Exhibit_B_(Key_Terms_8-11-15).pdf

EXHIBIT B – KEY TERMS AND CONDITIONS

These Key Terms and Conditions are applicable to the contracts for both Programs, except as otherwise noted below. Any schedules or appendices referred to herein are not included in this sample, as they will be developed in coordination with the selected offeror.

The Smithsonian reserves the right to make changes to the language below, and to incorporate additional provisions as it deems necessary. Per the requirements of the RFP, companies are expected to indicate in their proposals any proposed clauses or language with which they take exception, or from which they propose to deviate.

“Participant”, as used herein, means Tour Member, SJ Staff, SI employee and/or gratis traveler, as applicable depending on the Program.

1. TERM OF AGREEMENT. Notwithstanding the dates of signing, the Term of this

Agreement is deemed effective as of [date] (the “Effective Date”) and shall last for a period of five (5) years, unless earlier terminated as provided herein. All insurance coverage and assistance services, as further described in this Agreement, will be available as of [date] to all

Participants departing on Smithsonian Tours. Coverage will remain in force beyond the expiration or earlier termination of the Term for Participants whose travel dates extend beyond the expiration or earlier termination of this Agreement.

A. Renewal. The Term may be renewed for one (1) additional five (5) year term as follows: Not less than sixty (60) days prior to the expiration of the Term, each party may notify the other in writing of its desire to renew the Agreement, and shall include in such notification proposed changes in the terms and conditions of the Agreement, if any. In the event an agreement is reached, the parties will execute a written amendment to this Agreement setting forth the new Term and any agreed upon changes to the terms and conditions of this Agreement.

If no agreement is reached, this Agreement will expire as scheduled.

2. INSURANCE PROVIDERS. [If applicable] Travel Insurance Provider will use the services of _______________ to supply the [Mandatory/Optional] Travel Insurance Program insurance coverage and ____________ for providing worldwide emergency assistance services.

If Travel Insurance Provider desires to change the company supplying such coverage or services, Travel Insurance Provider will notify Smithsonian sixty (60) days in advance of any such proposed change. The decision to change these companies is solely within Travel Insurance

Provider’s discretion; However, upon receipt of notification of a proposed change, Smithsonian shall have the right to terminate this Agreement by written notice, in accordance with the terms of this Agreement.

3A. ROYALTIES [Applicable to the Optional Travel Insurance Program]

A. Monthly Participant List. On or about the 15 th day of each month, Travel

Insurance Provider will furnish Smithsonian with a list of all Participants who purchased the

Optional Travel Insurance Program Plan during the immediately preceding month. This list shall contain the following information for each Participant: Participant’s name, Optional Travel

Insurance Program Plan payment amount, date of payment, departure date, and tour name/code.

The information will be sent to:

Karen Ledwin

General Manager

Smithsonian Journeys

P. O. Box 23182

Washington, DC 20077

B. Royalty Payments. Concurrently with the Monthly Participant List, Travel

Insurance Provider shall remit the monthly royalty payment to Smithsonian, calculated as set forth herein.

[insert calculation of monthly royalty payment]

Royalty payments shall be made by check, made payable to Smithsonian Journeys and mailed to the following address:

SE-Journeys

P.O. Box 631964

Baltimore, MD 21263-1964

C. Review and Adjustment. Any adjustment to Participant costs/premiums must be agreed upon by the parties in writing in advance. The parties will negotiate language describing the process to be utilized for review, approval, and implementation of premium changes and/or changes in plan details. Any such process must take into consideration SJ’s need to provide sufficient advance notice of changes to its customers and must provide for a mechanism to deploy any such changes in a reasonable manner that will not negatively impact SJ or its customers.

3B. INVOICING AND PAYMENT [Applicable to the Mandatory Travel Insurance

Program]

A. Monthly Participant List. On or about the 15 th day of each month, Smithsonian will furnish Insurance Provider with a list of all Participants whose departure dates fall within the current month. This list shall contain the following information: Each Participant’s name, departure date, and tour name/code.

B. Payment; Invoicing. In consideration for the services and coverage provided in this Agreement, Smithsonian shall pay Travel Insurance Provider [insert rate/rate calculation].

The Monthly Participant List will be accompanied by an invoice, calculated as set forth above, and sent to:

Karen Ledwin, General Manager

Smithsonian Journeys

P. O. Box 23182

Washington, DC 20077

C. Review and Adjustment. The cost of the Plan is subject to review and adjustment at the end of each twelve month period during the Term, with any revision to the amount agreed upon in writing by the parties within 30 days at the end of the immediately preceding period, to be effective for that current twelve month period. Review and adjustment shall be subject to the following: The amount targeted to pay claim payments (hereinafter referred to as the “Claim

Fund Sum”) is a percentage of gross premium, set by the insurer and agreed upon by Travel

Insurance Provider and Smithsonian, received from Smithsonian for Participants whose departure date falls in the Review Period. “Actual Losses” are defined as the total insurance claim payments made to Participants during the relevant Review Period, plus the amount estimated (reserved) for payment of claims actually received but not yet paid for the same

Review Period. If Actual Losses fall below the Claim Fund Sum, the Smithsonian shall not receive any of the excess. In the event that Actual Losses exceed the total Claim Fund Sum, the

Smithsonian shall bear absolutely no responsibility or liability for the payment or other disbursement of any portion of such deficiency.

4. CONFIDENTIALITY OF INFORMATION.

A. The parties agree that each party (“disclosing party”) may provide certain information to the other party (“receiving party”), for the purpose of pursuing the business and contractual relationship set forth in this Agreement. Travel Insurance Provider is hereby on notice that the Smithsonian Institution is a trust instrumentality of the United States and has adopted a written policy for responding to requests for Smithsonian Institution records, including paper documents, electronic data, email, contracts, and other information stored or maintained by the Smithsonian, consistent with the principles of disclosure under the Freedom of Information Act, 5 U.S.C., §552.

B. “Confidential Information” consists of trade secrets, product concepts, customer information, marketing communication material, marketing strategies, other information related to the business activities of the disclosing party, and commercial or financial information that if affirmatively used by a competitor of the disclosing party would cause the disclosing party substantial competitive harm or information the release of which would violate the privacy rights of a third party with no overriding public interest. If Confidential Information is disclosed in tangible form, it shall be clearly designated in writing as such by the disclosing party. If

Confidential Information is disclosed other than in writing, the information deemed to be

Confidential Information shall be confirmed in writing as such within thirty days of such disclosure.

C. Exceptions to Confidential Information. Confidential Information shall not include any information, whether or not designated in writing as Confidential Information, which: (a) was publicly available at the time of disclosure; (b) was known by the receiving party prior to such disclosure; (c) becomes publicly available after disclosure through no fault of the receiving party; (d) is received from a third party who acquired the information without committing a wrongful or tortious act; or (e) is developed independently by the receiving party without reference to or use of Confidential Information. Either party shall notify the other promptly in writing of any misappropriation, unauthorized disclosure or use by any person of the

Confidential Information which may come to the recipient party’s attention. Recipient will take all steps reasonably requested by the disclosing party to stop, limit, or otherwise remedy such misappropriation, unauthorized disclosure or use.

D. Limited Disclosure. Each party agrees that it will not disclose Confidential

Information provided to it by the other party to others except to the extent that it is necessary to disclose such Confidential Information to its directors, officers, representatives, legal and financial consultants, and employees having a need to know such Confidential Information

(“authorized parties”) for the purpose of pursuing a business and contractual relationship between the parties. Notwithstanding the foregoing, Travel Insurance Provider may disclose all information relevant to the Plan(s) to ________ (or subsequent providers) to enable them to underwrite and supply their respective coverage and services. The parties shall use at least the same degree of care that each party uses to protect its own Confidential Information of similar importance, but no less than a reasonable degree of care. Further, the parties may disclose

Confidential Information if required by law, subpoena, order or request of a federal governmental authority or court of competent jurisdiction, and further, provided that the party obligated to disclose such Confidential Information shall (i) assert the confidential nature of the

Confidential Information to be disclosed, (ii) use reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed, and (iii) immediately notify the other party of the requirement, order, or request to disclose in advance of such disclosure in order to afford the other party the opportunity to contest disclosure. In the event disclosure is requested in accordance with Smithsonian’s records disclosure policy, Smithsonian will provide the disclosing party the opportunity to identify Confidential Information prior to release, but final decisions regarding release shall be made by Smithsonian in accordance with its policy. No other use or disclosure of Confidential Information may be made by any party without the prior written consent of the disclosing party.

E. Return of Confidential Information. The receiving party will either return or destroy all tangible materials embodying Confidential Information within ten (10) business days of receipt of the disclosing party’s written request to do so and, if further requested by the disclosing party, the receiving party will provide written certification of such destruction.

5. STANDARD OF PERFORMANCE. Travel Insurance Provider agrees to perform its services with that standard of care, skill and diligence normally provided by a professional organization in the performance of similar services. It is understood that Travel Insurance

Provider must perform some of the services based, in part, on information furnished by the

Smithsonian, and Travel Insurance Provider shall be entitled to rely on such information;

however, Travel Insurance Provider is given notice that the Smithsonian will be relying on the accuracy, competence, and completeness of Travel Insurance Provider’s services in utilizing the results of such information. Travel Insurance Provider shall use commercially reasonable efforts to respond to all customer service issues surrounding the use of Travel Insurance Provider’s services for the Programs. Any disputes with customers which arise shall be handled in a manner coordinated between and acceptable to both Travel Insurance Provider and Smithsonian.

6. TERMINATION. This Agreement may be terminated by Smithsonian upon thirty (30) days prior written notice to Travel Insurance Provider if the Smithsonian determines that termination is in the Smithsonian’s best interest or that continuation of the Agreement will harm or bring into disrepute the Names (defined in Section 11 below) or the reputation and integrity of the Smithsonian. In addition, if either party fails to make any payments provided for in this

Agreement or is otherwise in breach of any material duty or obligation under this Agreement, and such failure continues for a period of fifteen (15) days after written notice thereof has been received by the party in breach, then the non-breaching party shall have the right to terminate this Agreement by written notice, subject to the provisions of Section 7 of this Agreement

(“Conduct Upon Termination”).

7. CONDUCT UPON TERMINATION. Upon termination of this Agreement, all monies owed by one party to the other for all premiums paid up to the effective date of termination shall become immediately due and payable. In addition, Travel Insurance Provider shall honor the

Program Plan coverage provided pursuant to this Agreement for Participants on all Smithsonian

Tours that have been advertised as of the effective date of termination, and the terms of this

Agreement shall remain in effect for purposes of those tours (the Smithsonian will provide a list of those tours upon termination).

8. BANKRUPTCY AND INSOLVENCY. The parties agree that continuous performance of this Agreement by Travel Insurance Provider is critical, and that time is of the essence in the performance of this Agreement. In the event that Travel Insurance Provider enters into proceedings relating to bankruptcy, whether voluntary or involuntary, Travel Insurance Provider agrees to furnish, by certified mail, written notification of the bankruptcy (including the date on which the bankruptcy petition was filed, the name and location of the court in which the petition was filed, and the Smithsonian Contract number as it appears on the first page of this

Agreement) to Smithsonian’s Authorized Representative within five (5) days of the initiation of the proceedings relating to bankruptcy filing. In the event that Travel Insurance Provider is adjudicated a bankrupt or becomes a debtor under Title 11 of the U.S. Code, the parties agree that Smithsonian will suffer irreparable harm unless Travel Insurance Provider immediately elects either to assume or reject this Agreement. Therefore, Travel Insurance Provider shall use its best efforts to move the court within fifteen (15) days of Travel Insurance Provider’s filing its petition for bankruptcy to permit Travel Insurance Provider either to assume or reject this

Agreement, to request of the court a hearing on the matter on an emergency basis, and to schedule such hearing within no more than twenty-one (21) days from the date of Travel

Insurance Provider’s request. Smithsonian may terminate this Agreement immediately and without penalty upon any breach of Travel Insurance Provider’s obligations under this provision

9. FORCE MAJEURE. The failure by a party to perform any of its duties or obligations under this Agreement due to causes beyond the control and without the fault or negligence of such party, including but not limited to acts of God, strikes, acts of the public enemy, riots, fires, civil disturbances, or acts of the government in its sovereign capacity, will not constitute a breach of this Agreement. The party so delayed or prevented from performing its obligations under this Agreement shall be excused during the continuance of and to the extent of such cause, and the contract period for performance shall be extended for a period equal to the duration of such cause. If such delay exceeds ninety (90) days, either party may terminate this Agreement by written notice, and all rights and obligations hereunder shall cease, except that each party shall be responsible for all sums due and otherwise owed to the other party, as applicable, as of the date of delay.

10. WARRANTIES and INDEMNIFICATION.

A. In the event that Travel Insurance Provider underwrites its own insurance coverage, Travel Insurance Provider agrees to defend and will defend and hold harmless the

Smithsonian, its Regents, officers, agents, employees and the United States Government from and against any and all legal fees, costs and expenses (including judgments) arising out of or relating to any and all claims made by any Participant or any other party in connection with the

[Optional/Mandatory] Travel Insurance Program Plan (referred to herein as the “Insurance

Plan”) including, but not limited to, claims relating to information or representations contained in the written materials about the Insurance Plan provided by Travel Insurance Provider, and claims relating to Travel Insurance Provider in connection with administration of the Insurance Plan.

Smithsonian agrees to cooperate with the Travel Insurance Provider in the settlement of all such claims.

B. In the event that Travel Insurance Provider elects to use the services of an underwriter(s) to provide the required insurance coverage, as set forth in Section 2 above, Travel

Insurance Provider warrants that ________________ (collectively, “Insurance Providers”) (or any subsequent Insurance Providers approved by Smithsonian) have agreed to defend and will defend and hold harmless the Smithsonian, its Regents, officers, agents, employees and the

United States Government from and against any and all legal fees, costs and expenses (including judgments) arising out of or relating to any and all claims made by any Participant or any other party in connection with the [Optional/Mandatory] Travel Insurance Program Plan (referred to as

“Insurance Plan”) including, but not limited to, claims relating to information or representations contained in the written materials about the Insurance Plan provided by Travel Insurance

Provider, and claims relating to Travel Insurance Provider in connection with administration of the Insurance Plan. Smithsonian agrees to cooperate with the Insurance Providers, Travel

Insurance Provider and their designated representatives in the settlement of all such claims.

C. It is understood and agreed that Travel Insurance Provider shall have no obligation to Smithsonian pursuant to Section 10.A. or Section 10.B. to the extent that a claim is caused by Smithsonian’s failure to perform any obligation under this Agreement, whether such failure is caused by Smithsonian’s sole negligence or willful misconduct.

D. Anything herein to the contrary notwithstanding, coverage of a Participant will not be denied or canceled due to a clerical error by the Smithsonian. After an error is identified, Travel Insurance Provider shall take such action as may be appropriate, including, but not limited to, adjusting, correcting or refunding the cost of the Insurance Plans.

11. USE OF SMITHSONIAN NAMES.

A. Travel Insurance Provider is hereby put on notice that Smithsonian owns, controls and/or has registered the trademarks/service marks “Smithsonian,” “Smithsonian Institution,” and “Smithsonian Journeys,” (herein the “Names”) and the Smithsonian sunburst logo. Travel

Insurance Provider recognizes the great value of the prestige, publicity, and goodwill associated with the Names and logo and in such connection acknowledges that such goodwill belongs exclusively to Smithsonian, and that the Names and logo have acquired a secondary meaning in the mind of the purchasing public as a source of museum products and services. Travel

Insurance Provider agrees that it will not knowingly harm, misuse, or bring into disrepute the

Names or logo, and will assist Smithsonian as it may reasonably request in preserving its Names and logo, any trademarks pertaining thereto, and the integrity and dignity of its Names and logo.

B. Subject to the terms and conditions set forth in this Agreement, Smithsonian hereby grants Travel Insurance Provider a limited, non-exclusive, non-transferable, non-sublicensable license to use the Names and logo in connection with the operation of the Program

Plan, provided all of the language, phrases, format and/or layout concerning or referring to the

Names and logo and all advertising and/or promotional material concerning the Smithsonian

Tours shall be approved in writing in advance by the Smithsonian, which approvals shall not be unreasonably delayed. Once so approved, such references to the Smithsonian or other approved names may be used again in additional materials related to the Program Plan and Extension coverage so long as the reference, format and layout are identical or substantially similar to the reference, format and layout originally approved. Requests for approval shall be submitted to

Smithsonian’s Authorized Representative.

C. Except as specifically set forth in Section 11.B. above, Travel Insurance Provider shall not refer to or use the Names or logo in any manner or through any medium for any purpose whatsoever, including, but not limited to, advertising, marketing, promotion, fundraising, publicity or solicitation. Any request for an exception to this policy shall be submitted in writing by Travel Insurance Provider to Smithsonian’s Authorized Representative and shall state the nature of the proposed use of the Name or logo, the format and any accompanying text or pictorial material, and other relevant information as Smithsonian may require in order to consider the request.

12. INSPECTION OF BOOKS AND RECORDS.

A. Travel Insurance Provider and Smithsonian shall keep full and accurate accounts, records, books, journals, ledgers and data (herein the “Records”) with respect to the business done by each party respectively under this Agreement, which shall show truthfully, accurately and fully the compliance by each party with its obligations under this Agreement. Each party shall have the right, through its designated representatives, at all reasonable times and with advance notice, to inspect, copy and make extracts of the Records as necessary to verify the sales, premiums collected, and claims of the Program Plans pursuant to this Agreement.

Smithsonian further acknowledges that the Insurance Providers also shall be entitled to the same rights as Travel Insurance Provider regarding inspection of Records.

B. The parties shall retain all Records at all times during the Term of this Agreement and any extension thereof, and for at least five (5) years thereafter, and shall make the Records available to the other party during regular business hours wherever the Records are maintained within ten (10) business days after receipt of demand for inspection from such other party. If, with regard to the Optional Travel Insurance Program Plan, a discrepancy exceeding five percent

(5%) of the payment made to the Smithsonian for the period of audit is discovered, Travel

Insurance Provider shall reimburse Smithsonian for the cost of such audit and shall immediately make payment in full to Smithsonian of the corrected amount due. Both parties shall maintain the confidential nature of inspected Records, pursuant to the provisions of Section 4. of this

Agreement.

13. DATA SECURITY AND PRIVACY.

A. Safeguarding personally identifiable information (“PII”), including credit card information, collected or possessed by Travel Insurance Provider in the course of this Agreement, and preventing its disclosure are essential. The physical and logical design of Travel Insurance

Provider’s information technology network, procurement of the network elements and the ongoing configuration and maintenance of the network shall be the responsibility of Travel Insurance

Provider. The security of the network is of paramount importance and should prevent unauthorized access, loss, or modification of Smithsonian data and PII.

B. Travel Insurance Provider shall use its own merchant account at its credit card processing bank. Travel Insurance Provider acknowledges that it is responsible for the security of the card holder data that it processes in the course of this Agreement. Travel Insurance Provider shall meet the most stringent Payment Card Industry (“PCI”) Data Security Standards applicable to a merchant or service provider of its size. Upon request, Travel Insurance Provider will provide

Smithsonian with updated certificates of compliance. Travel Insurance Provider will inform

Smithsonian within twenty-four (24) hours of any changes to its PCI compliance status.

C. Travel Insurance Provider shall immediately, and in no event later than one (1) hour of discovery, report to the Smithsonian individuals identified below any incident or suspected incident that results in unauthorized access, loss or modification of Smithsonian data or PII collected or stored in the course of this Agreement or denial of service affecting the availability of such data.

Travel Insurance Provider is responsible for positively verifying that notification is received and acknowledged by at least one of the following parties: (i) The Smithsonian Contracting Official’s

Representative named herein, or (ii) the Smithsonian Privacy Officer, Danée Gaines Adams, Phone:

202-633-5129, Email: GainesAdamsD@si.edu.

D. If new or unanticipated threats or hazards are discovered by Travel Insurance

Provider, or if existing safeguards have ceased to function, Travel Insurance Provider shall immediately bring the situation to the attention of the Smithsonian.

E. Web Tracking/Geolocation Technologies. The website utilized by Travel Insurance

Provider for the Programs may make use of persistent web tracking or geolocation technologies, including, but not limited to, cookies, web bugs, and web beacons only if visitors are provided a prior opportunity to accept or decline such technology (“opt-in”) without denying them access to content if they decline.

F. Use of Disclaimer. Travel Insurance Provider muse use a bumper, post a disclaimer, or use other technologies to inform members of the public if the website or a third party website is being used to collect PII in association with the Programs. Any such bumper, disclaimer or other technology used is subject to the Smithsonian’s advance, written approval.

G. Travel Insurance Provider shall incorporate the substance of this clause, its terms and requirements, in all subcontracts under this Agreement, and require written subcontractor acknowledgement of same. Violation by a subcontractor of any provision set forth in this clause will be attributed to Travel Insurance Provider.

14. Disputes. Except as otherwise provided in this Agreement, the Smithsonian Contracting

Official and Travel Insurance Provider will make a good faith effort to resolve any dispute concerning the interpretation or implementation of this Agreement which is not otherwise disposed of by agreement between the parties. The disputing party shall provide notice of the dispute in writing to the above-identified officer of the non-disputing party, who shall communicate with his or her counterpart, in a timely manner. If this communication results in a mutually acceptable decision, then the parties shall reduce the decision to a writing which shall be signed by the parties and which shall be final and conclusive. In the event that the parties are unable to resolve the dispute, the mailto:GainesAdamsD@si.edu parties may agree to use a method of non-binding Alternative Dispute Resolution to resolve the dispute. In the event that the parties are unable to agree on the method of Alternative Dispute

Resolution to use, or in the event that either party is dissatisfied with the outcome of that alternative dispute resolution method, such efforts shall not constitute a waiver by either party of the right to file suit.

15. GENERAL PROVISIONS.

A. Amendments. No amendments, modifications, or waivers to this Agreement shall be valid unless in writing and signed by the authorized representatives of both parties to this

B. Assignment. No assignment shall be permitted absent the written approval of

Smithsonian. This Agreement shall be binding upon the heirs, assigns, executors, or administrators of Smithsonian and upon the successors in interest of Travel Insurance Provider.

C. Applicable Law. This Agreement shall in all respects be interpreted, construed, and governed in accordance with applicable federal law and the laws of Washington, DC, regardless of the place of execution or performance and without regard to the conflict of laws provisions thereof.

D. Non-Discrimination. In fulfilling its obligations under this Agreement, Travel

Insurance Provider agrees not to discriminate on the basis of race, creed, color, religion, sex, age, national origin, disability or for any other reason prohibited by federal or applicable state law.

E. No Waivers. The waiver by any party or the failure by either party to claim a breach or default of any of the provisions of this Agreement shall not constitute a waiver of any succeeding breach whether of a similar or dissimilar nature, nor shall any delay or omission on the part of either party to exercise any right that it has under this Agreement operate as a waiver of such right.

F. Not a Partnership. The parties, by this Agreement, do not intend to create a partnership, principal/agent, or joint venture relationship and nothing in this Agreement shall be construed as creating such a relationship between the parties. Neither party may incur any obligation, legal or otherwise, on behalf of the other.

G. No Third-Party Beneficiaries. This Agreement has been made and is solely for the benefit of Smithsonian and Travel Insurance Provider. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons or entities other than the parties to it. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons or entities to any party to this Agreement.

H. Severability. If any term or provision of this Agreement shall be held to be invalid or illegal, such term or provision shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement.

I. Recitals & Headings. The recitals herein constitute an integral part of the

Agreement reached and are to be considered as such. However, the captions and headings contained in this Agreement have been inserted for reference and convenience only and shall not be used in its interpretation.

J. Jointly Drafted. This Agreement shall be deemed to have been drafted by both parties and, in the event of a dispute, shall not be construed against either party as draftor.

K. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original.

16. ENTIRE AGREEMENT. This Agreement, together with any Exhibits or Appendices as identified herein and attached hereto, constitute(s) the entire agreement between the parties and supersedes all previous agreements on this matter. There are no other written or oral agreements, representations, or understandings with respect to the subject matter of this

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