BenefitsApp Work Order Terms & Conditions
MASTER TERMS AND CONDITIONS
This Master BenefitsApp Terms and Conditions (The “Terms”) is made and entered into effective on the corresponding BenefitsApp Work Order date by and between BenefitsApp Inc., (“BenefitsApp”) having a principal place of business in Baltimore MD, USA., the BenefitsApp Work Order signatory (“Signatory”). BenefitsApp and Client are referred to herein individually as a “party” and collectively as the “parties.”
RECITALS
WHEREAS, BenefitsApp has developed a benefits communication platform that provides individuals with access to certain benefits, benefits information and data, healthcare and related services;
WHEREAS, Signatory markets and sells bundled product and/or service packages to employer groups, third party administrators, associations, unions, organizations, and/or individual consumers; and
WHEREAS, BenefitsApp desires to engage Signatory to refer clients to have access to the benefits platform and Signatory desires to act in such capacity.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, and conditions hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
1. Definitions.
1.1. “Addendum” means a written document signed by the parties and added to this Agreement, which sets forth terms pertaining to this Agreement.
1.2. “Client” means benefit consultants, employer groups, third party administrators, associations, unions, financial institutions, and other organizations to which Signatory markets and sells the BenefitsApp Product. Client is referred to herein individually as a “Client” and collectively as the “Clients.”
1.3. “Launch Date” means the Effective Date designated on the Client Work Order Agreement (Addendum B).
1.4. “Member” means an individual who is the employee or member of a Client, or other individual to whom Signatory directly markets and sells the BenefitsApp Product.
1.5. “Signatory Administrator” means an individual who is the authorized representative of Signatory, or other individual to whom Signatory specified as the Signatory Administrator by the parties.
1.6. “Client Administrator” means an individual who is the authorized representative of a Client, or other individual to whom Signatory specified as the Client Administrator by the parties.
1.7. “BenefitsApp Product” means the BenefitsApp mobile app for which a username and password is created by the individual Members and through which the Members can access to the services as selected and further specified by the parties as defined by an Client code or combination of Client code and eligibility file.
1.8. “BenefitsApp Human Resource Portal” means the BenefitsApp Human Resource Portal for which the Client Administrator can access BenefitsApp services to manage Member-related features and functions.
1.9. “BenefitsApp Platform” means collectively the BenefitsApp Product and BenefitsApp Human Resource Portal and other services for which a username and password is provided by BenefitsApp to the Signatory Administrator through which the Signatory Administrator can access BenefitsApp services to manage the BenefitsApp Product’s features and functions for Clients.
1.10. “Third-party Platform Licensing” means licensing of ancillary systems or platforms outside of the BenefitsApp platform where fees are paid directly to the third-party.
1.11. “Signatory Client Group” means Signatory Clients collectively as a group.
1.12. “Aggregated Client App Product” or “White Label App” means a BenefitsApp Platform powered by BenefitsApp and listed as a unique product on the Apple and Google App Stores for the exclusive use of Signatory Client Group.
1.13. “BenefitsApp Licensee” means the designated payor of all fees due BenefitsApp defined on Client Work Order Agreement.
1.14. “BenefitsApp End User Agreement” means the grant of license, the form of which is available online and under the Member’s Account Profile within the BenefitsApp, and may be amended from time to time, in connection with Client, Members and Administrators use of the BenefitsApp Platform.
1.15. “PMPM” both refer to the total number of unique members provided in a census file. In the case where a Member and Spouse have unique member rows of data provided in a client census file, the data counts as 2 members.
2. Services; Duties.
2.1. Platform Availability. BenefitsApp shall make the BenefitsApp Platform available to Signatory and the Signatory Administrator for the purpose of marketing, resale or referral as a BenefitsApp or Aggregated Client App to Clients and Members and for use by Members and Administrators.
2.2. Delivery Mode: Signatory may offer Clients either the BenefitsApp Platform or the Aggregated Client App. In the case of BenefitsApp platform, Clients and Members will download and interact with the BenefitsApp-branded solution. In the case of the Signatory Aggregated Client App, clients and members will interact with the Signatory Aggregated Client App.
2.3. Native Mobile App Management. For Aggregated Client App clients, BenefitsApp may provide either the appropriate native mobile app files for upload to the Signatory’s Apple and Google App Stores Developer Accounts by the Signatory; serve as Signatory designated developer; or BenefitsApp may host the Aggregated Client App as the developer for purposes app submission and maintenance on the Apple and Google App Stores. BenefitsApp offers no guarantee of mobile app acceptance by Apple or Google App Stores.
2.4. Third-party Platform Licensing. For the Aggregated Client App Product third party platform licensing may be required or added at the request of the Signatory . Any Third-party licensing and any additional development fees required for the Third-party licensing by BenefitsApp will be the responsibility of the Signatory . Third-party Platform licensing will be listed on Addendum E.
2.5. Marketing. If referencing the BenefitsApp Product, Signatory shall adhere to BenefitsApp’s Marketing Compliance and Brand Guides, as may be amended from time to time, in connection with Signatory’s marketing and resale activities including, but not limited to, the requirement to obtain BenefitsApp’s prior written approval in connection with advertising and marketing materials.
2.6. Powered by BenefitsApp. The Signatory Aggregated Client App Product must display the “Powered by BenefitsApp” global content under the General Information Section found in the Profile feature of the BenefitsApp product. This global content will be provided by, maintained and updated from time to time by BenefitsApp. This section will contain at a minimum the BenefitsApp End User Agreement.
2.7. Eligibility. Signatory will provide Client and Member eligibility data in a format designated or agreed upon by BenefitsApp via a secure FTP as set forth in Addendum F or similar agreed upon secure environment per agreed upon schedule. CSV format is the standard.
3. Fees; Invoicing.
3.1. Fees. BenefitsApp Licensee shall compensate BenefitsApp for access to and use of the BenefitsApp Platform by Clients and Members in accordance with the pricing and arrangements (the “Fees”) set forth in the Master Price List (Addendum A). The Fees shall be paid in United States Dollars and are non-refundable.
3.2. Invoicing. Except as otherwise set forth in the Client Work Order, invoices will be sent as follows and in accordance with Section 3.1 of this Agreement:
3.2.1. On receipt of authorized BenefitsApp Client Work order, BenefitsApp will electronically deliver to BenefitsApp Licensee an invoice for any fees set forth the fees due and owing by BenefitsApp Licensee for access to the BenefitsApp Platform by Clients, Members and Administrators.
3.2.2. For any monthly or quarterly fees, on or about the third business day of each month, BenefitsApp will electronically deliver to BenefitsApp Licensee an invoice setting forth the Fees due and owing by BenefitsApp Licensee based on eligibility to the BenefitsApp Platform by Clients and Members for that period. BenefitsApp Licensee shall be billed for access to the BenefitsApp Platform based off the eligibility data delivered by Client pursuant to Section 2 of this Agreement; provided, however, if Client is tardy in delivering the eligibility data to BenefitsApp, then BenefitsApp shall bill BenefitsApp Licensee based on the previous eligibility data delivered by Client to BenefitsApp and the parties shall, no later than the end of the same period, reconcile any discrepancies. Any shortage in the amount billed shall be immediately paid by BenefitsApp Licensee to BenefitsApp; any surplus in the amount billed shall, if already paid by BenefitsApp Licensee to BenefitsApp, be credited toward BenefitsApp Licensee future invoice(s) without the right of BenefitsApp Licensee to recoup the amount in the event of expiration or termination of the Agreement or the applicable Addendum.
3.3. Payment of Invoices. Except as otherwise set forth in an Addendum B, each invoice owed by BenefitsApp Licensee shall be due and payable in full, without the right of offset or deduction, prior to the last calendar day of the same month in which the invoice was transmitted by BenefitsApp to BenefitsApp Licensee. Any amount due to BenefitsApp by BenefitsApp Licensee that is not paid when due shall bear interest at the lesser of eighteen percent (18%) per annum or the maximum rate permitted by law, from the date due until such amount is paid. Payment of such interest shall be made when the past due amount is paid and shall not excuse, cure, or otherwise waive any default or material breach of BenefitsApp Licensee under this Agreement.
4. Term; Termination.
4.1. Term; Termination. This Agreement shall begin on the Effective Date and shall continue until each Addendum expires or is terminated (the “Term”); provided, however, this Agreement or a specific Addendum may be terminated immediately (i) by BenefitsApp if BenefitsApp Licensee fails to timely pay any fees due under this Agreement or the Addendum after receiving forty-five (45) calendar days’ written notice from BenefitsApp of such failure (or, alternatively, BenefitsApp may elect to terminate access to the BenefitsApp Platform until such time as all past due amounts owed by BenefitsApp Licensee are paid in full); (ii) by either party without further notice if the other party commits a material breach of this Agreement or the Addendum and fails to cure such breach within thirty (30) calendar days after receiving written notice from the non-breaching party of the breach; (iii) by either party without notice upon determination by a court of law or administrative body that the performance of obligations or the exercise of rights hereunder is illegal or violates any law or regulation which may be enacted subsequent to the date hereof; and (iv) by BenefitsApp upon thirty (30) calendar days’ prior written notice due to under- or over-utilization of the BenefitsApp Platform as determined by BenefitsApp.
4.2. Continuing Obligations. The termination or expiration of this Agreement or a specific Addendum shall not relieve Signatory of any obligation arising under this Agreement or the Addendum which shall have accrued prior to such expiration or termination.
5. Compliance with Laws; Ownership of Technology.
5.1. Compliance With Laws. The parties shall comply with any and all applicable federal, state, and local laws, rules, and regulations. The parties shall keep strictly confidential all Member health related information that meets the definition of “Protected Health Information” as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Final Rule for Standards for Privacy of Individually Identifiable Health Information adopted by the United States Department of Health and Human Services and codified at 45 C.F.R. part 160 and part 164, subparts A & E (the “Privacy Rule”), and the HIPAA Security Rule, codified at 45 C.F.R. Part 164 Subpart C and Subtitle D of the Health Information Technology for Economic and Clinical Health Act (“HITECH”) including C.F.R. Sections 164.308, 164.310, 164.312 and 164.316, as may be amended from time to time. If requested, the Parties and Clients may enter into separate Business Associate Agreements prior to the disclosure of any Protected Health Information pursuant to this Agreement and the terms of such Business Associate Agreement shall be fully incorporated herein.
5.2. Ownership of Technology. Signatory acknowledges and agrees that (i) any technology used in connection with the BenefitsApp Platform is solely provided to Signatory so that Clients Members and Administrators may access the BenefitsApp Platform, (ii) no technology is sold to Signatory , (iii) Signatory acquires only the right to resell the BenefitsApp Platform, (iv) BenefitsApp retains sole and exclusive ownership and all rights, title, and interest in any technology used in connection with the BenefitsApp Platform, including intellectual property embodied in or associated with the BenefitsApp Platform, and (v) the technology used in connection with the BenefitsApp Platform including but not limited to the source codes, object codes, logic, and structure, constitute valuable trade secrets of BenefitsApp.
6. Indemnification; Insurance.
6.1. Indemnification. Each party (an “Indemnifying Party”) shall indemnify, defend, and hold harmless the other party and its officers, employees, directors, affiliated companies, and agents from and against any and all third party and governmental claims, actions, demands, investigations, and lawsuits (together, “Claims”) and all resulting costs, liabilities, fines, penalties, damages, and expenses including reasonable attorneys’ fees and expert witness fees (collectively, “Liabilities”) arising out of: (i) the breach by the Indemnifying Party of any material term or provision of this Agreement including its Addenda; (ii) a violation of any representation, warranty, or covenant of the Indemnifying Party in this Agreement including its Addenda; and (iii) the Indemnifying Party’s gross negligence or willful misconduct. Signatory shall also indemnify, defend, and hold harmless BenefitsApp and its officers, employees, directors, affiliated companies, and agents from and against any and all Claims and Liabilities arising out of a breach of the privacy, security, and integrity of any and all data transmitted out of Signatory’s system including, but not limited to, a breach that results in unauthorized access to Member data in BenefitsApp’s system. Each party shall give the other party prompt notice of any Claims covered by this Section. The Indemnifying Party shall have the right and duty to assume the control of the defense thereof but the other party may take part in the defense at its own expense.
7. Disclaimer of Warranties; Limitation on Liability.
7.1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BENEFITSAPP DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WITH RESPECT TO THE BENEFITSAPP PLATFORM, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BENEFITSAPP DOES NOT WARRANT THAT THE BENEFITSAPP PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE SYSTEM, OR DATA, MEET THE BUSINESS OR OPERATIONAL NEEDS OF SIGNATORY OR ANY OTHER PARTY, OR THAT ERRORS OR DEFECTS WILL BE CORRECTED.
7.2. Limitation on Liability. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL BENEFITSAPP BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; LOST PROFITS OR BUSINESS OPPORTUNITIES; LOSS OF DATA; OR THE COST OF PROCUREMENT OF SUBSTITUTE ITEMS OR SERVICES.
8. Miscellaneous.
8.1. Relationship Between Parties. Nothing contained in this Agreement shall be construed to give either party the power to direct or control the activities of the other, constitute the parties as partners, joint venturers, agents, co-owners, or otherwise as participants in a joint undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
8.2. Governing Law; Venue. This Agreement shall be governed by and construed and enforced solely and exclusively in accordance with the laws of the State of Maryland, without regard to conflicts of law principles. Any and all disputes arising under and in connection with this Agreement shall be resolved by binding arbitration (through the American Arbitration Association) located in Baltimore City, Maryland. The arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees (as well as expert witness fees) reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees (as well as expert witness fees) reasonably incurred by the prevailing party in connection with the arbitration. Judgment on the Award may be entered in any court having jurisdiction.
8.3. Entire Agreement; Amendment. This Agreement and all Addenda added to this Agreement represents the sole, final, and entire agreement between the parties with respect to the subject matter hereof and shall supersede and terminate all prior or contemporaneous agreements and communications of the parties, oral or written, relating thereto. The parties agree that, in the event of a conflict between the terms of this Agreement and an Addendum to this Agreement, the terms of the Addendum shall control with respect to the subject matter thereof. This Agreement and each Addendum may not be amended except by a writing signed by both parties.
8.4. Survival. Unless expressly provided otherwise in this Agreement, each provision of this Agreement reasonably interpreted as intending to survive after the termination or expiration of this Agreement shall survive any such termination or expiration.
8.5. Waiver. No waiver of any right under this Agreement shall be deemed effective unless contained in a writing signed by the party charged with such waiver, and no waiver of any breach or failure to perform shall be deemed a waiver of any future breach or failure to perform or of any other provisions of this Agreement.
8.6. Assignment. Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement without consent to an entity of any kind succeeding to the business of that party in connection with the merger, consolidation, or transfer of all or substantially all of the assets and business of the party to such successor. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties.
8.7. Notices. All notices required by this Agreement shall be in writing and deemed given if delivered personally, by confirmed email, or by certified or registered mail (return receipt requested) at the addresses set forth under the signature blocks at the end of this Agreement or such other address as either party may specify in writing.
8.8. Counterparts. This Agreement may be executed in several counterparts and by electronic means, each of which shall constitute an original and all of which, when taken together, shall constitute one and the same agreement.
8.9. Signatory shall use its sole discretion in determining those Clients which it deems appropriate to refer to the BenefitsApp Platform in order to carry out the provisions of this Agreement. Notwithstanding any other provision contained herein to the contrary, however, Signatory makes no guarantee, warranty or representation that any Client or potential Client referred to BenefitsApp hereunder will choose to accept any services provided by, or otherwise become a Client of BenefitsApp. BenefitsApp will provide access to the BenefitsApp system for this purpose to these referred Clients.
Address for Notices:
BenefitsApp Inc.
PO Box 4830
Baltimore, MD 21211
Attn: CEO/General Counsel