RFR Attachment 6 - Health Connector Modified Terms and Conditions~2.docx

RFR ATTACHMENT 6 – MODIFIED TERMS AND CONDITIONS

COMMONWEALTH HEALTH INSURANCE CONNECTOR AUTHORITY

Health Connector Modified Terms and Conditions

Table of Contents

GENERAL TERMS

Agreement Effective Date

Notwithstanding verbal or other representations by the Parties, or an earlier start date indicated in a contract, the effective start date of performance under the Agreement (the “Effective Date”) shall be the date on which the Agreement is executed by the Parties.

Payments and Compensation

The Contractor shall only be compensated for performance delivered and accepted by the Health Connector in accordance with the specific terms and conditions of the Agreement. All Agreement payments are subject to appropriation or the availability of sufficient non-appropriated funds for the purposes of the Agreement. Overpayments shall be reimbursed by the Contractor or may be offset by the Health Connector from future payments. Acceptance by the Contractor of any payment or partial payment, without any written objection by the Contractor, shall in each instance operate as a release and discharge of the Health Connector from all claims, liabilities or other obligations relating to the performance of a Contract.

Contractor Payment Mechanism

The Contractor shall timely submit invoices and supporting documentation as prescribed in the Agreement. The Health Connector shall review and return rejected invoices within fifteen (15) days of receipt with a written explanation for rejection. Payment periods listed in an Agreement of less than forty-five (45) days from the date of receipt of an invoice shall be effective only to enable the Health Connector to take advantage of early payment incentives and shall not subject any payment made within the forty-five (45) day period to a penalty. Invoices must include any applicable Service Level Agreement (SLA) credits.

Pandemic, Disaster or Emergency Performance

In the event of a serious emergency, pandemic or disaster outside the control of the Health Connector, the Contractor agrees the Health Connector may request performance changes related to the Agreement or may negotiate additional performance from the Contractor to address the emergency needs of the Health Connector (subject to appropriation or the availability of sufficient non-appropriated funds), even if not contemplated under the original Agreement.

Regulatory Changes

State or federal regulatory changes or Carrier driven policies may change Health Connector business needs or programs. The Health Connector shall not be responsible for any state or federal regulatory changes or Carrier driven policies that may change Health Connector business needs or programs. The Contractor will work collaboratively with the Health Connector to adjust to such changes in a timely manner through the use of change orders.

Agreement Termination or Suspension

The Agreement shall terminate on the date specified therein, unless this date is properly amended in accordance with all applicable laws and regulations prior to this date, or unless terminated or suspended under this Section upon prior written notice to the Contractor.

The Health Connector shall have the right to terminate the Agreement in whole or in part with or without cause and without penalty, and to suspend the Agreement with cause and without penalty. The Health Connector may also suspend or terminate the Agreement without penalty in the event of an unforeseen public emergency mandating immediate Health Connector action.

Any written notice of termination or suspension delivered to the Contractor shall state the effective date and period of the notice, the reasons for the termination or suspension, if applicable, any alleged breach or failure to perform, a reasonable period to cure any alleged breach or failure to perform, if applicable, and any instructions or restrictions concerning allowable activities, costs or expenditures by the Contractor during the notice period.

Contractor shall be entitled to payment for goods and services provided through the date of termination and accepted by the Health Connector.

Termination for Convenience

Effective as of any time after the Agreement Effective to Date, the Health Connector may terminate the Agreement or any portion hereof for convenience without penalty by giving Contractor at least sixty (60) days written notice of such termination.

Termination for Change in Control of Contractor

In the event of a Change in Control of Contractor, other than a Change in Control pursuant to which the Control of the Contractor is transferred to an affiliate of the Contractor named in its bid, the Health Connector may terminate the Agreement without penalty by giving Contractor notice of such termination within one hundred and eighty (180) days after the effective date of such Change in Control.

Termination by Health Connector for Cause

If Contractor defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations) under the Agreement, and does not cure such default within thirty (30) days of written notice thereof, then the Health Connector may, by giving written notice to Contractor, terminate the Agreement without penalty as of the termination date specified in the notice of termination. The Contractor’s material breach of any of its obligations set forth in the separate Data Management and Confidentiality Agreement (“DMCA”) pertaining to the security and privacy of any PII, Health Connector Data or other data provided to or created by the Contractor under the Agreement, will constitute grounds for termination for cause.

Termination for Funding Changes

The Health Connector may terminate the Agreement in the event of a material loss of state or federal funding or other change in law (collectively a “Funding Change”) that renders it impossible for the Health Connector to continue to use the Contractor’s Services under the Agreement. Upon the Health Connector’s learning of such a Funding Change, the Health Connector shall notify the Contractor within seven (7) Business Days of (i) the date in which such Funding Change will become effective and (ii) the date on which termination of the Agreement shall become effective. Upon such notification, the Parties shall promptly meet to mutually determine a schedule for the termination of services.

Termination for Insolvency Event

The Health Connector may, by giving notice to the Contractor, terminate the Agreement upon the occurrence of an Insolvency Event in respect of the Contractor. “Insolvency Event” shall mean (1) the Contractor becomes insolvent or files (or has filed or has commenced against it) a petition, arrangement, application, action, or other proceeding seeking relief or protection under the bankruptcy laws of the United States which is not dismissed within thirty (30) days thereafter; (ii) there is an occurrence of a material adverse change in Contractor’s financial condition which is reasonably likely to negatively impact the Contractor’s performance of its obligations under the Agreement, or (iii) the Contractor makes a general assignment for the benefit of creditors.

All Terminations

Regardless of the cause of termination, with respect to each lease, license, cloud agreement, or other agreement between Contactor or a Contractor Affiliate and a third party which is entered into solely for the purposes of, and solely dedicated to, the performance of the Services or which covers dedicated resources used by Contractor to perform the Services for Health Connector under the Agreement as of the date that the Health Connector gives notice of termination or a reduction in the scope of services (“Scope Reduction”), as applicable, if such lease, license, cloud agreement or agreement allows for the assignment or transfer thereof to the Health Connector, and the Health Connector elects such assignment or transfer and accepts the responsibility for any future fees owed under such lease, license or agreement, Contractor will assign or transfer, or cause Contractor Affiliate to assign or transfer such lease, license or agreement to the Health Connector and the Health Connector will pay Contractors (a) the unused portion of any fees Contractor or a Contractor Affiliate paid in advance under such agreement and (b) any assignment, transfer or other fees associated with such assignment or transfer.

At termination, the Health Connector shall have the right to negotiate a license or SaaS agreement with the Contractor with respect to any software or SaaS used by the Contractor to support the Services provided hereunder that is Contractor-owned Contractor Material.

Contractor shall provide the Health Connector with the configuration management database(s) (CMDB) for any products or services that are commercial off the shelf (“COTS”) products or other third party products or services (including cloud services) as of the date of the termination of this Agreement and are used in conjunction with the provision of Services hereunder. At termination, the Contractor shall not be required to provide the CMDB for products or services owned exclusively by the Contractor or any of its subsidiaries, unless the Health Connector has negotiated a license or SaaS agreement for such products or services.

In the event the Health Connector gives notice of a Scope Reduction, the Parties will negotiate in good faith an equitable reduction in pricing within ninety (90) days of such notice. The Contractor must provide documentation supporting the level of any reduction proposed by it.

Subject to section 9 herein, Recordkeeping, Audit and Inspection of Records, when the Contractor’s engagement with the Health Connector terminates or expires, the Contractor must immediately deliver to the Health Connector any copies of Health Connector content, any products, materials, or documentation developed pursuant to the engagement, and any Health Connector confidential information in its custody and control. Notwithstanding the language of section 9 herein, the Contractor shall erase and remove all copies of Health Connector content, site, application and confidential information from computer equipment and media in the Contractor’s possession, custody and control, and return such content, site, application and confidential information to the Health Connector, subject to Contractor’s retention requirements and obligations. The Contractor shall cooperate fully with the Health Connector in the transfer of the application and/or other engagement products to the Health Connector or to another vendor in accordance with the requirements of the MSA.

Risk of Loss

The Contractor shall bear the risk of loss for any Contractor materials used for an Agreement and for all deliverables, Health Connector personal or other data which is in the possession of the Contractor or used by the Contractor in the performance of an Agreement until possession, ownership and full legal title to the deliverables are transferred to and accepted by the Health Connector.

Notification of Administrative Change

The Contractor shall notify the Health Connector in writing no later than thirty (30) days prior to any change affecting its organization which is reasonably likely to negatively affect its performance of Agreement responsibilities. If a change in business structure is contemplated, the Contractor shall provide a minimum of three (3) months’ written notice to the Health Connector.

Assignment

The Health Connector may assign its rights and obligations under the Agreement to any person or entity who succeeds to all or any portion of the Health Connector’s business and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by said successors or assigns. The Contractor shall not assign or transfer any right or interest in the Agreement to any successor entity or other entity without the prior written consent of the Health Connector. The Contractor shall be authorized to assign present and prospective claims for money due to the Contractor pursuant to an Agreement. The Contractor must provide sufficient notice of such assignment and supporting documentation to enable the Health Connector to verify and implement the assignment. Payments to third party assignees will be processed as if such payments were being made directly to the Contractor and these payments will be subject to intercept, offset, counter claims or any other Health Connector rights which are available to the Health Connector against the Contractor.

Independent Contractors

The Contractor, its employees, subcontractors and any other of its agents in the performance of the Agreement, shall act in an independent capacity and not as officers or employees of the Health Connector or the Commonwealth of Massachusetts.

Subcontracting

The Contractor shall hire subcontractors in performing the requirements of the Agreement only through a written agreement and with the Health Connector’s prior written approval of any subcontracting agreement prior to its execution. Prior to contracting with a subcontractor, the Contractor shall evaluate the prospective subcontractor’s ability to perform the activities to be subcontracted.

The Health Connector shall have the right to review and approve material terms of all subcontracts except for financial and/or pricing provisions. The Health Connector’s review may include reviewing any subcontract documents or contracts, meeting with the prospective subcontractor, or requiring resumes of the subcontractor's Key Personnel.

The Contractor shall maintain in writing all subcontracts relating to the Agreement and submit to the Health Connector at least annually a listing and a description of all contracts that the Contractor has with all subcontractors, including the requirements within this Agreement that will be performed by the Subcontractor(s), and update the Health Connector with a new version if any subcontractors change.

The Health Connector may, at any time prior to or after the execution of such agreements, meet with the subcontractor, and require resumes of the subcontractor’s Key Personnel.

All such subcontracts must contain all relevant provisions of the Agreement appropriate to the subcontracted service or activity, including, but not limited to, the portions of these Health Connector Modified Terms and Conditions that are relevant to the subcontract, all required flow down provisions, privacy and security requirements and other material terms necessary to ensure the legal, regulatory and contractual compliance of the subcontractor. Each subcontract must specify and require compliance with all applicable requirements of this Agreement and the responsibilities the subcontractor is obligated to provide, and provide for imposing sanctions, including subcontract termination, if the subcontractor’s performance is inadequate. Without limiting the generality of the foregoing, the Contractor must ensure that it complies with all provisions of this Agreement pertaining to PII with respect to any Subcontractor that uses, maintains, discloses, receives, creates or otherwise obtains PII.

The Contractor is fully responsible and liable for meeting all terms and requirements of the Agreement regardless of whether the Contractor subcontracts for performance of any Agreement responsibility. The Health Connector reserves the right to participate in any evaluation of the subcontractor's performance. Subcontracts will not relieve or discharge the Contractor from any duty, obligation, responsibility or liability arising under an Agreement. The Health Connector is entitled to copies of all subcontracts and shall not be bound by any provisions contained in a subcontract to which it is not a party. The Contractor shall serve as the Health Connector’s primary contact for this Agreement, whether or not it employs the use of subcontractors.

The Contractor shall monitor all subcontractors’ performance on an ongoing basis and perform a formal review annually. If any deficiencies or areas for improvement are identified, the Contractor shall require the subcontractor(s) to take corrective action. Upon request, the Contractor shall provide the Health Connector with a copy of the annual review and any corrective action plans (CAPS) developed as a result. The Health Connector may participate in any evaluation of the subcontractor's performance.

The Contractor shall notify the Health Connector in writing the same day upon notifying any subcontractor, or being notified by any subcontractor, of the intention to terminate such subcontract. The Contractor shall ensure that all subcontractors are prepared for the final transition of services from the existing Contractor to occur on a weekend, followed by full responsibility of the new Contractor for all requirements associated with this Agreement.

INFORMATION TECHNOLOGY AGREEMENTS

The following terms shall apply to all agreements for information technology (IT).

Contractor delivery of IT systems and applications that fail to conform to the information technology policies, standards and procedures referenced in this section, absent the Health Connector’s CIO’s grant of written permission for a deviation, shall constitute breach of the Agreement. The Health Connector may choose to require the Contractor, at its own cost, to re-engineer the non-conforming system for the purpose of bringing it into compliance.

All IT systems and applications developed by, or for the Health Connector must conform with the Enterprise Information Security Policies and Standards promulgated by the Commonwealth’s Executive Office for Information Technology Services and Security. The Enterprise Information Technology Policies and Standards are available online at https://www.mass.gov/handbook/enterprise-information-security-policies-and-standards.

All IT systems containing any Health Connector Customer PI must also comply with HIPAA, the HIPAA Privacy and Security Rules, the Commonwealth’s Fair Information Practices Act (MGL ch. 66A) and identity theft law, MGL ch. 93H, and the regulations promulgated thereunder, MARS-E , NIST 800-53 (rev. 4), and FIPS 140-2, and the other requirements of Attachment 2 to the Agreement, “Technical Standards”.

The Contractor is required to comply with G.L. c. 93I for the proper disposal of all paper and electronic media, backups or systems containing personal data and information; to ensure that any personal data or information transmitted electronically or through a portable device be properly encrypted; to immediately notify the Health Connector in the event of any security breach including the unauthorized access, disbursement, use or disposal of personal data or information; if the Contractor has access to credit card or banking information of Commonwealth customers, be PCI compliant in accordance with the Payment Card Industry Council Standards and provide confirmation of compliance during the term of the Agreement; and, in the event of a security breach, cooperate fully with the Health Connector and provide access to any information necessary for the Health Connector to respond to the security breach; and be fully responsible for any damages associated with the Contractor’s breach of the security of PII including, but not limited to, its responsibilities under G.L. c. 214, s. 3B.

PUBLIC RECORDS AND PUBLIC COMMENT

The Contractor shall collaborate with the Health Connector to prepare any public statement or announcement relating to or bearing on the work performed or data collected under the Agreement, or to prepare any press release or for any news conference in which the Health Connector is concerned or discussed. Contractor shall not release, make, or issue any such public statement or announcement relating to the subject matter of the Agreement or the Health Connector, without the prior written consent of the Health Connector.

As a public entity, the Health Connector is subject to the Massachusetts Public Records Law (M.G.L. c.66 s. 10) and thus certain documents and other materials made or received by the Health Connector are subject to public disclosure unless they are specifically exempted. Contractor specifically acknowledges that it bears the risk that any material submitted by Contractor to the Health Connector pursuant to the Agreement may be deemed not to qualify for a public records exemption, regardless of whether or not it is marked “confidential”, “proprietary” or “property of” the Contractor, or otherwise labelled in an attempt to avoid public records disclosure.

Furthermore, it is the intention of the parties that the Health Connector will continue to exercise legal custody of records received or produced under the Agreement. To the extent legally permissible, requests for access to said records received by the Contractor shall be forwarded immediately to the Health Connector for response. The Contractor will respond promptly to any request by the Health Connector for Health Connector-owned records in the custody of the Contractor, in particular, records that are the subject of legal process such as a public records request, subpoena or request for production.

The Contractor shall not release Health Connector-owned records, information, or data except as authorized to deliver services under the Agreement.

REPRESENTATION, WARRANTIES, COVENANTS AND CERTIFICATIONS

As of the Agreement Effective Date, and throughout the term of the Agreement, the Contractor hereby represents, warrants, and certifies under the penalties of perjury as follows:

4.1 The Contractor is duly authorized to enter into the Agreement, and the execution, delivery and performance of the Agreement will not conflict with any other agreement or instrument to which it is a party or by which it is bound and will not violate any law, regulation, order, or other legal requirement by which the Contractor or any of its assets is bound.

4.2 The Contractor and all Contractor personnel are fully capable and qualified to perform the described service(s) and Contractor’s other obligations under the Agreement and have obtained all requisite licenses and permits to perform such obligations. Contractor and its subcontractors are sufficiently staffed and equipped to fulfill Contractor’s obligations under this Agreement.

4.3 The Contractor and all Contractor personnel are familiar with, and are and will remain in compliance with, and will not take any actions contrary to the provisions of any laws, rules, regulations, ordinances, orders or requirements of the Commonwealth and other governmental authorities applicable or implicated by the subject matter of the Agreement, including, without limitation, the statutes referenced in the Agreement.

4.4 The Contractor and its employees are independent contractors of the Health Connector, and not employees, partners or joint-venturers of the Health Connector. The Contractor will be solely responsible for withholding and paying all applicable payroll taxes of any nature, including social security and other social welfare taxes or contributions that may be due on amounts paid to its employees.

4.5 The Contractor has filed and will continue to file all necessary state tax returns and reports, has paid and will continue to pay all taxes and has complied and will continue to comply with applicable state laws relating to Worker’s Compensation (in Massachusetts, M.G.L. c. 152).

4.6 The Contractor shall not discriminate against any qualified employee or applicant for employment because of race, color, national origin, ancestry, age, sex, religion, physical or mental handicap, gender identity or sexual orientation. The Contractor agrees to comply with all applicable Federal and State statutes, rules, and regulations prohibiting discrimination in employment, including, without limitation, M.G.L. ch. 151B; Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; Section 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; and M.G.L. c. 151B.

4.7 All personnel supplied under the Agreement who are located in the United States are eligible to work in the United States at the Agreement Effective Date, and the Contractor has a continuing obligation to ensure such status for the duration of the Agreement.

4.8 The Contractor’s Services will be performed by appropriately qualified and trained personnel. The Contractor is qualified to perform the services and it will perform the services with due care and diligence in a professional and workmanlike manner, with due care and skill, in accordance with high standards of quality as is customary in the industry and in accordance with professional standards for the field of expertise and the terms of the Agreement.

4.9 Whether Contractor personnel are employees of the Contractor or independent contractors of the Contractors, each such individual has either entered the Intellectual Property and Work Effort Agreement attached to the MSA as Exhibit 16 (the “IPAWE”), or entered into a written agreement with the Contractor validly assigning to the Contractor all intellectual property rights in Deliverables and Project Works (as defined in MSA Attachment 9) arising from performance of the Services at least as protective of the Health Connector’s interests, as determined by the Health Connector following review of such policy, as the IPAWE.

4.10 Neither Contractor nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in rendering the Services under the Agreement to any federal or state department or agency.

4.11 Contractor and its subcontractors are sufficiently staffed and equipped to fulfill Contractor’s obligations under the Agreement;

4.12 Contractor’s services will be performed:

In compliance with any Milestone Schedule included in Attachment 10 to the MSA, “Statement of Work”, and any subsequent Statements of Work, and the terms and conditions of, the Agreement;

4.13 Services and Deliverables delivered under the Agreement will substantially conform with the Services, Tasks, and Deliverable descriptions set forth in the Agreement;

4.14. All media on which Contractor provides any software under the Agreement shall be free from defects;

4.15. All software delivered by Contractor under the Agreement shall be free of Trojan horses, back doors, and other malicious code;

4.18 Contractor shall promptly, at no additional cost to the Health Connector make corrections to any Services or Deliverables that do not conform with the warranties set forth in this section.

4.19 Contractor shall not use any generative AI in providing Services under this Agreement without providing prior notification to and consent from the Health Connector in writing. The Health Connector reserves its right to impose additional requirements through a mandatory Change Order on the use of such technology.

CONFIDENTIALTY; PUBLICITY

Any information received from the Health Connector under the Agreement shall be deemed confidential. Contractor shall not use information received from the Health Connector under the Agreement except in the performance of its services thereunder and shall use reasonable means to prevent the disclosure of the Health Connector’s information to any third party. Contractor agrees that, during the term of the Agreement and thereafter, it will not disclose to any party, other than the Health Connector, any information that it obtained or developed in the course of services performed under the Agreement. The requirements of this subsection shall not apply if (a) the information is or comes to be generally available to the public through no fault of Contractor; (b) the information was independently developed by the Contractor without resort to information from the Health Connector or (c) Contractor appropriately receives the information from another source who is not under an obligation of confidentiality to the Health Connector.

Contractor shall not release, make or issue any public statement or announcement relating to the Health Connector or to the subject matter of the Agreement without the prior written consent of the Health Connector.

The services Contractor will perform under the Agreement require the Contractor to obtain, create, process, access or store PII under the terms of the MSA Attachment 3, “Data Management and Confidentiality Agreement”.

The Contractor shall also protect the physical security and restrict any access to Health Connector information in the Contractor's possession or used by the Contractor in the performance of a Contract, which shall include, but is not limited to the Health Connector’s public records, documents, files, software, equipment, or systems.

INDEMNIFICATION AND INSURANCE

To the full extent allowed by law, the Contractor shall defend, indemnify and hold harmless the Health Connector, including its employees, agents, officers and directors (the “Covered Persons”) from and against any and all liability, loss, claims, damages, fines, penalties, costs and expenses (including legal fees and costs), judgments and awards (collectively, “Damages”) sustained, incurred, or suffered by them, or imposed upon any Covered Person resulting from arising from or related to any third party claim, based upon: (i) any breach of the Agreement or false representation of Contractor or any of its subcontractors, (ii) any negligent acts or omissions or reckless or intentional misconduct of Contractor or any of its subcontractors or any of Contractor’s or any of its subcontractor’s respective agents, officers, directors or employees, including without limitation any such acts or misconduct in the transfer, collection or accounting of data or payments from a Customer as described in the relevant sections of the Agreement that causes a delay, failure or lapse in enrollment or coverage for any customer of the Health Connector or (iii) any actual or threatened claims that the services or any work product or deliverables produced as a result thereof contain or constitute slander, libel, defamation, disparagement, piracy, invasion of privacy or publicity, unauthorized use of name or likeness of any person, plagiarism, misappropriation, or infringement of United States statutory or common law copyright, trademark, trade secret, patent or other proprietary right, except to the extent based on materials, information or statements provided in writing or approved in accordance with the Agreement by the Health Connector for publication, dissemination or distribution. Without limiting the foregoing, Contractor shall defend, indemnify and hold harmless each Covered Person against any and all Damages that may directly or indirectly arise out of or may be imposed because of the failure to comply with the provisions of applicable law by Contractor, any of its subcontractors or any of their respective agents, officers, directors, employees or subcontractors.

Contractor shall obtain and maintain in effect through the term of the Agreement appropriate insurance coverage for its activities under the Agreement, including, but not limited to, comprehensive general liability insurance (bodily injury and property damage) and professional liability insurance. At the Health Connector’s request, Contractor will provide the Health Connector with copies of the certificates of insurance evidencing such coverage.

No terms of this Agreement pertaining to Service Level Agreements shall be interpreted as a limitation on the Health Connector’s rights to remedies and damages hereunder.

LIMITS OF LIABILITY

Limitation on Liability

SUBJECT TO THE LAST PARAGRAPH OF SECTION 2 HEREIN, SECTION 6 HEREIN, AND THE TERMS OF THE DATA MANAGEMENT AND CONFIDENTIALITY AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, COLLATERAL, EXEMPLARY, PUNITIVE OR SPECIAL LOSS OR DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE OR ANTICIPATED SAVINGS) REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY (WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES IN ADVANCE.

Dollar Cap on Liability

Subject to Section 6, Contractor’s total aggregate liability for all claims of any kind for any loss or damage, regardless of the form of the action or the theory of recovery, whether based in contract, warranty, tort (including negligence), strict liability, intended conduct or otherwise, arising out of, under or in connection with the Agreement shall not exceed in the aggregate the greater of $100,000 or two times the value of the Agreement.

The limitations set forth in this Section 7.2 shall not apply with respect to personal injury, property damage, or intellectual property infringement; losses occasioned by Contractor’s negligence, fraud or willful misconduct; Contractor’s liability for Contractor’s indemnification obligations set forth in section 6 herein; Contractor’s obligations under the last paragraph of section 2 herein; and its obligations under the Data Management and Confidentiality Agreement.

OWNERSHIP OF INTELLECTUAL PROPERTY; SOFTWARE LICENSING AND SAAS SUBSCRIPTION

8.1 Definition of Property

The term Property as used herein includes the following forms of property: (1) confidential, proprietary, and trade secret information; (2) trademarks, trade names, discoveries, inventions processes, methods and improvements, whether or not patentable or subject to copyright protection and whether or not reduced to tangible form or reduced to practice; and (3) works of authorship, wherein such forms of property are required by Contractor to complete its work under the Agreement and may consist of computer programs (in object and source code form), scripts, data, documentation, the audio, visual and audiovisual content related to layout and graphic presentation, text, photographs, video, pictures, animation, sound recordings, training materials, images, techniques, methods, algorithms, program images, text visible on the Internet, HTML code and images, illustrations, graphics, pages, storyboards, writings, drawings, sketches, models, samples, data, other technical or business information, reports, and other works of authorship fixed in any tangible medium.

8.2 Source of Property

Contractor’s work under this Agreement may involve intellectual property derived from four different sources: (1) a third party such as a software or software as a service (“SaaS”) vendor; (2) that developed by Contractor for the open market (e.g. Contractor’s commercial off the shelf software or SaaS); (3) that developed by Contractor for other individual clients, or for internal purposes prior to the Effective Date of this Statement of Work and not delivered to any other client of Contractor’s; and (4) that developed by Contractor specifically for the purposes of fulfilling its obligations to the Health Connector under the terms of this Agreement. Ownership of the first and second categories of intellectual property is addressed in separate agreements between the Health Connector and the contractors and resellers of work product. This Section 8 of the Health Connector’s Terms and Conditions addresses exclusively ownership rights in the third and fourth categories of intellectual property.

8.3 Contractor Property and License

Contractor will retain all right, title and interest in and to all Property developed by it, i) for clients other than the Health Connector, and ii) for internal purposes and not yet delivered to any client, including all copyright, patent, trade secret, trademark and other intellectual property rights created by Contractor in connection with such work (hereinafter the "Contractor Property"). The Health Connector acknowledges that its possession, installation, or use of Contractor Property will not transfer to it any title to such property.

The Health Connector acknowledges that Contractor Property contains or constitutes commercially valuable and proprietary trade secrets of Contractor, the development of which involved the expenditure of substantial time and money and the use of skilled development experts. the Health Connector acknowledges that Contractor Property is being disclosed to the Health Connector to be used only as expressly permitted under the terms herein. the Health Connector will take no affirmative steps to disclose such information to third parties, and, if required to do so under the Health Connector’s Public Records Law, M.G.L. c. 66 § 10, or by legal process, will promptly notify Contractor of the imminent disclosure so that Contractor can take steps to defend itself against such disclosure.

Except as expressly authorized herein, the Health Connector will not copy, modify, distribute or transfer by any means, display, sublicense, rent, reverse engineer, decompile or disassemble Contractor Property.

Contractor grants to the Health Connector, a fully-paid, royalty-free, non-exclusive, non-transferable, worldwide, irrevocable, perpetual, assignable license to make, have made, use, reproduce, distribute, modify, publicly display, publicly perform, digitally perform, transmit, copy, sublicense to any the Health Connector subcontractor for purposes of creating, implementing, maintaining or enhancing a Deliverable, and create derivative works based upon Contractor Property, in any media now known or hereafter known, to the extent the same are embodied in the Deliverables, or otherwise required to exploit the Deliverables. During the Term of this Agreement and immediately upon any expiration or termination thereof for any reason, Contractor will provide to the Health Connector the most current copies of any Contractor Property to which the Health Connector has rights pursuant to the foregoing, including any related documentation.

Notwithstanding anything contained herein to the contrary, and notwithstanding the Health Connector’s use of Contractor Property under the license created herein, Contractor shall have all the rights and incidents of ownership with respect to Contractor Property, including the right to use such property for any purpose whatsoever and to grant licenses in the same to third parties. Vender shall not encumber or otherwise transfer any rights that would preclude a free and clear license grant to the Health Connector.

8.4 Health Connector Property

In conformance with the Health Connector’s Standard Terms and Conditions, all Deliverables created under this Agreement whether made by Contractor, subcontractor or both are the property of the Health Connector, except for the Contractor Property embodied in the Deliverable. Contractor irrevocably and unconditionally sells, transfers and assigns to the Health Connector or its designee(s), the entire right, title, and interest in and to all intellectual property rights that it may now or hereafter possess in said Deliverables, except for the Contractor Property embodied in the Deliverables, and all derivative works thereof. This sale, transfer and assignment shall be effective immediately upon creation of each Deliverable and shall include all copyright, patent, trade secret, trademark and other intellectual property rights created by Contractor or Contractor’s subcontractor in connection with such work (hereinafter the "Health Connector Property").

All copyrightable material contained within a Deliverable and created under this Agreement are works made for hire. Contractor bears the burden to prove that a work within a Deliverable was not created under this Agreement. If work is determined to not be made for hire or that designation is not sufficient to secure rights, to the fullest extent allowable and for the full term of protection otherwise accorded to Contractor under such law, Contractor shall and hereby irrevocably does, assign and transfer to the Health Connector free from all liens and other encumbrances or restrictions, all right, title and interest Contractor may have or come to have in and to such Deliverable. Contractor HEREBY WAIVES IN FAVOR OF THE HEALTH CONNECTOR (AND SHALL CAUSE ITS PERSONNEL TO WAIVE IN FAVOR OF CLIENT IN WRITING SIGNED BY SUCH PERSONNEL) ANY AND ALL ARTIST’S OR MORAL RIGHTS (INCLUDING, WITHOUT LIMITATION, ALL RIGHTS OF INTEGRITY AND ATTRIBUTION) IT MAY HAVE PURSUANT TO ANY STATE OR FEDERAL LAWS OF THE UNITED STATES IN RESPECT TO ANY DELIVERABLE AND ALL SIMILAR RIGHTS UNDER THE LAWS OF ALL OTHER APPLICABLE JURISDICTIONS.

Contractor agrees to execute all documents and take all actions that may be reasonably requested by the Health Connector to evidence the transfer of ownership of or license to intellectual property rights described in this Section 8, including providing any code used exclusively to develop such Deliverables for the Health Connector and the documentation for such code. Contractor acknowledges that there are currently and that there may be future rights that the Health Connector may otherwise become entitled to with respect to Health Connector Property that does not yet exist, as well as new uses, media, means and forms of exploitation, current or future technology yet to be developed, and that Contractor specifically intends the foregoing ownership or rights by the Health Connector to include all such now known or unknown uses, media and forms of exploitation.

The Health Connector retains all right, title and interest in and to all derivative works of Health Connector Property.

The Health Connector hereby grants to Contractor a nonexclusive, revocable license to use, copy, modify and prepare derivative works of Health Connector Property only during the Term and only for the purpose of performing services and developing Deliverables for the Health Connector under this Agreement.

With respect to web site development contracts, the Health Connector will bear sole responsibility for registering the software or system domain name or URL, applying for any trademark registration relating to the software or system domain name or URL and applying for any copyright registration related to its copyright ownership with respect to any Health Connector Property.

8.5 Third-party Intellectual Property

If the Deliverables contain or will contain any third-party intellectual property to which Contractor intends to provide a sublicense, Contractor must provide copies of all such sublicense agreements as early in the process as possible. The sublicense agreements must be included in Contractor’s initial quotation to the Health Connector, or, if the requirement to utilize sublicensed intellectual property is not known at the outset of the project as soon as the requirement becomes known. Sublicenses to third-party intellectual property can ONLY be provided under RFR if they are provided at no charge to the Health Connector, unless the Health Connector requests otherwise.

8.6 Publications Regarding or Derived from this Contract, Use and Ownership of Data and Software Contractor shall cause all personnel involved in the creation of Health Connector Material as that term is defined in Section 8 hereto, to execute an agreement with each of its employee or contractors that is the equivalent, with respect to confidentiality protection, intellectual property transfers, and other matters referenced therein, to the Intellectual Property and Work Effort Agreement for Contractor’s Employees, Consultants, and Agents, attached to the MSA as Attachment 16.

RECORD KEEPING, AUDIT AND INSPECTION OF RECORDS

The Contractor shall maintain books, records and other compilations of data pertaining to its activities under the Agreement to the extent and in such detail as shall properly substantiate claims for payment and the Contractor's performance of its duties under the Agreement. All such records shall be kept for a period of not less than ten (10) years or for such longer period as is specified by the Health Connector (the “Retention Period”). The Retention Period starts on the first day after final payment under the Agreement is made. The Retention period applies regardless of shorter retention periods applied by entities such as the Secretary of State in the Records in Common Schedule.

If any litigation, claim, negotiation, audit or other action involving the records is commenced prior to the expiration of the Retention Period, all records shall be retained until completion of the action and resolution of all issues resulting therefrom, or until the end of the Retention Period, whichever is later.

The Health Connector, or its designees, shall have the right at reasonable times during normal Business Hours and upon reasonable notice, to examine and copy the books, records and other compilations of data of the Contractor which pertain to the provisions and requirements of the Agreement. Such access shall include on-site audits, reviews, and copying of records. If such audit reveals that any portion of the fees was utilized for purposes not permitted under the Agreement, then the Contractor shall refund to the Health Connector the amount determined by such audit within thirty (30) days of the Contractor's receipt of such audit and demand and pay for the cost of the Health Connector’s audit.

The Contractor shall provide full access to records related to performance and compliance to the Health Connector for ten (10) years beginning on the first day after the final payment under the Agreement or such longer period necessary for the resolution of any litigation, claim, negotiation, audit or other inquiry involving this Contract. Access to view Contractor records related to any breach or allegation of fraud, waste and/or abuse may not be denied and Contractor can not claim confidentiality or trade secret protections solely for viewing but not retaining documents. Routine Agreement performance compliance reports or documents related to any alleged breach or allegation of non-compliance, fraud, waste, abuse or collusion may be provided electronically and shall be provided at Contractor’s own expense.

CHOICE OF LAW; INJUNCTIVE RELIEF

The Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth, without giving effect to the conflict of laws…