These Services General Terms & Conditions (“Ts&Cs”) are incorporated by reference into the Client Services Order Form (the “Order Form”) by and between Sequoia Benefits and Insurance Services, LLC, d/b/a Sequoia Consulting Group, a California limited liability company (“Sequoia“) and the Client identified in such Order Form.  All capitalized terms used in these Ts&Cs and not otherwise defined herein shall have the meanings ascribed to such terms as set forth in the Agreement.  As used herein, “Agreement” shall refer to the Order Form, these Ts&Cs and any other agreements identified in the Order Form. 

1. Services. Sequoia shall provide to the Client the Services selected in the Order Form.  The Services provided by Sequoia are advisory, and in the nature of consulting services, and Sequoia is not providing legal or accounting services and is not taking on any fiduciary duties or obligations to Client except as expressly provided for in the Agreement.

2. Term and Termination
   1. The Initial Term of the Agreement is set forth in the Order Form. Subject to Sequoia’s agreement to continue providing Services to Client, the Initial Term will automatically renew as to Client for additional one-year terms (“Renewal Term(s),” and the Initial Term and Renewal Term referred to herein as “Term”), beginning on the first day following the Initial Term unless Client provides written termination notice to the other not less than 90 days prior to expiration of the Initial Term or subsequent Renewal Terms (the “Renewal Deadline”).  In the event Client terminates the Agreement, Client shall remain obligated to maintain Sequoia as Client’s broker-of-record for the balance of the Term with all respective insurance carriers, as applicable. Upon mutual agreement of the parties, during the Term, Sequoia will issue an authorization letter allowing another service provider to access benefit plan information as may be required from time to time; provided however that Client shall continue to pay any required fees as set forth in the Order Form or these Ts&Cs.
   2. In addition to the foregoing, either party may terminate the Agreement upon thirty (30) days written notice of a material breach of the Agreement (including without limitation a material breach of any Business Associate Agreement between the parties) by the other party if such breach is not cured within the thirty (30) day notice period.

3. Fees and Compensation
   1. Client agrees to pay or provide for the compensation of Sequoia for Services during the term of the Agreement as set forth in the Order Form. For any fee payable other than by commission paid directly from insurance carriers, Client will pay Sequoia within 30 days after receipt of a correct invoice. Notwithstanding the foregoing, any payment due date set forth in a separate communication to Client, including, without limitation, in any invoice and/or notification provided as a result of consolidated billing services provided by Sequoia, shall prevail, and the full amount invoiced will be due and payable on the date indicated in such communication. Any amount not paid by Client when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest permissible rate under applicable law, whichever is less, until paid in full. Client shall provide Sequoia with such information as may be required for Sequoia to be able to invoice and process payments in connection with the Services. In the event Risk Management Services and/or Global Services are terminated by Client prior to expiration of the Term, Sequoia’s compensation will be deemed earned and Sequoia shall not be required to refund any fees paid.

      Sequoia is an insurance producer licensed by the State of New York. Insurance producers are authorized by their license to confer with, advise, offer and sell insurance contracts from insurers to insurance purchasers. Insurers pay compensation to insurance producers based on the insurance contract purchased and such compensation may vary depending on a number of factors, including without limitation the insurance contract type or the volume of business a producer provides. The insurance purchaser may obtain information about compensation expected to be received by the producer based in whole or in part on the sale of insurance to the purchaser by requesting such information from the producer.

   2. Unless otherwise indicated in the Order Form, charges from third party vendors for costs including, but not limited to, carrier or vendor data transfer or integration fees, printing, communications or production services, and out-of-pocket travel expenses (including transportation, hotels, meals, etc.) on Client’s behalf will be passed through to Client for payment, as well as any sales or use tax that Sequoia becomes obligated to pay in connection with services provided on Client’s behalf. If any travel is required in connection with the Services, Sequoia shall obtain approval from Client prior to incurring travel expenses that Sequoia requests be reimbursed.
   3. After the Initial Term, Sequoia may increase any fees indicated herein for any subsequent Renewal Term, provided that Sequoia provides Client with notice of such price increase at least 30 days prior to the Renewal Deadline.

4. Modifications. Client shall at all times be entitled, in its sole and absolute discretion, to modify, expand, curtail, or eliminate the level and nature of benefit programs afforded to employees, provided that Client shall give Sequoia adequate advance notice of any such changes in order for Sequoia to make corresponding modifications in its Services. Any decisions regarding the benefit programs or other programs subject to the Services rest solely with Client.  Sequoia may sunset any Services if Sequoia ceases to offer such services for its clients generally.

5. Confidentiality
   1. Definition. Each party agrees that the business, technical and financial information, including without limitation, benefit elections and preferences, use and access to data bases and websites, plan descriptions and materials, Sequoia’s methods of providing Services, Client Data, as defined below, either party’s software, source code, inventions, algorithms, know­how and ideas and the terms and conditions of the Agreement, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”).  Sequoia’s Confidential Information includes both (i) general knowledge, experience, know­how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services, and (ii) anonymized compilations and analyses of Client Data that is combined with data from numerous other clients and evaluations, benchmarking tests, studies, analyses and other work product from the foregoing (i) and (ii).  Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
   2. Confidentiality. Except for the specific rights granted by the Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information of a similar nature, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of the Agreement and (b) have been apprised of and have agreed in writing to restrictions at least as protective of the disclosing party’s Confidential Information as the Agreement.  Each party shall be responsible for any breach of this Section 5.b by its employees and contractors.  Each party may disclose only the general nature, but not the specific terms, of the Order Form without the prior written consent of the other party; provided that either party may provide a copy of the Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
   3. Return of Confidential Information. Except as expressly allowed herein, promptly after any termination of the Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, Sequoia may retain a copy of Client’s Confidential Information in order to comply with applicable law and document retention policies.
   4. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
   5. BAA. The parties acknowledge that any Confidential Information that is subject to any Business Associate Agreement (“BAA”) between the parties shall be governed by the BAA.

6. Client Data
   1. Client hereby grants Sequoia a worldwide, non-­exclusive, royalty-­free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit data and other content provided by Client or its employees to Sequoia pursuant to the Agreement (“Client Data”) in connection with providing the Services and/or access to Sequoia mobile application or other products to Client. Client agrees that it shall have sole responsibility and liability for  (i) acquiring any and all authorization necessary for use of Client Data as contemplated by the Agreement;   (ii) the completeness and accuracy of all Client Data and other materials provided to Sequoia by Client pursuant to the Agreement;  (iii) timely providing information as requested by Sequoia in order to provide the requested Services; and

      (iv) ensuring that Client Data does not infringe, violate or misappropriate any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights or proprietary rights of any third party.

   2. Client understands and agrees that any Client Data required by the local country broker for underwriting, insurance, benefit plan or any or other purposes, will be shared by Client directly with the local country broker. Sequoia will not accept and/or remit any Client Data on non-U.S. based employees.

7. Limited Warranty and Disclaimers.
   1. General. Each party represents and warrants that (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into the Agreement and to perform its obligations hereunder, (b) the Agreement is legally binding upon it and enforceable in accordance with its terms, and (c) the execution, delivery and performance of the Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
   2. Client. Client represents and warrants to Sequoia that Client owns all rights, title and interest in and to the Client Data, or that Client has obtained all necessary consents and otherwise secured all rights in the Client Data as may be required by law to permit the access, use and distribution thereof as contemplated by the Agreement.
   3. Sequoia. Sequoia represents and warrants to Client that the Services will be provided in a professional and workmanlike manner in accordance with general industry standards. Any warranty claim under this Section 7.c must be made in writing within ninety (90) days after performance of the nonconforming Services.
   4. Disclaimers.

   i. EXCEPT AS OTHERWISE PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PLATFORM AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON­INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-­FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

   ii. For any U.S. Health and Welfare Benefit Consulting Services, to the extent Client uses any third party benefit administration system including, but not limited to, the Sequoia Benefits Portal, Client is solely responsible for all Client employee enrollment processing and Sequoia will not be liable for any insurance premiums, retroactive enrollments, claims incurred, tax penalties or other such related issue that may arise from Client’s use of any such system.

   iii. Client understands, acknowledges and agrees that: (A) Sequoia is not a plan sponsor, plan administrator or fiduciary with respect to any Client plan; (B) Sequoia shall have no other role, responsibility or liability with respect to any Client plan including, without limitation, that of a third-party administrator; and (C) to the extent that Sequoia provides any administrative or other services with respect to a Client plan, (I) all such services are taken on behalf of Client and at Client’s specific direction, (II) Sequoia shall not take on any fiduciary or other obligations as a result of such services under the Employee Retirement Income Security Act of 1974, as amended (ERISA), or any other law, and (III) Client shall remain solely responsible and liable for such services and any underlying obligations.

   iv. Client understands, acknowledges and agrees that Client is solely responsible and liable for all obligations with respect to Healthcare Reform’s Employer “Play or Pay” Mandate under Section 4980H of the Internal Revenue Code of 1986, as amended (IRC), and other applicable law, including, without limitation, any tax reporting obligations under IRS Sections 6055 and 6056.

8. Indemnification
   1. Each party (“Indemnifying Party”) agrees to defend the other party (the “Indemnified Party”) against any claim, demand, suit or proceeding made or brought against the Indemnified Party by a third party alleging that use of the Services (in the case of Client) or Client Data (in the case of Sequoia) in accordance with the terms of the Agreement infringes or misappropriates the intellectual property rights of a third party. As used in this Section 8, the Services and Client Data is referred to collectively as “Claim Subject”.  Subject to the terms herein, Indemnifying Party shall indemnify Indemnified Party for settlement amounts or third-party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim.  If any part of the Claim Subject is or, in Indemnifying Party’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Indemnifying Party may, at its option (1) obtain for Indemnified Party the right to continue using the Claim Subject or (2) replace or modify the Claim Subject so that such Claim Subject becomes non-­infringing without substantially compromising their principal functions.  If (1) and (2) are not reasonably available to Indemnifying Party, then Indemnifying Party may (3) terminate the Agreement upon written notice to the Indemnified Party.  The foregoing states the entire liability of Indemnifying Party, and Indemnified Party’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights in connection with the Claim Subject, any part thereof or its use or operation.  Indemnifying Party shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Claim Subject not strictly in accordance with the Agreement, or (ii) Indemnified Party’s continuing use of the Claim Subject after being provided modifications that would have avoided the alleged infringement. THIS SECTION 8.a SETS FORTH INDEMNIFYING PARTY’S SOLE LIABILITY AND INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
   2. Procedures. Any claim for indemnification hereunder requires that (a) the Indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the Indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The Indemnifying party shall not make any settlement that requires a materially adverse act or admission by the Indemnified party without the Indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The Indemnifying party shall not be liable for any settlement made without its prior written consent.

9. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THE AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY  (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS RECEIVED BY SEQUOIA FROM CLIENT (IN THE CASE OF SEQUOIA) OR PAID AND PAYABLE BY CLIENT TO SEQUOIA (IN THE CASE OF CLIENT) HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN SUBSECTION (C) SHALL NOT APPLY FOR ANY BREACH OF SECTION 3 (FEES AND COMPENSATION).  THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THE AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

10. Miscellaneous.
    1. Client Responsibilities for Global Services. If the Order Form indicates that Sequoia is to provide Global Services to Client, Client will be responsible for providing Sequoia with information requested by Sequoia needed for the management of Client’s global benefit programs, including but not limited to the following:

    i. Provide Sequoia with a summary of all global contracts for countries and global policies, including but not limited to, name of local insurer, policy number and contract renewal date by contract by country, and local insurer’s contact details.

    ii. Supply Sequoia with local program details where possible, including but not limited to, a summary of local benefits, copies of local insurance contracts and corresponding policy numbers, and all contact details for local or regional human resources champions, and as applicable, local brokers, insurers, and vendors.

    iii. Furnish Sequoia with copies of past and current pooling reports, illustrations, where possible and as applicable.

    2. All notices, demands, requests and other communications under the Agreement shall be in writing and shall be deemed properly served when personally served, delivered by electronic mail with confirmation of receipt, or forty-eight (48) hours after deposit in the United States Mail, registered or certified, return receipt requested, postage prepaid. Notices shall be addressed to the parties at their principal business offices.
    3. The Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, representations and understandings of the parties, and the Agreement shall apply to any Services previously provided by Sequoia under a prior agreement. No supplement, modification, or amendment of the Agreement shall be valid unless executed in writing by all parties. No waiver of any of the provisions of the Agreement shall be deemed a waiver of any other provision. In the event Client terminates services with Sequoia but contracts for new or additional services, any previously agreed to Terms and Conditions and/or Business Associate Agreement will survive termination and apply to any newly agreed upon services.
    4. The Agreement shall be determined to be a contract made within the State of California and for all purposes shall be governed and construed under and in accordance with the laws of the State of California notwithstanding choice of law principles.
    5. The parties will attempt in good faith promptly by negotiations to resolve any dispute or controversy arising out of or relating to the Agreement. In the event the parties are unable to settle such controversy amicably through negotiations, the dispute will be submitted to binding arbitration before the American Arbitration Association before a single arbitrator in accordance with the Rules of the American Arbitration Association provided that: (i) the prevailing party, as determined by the arbitrator, shall be entitled to an award from the losing party for the prevailing party’s attorney’s fees and costs; (ii) discovery may be conducted pursuant to California Code of Civil Procedure Paragraph 1283.05; (iii) the arbitrator’s judgment will be final and binding upon the parties, except that it may be challenged on the grounds of fraud or gross misconduct; and (iv) the arbitration will be held in San Mateo County, California. Judgment upon any decision in arbitration may be entered in any court of competent jurisdiction.
    6. The Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors, agents and assigns.