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Terms of Service

[v. 10.2022] 

I. INTRODUCTION 

These terms of service (“terms of services” or the “Agreement”) govern all rights and obligations regarding the use of the GoWell system. By accessing, registering, and/or using the GoWell system, the Users (defined below) consent to these terms. If any User does not agree to be bound by all of the provisions of this Agreement, the User may not access or use the GoWell system at any time.  

The term “GoWell system” means the GoWell Benefits platform (including the software features and functions, the portal and any website owned, operated, controlled and/or maintained by GoWell Benefits), which is provided in a software as a service format and the Set-Up Services, Hosting Services, maintenance and support and the Marketplace. “Marketplace” means the portion of the Go Well system that provides an opportunity for Registrants to select Third-Party Products. 

Who May Use the GoWell System: The GoWell System may be used in whole or in part by Businesses, Administrative Users, Brokers (and Business Brokers), General Agents, Carriers and Registrants in the manner as described in this Agreement. The term “Users” means and includes all of these people and entities. Here’s how each of those terms are defined: 

Business” means the corporate entity identified in the sales form and is a customer of GoWell Benefits.  

Administrative User” means the person who the Business appoints to be responsible for managing, coordinating and reporting on information from, and the operation of, the GoWell system. This term is described more below. 

Broker(s)” means a person or entity who sells, solicits, or negotiates insurance on behalf of a client for compensation and is defined in a sales form and is a customer of GoWell Benefits. A “Business Broker” means a person who works on behalf of a Business to manage the insurance needs of that Business, as defined more below. 

Carrier(s)” means an insurance provider or insurance company. 

General Agent” means a wholesaler of insurance products and services (offered by and from a variety of different Carriers) and who sells those products and services to Brokers. 

Registrant” means each of the Business’s employees and each person who may be entitled to participate in a Benefit Plan(s) provided by the Business to the extent that such employee or person has elected to participate in the Benefit Plan and has registered to access and use the GoWell system in the manner described in these terms and conditions.  

The term “Package(s)” means the particular products and services included in the GoWell Benefits platform for a specific User as detailed in the sales form. Packages may include, for example, (1) access and use of a base platform that provides basic enrollment features; (2) communication or processing services; and/or (3) or access and use of a platform that provides Registrants the ability to select Individual Coverage Health Reimbursement Arrangement plan options. 

How GoWell Uses Personal Information: The GoWell Privacy policy governs how GoWell collects, uses, and discloses information from and about Users. Here’s where the Privacy Policy can be found: https://www.gowellbenefits.com/privacy-policy

When this Agreement Takes Effect: This Agreement takes effect on the “Effective Date,” which shall occur as follows:  

(A) with respect to the Registrant, the date on which a Registrant completes the registration; and  

(B) with respect to the Business, Broker, Carrier, or General Agent the date on which the Business, Broker, Carrier, or General Agent, as applicable, signs the sales form.  

How this Agreement Governs Usage of the GoWell System: These terms of service constitute an agreement between each of the Users (meaning the Business, the Registrant, the Broker, the Business Broker, the Carrier, the General Agent and the Administrative Users) and GoWell Benefits, LLC (“GoWell Benefits”). Use of the GoWell system is conditioned upon User’s compliance with this Agreement and all applicable laws, rules, and regulations. 

II. REGISTRATION TO USE THE GOWELL SYSTEM: To use the GoWell system, a User must have an account. There are different types of accounts and ways to register, depending upon the type of User. This section explains how each type of User creates an account and registers to use the GoWell system. 

A. BUSINESS REGISTRATION 

  1. Business Sales Form. In connection with registering a Business to access and use the GoWell system, the parties will set forth specific terms in a sales form, which shall contain at a minimum: (a) the name, address and contact information of the Business; (b) the specific Package applicable to the Business (and its employees); (c) the applicable Subscription Fees; and (d) other information as determined between the parties. The sales form may also identify the health insurance plan or plans sponsored by the Business and offered to its eligible employees and their dependents, which provide a set of covered services and a provider network (“Benefit Plan”). All provisions of this Agreement shall become effective upon execution of the sales form (which is the “Effective Date” as defined above). 
  1. Business Appointment of Administrative Users. The Business may appoint and authorize an employee or consultant of the Business to be responsible for managing, coordinating and reporting on information from, and the operation of, the GoWell system, including maintaining data (which is the “Administrative User” as defined above). The Business represents and guarantees that all Administrative Users will be aware of and abide by the terms of service. Without limiting the foregoing, the Business will ensure any consultant it authorizes to be an Administrative User will only access and use the GoWell system in accordance with this Agreement, including that the consultant will only use the GoWell system for and on behalf of the Business and not for other customers or businesses of the consultant. The Business will be liable for the actions and in actions of its Administrative Users.  
  1. Business Appointment of Brokers. The Business may appoint and designate a broker on the sales form who is authorized to access and view the Business Data and to run reports and take other actions as enabled by the GoWell system (which is the “Business Broker” as defined above).  The Business represents that the Business Broker has authority to view and modify information, which may include Protected Health Information under the Health Insurance Portability and Accountability Act of 1996, as amended from time to time (“HIPAA”), to the extent selected by the Business.  In the event the Business wishes to modify the Business Broker, the Business must provide written notice to GoWell and, upon receipt of such written notice, GoWell will disable access for the first designated Business Broker and enable access for the second designated Business Broker. The Business represents and guarantees that all Business Broker will be aware of and abide by the terms of service. Without limiting the foregoing, the Business will ensure any broker it authorizes to be a Business Broker will only access and use the GoWell system in accordance with this Agreement, including that the Business Broker will only use the GoWell system for and on behalf of the Business and not for other customers or businesses of the broker. The Business will be liable for the actions and in actions of its Business Broker. 
  1. Business Acknowledgment. By registering to use the GoWell system, the Business, Administrative User(s) and Business Broker, if any, acknowledges and agrees that: (1) the Administrative User and/or Business Broker has the authority to agree to the terms of service on behalf of itself and of the Business; (2) the Business, the Business Broker and the Administrative User represent and guarantee that its use of GoWell system is solely for business purposes and not for any individual purpose; (3) the Business has and shall have throughout the Term all right and interest to provide the Business Data and all other data, including personal information, about the Registrants and others in and through the GoWell system; (4) each will keep all Registrants’ names, contact details and related information, which is inputted into or stored within the GoWell system up to date; (5) any data the Business supplies, including personal information about Registrants, will be governed by the GoWell Benefits’ Privacy Policy, and the Business, the Administrative User and Business Broker, has read, understood and accepted those policy terms. 
  1. Initial Employee Data. After the Business has registered to use the GoWell system, the Business will provide information about its employees sufficient to enable GoWell to either (i) send invitations to the employees to register to use the GoWell system (such as by text message and/or email); or (ii) create accounts for the employees (such as dates of birth, addresses and other enrollment data); or (iii) create an invitation for the Business to send to its employees. The Business will provide the information about its employees in a format reasonably acceptable to GoWell. GoWell will have no obligation to perform the services described in these terms and conditions unless and until the Business provides the information about its employees. And, the Business, rather than GoWell, has the obligation to ensure that the data provided is accurate, complete and up to date. 

B. REGISTRANT REGISTRATION. 

  1. Registrant Links. In connection with registering the employees to access and use the GoWell system: (a) GoWell will provide a link to all employees identified by the Business or the Broker, as applicable; or (b) the Business or Broker, as applicable will provide a link to all employees (all as described in A(5) above). The employees may access this link by email, text message or other means provided by GoWell.  
  1. Registrant Registration. Upon clicking the link, the employees will be asked to create an account and to provide certain personal and health information. This data will include Personally Identifiable Information and Protected Health Information as those terms are used under HIPAA and other laws and regulations. Each individual who responds to the questions and inserts information consents to the use, storage, hosting, maintenance, transition, distribution and sharing of such information as required to perform the services hereunder and as described in the Privacy Policy. The specific information sought will be determined by the Business, the Carrier, the Broker or other entity responsible for the selection and administration of the applicable Benefit Plan. Upon completion of the account creation form, the employee will be deemed a “Registrant” as that term is defined above and all provisions of this Agreement shall become effective (which is the “Effective Date” as defined above). 
  1. Registrant Acknowledgment. By registering to use the GoWell system, the Registrant acknowledges and agrees that: (1) the Registrant has read and understands these terms of service; (2) the Registrant has the authority to agree to the terms of service on behalf of itself; (3) it shall keep and maintain all contact details and related information that is inputted into or stored within the GoWell system up to date; (4) any data the Registrant supplies, will be governed by the GoWell Benefits’ Privacy Policy, and the Registrant has read, understood and accepted those policy terms; (5) the Registrant may only access the Packages provided to the Registrant and no other portion or functionality of the GoWell system; (6) the Registrant is older than thirteen (13) years of age and if the individual is older than 13, but younger than 16, the Registrant has the written consent of the individual’s parent or guardian to register to access and use the GoWell system. (If the individual is younger than 13, the individual barred from accessing and using the GoWell system and may not become a Registrant). 
  1. Limitations on Registration and Enrollment. The Business or Broker, as applicable, shall bear all responsibility in connection with any individual’s decision to register or not register for the GoWell System, to enroll in or not enroll in, or select or not select, Benefit Plans and/or Third-Party Products, to opt-out from, or waive enrollment in, each such Benefit Plan(s) and/or Third-Party Products. As such, GoWell Benefits has no liability for an employee’s failure to enroll, secure health insurance, waive coverage or take other action within the control of the Business or Broker. 

C. BROKER REGISTRATION. 

  1. Broker Sales Form. In connection with registering a Broker to access and use the GoWell system, the parties will set forth specific terms in a sales form, which shall contain at a minimum: (a) the name, address and contact information of the Broker; (b) the specific Package applicable to the Broker; (c) the applicable Subscription Fees and Reseller Fees; and (d) other information as determined between the parties. All provisions of this Agreement shall become effective upon execution of the sales form (which is the “Effective Date” as defined above). 
    • Broker’s Customers. Broker may resell access and use of the GoWell system to employers in two ways:  
      • Customer Pass Through. A Broker may pass through an employer to GoWell and the employer may become a Business in the manner as described in section II.A  above. Broker must notify GoWell of each such customer by executing a customer form. The customer form shall indicate the name, address and other information pertaining to the customer as GoWell may reasonably request to verify the customer.  
    • Customer Management. A Broker may provide management and other services to its customers utilizing the GoWell system. As such, these customers do not and will not register to access and use the GoWell system as a Business (as provided for in section II.A above) and, as such, the Broker – rather than the Broker’s customer – shall remain solely liable for all data inputted into the system, all actions and inactions of all Registrants, and all payment for all of its customers. Broker must provide information about each customer’s employees sufficient to enable GoWell to either (i) send invitations to the customer’s employees to register to use the GoWell system (such as by text message and/or email); or (ii) create accounts for the customer’s employees (such as dates of birth, addresses and other enrollment data); or (iii) create an invitation for the Business to send an invitation to customer’s employees. The Broker will provide this information in a format reasonably acceptable to GoWell. GoWell will have no obligation to perform the services described in these terms and conditions unless and until the Broker provides the information about its customer’s employees. And, the Broker, rather than GoWell, has the obligation to ensure that the data provided is accurate, complete and up to date. 
  1. Broker Acknowledgment. By registering to use the GoWell system, the Broker acknowledges and agrees that: (1) the Broker has the authority to agree to the terms of service on behalf of itself and its customers; (2) its use of GoWell system is solely for business purposes and not for any individual purpose; (3) the Broker has and shall have throughout the Term all right and interest (which may be through a license from its customers) to provide the Business Data and all other data, including personal information, about the Registrants and others in and through the GoWell system; (4) the Broker will directly or indirectly through its customers keep all Registrants’ names, contact details and related information, which is inputted into or stored within the GoWell system, up to date; (5) any data the Broker supplies, directly or indirectly, including personal information about Registrants, will be governed by the GoWell Benefits’ Privacy Policy, and the Broker, has read, understood and accepted those policy terms; (6) Broker may not use the GoWell system for or on behalf of any employer, entity or customer that is not identified to GoWell as provided for in sections II.C.1.a above and (7) Broker assume all liability and responsibility for its customers and the employees of the customers who become Registrants. 

D. CARRIER REGISTRATION. 

  1. Carrier Sales Form The parties will set forth specific terms in a Carrier sales form, which shall contain at a minimum: (a) the name, address and contact information of the Carrier; (b) the specific Package applicable to the Carrier; (c) the identity of the Carrier’s customers and Brokers who wish to access and use the GoWell system; (d) the applicable Subscription Fees and Reseller Fees; and (e) other information as determined between the parties. All provisions of this Agreement shall become effective upon execution of the sales form (which is the “Effective Date” as defined above). 
  1. Limited Access and Use. As described more fully below, Carriers may resell access and use of the GoWell system to insurance brokers and their customers. Carriers do not access and use the GoWell system on their own or on behalf of any customers or insurance brokers, except that Carriers and may create User accounts for the limited purpose of running reports pertaining to the use of the GoWell system by their Brokers and Businesses (after such entities register to become Brokers and Businesses).  
  1. Carrier Customers. Carriers may resell access and use of the GoWell system to employers and to insurance brokers. The Carrier shall notify GoWell in a format determined by GoWell each time the Carrier has identified an employer who wishes to become a Business and/or an insurance broker who wishes to become a Broker. Thereafter, the Business and/or Broker shall register to access and use the GoWell system as provided in section A and C above; provided, however, the Carrier shall remain solely liable for all Subscription Fees and payments required hereunder. 
  1. Carrier Acknowledgment. The Carrier acknowledges and agrees that: (1) it has the authority to agree to the terms of service on behalf of itself; (2) the Carrier represents and guarantees that its use of GoWell system is solely for business purposes and not for any individual purpose; (3) Carrier may not use the GoWell system for or on behalf of any employer, entity or customer that is not identified to GoWell as provided for in sections II.D.2 above and (4) Carrier assumes all liability and responsibility for its Brokers and the employees of the customers who become Registrants. 

E. GENERAL AGENT REGISTRATION. 

  1. General Agent Sales Form The parties will set forth specific terms in a General Agent sales form, which shall contain at a minimum: (a) the name, address and contact information of the General Agent; (b) the specific Package applicable to the General Agent; (c) the identity of the General Agent’s customers and Brokers who wish to access and use the GoWell system; (d) the applicable Subscription Fees and Reseller Fees; and (e) other information as determined between the parties. All provisions of this Agreement shall become effective upon execution of the sales form (which is the “Effective Date” as defined above). 
  1. Limited Access and Use. As described more fully below, General Agents may resell access and use of the GoWell system to insurance brokers and their customers. General Agents do not access and use the GoWell system on their own or on behalf of any customers or insurance brokers, except that General Agents may create User accounts for the limited purpose of running reports pertaining to the use of the GoWell system by their Brokers and Businesses (after such entities register to become Brokers and Businesses). The General Agents will have no access to any Business Data. 
  1. General Agent Customers. General Agents may resell access and use of the GoWell system to employers and to insurance brokers. The General Agent shall notify GoWell in a format determined by GoWell each time the General Agent has identified an employer who wishes to become a Business and/or an insurance broker who wishes to become a Broker. Thereafter, the Business and/or Broker shall register to access and use the GoWell system as provided in section A and C above; provided, however, the General Agents shall remain solely liable for all Subscription Fees and payments required hereunder. 
  1. Carrier and General Agent Sales Acknowledgment. The General Agent acknowledges and agrees that: (1) it has the authority to agree to the terms of service on behalf of itself; (2) the General Agent  represents and guarantees that its use of GoWell system is solely for business purposes and not for any individual purpose; (3) General Agent  may not use the GoWell system for or on behalf of any employer, entity or customer that is not identified to GoWell as provided for in sections II.D.2 above and (4) General Agent assume all liability and responsibility for its Brokers and the employees of the customers who become Registrants. 
  1. Usernames and Passwords. Upon registration in any manner set forth in this section II, GoWell Benefits will use generally commercially available methods to authenticate the Users. Upon authentication, Users must keep usernames, passwords and account details confidential. GoWell Benefits will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with any unauthorized use of a username or password. GoWell Benefits retains the right to disable any User identification code or password, if a User has violated any of the provisions of these terms of service. 

III. SET UP PERIOD: Following registration of a Business or Broker (or Broker’s customers), the parties will participate in the following activities during a so-called “Set Up Period.” 

A. Onboarding. Following registration, GoWell Benefits will work with the Business and Broker, as applicable, in connection with set-up, configuration, installing, migrating data, validating, testing, and training on the use of the GoWell system (“Onboarding Services”). The scope and timing of the Onboarding Services will depend, in part, on the complexity of the data, formulas, formats, and systems of the Business (or Broker’s customers). Subscription Fees include Onboarding Services; provided, however, GoWell Benefits reserves the right to assess additional fees, upon notice to the Business or Broker, as applicable, in the event the GoWell Benefits determines that the Business (or Broker’s customers) requires non-standard Onboarding Services in whole or in part. (For avoidance of doubt, GoWell Benefits shall not provide any Onboarding Services to Carriers, General Agents, or Registrants). 

  1. Set-Up Form and Identification of Third-Party Products. Following registration, GoWell will prepare a set-up and intake form, which confirms information contained on the sales form, identifies payroll frequency, payroll data, and other relevant information about the Business. GoWell will also confirm the applicable Benefit Plans and identify the financial, lifestyle, healthcare and other products and services offered by third parties specifically to Registrants of the Business (or Broker) through the Go Well system (“Third-Party Products”). 
  2. Establishing Connection with Third-Party Software Products.  GoWell will work with the Business and Broker, as applicable, to identify the third-party proprietary software, tools or systems that Business desires to share, import or export Business Data (defined in section IV.H) to or from, such as to import information from a payroll system, (“Third-Party Software Products”). GoWell shall thereafter establish connections to such Third-Party Software Products through use of APIs or similar connectivity. GoWell shall have no liability for the actions or actions or anything else related to the Third-Party Software Products. 

B. Training. GoWell Benefits will provide training to the Business and/or Broker, as applicable, in the format and at the times in its reasonable discretion, including for example remotely and/or train the trainer training. GoWell Benefits may also elect to provide training in the format of pre-prepared videos available to the Business and/or Broker. This training may occur concurrently with the provision of other Onboarding Services or on a day designated specifically for training. Subscription Fees include training as part of Onboarding Services; provided, however, as described in III above, GoWell Benefits reserves the right to assess additional fees, upon notice to the Business and/or Broker, in the event the GoWell Benefits determines that the Business and/or Broker requires non-standard training. (For avoidance of doubt, GoWell Benefits shall not provide any training to Carriers, General Agents, or Registrants). 

C. Portals and Web Sites. GoWell benefits may establish a portal or registration page for Registrants to access and use the GoWell system that pertains solely to the specific Business or Broker’s customers. 

D. Business Trademark and Logo. The Business and Carrier each grant to GoWell Benefits a non-exclusive, non-transferable license to use the Business’s and Carrier’s, as applicable, trademark and logo provided to GoWell Benefits to provide the GoWell system in a so-called ‘white label’ format, to create a portal or registration page, to notify and communicate with Registrants, and to take other actions as necessary to render the services described herein, all in accordance with the Business’s and Carrier’s, as applicable,  then-current trademark usage guidelines provided to GoWell Benefits, if any. The Business and Carrier each hereby consent to GoWell Benefit modifying and combining the Business’s and Carrier’s, as applicable, trademark and/or logo with the GoWell marks, such as to convey that the GoWell system is ‘powered by’ or provided by GoWell Benefits. To the extent Broker is providing management services for its customers (as described in section II.C.a.2) and the Broker desires to provide a white labeled portal or registration page for its customers, the Broker shall obtain and provide to GoWell a license to the customer’s trademark and logo for GoWell on the same terms as set forth herein and Broker shall remain liable for all rights and licenses in and to the trademark and logo. 

E. Enrollment Period. Following the conclusion of the Onboarding Services and on a date that is consistent with the Benefit Plan and determined by the Business or Broker as applicable, Registrants may enroll for Benefit Plans and select Third-Party Products. The Business or Broker, as applicable, shall be solely responsible for the selection and implementation of the enrollment period. 

F. Additional Services. Unless otherwise agreed, any configuration, data migration, customization (if any is available), training and related services following the Set-Up Period, or any other Add On Services (defined in section V.E below) will be subject to additional fees at the then-current rates of service and subject to section V.E. 

IV. ACCESS AND USE OF THE GOWELL SYSTEM:  

A. Business Access. GoWell Benefits grants the Business and its Administrative Users during the Term, a limited, non-exclusive, non-transferable, revocable license to access and use the GoWell system (and the Documentation) solely for internal purposes in accordance with the terms set forth in this Agreement. The Business may access the GoWell system through a website, link or other portal supplied by GoWell Benefits, which may change from time to time. This grant of access permits the Business to access the Packages and use the GoWell System for its internal business purposes, which includes offering the Packages to employees; enrolling employees in Benefit Plans; streamlining the benefit process; managing, optimizing and updating employee information.   

  1. Documentation” means GoWell Benefits’ user manuals, handbooks, guides and training materials relating to the GoWell system provided by GoWell Benefits to its customers generally (if any) either electronically or in hard copy form. 

B. Registrant Access. GoWell Benefits grants the Registrants during the Term, a limited, non-exclusive, non-transferable, revocable license to access and use the GoWell platform and Packages solely for personal purposes in accordance with the terms set forth in this Agreement. The Registrant may access the GoWell platform and Packages through a website, link or other portal supplied by GoWell Benefits, which may change from time to time. This grant of access permits the Registrant to access and use the GoWell platform and Packages for its personal purposes, which includes selecting and enrolling in Benefit Plans, utilizing the Packages, selecting Third-Party Products and taking advantage of health benefits offer by the Registrant’s employer. 

C. Broker Access. GoWell Benefits grants Brokers during the Term, a limited, non-exclusive, non-transferable, revocable license to access and use the GoWell system (and the Documentation) solely for the specific customers identified to GoWell in accordance with the terms set forth in this Agreement. The Broker may access the GoWell system through a website, link or other portal supplied by GoWell Benefits, which may change from time to time. This grant of access permits the Broker to access the Packages and use the GoWell system for its business purposes, which includes use for its customers. 

D. Carrier and General Agent Registration. GoWell Benefits grants Carriers and General Agents during the Term, a limited, non-exclusive, non-transferable, revocable license to access and use only a portion of the GoWell platform that enables the Carriers and General Agents to run reports concerning the use of the GoWell system by its Brokers and Businesses. 

E. Use Restrictions. No User may (either directly or indirectly) use the GoWell system or Documentation for any purposes beyond the scope of the access expressly granted in this Agreement. The User shall not at any time, directly or indirectly : (i) copy, modify, or create derivative works of the GoWell system or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the GoWell system or Documentation or serve as a service agency to any third parties (for avoidance of doubt, no User may use the GoWell system to process, analyze, or otherwise manage enrollment data for any person or entity other than the Business or a customer identified to GoWell); (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the GoWell system, in whole or in part; (iv) remove any proprietary notices from the GoWell system or Documentation; (v) use the GoWell system or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) access the GoWell system through any manner other than the link or portal provided by GoWell Benefits; (vii) directly or indirectly export, re-export, or transfer the GoWell system to prohibited countries or individuals or permit use of the GoWell system by prohibited countries or individuals. Registrant may not access, view or take any action with respect to any data other than Registrant’s own personal data. Further, the Business, Broker, Carrier and General Agent each represents that it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and that it is not listed on any U.S. Government list of prohibited or restricted parties.  

F. Responsibility for Usage.  

  1. Each Business is responsible for the acts and omissions of itself, its Administrative Users and Registrants and all directors, officers, agents and others and all uses and misuses of the GoWell system and Documentation, including without limitation any violations of the usage restrictions.  
  1. Each Broker is responsible for the acts and omissions of itself, its customers and associated Registrants and all directors, officers, agents and others and all uses and misuses of the GoWell system and Documentation, including without limitation any violations of the usage restrictions. 
  1. Each Carrier and General Agent is responsible for the acts and omissions of itself, its Brokers and associated Registrants and all directors, officers, agents and others and all uses and misuses of the GoWell system and Documentation, including without limitation any violations of the usage restrictions. 

G. Third-Party Products, Third-Party Software Products and Other Third-Party Software. To the extent GoWell Benefits integrates Third-Party Products (defined above as financial, insurance, lifestyle, healthcare and other products and services offered by third parties), Third-Party Software Products (defined above as the third-party proprietary software, tools or systems that Business desires to share, import or export Business Data, such as ADP or another payroll system, or to otherwise conduct business) and other Third-Party software (such as open source and freeware components licensed or utilized by GoWell Benefits and provided with, or incorporated into, or linked to the GoWell system, such as payment processors) into the GoWell system, such Third-Party components may be subject to their own terms of service and, if so, the applicable flow-through provisions for such Third-Party components apply.  

H. Business Data and Other Personally Identifiable Information. The term “Business Data” means information, that is entered directly by or on behalf of the Business or a Registrant through the GoWell system, which includes without limitation enrollment data and Personal Data, Personally Identifiable Information and Personal Health Information pertaining to its employees. “Personal Data” means any information that relates to an identified or identifiable living individual.  

  1. Business Supplying Data. The Business shall provide to GoWell all of the Business Data and other data and information as determined between the Business and GoWell in a format and timeline acceptable to GoWell. The Business represents and warrants that it has all right and authority to collect, distribute, disclose and otherwise provide the Business Data (in whole or in part) to GoWell. The Business is solely responsible for: (a) the accuracy, quality, integrity, legality and correctness of such Business Data; (b) the selection, creation, and update, of the Business Data; (c) and the selection and design of Business’s business controls and the implementation of those controls for the review, additions, deletions and modifications of such Business Data. 
  1. Broker Supplying Data. The Broker shall provide to GoWell all of the Business Data pertaining to the Broker’s customers and other data and information as determined between the Business and GoWell in a format and timeline acceptable to GoWell. The Business represents and warrants that it has all right and authority to collect, distribute, disclose and otherwise provide the Business Data (in whole or in part) to GoWell. As between GoWell and the Broker, the Broker is solely responsible for: (a) the accuracy, quality, integrity, legality and correctness of such Business Data; (b) the selection, creation, and update, of the Business Data; (c) and the selection and design of Business’s business controls and the implementation of those controls for the review, additions, deletions and modifications of such Business Data. 
  1. Carriers and General Agents Do Not Supply Data. Carriers and General Agents do not supply Business Data; provided, however, Carriers and General Agents will remain liable for the Business Data supplied by and for its Brokers and their customers. 
  1. Registrant Supplying Data. Registrants shall remain liable for the timeliness, completeness and accuracy of all Personal Data, Personally Identifiable Information and Personal Health Information the Registrant provides about itself. 
  2. Reservations. Each User acknowledges that GoWell will rely upon the Business Data in performing its obligations under this Agreement. GoWell is not responsible for the accuracy, integrity, or adequacy of the Business Data and, therefore, GoWell assumes no liability for the Business Data or compliance with law in connection with the use of such the Business Data or billing errors resulting from reliance on such data.  It is the sole responsibility of the applicable User to verify and ensure that all such information and data is accurate, reliable, available.  

V. SERVICES RELATED TO THE SYSTEM:  

A. Maintenance. GoWell Benefits may, in its sole discretion, and at any time, make available: software updates that fix known issues or bugs with the GoWell system; and/or software upgrades that provide functional improvements to the GoWell system, which may include new functionality, new versions of specific modules; and/or new releases of the GoWell system. In the event GoWell Benefits makes any updates, upgrades or new releases generally commercially available at no additional charge to customers of GoWell Benefits who have paid for the GoWell system, then GoWell Benefits will make it available to the Users on the same terms at no charge. In the event GoWell Benefits assesses fees for updates, upgrades or new releases, then it shall charge the Users in the manner and to the degree it charges other customers of GoWell Benefits  

B. Support. GoWell Benefits provides support in accordance with the service level standards and response time described in its service level document, which may be updated from time to time. 

C. Obtaining Support. The Business, Broker and Registrants may obtain customer support for technology problems with the GoWell system during the hours of 8 am – 5 pm Eastern time, Monday through Friday through phone, email or text. For avoidance doubt, GoWell Benefits does not offer support to Carriers or General Agents.  

D. Hosting. Users acknowledges and agrees that GoWell Benefits may utilize third-party entities to host the GoWell system and store the Business Data (the “Hosting Service(s)”), including but not limited to Microsoft and/or Azure. GoWell Benefits shall select such Hosting Services in its sole discretion and may change such Hosting Services at any time. The Hosting Service shall remain responsible for its own actions and inactions, including but not limited to disruptions in service, downtime, data loss and data security and, as such, any losses a User suffers as a result of the Hosting Service shall be satisfied first from the associated insurance policy covering cyber security and/or disaster recovery and second from the Hosting Service. The GoWell Benefits Privacy Policy provides details concerning the location and processing of Personal Data. 

E. Add On Services. GoWell Benefits may agree to provide additional services, such as customizations, the Business upon execution of a statement of work, which details the deliverables, timelines, fees, if any, and other applicable information; provided, however, any or all customizations will be made generally commercially available to all the Users who pay Subscription Fees and other fees for access to and use of the GoWell system. GoWell Benefits shall own all such customizations (and all other Intellectual Property Rights in and to the Add On Services). Each User (itself or on behalf of any and all Registrants, employees, contractors or otherwise) hereby assigns to GoWell Benefits all right, title, and interest in, and to the customizations and GoWell Benefits is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the customizations, for any purpose whatsoever, although GoWell Benefits is not required to use any customizations. 

F. Feedback. If any User sends any feedback or materials to GoWell Benefits by mail, email, telephone, or otherwise, suggesting or recommending changes to the GoWell system, including without limitation, new features or functionality, or any other comments, questions, or suggestions, (“Feedback”), GoWell Benefits shall own all such Feedback and is free to use such Feedback in its sole discretion.  

G. Limitations on Services. The Users recognize and agree that GoWell Benefits shall have no discretionary authority or discretionary control with respect to any Benefit Plan.  User has engaged GoWell Benefits to perform the services hereunder in an administrative, non-discretionary capacity.  User acknowledges that GoWell Benefits neither insures nor underwrites any liability of User under any Benefit Plan. In addition, GoWell Benefits does not guarantee the treatment of benefits under any Benefit Plan for federal income tax or for state or local income tax purposes.  User retains the ultimate responsibility for the payment of claims made under any Benefit Plans and for all expenses incident thereto.  User hereby acknowledges and agrees that User also retains ultimate responsibility for operation of its Benefit Plans, to the extent applicable, in accordance with the provisions of ERISA (if such plan is subject to ERISA), the Internal Revenue Code, the Patient Protection and Affordable Care Act and all state, federal and governmental regulations and pronouncements thereunder. GoWell Benefits shall have no obligation to ensure that any recommendations made or corrective measures suggested to User to maintain compliance of any of the Benefit Plans with the Code and/or ERISA and/or any other law or regulation are actually implemented by User and any tool used to compare plans is for information purposes only and GoWell Benefits is not rendering any personal or professional advice nor guaranteeing any particular outcomes.  GoWell Benefits shall have no liability in the event that any Benefit Plan and/or any employee and/or any dependent under any Benefit Plan is made subject to any penalty or excise tax under ERISA, the Code, PPACA or any applicable law on account of non-compliance with any applicable law. Further, User represents and warrants to GoWell Benefits that User maintains all responsibility and obligations with respect to its Benefit Plans, use of any Third-Party Products, and nothing contained herein shall in any way be construed so as to limit, assign or otherwise transfer such responsibilities and obligations to GoWell Benefits.  

VI. TERM AND TERMINATION

A. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, (or unless a different time period is specified in the applicable order form) will continue in effect for one (1) year (the “Initial Term”). This Agreement will automatically renew for one (1) year terms (the “Renewal Term” and together with the Initial Term, the “Term”) unless a party notifies the other party of its intent to not renew at least sixty (60) days prior to the end of the then-current term.  

B. Termination for Cause. In addition to any other express termination right set forth in this Agreement: GoWell Benefits may terminate or suspend this Agreement, effective on written notice to the User if the User:  

  1. fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after GoWell Benefits’ delivery of written notice thereof;  
  1. rejects the increase in Subscription Fees that are unrelated to the standard annual increase of CPI-U plus two percent;  
  1. breaches any of the usage restrictions in section IV.E.  
  1. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach (A) is incapable of cure; or (B) if capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or 
  1. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; made an assignment for the benefit of creditors  

C. Termination for Convenience. Either party may terminate this Agreement for any reason or no reason upon sixty (60) days’ notice to the other party. A Registrant or GoWell may terminate this Agreement at any time a Registration is no longer enrolled in a Benefit Plan for a Business or Broker’s customer. 

D. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the User’s right to access and use the GoWell system (or a portion thereof) shall be immediately terminated and revoked and the User shall immediately discontinue use of the GoWell system. Each party shall delete, destroy, or return all copies of the other party’s Confidential Information following the time period allowed or required by law. No expiration or termination will affect the User’s obligation to pay all undisputed fees. Should the User terminate this Agreement prior to the end of the then-current Term, the User is not entitled to receive any refunds, rebates or any other return of prepaid Subscription Fees, if any.  

E. Survival. The sections pertaining to Payment, Termination, Confidential Information, Intellectual Property, Indemnification, Warranties, Limitation of Liability and Miscellaneous shall survive any termination or expiration of this Agreement.  

F. Suspension. Notwithstanding anything to the contrary in this Agreement, GoWell Benefits may temporarily suspend any User’s access to any portion or all of the GoWell system (and Documentation) if GoWell Benefits reasonably determines that: 

  1. there is a threat or attack on any of the GoWell system;  
  1. the User’s use of the GoWell system disrupts or poses a security risk to the GoWell system or to any other customer or vendor of GoWell Benefits;  
  1. the User, is using the GoWell system for fraudulent or illegal activities;  
  1. subject to applicable law, the Business, Broker, Carrier or General Agent has ceased to continue its business in the ordinary course, such as if the entity ceased operating as a going concern; or  
  1. GoWell Benefits’ provision of the GoWell system to the User is prohibited by applicable law;  
  1. any vendor of GoWell Benefits has suspended or terminated GoWell Benefits’ access to or use of any third-party services or products required to enable the Business to access the GoWell system; or  
  1. following the applicable notice period, the User fails to pay Subscription Fees and other fees when due.  

Each of the factors set forth in (i) through (iii) above is a “Service Suspension.” GoWell Benefits shall use commercially reasonable efforts to provide written notice of any Service Suspension to the User (except to Registrants for which no notice will be provided) and to provide updates regarding resumption of access to the Services following any Service Suspension. GoWell Benefits will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the User may incur as a result of a Service Suspension. 

VII. CONFIDENTIAL INFORMATION. In the event the parties have not executed a non-disclosure agreement that governs the GoWell system or the business relationship contemplated between the parties, the following applies: 

A. Scope of Confidential Information. Either party may disclose to the other party information about its business, products, and other sensitive or proprietary information, whether orally or in written, electronic, or other form and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third-party; or (d) independently developed by the receiving party. 

B. Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to perform its obligations hereunder; provided that such persons have been informed of the confidential nature of the Confidential Information prior to such disclosure and have an obligation to maintain the confidentiality thereof. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction, use or distribution of the Confidential Information. 

Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings.  

C. At Termination. Unless otherwise required by law, on the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.  

Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.  

D. Audit Right. Subject to GoWell Benefits’ reasonable security and confidentiality procedures, the Business or Broker (and not any other User) may, during the Term, upon at least ten (10) days’ notice to GoWell Benefits, and in a manner as to cause minimal interruption to GoWell Benefits’ business, audit the books, records and accounts of GoWell Benefits to the extent the books, records and accounts pertain to the specific GoWell system provided to the Business or Broker hereunder; further provided that any such audit not occur more than once during any twelve-month period and during normal business hours. The Business or Broker may use an external auditor to conduct the audit provided that such auditor is reasonably acceptable to GoWell Benefits. To the extent the Business or Broker seeks to audit the network or storage and maintenance of data, the Business or Broker shall have no access to or ability to perform any vulnerability tests or within GoWell Benefits’ network and environment and shall not have access to any of the following: (i) information relating to other customers of GoWell Benefits or information not related to the Business or Broker; (ii) access to GoWell Benefits’ locations/premises (or portions thereof) that are not related to the Business or Broker; (iii) GoWell Benefits’ records or documents relating to costs, margin or profitability; (iv) GoWell Benefits’ personnel records; (v) GoWell Benefits’ internal audit reports; (vi) information covered by legal privilege. In addition, Business and Broker are not entitled to take photographs of facilities, equipment or to make copies of floor plans, wiring, network or systems diagrams or other technical or infrastructure-related documentation in connection with any audit. If the audit shows GoWell Benefits overpaid Broker, GoWell Benefits will re-compute the amount due and Broker will immediately refund the overage. If the audit shows GoWell Benefits overcharged a Broker or Business, GoWell Benefits will re-compute the amount due and immediately issue a credit to the Broker or Business’s account, as applicable. 

VIII. FEES AND PAYMENT  

A. Subscription Fees.  

  1. Calculation of Fees. GoWell Benefits charges a monthly fee for access to and use of the GoWell system, which is calculated based upon the number of Registrants per Business (or per Broker’s customer) per month and the applicable Package (“Subscription Fees”) without offset or deduction. The Subscription Fees will be set forth on the applicable sales form. The number of Registrants will be determined on the first of each month and will be fixed for that month, regardless of how many Registrants are added or removed in the ensuing month. For avoidance of doubt, the calculation will be based on the number of Registrants and not on the number of employees. GoWell Benefits may also assess platform fees, set-up fees, implementation fees, or other similar fees and, in which, case, they will be set forth on the applicable sales form. 
  1. Invoicing Subscription Fees. GoWell Benefits will submit an invoice electronically to the entity and to the address and in the format identified in the applicable sales form. Invoices for Add On Services and other fees as described herein will be invoiced monthly for the services rendered in the preceding month. Invoices may be sent to, and paid by, Businesses, Brokers, Carriers, General Agents, or another third-party administrator identified in the applicable sales form. 
  1. Responsibility to Pay Fees. Regardless of the entity that is responsible for paying the invoice, the Business, Carrier, General Agent and/or Broker, as applicable, shall remain solely and directly liable for all Subscription Fees and other fees due hereunder. The failure to pay such fees on the date and in the manner provided for herein shall entitle GoWell Benefits to suspend access and use of the GoWell system and/or terminate this Agreement and/or pursue all rights and remedies available under the law. 
  1. Fee Increases. GoWell systems may increase Subscription Fees as follows: (a) prior to the start of each Renewal Term during the Term, the Subscription Fees shall increase in an amount equal to CPI-U (the Consumer Price Index) plus two percent (2%), which will be reflected in the next applicable invoice; and (b) GoWell Benefits may increase Subscription Fees with notice to the Business or Broker, as applicable, with no less than thirty (30) days of such increase and provide an opportunity for the Business to accept or reject such increase. If the Business or Broker rejects the increase, GoWell Benefits may terminate as provided for in section VI.B.  

B. Additional Components, Packages and Add Ons. The Subscription Fees may increase in the event the Business or Broker (or other User) procures additional components, training, modules, Packages, interfaces and other products and services that may be made available from time to time, in which case the additional components will be pro-rated from the date of the sales form for such additional components, through the end of the applicable Initial Term or Renewal Term and then added in full into the Subscription Fees for the remainder of the Term. Subscription Fees may not be decreased or downgraded during the Term.  

C. Reseller Fees. To the extent a Broker, Carrier or General Agent is reselling access and use of the GoWell system to employers or customers, GoWell Benefits shall charge fees based upon the number of Registrants per month and the applicable Package, without offset or deduction, and in the manner and amount as specified in the sales form. 

D. Payment. All payments shall be made in US dollars on the date and in the manner determined as set forth in the sales form. If payments are not paid in full within thirty (30) days after notice that such payment is overdue, without limiting GoWell Benefits’ other rights and remedies: (i) GoWell Benefits may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) the Business or Broker, as applicable shall reimburse GoWell Benefits for all costs incurred by GoWell Benefits in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) GoWell Benefits may suspend the Business’s and its Registrants’ and the Broker’s and its customers access to any portion or all of the GoWell system until such amounts are paid in full. 

  1. Payment Processor. To the extent payment transactions are completed through the use of a third-party payment processor, such processor shall be selected by GoWell Benefits, in its sole discretion. GoWell Benefits does not operate, own, or control the payment processor; thus, all payments and all transaction fees, are governed by the User’s agreement with the payment processor, not these terms of service. The User will provide the payment provider any information required in order to make payments via the payment provider. GoWell Benefits will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with the third-party payment processor.  The User agrees to immediately notify the payment processor of any change in billing address or other information as may be relevant to payment processing.  
  1. ACH. To the extent payment transactions are completed through the use of ACH withdrawal, whether through a Business, a Third-Party Software Product (such as a payroll company), a third party administrator, a Business Broker or other such party, the account holder hereby authorizes GoWell Benefits to withdrawal funds from this account and to provide information to GoWell Benefit’s clearing bank. The account holder hereby agrees and guarantees that the required funds will be on deposit in the account specified within twenty-four (24) hours of its approval and are available to allow GoWell Benefits to receive fees as provided for herein. Any fines or penalties assessed to the account will be the sole responsibility of the account holder. For avoidance of doubt, GoWell Benefits is not a bank, money transmitter or Money Services Business and GoWell Benefits does not offer banking or Money Service Business services. The ACH process may subject the account holder to a monthly administrative charge, which will automatically be deducted from the account on a monthly basis independent of any other fees due.  

E. Taxes. The Business or Broker (or other User), as applicable, is responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the Business or Broker (or other User) hereunder, other than any taxes imposed on GoWell Benefits’ income, unless the Business or Broker (or other User) provides GoWell Benefits with a valid and current tax exemption certificate or like exemption documentation authorized by the appropriate taxing authority. All Subscription Fees and other amounts payable under this Agreement are exclusive of taxes and similar assessments.

    F. Marketplace Fees. GoWell Benefits may offer Registrants an opportunity to select Third-Party Products in the Marketplace within the GoWell system. GoWell Benefits will identify the Third-Party Products in connection with the sales form with the Carrier. Carrier will pay GoWell Benefits for each such Third-Party Product sold to a Registrant in accordance with the fees and payment terms set forth in the sales form. 

    IX. INTELLECTUAL PROPERTY; DATA; FEEDBACK.  

    A. Intellectual Property Rights” means all intellectual property, including but not limited to source code, object code, software and all future modifications, revisions, updates, releases, improvements, enhancements, and customizations thereto, trademarks, design features, visual expressions, technologies, screen formats, report formats and any and all ideas, methods, algorithms, formulae and concepts used in development of the software, and all derivative works based upon any of the foregoing and all copyrights, patents, trade secrets and other intellectual property rights now known or developed in the future worldwide.  

    B. GoWell Benefits IP. The Users acknowledge that GoWell Benefits owns all right, title, and interest, including all Intellectual Property Rights, in and to the GoWell system and Documentation and all associated features, functions, modules, Feedback and the like (and for avoidance of doubt GoWell Benefits IP includes aggregated statistics and any information, data or other content derived from GoWell Benefits’ monitoring of the services, but does not include the Business Data). With respect to Third-Party Software Products, the applicable third-party own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Software Products.  

    C. Business Data.  The Business and/or the Broker (or other User), as applicable, grants GoWell Benefits a limited, non-exclusive, revocable license to use the Business Data for the limited purpose of rendering the services and providing the GoWell system as described herein. This license shall terminate upon termination of this Agreement and, unless otherwise required by law, GoWell Benefits shall have no further right or license to use the Business Data in connection with rendering the services and, as such, GoWell Benefits shall destroy or remove the Business Data in accordance with GoWell Benefits’ standard business practices, but in no event more than thirty (30) days following the termination of this Agreement. The User may not be able to access the Business Data through the GoWell system following termination of this Agreement.  

    D. Reports. The Business, Broker, General Agent, and/or Carrier, as applicable, shall own all reports generated from the GoWell system and, as such, each is free to copy, distribute, and display reports for its internal business purposes in furtherance of the purpose for which the report was created (but not to develop a service competitive to the GoWell system or to distribute the reports to competitors of GoWell Benefits). 

    X. INDEMNIFICATION.  

    A. GoWell Benefits Indemnification. GoWell Benefits shall indemnify, defend, and hold harmless the Business and Broker from and against any third-party claim, suit, action, or proceeding: (A) based on an allegation or claim that the GoWell system infringes or misappropriates such third-party’s intellectual property rights and (B) based on GoWell Benefits’ gross negligence or willful misconduct. 

    1. With respect to indemnification for infringement, GoWell Benefits, at GoWell Benefits’ sole discretion, may (A) modify or replace the GoWell system, or component or part thereof, to make it non-infringing, or (B) obtain the right for the Business or Broker to continue to use it. If GoWell Benefits determines that neither alternative is reasonably available, GoWell Benefits may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to the Business or Broker. 
    1. Any obligation to indemnify the Business or Broker for IP infringement will not apply to the extent that the alleged infringement arises from: (A) use of the GoWell system by the Business or Broker or any third-party in combination with data or software not provided by GoWell Benefits or not authorized by GoWell Benefits in writing; (B) modifications to the GoWell system not made by or at the direction of GoWell Benefits; and (C) Third-Party Software Products. 
    1. Unless specifically identified in X(A) above, GoWell Benefits shall have no obligation to indemnify any Users (any Business, Broker (or Business Broker), Carrier, General Agent, Registrant, Administrative Users), or others. Therefore, among other things, GoWell Benefits shall have no obligation to indemnify any of the foregoing in connection with (A) the Business Data; (B) Third-Party Software Products; (C) Third Party Products; (D) Registration and Enrollment (or any of the limitations set forth in B(4) above; and/or (E) the Limitations on Services set forth in V(G).  

    B. User Indemnification. User shall indemnify, defend, and hold harmless GoWell Benefits from and against any third-party claim, suit, action, or proceeding, and any losses incurred by GoWell Benefits resulting therefrom (A) related to or in connection with ownership of the Business Data and/or that the Business Data, or any use of the Business Data in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights or violates any privacy law, rule or regulation and (B) based on the User’s (i) gross negligence or willful misconduct; (ii) use of the GoWell system in a manner not authorized by this Agreement; (iii) use of the GoWell system in combination with data or software, not authorized by GoWell Benefits in writing; and (C) the User’s breach of this Agreement. 

    C. All claims for indemnification hereunder require (i) the indemnified party to promptly notify the indemnifying party in writing of the claim; (ii) the indemnifying party to reasonably cooperate in defense of the claim; (iii) the right for the indemnified party to participate in the defense thereof by counsel of its own choice; (iv) the indemnifying party to have the sole authority to control the defense and settlement of such claim provided that the indemnifying party may not settle any third-party claim against indemnified party unless the indemnified party consents to such settlement.  

    XI. WARRANTIES; LIMITATIONS OF LIABILITY AND REMEDIES.  

    A. GOWELL BENEFITS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITAITON ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GOWELL BENEFITS MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, DOCUMENTATION OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.  

    B. EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF SECTIONS 4(A-F) (ACCESS), X (INDEMNIFICATION) IN NO EVENT WILL EITHER PARTY (OR ITS DIRECTORS, EMPLOYEES, SHAREHOLDERS, OFFICERS,OR AGENTS) BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; LOSS OF GOODWILL OR REPUTATION; USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; FAILURE TO BE ABLE TO USE THE SYSTEM, OR COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. AND, IN NO EVENT WILL GOWELL BE LIABLE FOR ANY PAYMENT OF CLAIMS, ENROLLMENT IN, MAINTAINENCE OF, OPERATION OF, TAXATION OF, OR OTHER USE OF OR ACTION WITH RESPECT TO ANY BENEFIT PLAN OR THIRD-PARTY PRODUCT. 

    C. IN NO EVENT WILL GOWELL BENEFITS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL SUBCRIPTION FEES PAID TO GOWELL BENEFITS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The parties recognize and agree that section 7 sets forth the Business’s sole remedies (and GoWell Benefits’ obligations) for claims of infringement.  

    XII. MISCELLANEOUS.  

    A. Entire Agreement. This Agreement is the entire agreement between GoWell Benefits and the User for the provision of services and the use of the GoWell system and supersedes all other proposals and agreements, whether electronic, oral or written, between the parties. Any additional or different terms including those contained in any sales form or purchase order are void. GoWell Benefits obligations are not contingent on the delivery of any future functionality or features of the GoWell system or dependent on any oral or written public comments made by GoWell Benefits regarding future functionality or features of the GoWell system. 

    B. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the registration page, with respect to the Registrant and the sales form with respect to other Users (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this section. 

    C. Force Majeure. Neither party will be responsible for any failure or delay in performing its obligations under this Agreement (except for payment of fees when due), if and to the extent such failure or delay is caused by any circumstances beyond the party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, pandemic, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Upon occurrence of any force majeure event, the party invoking the force majeure shall give reasonable notice to the other party of its inability to perform or of delay, except with respect to Registrants where no individual notice is required.   

    D. Severability, Modification and Waiver. If any portion of this Agreement is held to be void, invalid or otherwise unenforceable, in whole or part, the remaining portions of this Agreement shall remain in effect. This Agreement may not be modified or amended except in writing signed by an authorized representative of both parties. A party’s failure to exercise any rights herein shall not constitute or be deemed a waiver or forfeiture of such rights. If a party wishes to waive its rights hereunder, it must provide written notification of its rights to the other party. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion. 

    E. Governing Law. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision.  

    F. Assignment. Users will not assign or transfer this Agreement without GoWell Benefits’ prior written consent, which will not be unreasonably withheld. GoWell Benefits may assign this Agreement in the event of merger, reorganization, sale of all or substantially all of GoWell Benefits’ assets, change of control or operation of law.  

    G. Dispute Resolution. All claims, disputes or controversies arising under or relating to this Agreement and/or the relationship of the parties shall be settled by binding arbitration in the Commonwealth of Pennsylvania or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in software licensing and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. 

    H. Reservation of Rights. GoWell Benefits reserves all rights not expressly granted to the User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to the User or any third-party any intellectual property rights or other right, title, or interest in or to the GoWell system and Documentation. 

    I. Relationship of the parties. This Agreement and the use of the GoWell system, does not, and shall not be construed as creating any relationship, joint venture, partnership, employment, or agency relationship in any way and of any kind between the parties hereto. 

    J. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.