OptumHealth Pass Through Terms

1. 1.1. “Solution” means the administrative solution made available to Licensee through Ebix and/or its Service Provider.
2. 1.2. “Services” means the administrative services provided to Licensee through Ebix and/or its Service Provider set forth in the attached statement of work.
3. 1.3. “Service Provider” means Administration Resources Corporation (“ARC”), an OptumHealth Financial Services, Inc. company and those ARC affiliates through which ARC provides the Solution or Services.

1. 2.1. Licensee acknowledges that Ebix reserves the right to upgrade, improve, modify or discontinue any Services provided or made available to Licensee. In the event Ebix or its Service Provider determine to discontinue all of the Services provided to Licensee and its End User, this Agreement shall terminate as of the date of such termination of Services.
2. 2.2. Licensee agrees that this Agreement may be assigned to Ebix’s Service Provider.

1. 3.1. Licensee acknowledges that Ebix or its Service Provider shall use the Solution to perform the Services for Licensee pursuant to the terms hereof. Licensee acknowledges that Licensee’s right to access or use the Solution shall be limited to the right of Licensee and its respective employees to access and view certain Licensee participant data. Furthermore, the parties acknowledge that in order for Ebix and its Service Provider to provide the Services, Ebix will aggregate, transmit and deposit data from Licensee to the Solution, and collect all output information relating to Licensee processed by Ebix or its Service Provider and deliver it to Licensee, all as agreed by the Parties herein, in connection with the Services.
2. 3.2. Licensee specifically agrees not to use, display, reproduce, distribute or transfer, modify or create derivative works of, or provide access to the Solution in any manner or on any product, service or item, except as set forth in this Agreement. No ownership or other rights with respect to the Solution are granted herein. To the extent that Licensee acquires or is deemed to have acquired any rights in the Solution, Licensee agrees to assign such rights to Ebix or its Service Provider upon request. Ebix, its Service Provider and/or its agents reserve the right to audit Licensee for compliance with the terms of the Agreement at any time during Licensee’s normal business hours upon reasonable notice, provided that such audit(s) may not occur more than once per calendar quarter.
3. 3.3. Licensee shall assign to Ebix and its Service Provider, all rights title and interest in or related to the Solution, including any and all rights, title and interest in any modifications and enhancements to the Solution, at all stages of development and upon completion, and all patents and copyrights in the Solution.

1. 4.1. Not a Fiduciary or Administrator It is agreed and understood by Licensee that neither Ebix nor its Service Provider shall be designated or deemed the "Plan Administrator" or "Fiduciary" for any Plans as these terms are construed under ERISA. Notwithstanding anything in the Agreement to the contrary, no delegation of authority or duties pursuant to this Agreement shall have the effect of making Ebix or its Service Provider a fiduciary, and such duties or other similar duties are hereby retained by the Licensee.
2. 4.2. Plan and Trust Establishment Licensee acknowledges and agrees that Licensee is solely responsible for all aspects of the Licensee’s benefit plan(s) (“Plan”), including but not limited to: (i) establishment of any plan, trust (if applicable) or other component deemed necessary and appropriate by Licensee to establish the Plan; (ii) any operations, administration, recordkeeping, benefit eligibility determinations, and all other actions necessary or required to maintain or operate all aspects of the Plan; (iii) creating and maintaining all Plan documentation, including but not limited to, the Plan Document, the Trust Document (if applicable), any Summary Plan Descriptions and Summary of Material Modifications; (iv) any and all amendments or modifications to the Plan, any trust (if applicable), or any Plan or trust documents associated with the Plan; (v) unless otherwise specifically agreed to in writing by ARC, the application for tax-exempt status (IRS Form 1024) where applicable; (vi) unless otherwise specifically agreed to in writing by Ebix, any federal or state reporting requirements, including information or tax returns, for the Plan, the Licensee, or any individuals within or otherwise participating in the Plan ("Participants"); (vii) any required notices to Participants, including notices under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or the Health Insurance Portability and Accountability Act ("HIPAA"); (viii) the delivery to Participants of all appropriate and necessary documents and materials, including, but not limited to, the Plan Document, Trust Document, Plan and Trust amendments, the Summary Plan Descriptions, enrollment forms, and application and notice forms, as may be necessary for the operation of the Plan or to satisfy the requirements of state or federal laws and regulations; and (ix) contributions to any employee benefit plan.
3. 4.3. Plan Amendments and/or Termination If Licensee amends or modifies any documents related to the Plan, Licensee agrees to notify Ebix in writing no later than the effective date of the amendment or the date of adoption of any such amendment or modification. Ebix shall not be responsible for modifying the Services or providing any additional services related to any such amendment or modification until Ebix has received such notification and only after Ebix has given its written consent of any such amendment or modifications, which consent not to be unreasonably withheld but may be conditioned upon Licensee’s agreement to pay increased administrative fees.

1. 5.1. Intellectual Property As used in this Agreement, the term “Intellectual Property” shall mean any of the following in any form or media: (a) formulae, algorithms, processes, procedures and methods; (b) company name, trademarks, service marks, names, words, titles, phrases, designs, ideas, concepts, research, discoveries, inventions (whether or not patentable or reduced to practice) and invention disclosures; (c) know-how, trade secrets and proprietary information and methodologies; (d) technology; (e) computer software (in both object and source code form); (f) databases; (g) expressions, works and factual and other compilations; (h) protocols and specifications; (i) visual, audio and audiovisual works (including art, illustrations, logos, icons, graphics, images, music, sound effects, recordings, lyrics, narration, text, animation, characters, designs and all other audio, visual, audiovisual and textual content); (j) records of each of the foregoing, including documentation, design documents and analyses, studies, programming tools, plans, models, flow charts, reports, letters, memoranda and drawings; and (k) any updates, modifications, enhancements and derivatives thereto.
2. 5.2. Ebix IP. All Intellectual Property owned by Ebix or its Service Provider and in existence on the Effective Date and created or acquired thereafter (including, without limitation, all Intellectual Property developed by Ebix or its Service Provider, in whole or in part, directly or indirectly in connection with this Agreement, all Intellectual Property used in the delivery of the Services, the Solution and System (defined below)), together with all related rights, title and interests thereto, shall continue to be owned, as between Ebix and Licensee, exclusively by Ebix and its Service Provider (collectively, "Ebix IP"). Licensee shall not have any right, title, or interest in or to Ebix IP except as enumerated in this Agreement and Licensee shall retain or affix such evidences of ownership and proprietary notices as Ebix may reasonably request. Without limiting the foregoing, Licensee shall not use any Ebix IP to develop or market, directly or indirectly, products or services that are competitively similar to the Services.
3. 5.3. Licensee IP All Intellectual Property owned by Licensee and in existence on the Effective Date and independently created or acquired thereafter by Licensee (but not based on or using any Ebix IP), together with all related rights, title and interests thereto, shall continue to be owned exclusively by Licensee (collectively, "Licensee IP"). Licensee IP shall include, without limitation, all of Licensee’s claims data. Ebix and its Service Provider shall have no right, title, or interest in or to Licensee IP, except for the limited right to receive and use Licensee IP as is reasonably necessary in connection with the performance of the Services hereunder. Nothing in this Section 5.3 shall be deemed to restrict Section 4.

1. 6.1. Licensee hereto represents and warrants to Ebix and its Service Provider that it is familiar with and shall comply with all privacy and data protection laws, rules and regulations which are or which may in the future be applicable to the terms of this Agreement. Without limiting the generality of the preceding sentence, Licensee agrees that it will not use nor disclose to any third party any Nonpublic Personal Information, which it receives from a Financial Institution in connection with this Agreement, except in accordance with this Agreement. For purposes of this Section, the terms "Nonpublic Personal Information" and "Financial Institution" shall have the meanings set forth in Section 509 of the Gramm-Leach-Bliley Act (P.L. 106-102) (15 U.S.C. Section 6809) and implementing regulations thereof, as may be amended from time to time (“GLBA”).
2. 6.2. Licensee has implemented and will maintain appropriate measures designed to meet the objectives of the guidelines establishing standards for safeguarding non-public personal information of account holders or other customers as adopted by the federal regulatory agencies having jurisdiction over Licensee, Ebix or its Service Provider. Licensee shall comply with the requirements pertaining to non-public personal information under GLBA and to Protected Health Information as defined in the Health Insurance Portability and Accountability Act ("HIPAA").

1. 7.1. From time to time, either Party (the "Disclosing Party") may disclose or make available to the other Party (the "Receiving Party"), whether orally or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, vendors, products or services in connection with this Agreement (together, "Confidential Information"). Confidential Information of Ebix (as between Ebix and Licensee) includes, without limitation, systems architecture, policies and procedures, customer, employee, provider and provider discount pricing information, vendors, member and beneficiary information, claims data and other claim information, Form 835 information, vendor information (including agreements, software and products), product plans, the Solution and any other information which is normally and reasonably considered confidential. Confidential Information of Licensee includes Licensee’s claims data. Each Party agrees that during the Term and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Agreement; and (b) it will take all reasonable precautions to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, subcontractors or Service Provider, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party, or, if the return of such or a portion of such Confidential Information is not possible using commercially reasonable efforts, the Receiving Party will destroy such Confidential Information. The Receiving Party will be responsible for any breach of this Section by its employees, representatives, and agents.
2. 7.2. The term "Confidential Information" will not include any information that the Receiving Party can establish by written evidence: (a) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (b) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party without disclosure restrictions; or (c) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no breach of this Agreement by the Receiving Party).
3. 7.3. These confidentiality obligations will not restrict any disclosure required by order of a court or any governmental agency, provided that in the case of an order, the Receiving Party gives prompt notice (unless prohibited by applicable law from providing such notice) to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
4. 7.4. The Parties acknowledge and agree that the disclosure of Confidential Information shall result in irreparable harm for which there is no adequate remedy at law. The Parties therefore agree that the Disclosing Party shall be entitled to seek an injunction in the event the Receiving Party violates or threatens to violate the provisions of this Section and that no bond will be required. This remedy will be in addition to any other remedy available at law or equity.
5. 7.5. The System contains information and computer software that are proprietary and Confidential Information of Ebix's Service Provider. Licensee agrees not to attempt to circumvent the devices employed by Ebix's Service Provider to prevent unauthorized access thereto, including but not limited to, alterations, decompiling, disassembling, modifications and reverse engineering thereof. In addition, Licensee shall not, directly or indirectly, prepare any derivative works of any part of the System, or attempt to defeat the security features of the Services. “System” shall mean Ebix's Service Provider’s systems and equipment and Intellectual Property obtained for or used by Ebix's Service Provider from time to time to perform tasks and services related to this Agreement, including without limitation computers and related hardware, hardware configurations, operations systems and related firmware, proprietary software and other software and related algorithms, and other data and facilities (including internet connectivity, as applicable), together with any modifications, enhancements and updates thereto.

1. 8.1. Licensee shall not at any time use, promote, advertise, display or otherwise publish, in whole or in part, the Solution or any material utilizing or reproducing the Solution, in whole or in part.
2. 8.2. Licensee shall not, directly or indirectly, contest the rights of Ebix’s Service Provider to the Solution, nor shall Licensee willingly become an adverse Party in litigation or proceeding in which others shall contest Ebix’s Service Provider’s rights or aid or assist any third party in contesting Ebix’s Service Provider’s rights in the Solution. In addition thereto, Licensee shall not in any way seek to avoid its obligations hereunder because of the assertion or allegation by any persons, entities or government agencies, bureaus, or instrumentalities that the rights of Ebix’s Service Provider to the Solution are invalid or ineffective or by reason of any contest concerning the rights of Ebix’s Service Provider therein.
3. 8.3. Licensee shall provide all materials and execute all documents requested by Ebix for the maintenance and/or preservation of Ebix’s Service Provider’s rights to the Solution. To the extent that Licensee acquires any rights in the Solution, Licensee agrees to assign, and hereby does assign, all such rights to Ebix’s Service Provider.

1. 9.1. The Services provided under this Agreement will be performed in a workmanlike manner in accordance with applicable industry standards.
2. 9.2. EXCEPT AS PROVIDE IN SECTION 9.1, THE SERVICES ARE PROVIDED “AS-IS” WITH NO WARRANTIES; AND EBIX AND ITS SERVICE PROVIDER EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. EBIX DOES NOT WARRANT THAT ACCESS TO, OR OPERATION OF, ARC SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
3. 9.3. IN NO EVENT WILL EBIX’S SERVICE PROVIDER BE LIABLE TO LICENSEE DIRECTLY OR INDIRECTLY BY VIRTUE OF THIS AGREEMENT, INCLUDING FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, TREBLE OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY, REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH DAMAGES IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY, EVEN IF EBIX’S SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF.

1. 10.1 By indicating acceptance below, the following officer of Licensee hereby certifies that he or she has been duly authorized by all necessary and appropriate corporate action to act for and on behalf of Licensee, to enter into and form legally binding contracts on behalf of Licensee and to authorize and direct OptumHealth Bank, Inc., its parent, affiliates, subsidiaries, successors and assigns (collectively the “Bank”), to initiate periodic Automated Clearing House ("ACH") debit or credit entries from the account at the financial institution identified herein above (“Account”) for those amounts communicated by Licensee to the Bank in writing (electronic or otherwise) or as required by Bank to effectuate the funding instructions of Licensee or to correct errors in connection with those certain employee accounts.
   
   Name of Officer (print) _________________________
   Title: _______________________________________
   Signature: ___________________________________
2. 10.2 This authorization is effective for the Licensee executing this authorization as well as its successors and assigns and shall remain in effect until such time as Licensee revokes said authorization by giving ten (10) days’ prior written notice to Bank at OptumHealth Bank, PO Box 271629, Salt Lake City, Utah 84127. Bank shall be entitled to continue ACH entries from the Account pursuant to this authorization until expiration of said ten (10) day notice period. Furthermore, the financial institution identified herein above by Licensee is hereby authorized to accept a reversal of any entry made under this authorization if an error has been made.

1. 11.1. The terms and conditions of this Section 11 only apply where Licensee elects to utilize a debit card system for account reimbursements for plan participants.
2. 11.2 Licensee acknowledges that Ebix has arranged for the use of a debit card system with Metavante Corporation (herein Metavante);
3. 11.3. Licensee acknowledges and agrees that all Plan participants will be subject to the terms and conditions of the cardholder agreement distributed with the Debit Card.
4. 11.4. Licensee acknowledges and agrees that Licensee is solely responsible for the payment of all Debit Card transactions. Licensee understands that Metavante will assist Licensee in the recovery of card transaction amounts reported as fraudulent transaction activity by Plan Participants, provided however that Plan Participants comply with the terms outlined in the Metavante cardholder agreement for timely reporting of such fraudulent activity and Plan Supervisor complies with Metavante’s policies and procedures for reporting such fraudulent transaction activity.
5. 11.5. Licensee acknowledges and agrees that payment of all amounts for Debit Card transactions arising under all plans shall be the responsibility of Licensee via direct ACH from the bank account designated by Licensee. Licensee agrees to allow Metavante to withdraw funds from the Licensee’s designated bank account. Licensee acknowledges and agrees that all liability for and payment of all claims, shall be the responsibility of Licensee and that in no event shall Plan Supervisor be responsible for any such claims and costs. Licensee understands and agrees that:
   
   
   • a) Licensee is responsible to Metavante for such payments;
   • b) Licensee will complete and return to Metavante the approved ACH form;
   • c) Licensee will provide a contact name and telephone number to Metavante for ACH and payment related questions;
   • d) Licensee acknowledges and agrees that a charge of One Hundred Dollars ($100.00) shall be assessed to Licensee for each ACH returned due to insufficient funds;
   • e) Licensee will provide Metavante ten (10) days advance written notice of a change to the designated bank account or contact information; and,
   • f) Metavante retains the right, in its sole discretion, to terminate access to Licensee’s plan participants if claims payments are not made available in a timely manner.
6. 11.6 Licensee acknowledges and agrees that Metavante retains the right to contact Licensee directly regarding ACH and payment information.
7. 11.7. Licensee acknowledges and agrees that Metavante shall, in its sole discretion, perform an initial and/or intermittent credit review of Licensee to determine Licensee’s credit status. Should Licensee fail to meet the criteria established by Metavante in its sole discretion, Metavante may suspend services to Licensee until such time as Licensee has met Metavante’s criteria or has provided Metavante with either a letter of credit or an advanced deposit in an amount acceptable to Metavante.
8. 11.8. Licensee acknowledges and agrees that Licensee will not use or permit the use of either Metavante’s or the card association’s name, product/system names or logos in any advertising, publicity, press release, web site, customer list, or similar promotional materials prepared by or on behalf of Licensee, Ebix, or Plan participants without the prior written consent of Metavante.
9. 11.9. Licensee acknowledges and agrees that Metavante may contact Licensee or Plan participants directly for the purpose of:


• a) obtaining market and survey information regarding the Licensee and/or Plan participants’ satisfaction with Metavante’s products and/or services, but limited strictly to products and/or services provided under this Agreement;
• b) contacting Plan Participants for operations related issues related strictly to products and/or services provided under this Agreement.