SERVICE AGREEMENT

Last updated: November 3, 2023

This Service Agreement (this “Agreement”) is between MS Benefits LLC, a Delaware limited liability company, with offices at 100 Challenger Rd, Ste 400, Ridgefield Park, NJ 07660 (d/b/a PES Benefits) (“PES”), and the entity specified on an SOW (as defined below) that is ordering Services (as defined below) (“Client”).  This Agreement is effective as of the effective date of the SOW (the “Effective Date”) and governs the provision and use of the Services.

  1. Services. PES provides certain benefit education, technology, and administration services, along with virtual care, mental health counseling, and health and wellness coaching as further specified in an SOW (collectively, the “Services”).  “SOW” means a statement of work, order form, or any written or electronic document as provided to Client by PES that references this Agreement, describes the Services, and is signed by Client . All SOWs shall be deemed incorporated herein by reference. In order to maximize engagement and utilization of the Services, PES will promote the Services to Client’s employees through a multichannel marketing campaign, which may include use of email, SMS/text message, mail, phone, and targeted online advertisements. Client has obtained all consents, has made all disclosures, and otherwise has all rights necessary to allow Client or PES, as applicable, to market Services to Client’s employees.
  2. Term and Termination. Unless otherwise specified in an SOW (i) the term of this Agreement shall begin on the Effective Date and shall continue for a term (“Initial Term”); and (ii) following the Initial Term, this Agreement will automatically renew for successive twelve (12) month terms (each, a “Renewal Term”), unless a party provides written notice of non-renewal at least thirty (30) days prior to expiration of then-current Term. “Term” means the Initial Term and any Renewal Term. Either party, in its sole discretion, may terminate this Agreement at any time by providing at least 30 days’ prior written notice to the other party. The expiration or termination of this Agreement, for any reason, shall not release either party from any obligation or liability to the other party, including any payment and delivery obligation that has already accrued through the date of expiration or termination.
  3. Fees and Payment. All fees for the Services shall be set forth on an SOW; provided that PES shall additionally pass through to Client any increase in annual technology fees as required by PES’ selected technology partner. PES will notify Client in writing as to the date and amount of such increase.  Client shall pay all amounts due under this Agreement within fifteen (15) days of receipt of PES’ invoice. Payments are required by ACH draft or Wire unless otherwise agreed upon in writing. 
  4. Confidentiality.Confidential Information” means any information of a confidential, proprietary, or competitively sensitive nature relating to a party (“Disclosing Party”) or its affiliates that is disclosed to or obtained by the other party (“Receiving Party”) in connection with the Agreement, whether before or after the Effective Date.  Except as necessary to perform its obligations or exercise its rights under this Agreement, the Receiving Party shall not (i) use the Disclosing Party’s Confidential Information, or (ii) disclose the Disclosing Party’s Confidential Information to any third party. Receiving Party shall exercise the same degree of care as it exercises with its own confidential and proprietary information, and in no event less than a reasonable degree of care.  Receiving Party shall disclose Confidential Information only to those employees, service providers and agents of Receiving Party who have a “need to know” in connection with the Agreement and shall advise them of their obligations hereunder.  If Receiving Party is obligated to disclose Disclosing Party’s Confidential Information by law, Receiving Party shall provide Disclosing Party with reasonable advance written notice of any intended disclosure and cooperate with Disclosing Party’s efforts to obtain a suitable protective order. Confidential Information shall not include any information that (a) is or becomes part of the public domain, other than as a result of the actions of the Receiving Party or its employees or contractors, (b) was already rightfully known to the Receiving Party as of the time it is disclosed to or obtained by the Receiving Party, (c) is subsequently learned from a third party not under a confidentiality obligation to the Disclosing Party, or (d) is independently developed by the Receiving Party without reference to the other party’s Confidential Information.  Upon termination or expiration of this Agreement, and also upon written request, each party agrees to promptly (1) return to the other party, or (2) destroy and delete all Confidential Information of the other party in its possession or control.  The party destroying and deleting such Confidential Information will certify its destruction in writing not later than ninety (90) days after the termination or expiration of this Agreement or the other party’s request (as applicable); provided, however, that, subject to its confidentiality and non-use obligations in this Section 4, Receiving Party may retain electronic copies containing confidential information that are automatically generated through data backup and/or archiving systems or record copies necessary to comply with any internal or regulatory or record keeping requirements.
  5. Client Data. While performing the Services, PES may have access to Client employees’ “personal information” or protected health information (“Client Data”). PES will secure or encrypt Client Data during transmission and electronic storage to protect its confidentiality. Client shall provide all notices and obtain all permissions necessary to provide PES with the Client Data for the purposes contemplated by this Agreement. Client retains all right, title, and interest in and to Client Data. During the Term, Client grants PES and its service providers a worldwide, non-sublicensable (except for the purposes contemplated by this Agreement), royalty-free, non-exclusive, non-transferable (except as part of a permitted assignment of this Agreement) license for the purpose of providing the Services.  
  6. Proprietary Rights. PES retains all right, title, and interest in and to all PES Confidential Information and the Services, including without limitation all products, product names, software, methods, processes, forms, documents, and other know-how used in providing the Services, and all modifications, enhancements and derivative works of all of the foregoing. During the Term, PES grants to Client a limited, revocable, non-exclusive, non-transferable (except as part of a permitted assignment of this Agreement), non-sublicensable right for Customer and its employees to access and use the Services in accordance with this Agreement.  Client shall not, and shall not permit any third-party to, (i) permit any access or use of the Services except as expressly authorized herein, (ii) create derivate works based on the Services, (iii) reverse engineer the Services, or (iv) use the Services to create a competitive service. PES shall have a royalty-free, worldwide, irrevocable, perpetual, transferable license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Client or Client’s employees relating to the Services.
  7. Indemnification.
    • PES shall indemnify, defend and hold harmless Client and its affiliates, and its and their respective officers, directors, shareholders, members, managers, employees and agents from all out-of-pocket costs, damages, losses, judgments, fines, and expenses (including reasonable attorneys’ fees) (collectively, “Out-of-Pocket Costs”) arising from any third-party demand, claim or proceeding (each, a “Third-Party Claim“) arising from (i) breach by PES of its confidentiality obligations this Agreement, or (ii) any actual or alleged infringement or misappropriation by the Services of any third party’s patent, trademark, copyright, trade secret rights, except to the extent any such infringement or misappropriation arises from (a) alterations made by Client or third parties to Services, (b) any materials, information, specifications or instructions provided by Client, (c) breach of this Agreement by Client or improper or unauthorized use of the Services by Client or any third party obtaining access through Client, or (d) combination of the Services with products or services that are not provided by PES.
    • Client shall indemnify, defend and hold harmless PES and its affiliates, and its and their respective officers, directors, shareholders, members, managers, employees and agents from all Out-of-Pocket Costs arising from any Third-Party Claim arising from (i) Client Data made available to PES and used in accordance with this Agreement, or (ii) Client’s actual or alleged violation of applicable laws, regulations, administrative rules, guidelines and staff reports.
  8. Disclaimers; Limitation of Liability.
    • Except as expressly stated in this Agreement, the Services are provided “as-is” and with no representations or warranties of any kind whatsoever, express or implied, including without limitation warranties of merchantability, accuracy, fitness for a particular purpose, freedom from viruses or other harmful code, title, non-infringement, loss of data, or that the Services will be error free or always available.  PES shall have no responsibility or liability whatsoever arising from any third-party provider materials or third-party services, including for professional liability, or for any Client Data in a third-party provider’s possession or control.
    • Neither party shall be liable for any consequential, incidental, indirect, exemplary, special, or punitive damages, including any damages for business interruption, loss of use or data, or loss of revenue or profit, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damagers were foreseeable or whether the party was advised of the possibility of such damages.  Notwithstanding anything to the contrary in this Agreement and excluding all causes of action for gross negligence or willful misconduct, the aggregate ability of either party for all claims under this Agreement (regardless of whether based on contact, negligence, indemnification, or otherwise) will not exceed the fees paid for the Services in the twelve (12) months preceding the earliest event giving rise to such claim. This limit of liability applies even if other remedies fail their essential purposes and shall survive this Agreement.
  9. Notices. Any notices that are required or permitted to be given under this Agreement shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by a nationally recognized commercial overnight courier with proof of delivery, or (d) by email to an email address specified on the applicable SOW. Such notice shall be addressed to the party receiving such notice at its address stated on the SOW or to such other address as either party may from time to time specify in writing to the other party. Any notice shall be effective upon delivery.
  10. Miscellaneous Provisions.
    • Neither party will be liable for any breach of the Agreement, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such party’s reasonable control.
    • This Agreement shall be construed in accordance with, and all disputes shall be governed by, the laws of the State of New Jersey, without giving effect to the conflicts of laws rules thereof.  The state and federal courts (including the appellate courts) for the State of New Jersey shall have exclusive jurisdiction and venue for the adjudication of any disputes relating to this Agreement, and the parties hereby consent to the jurisdiction and venue of such courts. In the event that any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, all other terms of this Agreement shall remain in full force and effect.
    • Both parties shall comply with all applicable federal, state and local laws.
    • The terms or conditions of this Agreement may be waived only in writing and signed by both parties. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect its rights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed as a continuing waiver of such condition or term or of another condition or term.
    • Either party may assign this Agreement upon written notice to the other party. Upon such assignment, this Agreement shall inure to the benefit of, and be binding upon, the assignee as if such assignee were an original party to this Agreement.
    • PES may update or amend this Agreement from time to time.  Such updates or amendments will be binding on Client and will have an effective date at least thirty (30) days after Client’s receipt of written notice from PES (email sufficing).  In the event of a conflict between this Agreement and any SOW, this Agreement shall control with respect to the subject matter in question. This Agreement and any SOWs constitute the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.