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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.
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
B. REGISTRANT REGISTRATION.
C. BROKER REGISTRATION.
D. CARRIER REGISTRATION.
E. GENERAL AGENT REGISTRATION.
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).
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.
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.
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.
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.
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:
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:
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.
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.
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).
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.
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.
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.