web sites, systems, products or advertisements that may be linked to or referenced in the SaaS Application. (g) Warranty Period. The representations and warranties contained in this Section 7 regarding the SaaS Application shall be in force during the Term (the "Warranty Period"). 8. Intentionally Omitted. 9. Intentionally Omitted. 10. Limitations of Liability. (a) Disclaimer. IN NO EVENT WILL MARSH CLEARSIGHT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR REVENUE, COSTS INCURRED AS A RESULT OF DECISIONS MADE IN RELIANCE ON THE MARSH CLEARSIGHT TECHNOLOGY, LOSS OF USE OF THE MARSH CLEARSIGHT TECHNOLOGY OR ANY OTHER SOFTWARE OR OTHER PROPERTY, LOSS OF DATA, THE COSTS OF RECOVERING OR 7 CONFIDENTIAL INFORMATION RECONSTRUCTING SUCH DATA OR THE COST OF SUBSTITUTE SOFTWARE, SERVICES OR DATA, OR FOR CLAIMS BY THIRD PARTIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL MARSH CLEARSIGHT'S AGGREGATE MAXIMUM LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED $1,000,000.00. 11. Publicity. (a) Promotional Use. Marsh ClearSight may publicize the fact that the City has engaged in the authorized use of the Marsh ClearSight Technology. Marsh ClearSight may so use the City's name and brand image or trademark according to the City's published guidelines for such use and will not state or imply that the City endorses or recommends the Marsh ClearSight Technology. Marsh ClearSight may interview, videotape or otherwise record Company's employees and, if applicable, contractors to gather information for creating any documentation describing Company's use of the SaaS Application. Company will obtain any necessary permissions or releases from its employees or contractors participating on Company's behalf regarding such interviews, whose names, pictures, likenesses, videotaped appearances, or quotes appear in promotional materials generated by Marsh ClearSight. (b) Database Information. From time to time Marsh ClearSight or its Affiliates may compile and sell databases of risk management information. Subject to Marsh ClearSight's confidentiality obligations set forth in Section 5 herein, The City agrees that Marsh Clearsight or its Affiliates may use de -identified and/or aggregated Client Data for these purposes. (c) Press Releases. Except as otherwise expressly provided in Section 11(a), neither party shall issue a general press release naming the other party regarding the existence of this Agreement without the prior written consent of the other party. 12. Foreign Use. If the City chooses to access the SaaS Application from outside the United States, it is responsible for compliance with foreign and local laws. The Marsh ClearSight Technology is not available through Marsh ClearSight or its Affiliates to any Restricted Entity. the City represents and warrants that it is not a Restricted Entity and is not using the Marsh ClearSight Technology on behalf of or for the benefit of a Restricted Entity. 13. Records. In the event Marsh ClearSight Technology is installed locally on the City's systems, the City shall use reasonable efforts to maintain secure, complete and accurate records regarding its use of any locally installed Marsh ClearSight Technology, including, without limitation, the name and username/user identification and password of each User, (collectively, the "Records"). The City shall maintain such Records during the term of this Agreement and for two (2) years thereafter. At Marsh ClearSight's expense, Marsh ClearSight (or at Marsh ClearSight's election, its representatives) shall have the right to examine, inspect and audit the Records, and copy or make extracts of information from any part of the Records at any reasonable time during normal business hours upon ten (10) business days' notice to the City in order to monitor the City's compliance with this Agreement. If any such audit reveals that the City has more (i) Users accessing or using the locally installed Marsh ClearSight Technology, or (ii) transactions than the City has paid for during the period to which the audit relates (as determined prior to the commencement of the audit), then the City shall promptly pay for such additional Users or transactions, as applicable (beginning from the date of first access by each additional user or first additional transaction) at the rates set forth in the applicable Statement(s) of Work, and the reasonable cost of such audit shall be borne by the City. In addition, if any such audit reveals that the City has more five percent (5%) or more Users accessing or using the locally installed Marsh ClearSight Technology or transactions than for which the City has paid, Marsh ClearSight shall have the right to charge the City interest at ten percent (10%) per annum, or the highest amount permitted by applicable law, whichever is lower on all amounts payable by the City for such additional Users or transactions, as applicable. 14. General. (a) The City shall not have the right to assign, transfer, or sublicense any obligations or benefit under this Agreement without the prior written consent of Marsh ClearSight. Except as otherwise provided herein, this Agreement shall be binding on and inure to the benefit of the respective successors and permitted assigns of the parties. (b) Any notice required or permitted to be delivered pursuant to this Agreement shall be in writing and shall be deemed delivered: (i) upon delivery if delivered in person; (ii) three (3) business days after deposit in the United States nail, 8 CONFIDENTIAL INFORMATION registered or certified mail, return receipt requested, postage prepaid; (iii) upon transmission if sent via facsimile, with a confirmation copy sent via overnight mail; or (iv) one (1) business day after deposit with a national overnight courier, in each case addressed to the following addresses: If to Marsh ClearSight: Marsh ClearSight LLC Attn: Executive Director, Sales and Relationship Management 540 West Madison Street Chicago, IL 60661 Facsimile: (312) 627-6172 With a copy to: Marsh ClearSight LLC Attn: Corporate Counsel 540 West Madison Street Chicago, IL 60661 Facsimile: (312) 627-6172 If to The City: Daniel J. Aifonzo City Manager 444 SW 2nd Avenue, 10th Floor Miami, FL 33130-1910 With copies to: Anne -Marie Sharpe Risk Management Director 444 SW 2nd Avenue, 9th Floor Miami, FL 33130-1910 Annie Perez, CPPO Procurement Director 444 SW 2' Avenue, 6th Floor Miami, FL 33130-1910 or to such other address as may be specified by either party hereto upon notice given to the other, (c) The failure of either party to enforce any of its respective rights under this Agreement at any time for any period shall not be deemed or construed a waiver by such party of such rights. (d) Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer or agent of the other party and shall not bind nor attempt to bind the other party to any contract or other undertaking. (e) No changes or modifications to or waivers of any provision of this Agreement shall be effective unless evidenced in a written amendment that is signed by authorized representatives of both parties. (f) In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. (g) This Agreement shall be governed by and construed in accordance with the laws of the State and County of New York without regard to the conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state and federal courts located in New York, New York. (h) Readings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. (i) Marsh ClearSight shall have no liability for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control, including without limitation, acts of God, fires, floods, earthquakes, wars, civil disturbances, terrorism, sabotage, accidents, unusually severe weather, labor disputes, governmental actions, power failures, viruses that are not preventable through generally available retail products, inability to obtain labor, material or equipment, catastrophic hardware failures, usage spikes, attacks on Marsh ClearSight's server, or any inability to transmit or receive information over the Internet, (each, a "Force Majeure Event") nor shall any such failure or delay give the City the right to terminate this Agreement. (j) The City acknowledges that its breach of this Agreement may cause irreparable injury to Marsh ClearSight that may not be adequately compensable in money damages, and for which Marsh ClearSight shall have no adequate remedy at law. In the event of breach of Sections 2 or 5 of this Agreement, Marsh ClearSight shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief. The City hereby waives any requirement of the posting of a bond that may apply for issuance of any injunctions, orders or decrees. 9 CONFIDENTIAL INFORMATION its interests, including but not limited to preliminary and permanent injunctive relief. The City hereby waives any requirement of the posting of a bond that may apply for issuance of any injunctions, orders or decrees. (k) This Agreement takes precedence over any conflicting statement or provision in the Products and Services Schedule and any other document furnished by Marsh ClearSight with respect to the usage of Marsh ClearSight Technology. This Agreement, including all Exhibits hereto, is the complete statement of the agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior oral and written agreements with respect to the subject matter hereof, including but not limited to any prior confidentiality or nondisclosure agreements entered into by Marsh ClearSight and the City. (I) This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together shall constitute one and the same Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. Marsh ClearSight LLC The City of Miami, Florida By: By: Name: '4� t S '�04EI Name: Title: n L Title: 10 EXHIBIT A Marsh ClearSight SAAS Products and Services Schedule This Marsh ClearSight SAAS Products and Services Schedule and its appendices, if any (the "Schedule"), sets forth the terms generally applicable to the one or more products or services (the "Services") to be provided by Marsh ClearSight LLC ("Marsh ClearSight") to Client as set forth in the Statement(s) of Work incorporated by reference into this Schedule (the "Statement(s) of Work") under the Software as a Service Agreement entered into by Marsh ClearSight and Client as of the Effective Date (the "Agreement"). Client will pay all applicable rates and fees for the Services as set forth in the Statement of Work applicable to this Schedule and the Agreement. This Schedule and the Services set forth herein shall be effective during the term of the Statement(s) of Work. SAAS Application Solutions SaaS Application solutions will be provided as set forth in the Statement(s) of Work. Any product(s) licensed by Client from Marsh ClearSight and set forth in executed Statement(s) of Work between Marsh ClearSight and Client shall remain licensed to Client until the expiration, termination or other applicable modification of such Statement(s) of Work. Hosting Client Data will be hosted in an information technology infrastructure environment provided by Marsh ClearSight during the Service Term. Regular maintenance is essential to the running of an efficient and secure system infrastructure. While most infrastructure maintenance may be performed while the Marsh ClearSight cloud production environment is fully operational, Marsh ClearSight and Client acknowledge that certain infrastructure maintenance tasks may require the Marsh ClearSight cloud production environment to be taken off-line in order for those tasks to be performed. Marsh ClearSight will provide Client a minimum of ten (10) days' notice prior to any scheduled downtime for infrastructure maintenance of the Marsh ClearSight cloud production environment. Whenever reasonably practical, scheduled downtime for Marsh ClearSight cloud production environment infrastructure maintenance will occur during non -peak hours. Non -peak hours are Friday at 8:00 pm (2000 hours) through Sunday at 3:00 pm (1500 hours) in the following applicable time zones: Client Hosting Location Time Zone for Non -Peak Hours North and South America U.S. Central Standard or Daylight Savings Time Europe, Middle East and Africa Greenwich Mean Time or British Summer Time Asia Pacific Australian Eastern Standard or Daylight Savings Time The parties recognize, however, that emergency infrastructure maintenance may be required for the Marsh ClearSight cloud production environment. Marsh ClearSight will notify the Client of such emergency infrastructure maintenance as soon as reasonably practical. Products and Services Schedule; Page 1 of 20 Services, Support and Service Hours Support and Service Hours are described in the Statement of Work. During implementation of the SaaS Application, Marsh ClearSight will provide Client with project deliverables for User Acceptance Testing ("UAT") and will provide Client guidance on the UAT process. Governing Assumptions The following are key assumptions in the provision of implementation and other services under the Agreement: • Client will actively participate and ensure key personnel are available to address any Client -owned deliverables, actions, or dependencies required for work to proceed per agreed schedule, and each will be made available by Client or their identified agents in a timely manner • Marsh ClearSight assumes a continuous engagement scenario and as such, Client will provide required resources to facilitate execution, review, testing, or acceptance of all agreed deliverables by the Marsh ClearSight team within the timeframes of the project schedule mutually agreed before the commencement of the project; this will include time from business users and source system owners for meetings, data requests, gathering of data required and most importantly help obtaining timely decisions from relevant parties. • During the term of this SOW, If delays or other unanticipated problems occur which are beyond Marsh ClearSight's control, or significant delays or work holds caused or requested by Client or one of Client's agents occur, this may result in release of assigned resources, a delayed completion of the project, and additional fees, which Marsh ClearSight will discuss with Client as soon as identified • Client will perform all deliverables review and testing activities as requested within the agreed upon activity windows using the agreed upon test formats and procedures. • Specific deliverables submitted for Client acceptance must be reviewed and formally accepted, or rejected in writing with explanations, within five (5) business days from date of submission from Marsh ClearSight. Deliverables not disposed within the 5 day review and acceptance window will be considered complete and accepted upon the sixth (6) day. • Marsh ClearSight assumes User Acceptance Testing (UAT) of the final end to end solution will be managed by the client and performed within the timeframes specified within the agreed project plan. Should client fail to perform UAT testing within the agreed testing window, upon expiration of the agreed timeframe, client will be notified of a 30 day extension to the testing window, and upon expiration of the 30 day extension window, if the client has not completed testing or received mutual agreement to extend further, all deliverables will be considered complete and fully accepted on the 315t day and the solution will be promoted to a Production status and the contract considered complete. Should Client chose to augment or expand the UAT testing process with additional activities not contained in the agreed testing approach and scope, these additional activities will be considered outside of the scope of work defined and will not affect signoff and promotion of the solution once it has completed the approved testing scenario as defined in the project. Client Role Review The Customer Role Review is designed to help Marsh ClearSight's clients understand their part in the major activities of a SaaS Application implementation project. It outlines major milestones, highlights decisions needed from the Client and points out implications of changes to the project scope. Products and Services Schedule; Page 2 of 20 The following Client roles are recommended for a successful project (an individual may be responsible for more than one role if applicable): Client Business Sponsor —This person will be responsible for final approval and signoff on all deliverables. They will also serve as a point of escalation for any project related risks or issues. Client Project Manager— This person will work directly with the Marsh ClearSight project manager to manage project timelines, risks and align Client resources to complete tasks within the timelines outlined in the project schedule. Client System Administrator — This person will be the ongoing resource assigned to maintain the SaaS Application. They will work directly with the project team to define specifications and understand configuration options selected during implementation. Milestones Project milestones act as thresholds and help to indicate whether a project is on track to finish as expected. Specific milestones vary by project, but in general, they are defined as the group of accomplishments, results, deliverables and events that measure project progress. The following outlines typical project milestones in a SaaS Application project and provides a high level overview of what the Marsh ClearSight team will need from Client in order to perform its obligations: Major Milestone Client Contributions Kickoff meeting or conference call A successful kickoff meeting or conference call requires attendance by project sponsor, project managers and end users. Identification of decision maker or point -person during this meeting is essential. Client and Marsh ClearSight will review the Agreement during this meeting to confirm accuracy and completeness of project deliverables Completion of specifications Engagement during specification process; Client may need to produce samples of output files, reports or other data from legacy system(s) to be uploaded into the SaaS Application Test environment established Cloud implementations will include a test environment provided by Marsh ClearSight Transfer of In User Acceptance Testing ("UAT"), specific deliverables submitted for Client review and deliverables from acceptance must be reviewed and formally accepted or rejected in writing (with explanation test to production for such rejection), within five (5) business days from date of submission from Marsh environment ClearSight. Deliverables not rejected in writing (with explanation for such rejection) within the 5-day review and acceptance window will be considered complete and accepted upon the sixth (6th) business day. Marsh ClearSight assumes UAT will be managed by the client and performed within the timeframes specified within the agreed project plan. Should client fail to perform UAT testing within the agreed testing window, upon expiration of the agreed timeframe, client will be notified of a thirty (30) day extension to the testing window, and upon expiration of the 30- day extension window, if the client has not completed testing or received mutual agreement to extend further, all deliverables will be considered complete and fully accepted on the first day after such extension window and the solution will be promoted to production status. Products and Services Schedule; Page 3 of 20 Training Successful training requires a complete audience of stakeholders and end users. If training is to be held at Client's facility, Client will be responsible for securing a training location/room, requesting staff participation, scheduling, etc. Decisions Throughout the project, the Marsh ClearSight team will need Client to make choices about the implementation of the SaaS Application. Decisions vary by project, but in general, they follow the nature of the decisions outlined in the table below. Also included in this table is the nature of the information to be provided by Client and a rough estimate of the timefra me. Decisions and Actions Needed Information Needed Timeframe System specifications Decisions regarding screen designs, security setup and other Beginning of project system specifications such as custom reports Validation of data Approval and signoff is needed on data mappings and prior to Middle of project conversion final load of conversion into the system deliverables Decisions regarding third -party deliverables Decisions or actions may be required if third -party Middle of project data/information is late, incomplete or missing Signoff on Project sponsor is required to sign off on all deliverables deliverables within five {5) business days of Client's receipt of any deliverable Middle of project and end of project Mutually acceptable changes to the Statements) of Work and/or project schedule will be outlined in a Deliverables Change Request and may result in additional cost to Client. The Marsh ClearSight project delivery team works with Client to define what constitutes a minor change, a change to existing scope or a change outside scope. Changes allowed will be based on the agreed upon project schedule timeline and will adhere to the below basic guidelines for all Marsh ClearSight projects. Any and all changes must be scoped and agreed to by both the Marsh ClearSight project team and the Client. The categories above are meant for use as general guidelines only and each project is subject to its own assumptions. Each project and the change requests therein will be handled on a case -by -case basis. Change Type Description and Recommended Deadline Minor changes Minor changes are those that do not affect the critical path and timing of the project, do not require changes to finalized specifications and do not require additional Marsh ClearSight resources to be assigned to the project. Though each project is subject to its own unique set of assumptions and constraints, these changes generally may be made throughout the life of the project up until the final UAT period begins. Products and Services Schedule; Page 4 of 20 Intermediate changes Intermediate changes are those that may have an effect on individual deliverable timeframes within the project, but do not affect the critical path and overall project schedule. Intermediate changes may require small adjustments to existing specifications and additional testing. No additional Marsh ClearSight resources are required for intermediate changes. Generally, these changes may be made throughout the life of the project. Advanced changes Advanced changes are those that may have an effect on both individual deliverable timeframes and the overall project schedule. Advanced changes may affect the critical path and require adjustments to existing specifications and/or the creation of new specifications. Additional Marsh ClearSight resources may be required to complete advanced changes. Generally, these changes take a medium to a high level of effort to complete. There is no timeline for this type of change as they must be scoped and evaluated on a case by case basis. Attachment -submission e-mails sent to Marsh ClearSight that are encrypted by methods other than Transport Layer Security encryption ("TLS") will not be uploaded. Client shall notify Marsh ClearSight in the event that Client does not use TLS for attachment -submission e-mails sent to Marsh ClearSight. Marsh ClearSight is not responsible for: (1) the content of any attachment -submission emails sent to Marsh ClearSight by Client; and (2) any content originally provided by Client in an attachment -submission email also contained within an error or response email sent by Marsh ClearSight to Client. Data Services • In the event data conversion or data processing is performed by Marsh ClearSight for Client, Client is responsible for ensuring that all data providers, including without limitation, TPAs, carriers, and brokers, provide Client Data to Marsh ClearSight in a timely manner. Delays in receipt of Client Data will result in delays of the Services to be provided by Marsh ClearSight under this Schedule and could result in additional fees. • As between Marsh ClearSight and Client, Client is responsible for the quality, accuracy and reliability of all Client Data provided by its data providers. • Time used resolving issues with the quality of the source data will erode service hours. • Please note that fees charged by data providers for the transmittal of Client Data to Marsh ClearSight are not included and that not all data providers are able to provide all data components for data conversions. • Client shall notify Marsh ClearSight regarding any "as of" reporting functionality related to each of its data conversions as some data types will not include a record of historical changes. • Up to three (3) data loads are included as a part of data conversion services for each data source. The data conversion services apply only to loading data into the SaaS Application, but not any extracts of such data. • Client is responsible for facilitating delivery of Client Data to Marsh ClearSight from all data providers, including a layout definition or data dictionary. • All Client Data provided to Marsh ClearSight must be encrypted using the NIST/AES or DES standards. Marsh ClearSight will provide the public keys and the methods used for encryption. This policy pertains to all Client Data sent electronically or physically to Marsh ClearSight. • Not all data providers are able to provide all data components for data conversions. Prior to execution of this Schedule, Client is responsible for verifying that all of Client's data providers are able to provide such data com ponents. Products and Services Schedule; Page 5 of 20 • Fees charged by data providers are not included in this Schedule and shall be payable by Client directly to the data providers. • Client is responsible for facilitating delivery of control total reports to Marsh ClearSight for each data provider. • In the event that control total reports are not available for a data provider, Client must provide written approval of agreement with Marsh ClearSight on a method of reconciliation. • A cumulative claims data conversion consists of claim indicative data (name, address, loss date, etc.) and summary financials only and does not include other data elements (adjuster notes, OSHA records, contacts, and/or historical detailed payments / reserve transactions). Claim -only data updates do not include detailed payment and reserve transactions. Marsh ClearSight builds a single cumulative transaction per financial category (i.e. Medical, Expense, and Indemnity) for each claim to allow for prior valuation or loss development reporting. • Historical detailed transactions are only included if the component entitled "Historical transaction data conversion" is selected in the Schedule. • Historical transaction data conversion includes detailed historical payment, recovery and/or reserve transactions only. Some data providers do not provide historical reserves in their transaction files. • In the event of an imbalance between claim summary financials and detailed transactions, the claims may be balanced to the transactions or vice versa, dependent on feedback from the data provider and Client. • Data associated with history of check processing and printing is not included in an historical transaction conversion. • Data associated with historical medical bill invoice/line item conversion is not included in an historical transaction conversion. Client will work with Marsh ClearSight to develop data mapping and transformation rules. Marsh ClearSight will develop a conversion mapping document for Client to review and approve in writing. • Marsh ClearSight will not modify or update source data without written approval from Client. • Marsh ClearSight will only develop data conversion program(s) and processes for data conversion components explicitly listed in the Schedule. Additional data conversion components may be added to project scope, but an additional fee will apply and the timeframe of the project may change accordingly. • The Marsh ClearSight standard turnaround time for non -daily and non -weekly scheduled claim and transaction data processing is three (3) business days from the time that Marsh ClearSight Data Operations Center confirms that incoming data is in the expected data layout, balances to control totals, and passes basic quality checks performed by Marsh ClearSight. • Data processing will take place during Marsh ClearSight's normal business hours. Unless specifically stated otherwise, data processing services performed by Marsh ClearSight include only loading data into the SaaS Application, but not any extracts of such data. • Ongoing data processing includes the following activities, which are all based on control total reports and Client Data provided by Client and/or its data providers: • Ongoing data conversion processing, validation of source data, and update of data into the SaaS Application. • Financial reconciliation with control total reports. • Minor code changes in conversion routines to address new business needs for Client, i.e., new location is added to structure • Resolution of claims that are missing or have been dropped from the Carrier / TPA feed • When historical claims are transferred to a new data source or the data provider changes the format of the file, a new Statement of Work will be required and will either require an additional fee or erode Client Support Hours. In the event that a takeover or format change is not communicated to the Data Operations Center prior to the receipt Products and Services Schedule; Page 6 of 20 of the data, time spent to correct data integrity issues will be billed at the rate set forth in the applicable Statement(s) of Work, • Except for minor code -mapping changes, Client -requested changes to a data conversion after the data conversion has moved into production are not included in ongoing data processing activities and will be billed at the rate set forth in the applicable Statement(s) of Work. • Daily loads are performed once daily during an agreed upon nightly window. • Marsh ClearSight will perform scheduled Toads into the SaaS Application database during an agreed upon time frame. • Marsh ClearSight's standard data processing schedule is to perform scheduled non -daily or non -weekly data updates into the SaaS Application database during Marsh ClearSight's normal business hours (Monday - Friday 8:00 a.m. to 5:00 p.m. CST, except Marsh ClearSight holidays) with minimal disruptions. • Client is responsible for identifying and communicating an acceptable scheduled update time period. Marsh ClearSight is responsible for notifying Client in advance of scheduled updates being performed, • Processing outside Marsh ClearSight's normal business hours, including weekends and holidays, is available for an additional fee. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Products and Services Schedule; Page 7 of 20 Marsh ClearSight SflAS Products and Services Schedule Appendices EDI Appendix Marsh ClearSight Enterprise Edition supports IAIABC standards EDI releases 1, 2 and 3, as required by the applicable state. EDI States included for Client are set forth in the applicable Statement(s) of Work. Configuration of additional states may require additional fees and/or erode the Support Service Hours. Marsh ClearSight is not responsible for maintaining claim and payment data in compliance with State requirements. SaaS Application will provide basic functionality that will allow Client to transmit EDI data to jurisdictions via the Marsh ClearSight Data Router or a third party clearinghouse/data router. Marsh ClearSight is not responsible for accuracy of Client Data contained in submissions or for the initiation of the transmission processes. Marsh ClearSight will not provide services/EDI transmission related to Proof of Coverage. States limit acceptance of EDI transmissions through particular vendors or through particular mechanisms. If Client will be using the SaaS Application EDI functionality for States that accept EDI transmissions only from particular vendors other than Marsh ClearSight or through mechanisms other than others offered by Marsh ClearSight, Client will be responsible for establishing and maintaining a relationship with such vendors or otherwise arranging for transmission from the SaaS Application through such mechanisms. In these cases, Marsh ClearSight shall not have responsibility for transmissions to or from the State. SaaS Application functionality will then be configured to permit transmission to and from such vendors or through such mechanism. Marsh ClearSight shall have no responsibility for the services or products, or transmission provided by such vendors. If EDI transmissions are made through a third party vendor, Client is responsible for providing Marsh ClearSight with necessary third -party authorizations and the user ID and password to access the Client's account to permit for delivery and receipt of files to that vendor from the SaaS Application. As part of the initial setup, Marsh ClearSight will deploy and configure the standard EDI (FROI/SR01) module, set up the transmission method (according to state requirements) and set up the transmission schedule. Marsh ClearSight will provide assistance to Client during State acceptance testing period, but is not responsible for training client on State requirements or for creating test plans based on State requirements. Client will be required to establish Trading Partner agreements with all jurisdictions prior to State testing. The data elements of the FROI/SROI EDI transmission will reside in a holding table in the SaaS Application database until the data is sent (as set forth below) to the State's EDI data warehouse. Client is responsible for: • entry and accuracy of all EDI data entered in the system and for meeting State requirements; and • marking EDI transmissions in the SaaS Application with a status of "Mark to Send" when transmissions are ready to be submitted to the State; and • understanding the timing originally set up at the time of implementation related to when EDI transmissions will be processed and sent to the State(s). Marsh ClearSight requires Client to maintain remote access to streamline the testing process and for Marsh ClearSight to perform services related to EDI under this Schedule. If Client disables remote assess Client will incur additional remote and/to telephonic assistance hours and will be responsible for additional fees incurred as a result of such additional assistance hours. Products and Services Schedule; Page 8 of 20 Marsh ClearSight recommends that Client transmits claims daily. Marsh ClearSight shall not be responsible for any State, Client or third party system failures or connectivity issues which may result in failures to transmit Client's transactions within the State's required time frames. Client is responsible for: • claims administration, claims decisions and business decisions related to data that is tracked in the SaaS Application and transmitted to the State; and • ensuring that data is populated in the SaaS Application in accordance to State rules, including ensuring that data is available for all data elements/fields required by the State. All changes to setup of this feature after completion of State acceptance testing will be applied against ongoing service hours. Marsh ClearSight is not responsible for any third party fees or state penalties related to State EDI requirements. Products and Services Schedule; Page 9 of 20 Marsh ClearSight SAAS Products card Services Schedule Appendices Medicare Section 111 Solution (CMS Solution) Appendix A. Medicare Section 111 Solution Elements 1) Solution Options The Medicare Section 111 Solution (the "Solution") provided by Marsh ClearSight includes several options to aid Client in compliance with The Medicare, Medicaid, and SCHIP Extension Act of 2007 ("SCHIP"): • Option 1 (Comprehensive Solution): A comprehensive solution wherein Marsh ClearSight and a Strategic Service Provider (SSP) will facilitate the full cycle of reporting Medicare beneficiary data to Centers for Medicare and Medicaid Services (CMS). • Option 2 (Claims/Eligibility Data Export): A solution for clients who prefer to work with their own Reporting Agent (RA) or method for reporting Medicare beneficiary data to CMS and can choose to receive a standard data export from Marsh ClearSight applications. • Alternate Reporting Agent Option: A solution wherein Marsh ClearSight and a Strategic Service Provider (SSP) will facilitate exporting CMS data and receiving responses from an Alternate Reporting Agent who will serve as the Reporting Agent (RA) for the client. The Alternate Reporting Agent (not Marsh ClearSight or the SSP) will facilitate reporting Medicare beneficiary data to Centers for Medicare and Medicaid Services (CMS). Neither Marsh ClearSight nor SSP shall be responsible for any actions or omissions of the Alternate Reporting Agent. Unless specified otherwise, the Medicare Section 111 Solution Elements as defined in Section I of this Appendix apply to all options. 2) Supported Marsh ClearSight Software and Upgrade Requirements The Solution is only supported by the following Marsh ClearSight proprietary software packages and versions (the "Supported Software"): • Professional Edition versions 8.10, 9.3, and 10 • Marsh ClearSight Enterprise In the event that Client is not currently licensing the Supported Software, Client will not be able to use the Solution without upgrading or migrating to the Supported Software. Any such upgrade or migration is not included in the scope of the Solution. 3) CMS Data Elements CMS has identified data element requirements for the purpose of standardizing the process of mandatory reporting under Section 111 of SCHIP (the "CMS Data Elements"). This includes standardized data fields, history and response elements as Products and Services Schedule; Page 11 of 20 outlined in the MMSEA Section 111 Medicare Secondary Payer Mandatory Reporting Liability Insurance (Including Self - Insurance), No -Fault Insurance, and Workers' Compensation USER GUIDE (the "CMS User Manual"), as supplemented and amended by CMS. The CMS User Manual is available at the following link: http://www.cros.gov/Medicare/Coordination-of-Benefits-and-Recovery/Mandatory-I nsurer-Reporting-For-Non-Group-Health- Plans/NGHP-User-Guide/NGHP-User-Guide.html Marsh ClearSight shall provide a repository within the Supported Software to store the CMS Data Elements. This repository shall house CMS Data Elements that Client cannot accommodate within core tables in the Supported Software. In order to capture this data in the CMS Data Elements repository, workflow changes may be required by Client. Capabilities to assign default data element values and handle data element modifications such as parsing Claimant Name into first name / last name and eliminating dashes in Social Security Numbers will be available within the Section 111 Data Mapping Tool (described below). Client may wish to define multiple Responsible Reporting Entity (RRE) IDs within the Solution. Clients may define RRE IDs at the following levels only: • Client, Coverage, Location, Policy • The following combinations only are supported for RRE ID definition: • Client • Client, Coverage • Client, Coverage, Policy • Client, Coverage, Location • Claim Level Assumptions: • RRE ID definition at levels other than those identified above will require customization at an additional fee 4) Section 111 Data Mapping Tool Marsh ClearSight shall provide a data mapping tool to map both data elements and codes to the CMS Data Elements. Assumptions: • Mapping for clients who use Professional Edition and Marsh ClearSight Enterprise — Mapping will be limited to data elements that reside in the following core tables: Claim (including extended tables), Location, Rolodex / Contact, and Policy for each RRE identified by Client 5) Marsh ClearSight Medicare Section 111 Solution Module The Marsh ClearSight Medicare Section 111 Solution Module includes a claim user interface ("Standard Section 111 Tab"), data structure, and logic processes required to capture and manage mapped CMS Data Elements for export to CMS. The Marsh ClearSight Section 111 Solution Module includes all CMS Data Elements as defined by CMS. Products and Services Schedule; Page 12 of 20 B. Implementation During implementation, Marsh ClearSight and/or Client will deploy and configure the Solution as described in the corresponding Statement of Work, Duration and effort for implementation will vary depending on the specific implementation requirements of Client, as reflected in specifications mutually agreed to by the parties. Marsh ClearSight will work with Client to deploy the Standard Section 111 Tab to Client's licensed version of the Supported Software and will provide a process to map any existing fields and codes in Client's licensed version of the Supported Software to the CMS Data Elements as provided for in the corresponding Statement of Work. Marsh ClearSight is not responsible for any of Client's obligations to CMS under the requirements of SCHIP or for any failure of the Client to provide the data elements required by CMS. Any system configuration services or changes required to comply with any CMS guidance issued under SCHIP ("CMS Section 111 requirements") will be billed as incurred at Marsh ClearSight's then current rates or erode existing Client Support Hours. Examples of system configuration services or changes that are not included in the scope of the Solution include, but are not limited to, the following: • Modifications to existing system configuration, codes, and screen design • Creation of or modification to event notifications or validations for workflow purposes • Changes to system security as a result of CMS Section 111 requirements + Future configuration changes resulting from modifications to the existing CMS Section 111 requirements • Modifications to data conversions occurring as a result of CMS Section 111 requirements • Working meetings or project management efforts by Marsh ClearSight staff to coordinate modification to existing configuration • Changes required to transfer data to or from third -party sources • Custom Programming work or changes to existing Custom Programming or Reports • Assistance from Marsh ClearSight with any Client testing required by CMS under SCHIP Implementation will be considered complete once the Solution has been deployed, configured, tested and moved into production with SSP. C. Option 1 (Comprehensive Solution) Specific Information 1)Strategic Service Provider ExamWorks Clinical Solutions, LLC, as successor in interest to Gould & Lamb, LLC ("ExamWorks") is Marsh ClearSight's designated Strategic Service Provider (SSP) for the Solution. More information about the SSP may be found at www.examworks-cs.com. Client acknowledges and agrees that Client shall designate ExamWorks as its Reporting Agent at the time of RRE Registration with CMS as required by SCHIP. In the event that Client is not an RRE, Client shall ensure that its customers that are RREs (the "Client's RREs") are registered as such on the CMS Coordination of Benefits Secure Website (COBSW) and designate ExamWorks as RA at RRE Registration with CMS as required by SCHIP. Client acknowledges and agrees that Client shall deliver to SSP the required reporting information and CMS -defined reporting date as provided by CMS during the registration process. Products and Services Schedule; Page 13 of 20 In the event Client enters into this SOW after RRE registration, Client will take all necessary steps required or provided by CMS, such as ExamWorks is designated as the client's RA with CMS as required by SCRIP. SSP shall assign Client a Single Point of Contact (SPOC) as well as an Account Manager to facilitate the reporting process to CMS. Responsibilities include, but are not limited to, issue resolution and training. Client acknowledges and agrees that ExamWorks shall be solely responsible for submitting any required information to CMS received from Client or Client's RRE. As the SSP will submit to CMS all data provided by or on behalf of the Client to Marsh ClearSight via the Solution, Client acknowledges and agrees that the SSP will require access to Client Data made available to Marsh ClearSight by, or on behalf of, Client and consents to the disclosure of such Client Data to SSP by Marsh ClearSight. The SSP may, upon Client's consent, offer additional services that are potentially important to Client. Client shall enter into a separate agreement with the SSP for any such additional services. Marsh ClearSight shall not be responsible for any obligations in connection with such separate agreement between Client and the SSP. In the event that the SSP services provided under the applicable Statement of Work are terminated either because the SSP designated in this Appendix has ceased supporting CMS reporting or for other reasons, Marsh ClearSight shall provide to Client the option of entering into a new or amended Statement of Work for the performance of Claims/Eligibility Data Export Services (Option 2) and shall use commercially reasonable best efforts to find an alternative SSP. Unless Client elects to enter into a new or amended Statement of Work for Claims/Eligibility Data Export Services, Client acknowledges and agrees that it shall designate an alternative SSP provided by Marsh ClearSight as its RA and that such alternative SSP shall be solely responsible for submitting any required information to CMS received from Client or Client's RREs. In the event Client enters into a new or amended Statement of Work for Claims/Eligibility Data Export Services, Marsh ClearSight shall have the right to terminate the services for the Option 1 (Comprehensive Solution). Client may elect to utilize a Client Data Provider as its data provider for CMS Data Elements, and may also elect to utilize the Solution to submit data to CMS on behalf of its Client Data Provider. Client shall be responsible for all CMS data element data quality and exchange of information with Client Data Provider related to CMS data elements; Marsh ClearSight bears no responsibility for data transfer to Client Data Provider or quality of data received from Client Data Provider. Marsh ClearSight recommends that Client increase frequency of data updates from Client Data Provider to a minimum of weekly to best facilitate data transfer to the SSP where Client will utilize Marsh ClearSight's Comprehensive Solution (Option 1) to submit data to CMS on behalf of their Client Data Provider. 2) Marsh ClearSight Medicare Section 111 Solution Module for Option 1 In addition to the elements defined above, the Section 111 Module for Option 1 includes the following: • Response codes from the SSP processing / result files • All data required to facilitate exports to and imports from SSP 3) Post -Implementation Functionality / Workflow Marsh ClearSight shall submit CMS Data Elements provided by Client or Client's Data Provider to the SSP on a scheduled weekly basis. Marsh ClearSight is not responsible for the accuracy of any CMS Data Elements or for ensuring that such CMS Data Elements comply with CMS Section 111 requirements. SSP shall submit the Claim Input file transmissions provided by Client (consisting of all CMS Data Elements provided by Client or Client Data Provider to Marsh ClearSight) to CMS on a quarterly basis within Client's CMS -assigned quarterly submission. Products and Services Schedule; Page 14 of 20 CMS shall submit a response regarding the quarterly Claim Input file transmission to SSP. The response from CMS shall be processed by the SSP and submitted to Marsh ClearSight. SSP shall also notify Client by e-mail that a response has been submitted to Marsh ClearSight. Such results shall be available for Client's review within the Supported Software, and Client is responsible for review of and required action on all such results within five (5) business days of receipt of the e-mail notification from SSP. SSP shall submit Medicare Eligibility queries to CMS on a monthly basis in order to verify whether injured parties reported in the CMS Data Elements are eligible for Medicare coverage. CMS shall submit a response regarding the monthly Medicare eligibility check to SSP. Response shall be processed by the SSP and supplied back to Marsh ClearSight via the weekly transmission process between Marsh ClearSight and SSP. Client must respond to and correct all errors received in response files from the SSP within five (5) business days of receipt of the e-mail notification from SSP. 4) Data Transmissions from Marsh ClearSight to SSP for ASP Clients Data transmissions to SSP for ASP clients include weekly Claim Input file transmission and weekly Medicare Eligibility file transmission for each RRE for which Client sets up mapping in the Marsh ClearSight Medicare Section 111 Solution Module of Supported Software as described in this Appendix. The Claim Input file is based on Section 111 specifications. The claim detail, auxiliary, and TIN reference records are denormalized into a single claim record with additional fields required by SSP to manage system administration and compliance. The Medicare Eligibility file is used for submitting claims to test for Medicare eligibility. It includes injured party information required to check Medicare eligibility with CMS. 5) Receipt of Data Imports by Marsh ClearSight from SSP for ASP Clients Data imports from SSP include a Claim Result file, a Claim Status file, and a Section 111 Response file for each RRE as identified in the RRE Appendix. Relevant results are imported into the Supported Software and available for Client's review within the Marsh ClearSight Medicare Section 111 Solution Module. This deliverable includes weekly transmission from SSP to Marsh ClearSight of the Claim Result file and Claim Status file, as well as quarterly transmission from SSP to Marsh ClearSight of the Section 111 Response file. A Claim Result file is created automatically for each weekly submission to SSP. This file contains records that were not processed by the SSP due to errors. A Claim Status file is provided weekly by SSP for each RRE and contains claim validation, eligibility, and compliance updates for all claims currently in the SSP's application for the Client. The Section 111 Response file is provided by CMS for each RRE within forty-five (45) days of receipt of a Section 111 required submission and TIN Reference file. CMS Claim Response data are provided to Client in the Section 111 Response File received from SSP. D, Option 2 (Claims/Eligibility Data Export) Specific Information 1) Post -Implementation Functionality/ Workflow Marsh ClearSight shall submit CMS Data Elements provided by Client or Client Data Provider to the Client or to Reporting Agent designated by Client on a scheduled weekly basis. Marsh ClearSight is not responsible for the accuracy of any CMS Data Elements or for ensuring that such CMS Data Elements comply with the Section 111 requirements issued by CMS. Products and Services Schedule; Page 15 of 20 Client may elect to utilize a Client Data Provider as their data provider for CMS Data Elements, and may also elect to utilize the Solution to submit data to CMS on behalf of their Client Data Provider. Client must maintain all responsibility of CMS data element data quality and exchange of information with Client Data Provider related to CMS data elements; Marsh ClearSight bears no responsibility for data transfer to Client Data Provider or quality of data received from Client Data Provider. Marsh ClearSight recommends that Client increase frequency of data updates from Client Data Provider to a minimum of weekly to best facilitate data transfer to CMS on behalf of their Client Data Provider. Assumptions: Marsh ClearSight will not make changes to the standard export file layouts. Changes to the layout that are not initiated by Marsh ClearSight will require an additional fee. • Option 2 is export only, and does not include an import of Section 111 Response file or Medicare Eligibility Response file. • Client is responsible for data in the Supported Software, including identification and resolution of all claim data errors related to the Section 111 reporting process. • Client is responsible for any fees levied by CMS due to data errors in the Supported Software. • Where Marsh ClearSight needs to participate in error resolution, time spent on those activities will be billed as incurred at Marsh ClearSight's then current rates or erode existing Client Support Hours. • Marsh ClearSight will make changes to the file layout as needed to support changes to the CMS reporting requirements. Marsh ClearSight will provide advance warning of those changes to Client. Client is responsible for coordinating change management with Client's Solution or Client's Reporting Agent. 2) Data Transmissions from Marsh ClearSight to Client's Solution or Client's Reporting Agent for ASP Clients Marsh ClearSight will transmit export file(s) in the Marsh ClearSight standard export layout to Client's Solution or Client Agent's FTP site via Secure FTP. Export files include: • Weekly claim detail, including TIN reference data file which includes claims with (a) non -closed status, (b) financial activity within the last quarter, or (c) are Medicare eligible will be included in this file export. • (OPTIONAL) Weekly Medicare Eligibility Query data file. Eligibility determination must be manually entered into the claims database. Standard layout definition will be made available to clients selecting this option. E. Alternate Reporting Agent Delivery Option - Specific Information 1) Strategic Service Provider ExamWorks Clinical Solutions, LLC, as successor in interest to Gould & Lamb, LLC ("ExamWorks") is Marsh ClearSight's designated Strategic Service Provider (SSP) for the Solution. More information about the SSP may be found at www.examworks-cs.com. Client acknowledges and agrees that Client shall notify Marsh ClearSight and the SSP with the Products and Services Schedule; Page 16 of 20 identity of its Alternate Reporting Agent or the Alternate Reporting Agent for its customers that are RREs (the "Client's RREs"). SSP shall assign Client a Single Point of Contact (SPOC) as well as an Account Manager to facilitate the reporting process to the Alternate Reporting Agent. Responsibilities include, but are not limited to, issue resolution and training. Client acknowledges and agrees that ExamWorks shall be solely responsible for submitting any required information to Alternate Reporting Agent received from Client or Client's RRE and that Alternate Reporting Agent shall be solely responsible for submitting any required information to CMS. As the SSP will submit to Alternate Reporting Agent all data provided by or on behalf of the Client to Marsh ClearSight via the Solution, Client acknowledges and agrees that the SSP will require access to Client Data made available to Marsh ClearSight by, or on behalf of, Client and consents to the disclosure of such Client Data to SSP by Marsh ClearSight. The SSP may, upon Client's consent, offer additional services that are potentially important to Client. Client shall enter into a separate agreement with the SSP for any such additional services. Marsh ClearSight shall not be responsible for any obligations in connection with such separate agreement between Client and the SSP. In the event that the SSP services provided under the applicable Statement of Work are terminated either because the SSP designated in this Appendix has ceased supporting CMS reporting or for other reasons, Marsh ClearSight shall provide to Client the option of entering into a new or amended Statement of Work for the performance of Claims/Eligibility Data Export Services (Option 2) and shall use commercially reasonable best efforts to find an alternative SSP. In the event Client enters into a new or amended Statement of Work for Claims/Eligibility Data Export Services, Marsh ClearSight shall have the right to terminate the services for the Alternate Reporting Agent Solution. Client may elect to utilize a Client Data Provider as its data provider for CMS Data Elements, and may also elect to utilize the Solution to submit data to CMS on behalf of its Client Data Provider. Client shall be responsible for all CMS data element data quality and exchange of information with Client Data Provider related to CMS data elements; Marsh ClearSight bears no responsibility for data transfer to Client Data Provider or quality of data received from Client Data Provider. Marsh ClearSight recommends that Client increase frequency of data updates from Client Data Provider to a minimum of weekly to best facilitate data transfer to the SSP where Client will utilize Marsh ClearSight's Alternate Reporting Agent Solution to submit data to Alternate Reporting Agent on behalf of their Client Data Provider. 2) Marsh ClearSight Medicare Section 111 Solution Module for Alternate Reporting Agent In addition to the elements defined above, the Section 111 Module for Alternate Reporting Agent includes the following: • Response codes from the SSP processing / result files • All data required to facilitate exports to and imports from SSP 3) Post -Implementation Functionality/ Workflow Marsh ClearSight shall submit CMS Data Elements provided by Client or Client's Data Provider to the SSP on a scheduled weekly basis. Marsh ClearSight is not responsible for the accuracy of any CMS Data Elements or for ensuring that such CMS Data Elements comply with CMS Section 111 requirements. SSP shall submit the Claim input file transmissions provided by Client (consisting of all CMS Data Elements provided by Client or Client Data Provider to Marsh ClearSight) to Alternate Reporting Agent upon receipt from Marsh ClearSight. Products and Services Schedule; Page 17 of 20 Neither Marsh ClearSight nor SSP are responsible for submitting Claim Input file transmissions to CMS within Client's CMS - assigned quarterly submission or receiving and processing CMS response files. The response received by SSP from Alternate Reporting Agent shall be processed by the SSP and submitted to Marsh ClearSight. Such results shall be available for Client's review within the Supported Software. Client acknowledges and agrees that it is solely responsible for ensuring that: (1) Alternate Reporting Agent submits Medicare Eligibility queries to CMS in order to verify whether injured parties reported in the CMS Data Elements are eligible for Medicare coverage; and (2) Alternate Reporting Agent acknowledges receipt of and processes responses from CMS regarding the Medicare eligibility check. Responses received by SSP from Alternate Reporting Agent shall be processed by the SSP and supplied back to Marsh ClearSight via the weekly transmission process between Marsh ClearSight and SSP. 4) Data Transmissions from Marsh ClearSight to SSP for ASP Clients Data transmissions to SSP for ASP clients include weekly Claire Input file transmission and weekly Medicare Eligibility file transmission for each RRE for which Client sets up mapping in the Marsh ClearSight Medicare Section 111 Solution Module of Supported Software as described in this Appendix. The Claim Input file is based on Section 111 specifications. The claim detail, auxiliary, and TIN reference records are denormalized into a single claim record with additional fields required by SSP to manage system administration and compliance. The Medicare Eligibility file is used for submitting claims to test for Medicare eligibility. It includes injured party information required to check Medicare eligibility with CMS. 5) Receipt of Data Imports by Marsh ClearSight from SSP for ASP Clients Data imports from SSP include data provided to SSP by the Alternative Reporting Agent (which may include a Claim Result file, a Claim Status file, and a Section 111 Response file for each identified RRE). The Alternative Reporting Agent may provide additional details regarding the data it shall provide to SSP. Relevant results are imported into the Supported Software and available for Client's review within the Marsh ClearSight Medicare Section 111 Solution Module. This deliverable includes weekly transmission from SSP to Marsh ClearSight of the Claim Result file and Claim Status file, as well as quarterly transmission from SSP to Marsh ClearSight of the Section 111 Response file returned by Alternate Reporting Agent. A Claim Result file is created automatically for each weekly submission to SSP. This file contains records that were not processed by the SSP due to errors. A Claim Status file is provided weekly by SSP for each RRE and contains claim validation, eligibility information received from Alternate Reporting Agent, and compliance updates for all claims currently in the SSP's application for the Client. Marsh ClearSight and SSP are not responsible for the Section 111 Response file provided by CMS to Alternative Reporting Agent for each RRE within forty-five (45) days of receipt of a Section 111 required submission and TIN Reference file. CMS Claim Response data are provided to Client in the Section 111 Response File returned to SSP by Alternate Reporting Agent, F. Client Responsibilities 1) CMS Requirements If Client is a RRE under CMS guidelines, Client shall register as such on the COBSW as required by SCHIP and/or coordinate registration of their customers which may be RREs as required by SCHIP (the "RRE Registration"). Compliance with the Products and Services Schedule; Page 18 of 20 requirements of the COBSW (and all CMS Mandatory Insurer Reporting, or Section 111, obligations generally) is solely Client's responsibility. To ascertain its Section 111 obligations and determine whether it is an RRE, Client should consult the CMS Section 111 website at www.cros.hhs.gov/MandatorylnsRep or such other website as CMS might provide. In the event Client enters into a Statement of Work for the CMS Solution after RRE Registration, Client shall provide proof of its registration as a RRE on the COBSW to Marsh ClearSight upon the effective date of such Statement of Work and shall take all necessary steps required or provided by CMS. Client is responsible for registration with the COBSW and designation of the applicable organization as Reporting Agent (RA) or making any changes to the designated RA as may be required by Marsh ClearSight. Client is responsible for providing RRE ID information to Marsh ClearSight. 2) Data Elements Client must ensure that injured party data elements and the Medicare eligibility flag contained within the CMS Data are properly captured on the base claim table for Professional Edition ("PE") and Marsh ClearSight Enterprise (on El records for Workers Comp claims and CI records for non -WC claims). The Solution will NOT automate the management of RRE iD assignments based on claim takeovers, deductible limits, re- insurance, stop loss insurance, excess insurance, umbrella insurance, guaranty funds, patient compensation funds, etc. Modification of data within Supported Software will be the sole responsibility of Client to accommodate these types of business decisions. Client will be responsible for manual entry and management of RRE assignments/changes, TPOC (Total Payment Obligation of Claimant) data, and ORM (On -going Responsibility for Medicals) data. Client will also be responsible for correcting any data entry errors pertaining to this data entry. Client may elect to utilize a Client Data Provider as their data provider for CMS Data Elements, and may also elect to utilize a Marsh ClearSight Medicare Section 111 Solution to submit data to CMS on behalf of their Client Data Provider. Client must maintain all responsibility of CMS data element data quality and exchange of information with Client Data Provider related to CMS data elements; Marsh ClearSight bears no responsibility for data transfer to Client Data Provider. Marsh ClearSight recommends that Client increase frequency of data updates from Client Data Provider to a minimum of weekly to best facilitate data transfer CMS on behalf of their Client Data Provider. 3) User Acceptance Testing Client User Acceptance Testing is required for approval of all deliverables outlined in the Products and Services Schedule. If Client does not provide Marsh ClearSight with feedback, the deliverable will be deemed accepted thirty (30) days after delivery. 4) Post Implementation Upon implementation of the Solution, Client shall be solely responsible for: • Accuracy of data required by and submitted to CMS and responsibility for any damages of any nature resulting from the transmission of incorrect information • Timely entry and update of data required by CMS in the appropriate fields within the Medicare Section 111 Module • Identification and resolution of all errors in the CMS Data Elements and ensuring that the CMS Data Elements comply with the Section 111 requirements issued by CMS Products and Services Schedule; Page 19 of 20 • Ensuring that the CMS Data Elements have been provided by Client or Client Data Provider for all data elements/fields required by the CMS Section 111 guidelines in a timely manner for accurate reporting to CMS • Claims administration, claims decisions and business decisions related to CMS Data Elements G. Additional Terms and Conditions Marsh ClearSight shall not be responsible for any CMS, Client, Client Data Provider, SSP, Alternate Reporting Agent or other third party system failures or connectivity issues which may result in failures to transmit Client's transactions within the CMS required time frames. Marsh ClearSight shall not be responsible for errors or omissions, negligence of, or connectivity issues or delays by SSP or the Alternate Reporting Agent. Notwithstanding anything to the contrary in the Agreement, Marsh ClearSight shall in no event be liable for any indirect, special, punitive, incidental or consequential damages in any action arising from or related to any software provided or services performed in connection with the Solution, whether based in contract, tort, intended conduct or otherwise. The maximum aggregate liability of Marsh ClearSight in connection with the Solution shall in no event exceed the fees actually paid by Client to Marsh ClearSight solely for Medicare Section 111 Solution services during the Initial Term or any Renewal Term. In the event that the SSP changes its fees to Marsh ClearSight, Marsh ClearSight shall notify Client in writing within thirty (30) days of Marsh ClearSight's receipt of notice regarding SSP's fee increase. Client agrees that Marsh ClearSight shall have the right to adjust the annual fee by the amount set forth in such notice to Client, provided that the annual fee shall not be subject to change until at least one (1) year from the time that Marsh ClearSight notifies the Client of such fee change. RRE Appendix The following is a list of Responsible Reporting Entities (RREs) as defined by Client as of the applicable Statement of Work Effective Date: 1. RRE 1 2. RRE 2 3. RRE 3 Products and Services Schedule; Page 20 of 20 SCHEDULE 2(e)(i) CLIENT'S AFFILIATES Name State or Country of Incorporation/ Principal Address Organization 1. [TO BE COMPLETED BY CLIENT] 2. 3. 4. 5. APPENDIX 170 SOFTWARE AS A SERVICE AGREEMENT ASP Service Level Agreement Marsh ClearSight and Client each recognize the importance of high Application Service Provider (ASP) infrastructure availability. The ASP Service Level Availability Standards that follow apply for the term of the applicable Statement of Work. Regular maintenance is essential to the running of an efficient and secure system infrastructure. While most ASP infrastructure maintenance may be performed while the ASP is fully operational, Marsh ClearSight and Client acknowledge that certain infrastructure maintenance tasks may require the ASP to be taken off-line in order for those tasks to be performed. Marsh ClearSight will provide Client a minimum of ten (10) days' notice prior to any scheduled downtime for infrastructure maintenance of the ASP. Whenever reasonably practical, scheduled downtime for ASP infrastructure maintenance will occur during non -peak hours {Friday at 8:00 pm (20:00 hours) U.S. Central Time through Sunday at 3:00 pm {15:00 hours) U.S. Central Time.) The parties recognize, however, that emergency infrastructure maintenance may be required for the ASP. Marsh ClearSight will notify the Client of such emergency infrastructure maintenance as soon as reasonably practical. Maintenance of the software application is not intended to be included in the below Service Levels. ASP Infrastructure Availability Standards Service Definition Service Level Availability During Peak Production systems owned and A minimum of 98% availability, excluding Hours (defined as M-F, operated by Marsh Clearsight scheduled downtime for ASP infrastructure 06:00-20:00 hours, U.S. that are available to authorized maintenance, downtime related to software Central Time). end users; measured to the application maintenance and downtime point where the Marsh caused by a Force Majeure Event (as ClearSight ASP network connects to the Internet. described in Section 14 of the Agreement). Availability During Non -Peak Production systems owned and A minimum of 95% availability, excluding Hours (defined as M-F, operated by Marsh ClearSight scheduled downtime for ASP infrastructure 20:00-06:00 hours, U.S. that are available to authorized maintenance, downtime related to software Central Time) and all day on end users; measured to the application maintenance and downtime Sat. & Sun. point where the Marsh caused by a Force Majeure Event (as ClearSight ASP network connects to the Internet. described in Section 14 of the Agreement). Client: Marsh ClearSight: APPENDIX 2 TO SOFTWARE AS A SERVICE AGREEMENT MARSH CLEARSIGHT SUPPORT SERVICE LEVELS AND PROBLEM RESOLUTION I. SUPPORT Support and/or the assigned Systems Consultant(s) will work with Client to respond to inquiries regarding instructional support and support requests relating to system design, configuration, or customized solutions. Support is available during the times indicated at http://www.marshclearsight.com/support/ or such other URL as may be specified by Marsh ClearSight. All support provided by Marsh ClearSight shall be in accordance with and subject to the above referenced (SaaS Agreement or) Statement of Work. II. SERVICE LEVELS AND PROBLEM RESOLUTION Marsh ClearSight shall address and work to correct Problems with the SaaS Application reasonably expeditiously, taking into account the severity and nature of the Problem and in accordance with this Appendix. All capitalized terms in this Appendix have the meanings stated within the Software License and Services Agreement between Client and Marsh ClearSight. A "Problem" shall mean a failure of the SaaS Application to perform substantially in conformity with the Documentation when used in accordance with the terms of the Agreement. A Problem shall not include any failure that is caused by (I) failures of Client's equipment or software (other than the SaaS Application), (ii) any failures of Client to carry out its responsibilities under the Agreement, the Statement of Work (or similar document executed by the Parties), or (iii) any errors or failures outside the control of Marsh ClearSight. Problem Severity Definition Problem Severity Severity Level 1 Severity Level 2 Severity Level 3 Definition A Problem, which inhibits A Problem where a feature A Problem, which is minor all or substantially the entire SaaS Application from functioning. (or features) of the SaaS Application is (are) inhibited, but this Problem does not materially disrupt use of the SaaS or cosmetic in nature. Application. Client shall notify Marsh ClearSight if Client learns of any Problems with the SaaS Application. Client shall report the Problem and submit service requests through the online Self -Service website at http://www.marshclearsight.com/supportj, or such other URL as Marsh ClearSight may specify, and/or contact Marsh ClearSight Online Support. When a Problem develops, Client agrees that, within a reasonable time (based upon the severity of the Problem as characterized by Marsh ClearSight), Client shall provide Marsh ClearSight with such information about the Problem that Marsh ClearSight may reasonably require to address the Problem, and shall provide Marsh ClearSight with all access, cooperation, and use of information and facilities as necessary to render such service. Problem Response As part of the support services under this Appendix, Marsh ClearSight will: (1) acknowledge the reported Problem upon notice by Client of the existence of a Problem, (2) advise Client of the actions being undertaken to resolve the Problem and any potential workaround solution, and (3) provide Client with periodic updates as to the actions being taken for resolution and the approximate expected time to delivery of the work -around or Problem resolution, all in accordance with the levels of Severity in the below table. In each case, Marsh ClearSight shall provide Client with regular updates as to the actions being taken for resolution of any Problem. In providing the Problem Response described in the tables below, Marsh ClearSight shall address and use commercially reasonable efforts to remedy a discovered Problem in as reasonably prompt a time as possible in accordance with the Severity Level of the Problem. Client shall be responsible for (1) responding to calls, emails or other inquiries from authorized users of Client, Client's Affiliates and Client's Service Providers; (2) performing password resets; (3) conducting initial investigation of issues reported, including browser and printing issues, and troubleshooting identified problems to rule out network and connectivity issues as the cause; (4) resolving issues related to PC operating systems and printing issues; (5) defining and administering access permissions and security, and (6) setting all other administration features of the SaaS Application for authorized use. Global: .,,.....--..,..,>, :-;..-.77,7, Problem Severity -1-..4,...,77.6.777-.7r70,,1„ Severity Level 1 ..*...,......,�.�...{...--,.- Severity Level 2 Severity Level 3 Response Time of Problem Marsh ClearSight shall acknowledge to Client its receipt of Client's reported Problem within two (2) hours of Client requests submitted through the Marsh ClearSight Support Call Center at (855) 478- 2771. Marsh ClearSight shall acknowledge to Client its receipt of Client's reported Problem within four (4) hours of Client requests submitted through the Marsh ClearSight Support Call Center at (855) 478-2771. Marsh ClearSight shall acknowledge to Client its receipt of Client's reported Problem within twelve (12) hours of requests submitted through the Marsh ClearSight Support Call Center at (855) 478-2771. Actions to Resolve Marsh ClearSight will Marsh ClearSight will advise Marsh ClearSight will advise the Problem with advise Client of actions Client of actions being Client of actions being Updates to the being undertaken for undertaken for resolution of undertaken for resolution of Client resolution of the Problem the Problem and any potential the Problem and any potential and any potential workaround solution within workaround solution within a workaround solution twenty-four (24) hours of reasonable time of Marsh within eight (8) hours of Marsh ClearSight ClearSight's acknowledgment Marsh ClearSight's acknowledgment of the of the Problem. acknowledgment of the Problem. Marsh ClearSight Notwithstanding the Problem. Marsh ClearSight will continue its efforts to foregoing, some items may will continue its efforts to resolve the Problem until a require additional resolve the Problem until a workaround is available or a modifications which Marsh workaround is available or resolution of the Problem is ClearSight will only be able to resolution is achieved. achieved. achieve in subsequent point Notwithstanding the foregoing, some items may require additional modifications which Marsh Notwithstanding the foregoing, some items may require additional modifications which Marsh releases. ClearSight will only be able to achieve in subsequent point releases. ClearSight will only be able to achieve in subsequent point releases. Premier: Problem Severity Severity Level 1 Severity Level 2 Severity Level 3 Response Time of Problem Marsh ClearSight shall acknowledge to Client its receipt of Client's reported Problem within four (4) hours of Client notifying Marsh Clearsight of such Problem. Marsh ClearSight shall acknowledge to Client its receipt of Client's reported Problem within eight (8) hours of Client notifying Marsh Clearsight of such Problem. Marsh Clearsight shall acknowledge to Client its receipt of Client's reported Problem within twelve (12) hours of Client notifying Marsh Clearsight of such Problem. Actions to Resolve the Problem with Updates to the Client Marsh Clearsight will advise Client of actions being undertaken for resolution of the Problem and any potential workaround solution within eight (8) hours of Marsh ClearSight's acknowledgment of the Problem. Marsh ClearSight will continue its efforts to resolve the Problem until a workaround is available or resolution is achieved. Notwithstanding the foregoing, some items may require additional modifications which Marsh Clearsight will only be able to achieve in subsequent point releases. Marsh ClearSight will advise Client of actions being undertaken for resolution of the Problem and any potential workaround solution within twenty-four (24) hours of Marsh Clearsight acknowledgment of the Problem. Marsh ClearSight will continue its efforts to resolve the Problem until a workaround is available or a resolution of the Problem is achieved. Notwithstanding the foregoing, some items may require additional modifications which Marsh Clearsight will only be able to achieve in subsequent point releases. Marsh Clearsight will advise Client of actions being undertaken for resolution of the Problem and any potential workaround solution within a reasonable time of Marsh ClearSight's acknowledgment of the Problem. Notwithstanding the foregoing, some items may require additional modifications which Marsh ClearSight will only be able to achieve in subsequent point releases. Standard: Problem Severity Severity Level 1 Severity Level 2 Severity Level 3 Response Time of Marsh ClearSight shall Marsh ClearSight shall Marsh ClearSight shall Problem acknowledge to Client its acknowledge to Client its acknowledge to Client its receipt of Client's reported receipt of Client's reported receipt of Client's reported Problem within eight (8) Problem within twelve (12) Problem within twelve (12) hours of Client notifying hours of Client notifying hours of Client notifying Marsh ClearSight of such Marsh ClearSight of such Marsh ClearSight of such Problem. Problem. Problem. Actions to Resolve Marsh Clearsight will Marsh Clearsight will advise Marsh ClearSight will advise the Problem with advise Client of actions Client of actions being Client of actions being Updates to the being undertaken for undertaken for resolution of undertaken for resolution of Client resolution of the Problem the Problem and any potential the Problem and any potential and any potential workaround solution within workaround solution within a workaround solution twenty-four (24) hours of reasonable time of Marsh within eight (8) hours of Marsh ClearSight ClearSight's acknowledgment Marsh ClearSight's acknowledgment of the Problem. Marsh ClearSight will continue its efforts to resolve the Problem until a workaround is available or resolution is achieved. acknowledgment of the Problem. Marsh ClearSight will continue its efforts to resolve the Problem until a workaround is available or a resolution of the Problem is achieved. of the Problem.