TERMS OF SERVICE AGREEMENT
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.
THESE TERMS AND CONDITIONS ARE ACCEPTED AND CONSTITUTE A BINDING AGREEMENT UPON LOGGING-IN TO A USER ACCOUNT, CLICKING THE “AGREE” BUTTON OR OTHER COMPARABLE OPTION (“ASSENT”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS, DO NOT PROVIDE YOUR ASSENT AND YOU ARE NOT GRANTED A LICENSE IN ACCORDANCE WITH THIS AGREEMENT, AND ANY ACCESS, COPYING, OR OTHER USE IS UNAUTHORIZED AND PROHIBITED.
This Terms of Service Agreement (this “Agreement”) is made and entered into on the date the Assent was made (“Effective Date”) by and between Benefit Headquarters, LLC. and its related or affiliated companies (“Company”) and you as the natural person that indicates the Assent (“User”) and you represent and warrant that you are at least eighteen (18) years old or older to be the appropriate legal age to form a binding agreement with Company.
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Company and User (each a “Party” and together the “Parties”) hereby agree as follows:
1. Definitions and Interpretations
Certain terms used herein shall have the following meanings:
“Cause of Action” shall mean any demand, complaint, request for redress, claim or other assertion of a cause of action whatsoever.
“Company Property” shall mean all physical and intangible property owned, held, licensed, leased, possessed or used by Company, including, without limitation, the Licensed Property and/or other property.
“Content” shall mean all material, information, documents, matter, text, Software, data, graphics, drawings, blue-prints, schematics, sketches, computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the foregoing and all results and/or derivations of the expression of the foregoing (all of the foregoing whether in a format now known or hereinafter Developed).
“Develop” shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person’s efforts in any manner whatsoever and through any means whether now known or hereafter devised.
“Disclose” shall mean disseminate, transmit, publish, post, upload, initiate, distribute, transfer, make available or otherwise convey.
“Documentation” shall mean the operating, training, support and reference manuals and other Content associated with the Licensed Software and made available to the User by Company.
“Enabled Content” shall mean data, information, text, reports and other Content resulting from and enabled by the execution of the Licensed Software and accessible by User.
“Governmental Authority” shall mean any federal, state, county, judicial, arbitral, municipal or other governmental or sovereign entity, as well as all subdivisions, agencies and authorities therein.
“Law” shall mean any constitution, statute, code, rule, or regulation of any federal, state, county, municipal or other sovereign entity, as promulgated and amended from time to time.
“Licensed Property” shall mean the Licensed Software, the Enabled Content and the Documentation.
“Licensed Software” shall mean the software made generally and commercially available by Company through a domain name or mobile devices designated by Company and licensed pursuant to this Agreement enabling certain functions to provide certain quotes and other information relating to insurance and other benefits.
“Losses” shall mean any and all damages, liabilities, costs, charges, expenses, expenditures, fees (including, without limitation, attorneys’, accountants’, experts’, investigators’, witnesses’ and professionals’ fees) and other losses of whatsoever nature.
“Person” shall mean any natural person, corporation, general partnership, limited partnership, limited liability partnership, limited liability company, trust, association, organization or other entity of whatsoever nature or character.
“Representatives” shall mean all shareholders, directors, officers, strategic advisors, employees, agents, representatives, attorneys, and accountants whether holding equity in, retained by, employed by, commissioned by or otherwise controlled by a subject Person.
“User Content” shall mean any Content Disclosed by User, including, without limitation, all Content input by User using the Licensed Software for inclusion in the Enabled Content.
“Termination Event” shall mean any and all events that trigger the last day this Agreement is in effect, either by way of termination or expiration, including, without limitation, pursuant to Section 12.
“Third Person Software” shall mean any application programming interface or other software that is Developed or otherwise provided by a third Person that may be integrated or otherwise connected to the License Software.
Terms defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.
1.3. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
The term of this Agreement shall commence on the Effective Date and shall remain in effect until the occurrence of a Termination Event (the “Term”).
3. Service/Grant of Limited License
Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to provide User access to the Licensed Software through a designated User account and hereby grants to User a personal, limited, revocable, non-exclusive, non-transferable, non-assignable license to: (a) execute the Licensed Software utilizing the User’s account; provided, however, that access to and execution of the Licensed Software may, in Company’s sole and absolute discretion, be denied at: (i) certain times reasonably designated by Company for updates, back-ups and/or maintenance and/or (ii) other times unexpected and/or outside the reasonable control of Company including, without limitation, network outages, technical errors, to comply with applicable Law, and third Person acts or omissions that prohibit, hinder or otherwise preclude access to and execution of the Licensed Software and (b) view, download, and print the Enabled Content only for User’s professional use and only in accordance with all Laws, ethical rules, codes of conduct and other practices applicable to User and User’s profession; provided, however, that nothing in this Agreement shall grant a license to Disclose such Enabled Content to any third Person unless required by Law. This foregoing limited license applies to any future versions, revisions, improvements, developments, updates and upgrades to the Licensed Software that Company may make generally and commercially available to the User, unless such versions, revisions, improvements, developments, updates and/or upgrades are accompanied by separate terms. User acknowledges that Licensed Software may be integrated with, but does not include, the Third Person Software, and User may be subject to additional terms and conditions designated for such Third Person Software.
User grants Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable, assignable license to: (a) identify User and any trade name, trademark, service marks or other designation in connection with identifying User as a current or former (as applicable) customer of Company in Company’s marketing and promotional Content and (b) use, modify, translate, reformat, create derivative works from, store, distribute and display any User Content, including, without limitation, in and through the Licensed Software.
WITHOUT LIMITING THE GENERALITY OF SECTION 10 (including, without limitation, the “AS IS” nature of the Licensed Property), USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (A) COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES, OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE ACCURACY, TIMELINESS, COMPLETENESS OF ANY RATE, PROPOSAL, QUOTE, FINANCIAL CONDITION, BENEFITS, OR ANY OTHER CONTENT ENABLED OR DISPLAYED IN CONNECTION WITH THE LICENSED PROPERTY, THE THIRD PERSONAL SOFTWARE AND/OR ANY OF COMPANY SERVICES AND (B) USER IS ADVISED NOT TO CANCEL OR RECOMMEND CANCELLATION, AS APPLICABLE, OF ANY PRIOR OR EXISTING COVERAGE UNTIL FINAL RATE AND UNDERWRITING APPROVAL HAS BEEN RECEIVED FROM THE APPLICABLE CARRIER OR PERSON.
User shall pay Company up front the amounts designated or approved by Company for the license set forth herein (“Amounts”) and hereby authorizes Company to charge the Amounts to User’s credit card or electronic payment method approved by Company (in Company’s sole and absolute discretion).
In addition to any other remedies available in this Agreement or otherwise in Law or in equity: (a) Company may limit or suspend access by the User to all Licensed Software or other Licensed Property in the event User fails to timely pay any Amounts due and (b) User shall pay to Company interest on any late payments in an amount that shall be the lesser of: (i) one percent (1%) per month or (ii) the maximum percentage allowed by Law. Payment when due of the Amounts by User is of the essence of this Agreement.
5. User Covenants/Representations/Warranties
User hereby covenants, represents and warrants as of the Effective Date and throughout the Term and where applicable, after the Term, the following:
User: (a) has the authority to enter into this Agreement, (b) is voluntarily entering into this Agreement, (c) is at least eighteen (18) years old or older to be the appropriate legal age; and (d) shall comply with the terms and conditions of this Agreement;
Neither the execution and delivery of this Agreement or any document, agreement or instrument required by this Agreement, nor the consummation of the transactions contemplated herein or therein shall constitute a violation of, or default under, or conflict with, any term or provision of any commitment, indenture, lease or other contract to which User is a party or by which User is bound;
User is the natural person associated with the User account and shall: (a) be responsible for all use of the User’s account, including, without limitation, all use of the User account log-in information; (b) maintain the confidentiality of User’s account name and password; (c) take reasonable steps to prevent unauthorized use of the User’s account and the Licensed Property; and (d) immediately notify Company in writing of any disclosure and/or unauthorized use of such account name and password;
User owns or has the right to Disclose all the User Content and the User Content has not, nor shall not, infringe or misappropriate any third Person’s intellectual property rights or otherwise violate any Laws;
User shall not Disclose any Content that User does not have a right to Disclose under any Law or under any contractual or fiduciary relationships or any Content that infringes the proprietary rights of any Person;
User shall be solely responsible for all User Content and Company is not responsible to User or any third party for any User Content;
As between the Parties, Company owns all right, title and interest in and to the Licensed Property (including, without limitation, all copyrights) and to the extent User is deemed an owner of any right, title, or interest in and to the Licensed Property or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), User hereby assigns any such right, title or interest to Company and shall execute all documents and undertake all actions necessary to effect the clarification of ownership of all such right, title or interest in and to Company;
User shall in no way represent that User has any right, title or interest in or to the Licensed Property or any Third Person Software;
User shall not view, download, or print the Enabled Content for any purpose outside the limited scope set forth in Section 1 without the express written consent of Company, such consent granted or denied in Company’s sole and absolute discretion;
User shall not charge a fee, or offer for free, to any Person to: (a) execute the Licensed Software or (b) view, print or otherwise use the Enabled Content;
User shall not impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature, nor enable any Person to do so, on the Licensed Property or any portion thereof;
User shall not Disclose any Content containing a virus, bug, Trojan horse, worm, time bomb, cancelbot, corrupted Content, security breach, any intrusion from internal or external sources, or other similar Content that may damage the operation of the Licensed Property or any Person’s computer or property;
User shall not interfere with or disrupt or attempt to interfere with or disrupt the provision of the Licensed Property to User or any third Person;
User shall not copy, make derivative works, modify, disassemble, decompile, or reverse engineer the Licensed Property, including, without limitation: (a) modify or caused to be modified any files that are part of the Licensed Software; or (b) facilitate, create or maintain any unauthorized connection to the Licensed Software;
User shall not impersonate any Person or falsely state or otherwise misrepresent User’s identity or affiliation with any Person or to disguise or otherwise misrepresent the origin of any User Content;
User shall not Disclose any Content that is unlawful, harmful, threatening, harassing, defamatory, vulgar, invasive of another’s privacy, hateful or otherwise objectionable; and
User shall not collect or store personal data about other users.
6. Retained Rights
Company may, in Company’s sole and absolute discretion, modify any and all of the Licensed Property without notice at any time.
All licenses not expressly granted to User pursuant to this Agreement are reserved by Company, including, without limitation, that Company does not grant any license and User shall not use any trademark or any other intellectual property of Company.
Company retains the right to restrict User’s use of any portion of the Licensed Property, including without limitation, the Licensed Software or Enabled Content, that is the subject of a prohibition of use by any Law, or that is determined to infringe a third Person’s intellectual property.
User hereby covenants, represents and warrants that User shall not Disclose any Confidential Information to, and shall take reasonable efforts to keep such Confidential Information reasonably inaccessible from, any Person who is not authorized to view the Confidential Information. Without limiting the foregoing, User shall not Disclose or use any of Company’s trade secrets in perpetuity. All provisions protecting Confidential Information in this Agreement shall be deemed to also protect Company’s trade secrets, but references to Company’s trade secrets shall not be deemed to automatically refer to Confidential Information.
If User is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to Disclose any of the Confidential Information, User shall provide Company with prompt written notice of such request or requirement so that Company may seek protective orders or other appropriate remedies and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by Company, User nonetheless is legally compelled to Disclose Confidential Information to any court or tribunal or else would stand liable for contempt or suffer other censure or penalty, User may, without liability herein, Disclose to such court or tribunal only that portion of the Confidential Information which the court requires User to Disclose, provided that User exercise best efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such court or tribunal.
8. Equitable Relief
Notwithstanding Section 9, User covenants, represents and warrants that any violation of Sections 3 or 55 by User shall cause irreparable injury to Company and shall entitle Company to extraordinary and equitable relief by a court, including, but not limited to, temporary restraining orders and preliminary and permanent injunctions, without the necessity of posting bond or security. The opinions, findings, determinations and orders of any court with respect to permanent equitable relief granted consistent with this Section 8 shall have binding effect upon any mediation and shall otherwise have res judicata and collateral estoppel effect upon any mediation; provided, however, that the mediator shall give any court opinion, finding, determination or order granting temporary or preliminary equitable relief persuasive juridical authority.
9. Governing Law/Dispute Resolution/Exclusive Venue
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. SUBJECT TO SECTION 8, THE PARTIES SHALL ENDEAVOR TO FIRST SETTLE ANY AND ALL CAUSE OF ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY BREACH OF THIS AGREEMENT) BY MEDIATION CONDUCTED IN WASHOE COUNTY, NEVADA. IF ANY CAUSE OF ACTION IS NOT OTHERWISE RESOLVED THROUGH DIRECT DISCUSSIONS OR MEDIATION, EACH PARTY CONSENTS TO THE PERSONAL JURISDICTION, AS WELL AS THE EXCLUSIVE VENUE FOR ANY SUCH CAUSE OF ACTION(S) IN THE APPROPRIATE STATE OR FEDERAL COURT LOCATED IN WASHOE COUNTY, NEVADA.
10. Disclaimer of All Warranties and Representations
THE LICENSED PROPERTY, ANY INTEGRATD THIRD PERSON SOFTWARE, AND ALL OTHER COMPANY SERVICES ARE PROVIDED “AS IS.” COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED AND DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO LICENSED PROPERTY, THIRD PERSON SOFTWARE, COMPANY SERVICES, OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (some jurisdictions do not allow the exclusion of implied warranties, so the exclusion of implied warranties may not apply to the User) OR CONDITIONS OF TITLE, NON‑INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT COMPANY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
11. Limitations on Liability
COMPANY (AND ITS REPRESENTATIVES, AFFILIATES AND LICENSORS) SHALL NOT BE LIABLE TO USER (OR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO USER’S RIGHT, TITLE AND INTEREST), WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR ANY OTHER THEORY OF LAW OR EQUITY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS, LOSS OR CORRUPTION OF CONTENT, INTERRUPTION OR COMPUTER FAILURE ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND IN NO EVENT SHALL COMPANY OR COMPANY’S REPRESENTATIVES, AFFILIATES AND LICENSORS BE LIABLE TO USER (OR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS A SUCCESSOR TO USER’S RIGHT, TITLE AND INTEREST) IN AND FOR AN AMOUNT THAT EXCEEDS THE FEES, IF ANY, RECEIVED BY COMPANY FROM USER WITHIN THE THREE (3) MONTHS PRIOR TO TERMINATION OF THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING HEREUNDER AND IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES.
User may terminate this Agreement at any time by notifying Company of such termination in writing.
In addition to any and all other remedies available to Company at law or equity, Company shall have the right to immediately terminate this Agreement, with or without notice, upon the occurrence of any of the following events: On the date identified in a five (5) day prior notice sent by Company to User terminating the Agreement and/or the grant of license to User;
User commits an act of fraud against Company, regardless of whether such act of fraud is a material breach;
User Discloses Confidential Information to an unauthorized Person, regardless of whether such Disclosure is a material breach;
User breaches any provision relating to, associated with, or arising from User’s covenants, representations and warranties or User engages in any of the prohibited uses identified in this Agreement;
User fails to timely pay all amounts to Company when due; or
User otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days of such breach. Upon termination, all licenses granted to User shall immediately terminate and User shall immediately cease all use of the Licensed Property and return all Company Property.
Company reserves the right to cancel user accounts that have been inactive for more than three (3) months without any obligation to refund any amount for such canceled user account.
Notwithstanding any other provision of this Agreement, User shall indemnify and hold Company and Company’s Representatives (the “Company Indemnified Parties”) harmless from and against any Losses incurred by any of the Company Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User (except an act or omission that emanates from an infringement by Company of a third Person’s intellectual property), including, without limitation, the misuse of the Licensed Property, alleged breach, or investigation relating to a possible breach, of any legal requirement or of any covenant, representation, warranty or other obligation of User contained in or arising out of this Agreement.
14. Limitations on Assignment
This Agreement, including, without limitation, the license granted pursuant to Section 3.1, is personal to User, and User shall not assign or transfer any of User’s rights or have assumed any of User’s obligations pursuant to this Agreement to and by, respectively, third Persons without the prior written consent of Company, such consent granted or denied in the sole and absolute discretion of Company.
Waiver by Company of performance of any provision of this Agreement shall not be a waiver of, nor prejudice to, Company’s right to require, strict performance of the same or any other provision in the future.
16. Force Majeure
Company shall not be liable for, or be in breach of this Agreement associated with, relating to, resulting from, or arising from any cause beyond Company’s control, including, without limitation, war, insurrection, public enemy, acts of God, terrorist acts, changes in Laws, acts or omissions of Governmental Authorities, labor disputes, strikes, and/or power failures, or any unavailability, delay, or malfunction of any Licensed Property related to the Internet or events or activities of third Persons outside of Company’s control.
Company may provide any notice by posting to Company’s website or by sending electronic mail to the email address User provided, in Company’s sole and absolute discretion, and such notice shall satisfy any legal requirement that communications be in writing.
18. General Provisions
Unless otherwise specified, all terms and provisions shall be applicable throughout the Term.
If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
This Agreement shall not be amended or modified except by: (a) Company providing notice of such amendment or modification and such amendment or modification are accepted and incorporated herein by this reference upon Assent or (b) written document signed by both Parties.
Sections 1 and 4 through 18, inclusive, shall survive any termination of this Agreement. Subject to Section 14, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the Parties with respect to the subject matter of this Agreement shall be of any force or effect.