Terms of Service
This Terms of Service is effective as of the Effective Date in the Purchase Order between Confirmidy, LLC (“Confirmidy”) and Client (as named in the Purchase Order). This agreement provides for the implementation and administration of the benefits technology owned by Confirmidy. The parties agree as follows:
1. Definitions and Defined Terms
1.1 Defined Terms. Terms defined in the preamble have their assigned meanings and each of the following terms has the meaning assigned to it.
“Agreement” means these Terms of Use, as may be amended from time to time.
“Brand Assets” means all logo and related names, logos, products, service names, designs, slogans, and marketing materials owned by Confirmidy.
“Business Day” means any day Confirmidy is open for business.
“Carrier” means an insurance or group employee benefits entity offering Products for employee benefit plans.
“Client Information” means information provided by Client to Confirmidy for Confirmidy to provide Services.
“Confidential Information” means any and all proprietary, including Intellectual Property, technical, financial, or operational information, trade secrets, software code and algorithms, and any other data or material of a party that is of a non-public or confidential nature, either marked or unmarked and would reasonably be considered confidential, which has been disclosed by one party to the other party in tangible or intangible form, including oral communications, or otherwise has come into the possession of the other Party, except for information that:
(i) is or becomes publicly known, other than through any act or omission of the receiving Party;
(ii) was in the other Party’s lawful possession before the disclosure, and such evidence can be shown by tangible evidence;
(iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure, which receipt can be shown through tangible evidence; or
(iv) is independently developed by the receiving Party, which independent development can be demonstrated by written evidence.
“Documentation” means all documents, demonstration materials, webinars, system user guides or other documentation and manuals made available by Confirmidy to Client from time to time.
“Effective Date” has the meaning assigned to it in the Purchase Order, or the date the Client begins using the Sites.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996.
“Initial Term” has the meaning assigned to it in the Purchase Order.
“Intellectual Property” means, without limitation, the Platform, Documentation, the Confirmidy name and logo, any inventions, technological innovations, discoveries, designs, formulas, know-how, processes, business methods, patents, trade secrets, trademarks, service marks, copyrights, computer software, algorithms, domains, web presence, advertising and promotional materials, ideas, creations, writings, lectures, illustrations, photographs, motion pictures, scientific and mathematical models, improvements to all such property, and all recorded material defining, describing, or illustrating such property, whether in tangible or intangible manifestations.
“Intellectual Property Rights” means, without limitation, all right, title, and interest to any inventions, technological innovations, discoveries, designs, formulas, know-how, processes, business methods, patents, trademarks, service marks, copyrights, computer software, algorithms, domains, web presence, advertising and promotional material, ideas, creations, writings, lectures, illustrations, photographs, motion pictures, scientific and mathematical models, improvements to all such property, and all recorded material defining, describing, or illustrating such property, whether in tangible or intangible manifestations of such intellectual property.
“Login Credentials” means a Platform user’s unique username and password.
“Loss” means any demand, claim, proceeding, suit, judgment, loss, liability, costs, expense, fee, penalty, or fine.
“Normal Business Hours” means the hours Confirmidy is normally open for business.
“Personnel” means employees, representatives, agents, subcontractors, and other persons whom Client or Confirmidy have authority or oversight of.
“PHI” means protected health information as defined under HIPAA.
“Platform” means Confirmidy’s benefit technology platform, hosted and maintained by Confirmidy, to provide the Services.
“Products” means products offered by a Carrier and administered on the Platform.
“Purchase Order” means the agreement executed between Confirmidy and Client describing the Initial Term and purchase price for access to the Platform and referencing this Agreement.
“Routine Maintenance Window” means 10:00pm – 2:00am Central Time each day and all day on holidays.
“Services” means the implementation and administration of the Platform.
“Software” means the software applications provided by Confirmidy as part of the Services.
“Term” has the meaning assigned to it in Section 2.
“Termination Date” means the date the Agreement is terminated pursuant to Section 11, of this Agreement.
2. Term
2.1 Effective Date. This Agreement is effective on the Effective Date.
2.2 Term. Except as provided in Section 11, this Agreement will begin on the Effective date and continue through the Initial Term. The Agreement will then automatically renew for successive one-year terms, until terminated as provided in Section 11.
3. Fees
3.1 Calculation. Client shall pay Confirmidy the PEPM fee defined on the Purchase Order. The number of employees for the PEPM fee calculation will be based on the number of current employees and number of terminated employees enrolled on benefits on the Platform on the 15th of the previous month.
3.2 Taxes. This fee may be subject to Sales and Use Tax, or other applicable taxes, provided however, Sales and Use Tax will not be applied if Client provides a tax exemption certificate.
3.3 Fee Changes. Fees are subject to change at each renewal date of this Agreement. Confirmidy shall provide Client 90 days’ notice of any potential fee change.
3.4 Commencement of Fees. Confirmidy shall send Client the first invoice for Services on the first of the month following Effective Date. Thereafter, Confirmidy will invoice Client on the 1st of each month until this Agreement is terminated in accordance with Section 11.
3.5 Late Payments. Client shall pay the invoice within 30 days of receipt. In the event of nonpayment, Confirmidy may, at its option and in addition to any other right that it has under this Agreement, at law or in equity, terminate this Agreement under Section 11 and cease Services to Client.
3.6 Additional Compensation. In some circumstances, Confirmidy may earn additional compensation from insurance carriers in the form of bonuses, overrides, profit sharing, non-financial rewards, or contingent commissions, which may be based on the amount of premium and profitability of all the insurance business Confirmidy places through insurer. This compensation is not guaranteed. Any additional compensation or rewards earned will be retained by Confirmidy.
3.7 Additional Fees. Any additional services not specifically provided for in this Agreement may incur additional costs and require execution of a new agreement.
4. Confirmidy Representations and Warranties.
4.1 Hosting and Operation. Confirmidy will host, operate, and maintain the Platform in a commercially reasonable manner.
4.2 Implementation and Administration. Confirmidy will implement and maintain the Client’s plan information on the Platform in compliance with applicable state and federal laws and regulations.
4.3 Support Services. Confirmidy will provide Client with standard customer support services during Normal Business Hours.
4.4 Maintenance of Platform. Confirmidy routinely maintains the Platform during the Routine Maintenance Window. However, there are times when the Platform requires non-routine maintenance. If non-routine maintenance is required, Confirmidy shall provide Client as much notice in advance as reasonably possible, but no such notice is guaranteed. Client should expect intermittent disruption of services during maintenance of the Platform.
4.5 Confirmidy may make changes to the Services, Documentation, Software, and Platform in its sole discretion, at any time.
4.6 Notwithstanding the foregoing, Confirmidy:
(a) does not warrant Client’s use of the Services will be uninterrupted or error free; or that the Service, Documentation and/or the information obtained by Client through the Services will meet the Client’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5. Client’s Representations and Warranties.
5.1 Client shall:
(a) provide Confirmidy with all necessary cooperation and assistance to enable Confirmidy to meet its obligations under this Agreement;
(b) provide all requested and necessary information for employee enrollment;
(c) maintain employee eligibility data within the Platform, including managing and maintaining terminations and new hires in a timely manner;
(d) carry out Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Client’s provision of such assistance, Confirmidy may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) ensure Client’s Personnel use the Services and Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Personnel’s breach of this Agreement;
(f) obtain and maintain all necessary licenses, consents, and permissions necessary for Confirmidy and its Personnel to perform their obligations under this Agreement, including without limitation the Services;
(g) keep a full back-up copy of all its data, including but not limited to Client Information; and
(h) be solely responsible for ensuring that appropriate environmental conditions are maintained, per relevant specifications provided by Confirmidy from time to time, for its receipt and use of the Services; and
(i) be solely responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client’s network connections or telecommunications links or caused by the internet.
5.2 Electronic Data Interchange. Client authorizes Confirmidy to exchange Client data with Carriers, third party administrators, payroll companies, and other service providers as needed to provide the Services.
5.3 Employee Accounts. Each user provided access to the Platform by Client, including Personnel, will be given an account with unique Login Credentials. Login Credentials shall not be shared with anyone. Client is solely responsible for maintaining the confidentiality of their Login Credentials. Confirmidy may suspend use of the Platform, without notice, pending an investigation if any breach of security regarding Login Credentials is suspected.
5.4 Authorization for Broker Access. If Client has an insurance broker, then Client grants their broker access to Client Information to allow broker and Confirmidy to provide Services.
5.5 Use of Client Trademarks. Client grants Confirmidy the limited, non-exclusive license, worldwide, to use during the Term of this Agreement, Client’s trademarks on the Platform and on any Documentation created by Confirmidy for Client’s use.
5.6 Website Terms of Use. Client shall abide by Confirmidy’s Terms of Use for its website and the Platform, available on Confirmidy’s website, as may be amended from time to time.
6. Intellectual Property Rights.Confirmidy owns all Intellectual Property Rights in the Intellectual Property of Confirmidy, including Confirmidy’s website, Platform, and other software. Client is granted a limited, non-exclusive right to use the Platform in accordance with the terms of this Agreement. No other right, title, or interest in or to Confirmidy’s Intellectual Property or any content therein is transferred to Client and all rights not expressly granted are reserved by Confirmidy.
7. Confidential Information
7.1 Non-disclosure. To perform its obligations under this Agreement, each Party may be given access to Confidential Information and shall hold the other’s Party’s Confidential Information in strict confidence, using at least the same degree of care as it employs to safeguard its own Confidential Information, but no less than reasonable care. The Parties shall not, unless required by law, subject to Section 7.2(b), make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than to fulfill obligations under this Agreement.
7.2 Restrictions on Use. Each Party may disclose Confidential Information to:
(a) Personnel that have a need to know such information, provided that each person is under a duty of non-disclosure that is at least as protective of the Confidential Information as the confidentiality and non-disclosure provisions herein; and
(b) persons or entities whom a Party is legally compelled to disclose such Confidential Information, provided that the non-disclosing Party is given advanced notice of such compelled disclosure, if legally permitted to do so, and shall cooperate with the other Party in connection with any efforts to prevent or limit the scope of such disclosure or use of the Confidential information.
7.3 Each Party to this Agreement shall promptly notify the other Party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other Party all reasonable assistance in connection with any proceedings which the other Party may institute against such person for breach of confidence.
7.4 Remedies. The Parties recognize Confidential Information is of a special, unique, extraordinary value, which may not be reasonably or adequately compensated in damages in any action at law and that a breach by either Party of this Section 7 may cause the owner of the Confidential Information irreparable injury and damage. The Parties agree that, in addition to any other remedies in equity or at law, a Party may seek the remedies of injunction, specific performance and other equitable relief without the necessity of proving damages.
8. Data Security.
8.1 If either Party receives PHI, non-public personal information within the meaning of the Gramm-Leach Bliley Act, or any data subject to state privacy laws from any Personnel or other Party under this Agreement, receiving Party agrees to protect such information or data in compliance with all applicable law.
8.2 Security Requirements. Each Party agrees to establish and maintain:
(i) administrative, technical, and physical safeguards against the destruction, loss, or alteration of PHI; and
(ii) appropriate security measures to protect PHI, consistent with applicable state and Federal laws and regulations relating to personal information security.
8.3 Remediation.If either Party becomes aware of any circumstance that may constitute or result in a breach of security, including threats and perceived threats to security, that Party will immediately notify the other Party, who will promptly investigate and take all commercially reasonable steps to remedy the breach. Each Party will be responsible for all security breaches and the costs of remediation, including credit monitoring and notification services, except to the extent a breach is caused by the other Party. If a Party becomes aware of a deficiency in the other Party’s security practices, that Party shall notify the other Party of the deficiency. The deficient Party shall have 30 days to remedy the deficiency to the other Party’s satisfaction.
8.4 Business Associate Agreement. The parties shall execute and abide by a separate Business Associate Agreement if Client provides PHI to Confirmidy.
9. Indemnity. Each Party shall indemnify, hold harmless, and defend the other Party, its affiliates and their respective officers, directors, employees, agents, successors, and permitted assigns from and against any and all claims, losses deficiencies, judgments, settlements, interest, awards, fines, causes of action, damages, liabilities, costs, penalties, taxes, assessments, charges, punitive damages, and expenses of whatever kind, including reasonable attorney’s fees, that are incurred by the indemnified Party, as a result of any grossly negligent, reckless, or intentional act or omission of indemnifying Party in performing its obligations under this Agreement.
10. Limitation of Liability.
10.1 Except as expressly and specifically provided in this Agreement:
(a) Client assumes sole responsibility for results obtained from the use of the Services, Software, and Documentation, and for conclusions drawn from such use. Confirmidy shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to Confirmidy by the Client, or any actions taken by Confirmidy at Client’s direction; and
(b) to the fullest extent permitted by applicable law the Sites, Services, Software and/or the Documentation are provided to Client on an “as-is” basis and Confirmidy makes no warranties, representations, conditions, either express or implied, about the Sites, Services, Software, or Documentation, whether imposed by statute or by operation of law or otherwise, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
10.2 CONFIRMIDY’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO CONFIRMIDY IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE, PROVIDED ALWAYS THAT CONFIRMIDY SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, OR LOSS OF ANTICIPATED SAVINGS, OR LOSS OF USE OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, HOWEVER ARISING UNDER THIS AGREEMENT. THIS PROVISION APPLIES REGARDLESS OF CAUSE, AND EVEN IF CAUSED BY THE NEGLIGENCE OF CONFIRMIDY OR CONFIRMIDY’S AFFILIATES, SUBCONTRACTORS, OR PERSONNEL.
10.3 Third Party Software. Client’s use of third-party vendors, software, services, and other products is governed by the terms of any license or other agreement between Client and the third party. CONFIRMIDY SHALL HAVE NO LIABILITY OR RESPONSIBILITIES RELATED TO AND MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING THIRD-PARTY PRODUCTS AND RELATED SOFTWARE SERVICES. Confirmidy is not responsible for any services or products provided by a third party.
11. Termination.
11.1 Termination without Cause. Either Party may terminate this Agreement without cause upon 90 days’ prior written notice.
11.2 Termination with Cause.
11.2.1 By Law. This Agreement shall terminate immediately upon:
(a) a determination by a court of law that an essential term of this Agreement violates any federal, state, or local law or regulation; or a change in law or regulation that renders this Agreement unlawful;
(b) the institution by or against either Party for insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of the Party’s debts;
(c) either Party making an assignment for the benefit of creditors; or
(d) either Party’s election to dissolve and liquidate.
11.2.2 For Breach. This Agreement may be terminated immediately by either Party in the event the other Party to this Agreement:
(a) materially breaches the Agreement;
(b) the non-breaching Party provides written notice of the breach, demanding the breach be cured; and
(c) after 30 days of notice of the breach, the breach continues.
11.3 Termination upon Intellectual Property Claim by Client. Confirmidy may, without prejudice to any other rights or remedies to which it may be entitled, terminate this Agreement immediately upon written notice to Client, if Client disputes the ownership or validity of Confirmidy’s Intellectual Property Rights.
11.4 On termination of this Agreement for any reason:
(a) all rights granted under this Agreement shall terminate with effect from the Termination Date;
(b) each Party shall return and make no further use of any equipment, property, documentation, and other items (and all copies of them), which includes but is not limited to Confidential Information, belonging to the other Party;
(c) Client’s right to receive the Services shall cease automatically and no refunds (whether pro-rata or otherwise) of any amount will be payable to the Client;
(d) Client and its Personnel shall make no further use of the Services or Documentation;
(e) Confirmidy may destroy or otherwise dispose of any of the Client Information in its possession after the 10th Business Day following the Termination Date, so long as the destruction or disposal of any PHI complies with applicable state and federal laws and regulations; and
(f) Client shall immediately pay all amounts due Confirmidy under this Agreement.
11.5 Return of Confidential Information. Subject to each Party’s obligation to maintain records in accordance with this Agreement, by law, or by the Party’s record retention policy, upon termination of this Agreement each Party will promptly:
(a) return the other Party’s confidential information, if feasible;
(b) destroy all confidential information of the other Party that cannot feasibly be returned to the other Party;
(c) ensure any Personnel of the Party also return or destroy all confidential information of the other Party in accordance with this Agreement; and
(d) upon request, provide an attestation to the other Party verifying the return or destruction of the other Party’s confidential information.
Failure to return or destroy Confidential Information in compliance with this Section 11.5 shall result in termination of this Agreement “for cause” as defined in Section 11.2.
11.6 Comingled Data. If the Confidential Information of a Party has been comingled with the other Party’s Confidential Information such that it cannot feasibly be separated for return or destruction, the other Party shall keep all comingled data confidential according to the terms of this Agreement.
11.7 The provisions of this Section 11 and Sections 1 (Definitions), 7 (Confidentiality), 8 (Data Security), 9 (Indemnity), 10 (Limitation of Liability), 12 (Force Majeure), and to the extent applicable, 13 (General Provisions), shall survive the termination of this Agreement, however it arises, and shall continue to bind the Parties or the relevant Party (as applicable) without limit in time.
11.8 Termination of this Agreement shall not affect any rights of the Parties accrued up to the Termination Date.
12. Force Majeure. Neither Party shall have liability to the other under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of telecommunications networks, acts of God, epidemics, pandemics, war, riot, civil commotion, malicious damage, or compliance with any law or governmental order, provided that the other Party is notified of such an event and its expected duration.
13. General Provisions.
13.1 Governing Law.The laws of Tennessee govern all matters arising under or relating to this Agreement, including torts.
13.2 Dispute Resolution. If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the Parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association closest to the Party filing the dispute, under its Commercial Mediation Procedures before resorting to arbitration. The Parties further agree that any unresolved controversy or claim arising out of relating to this Agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association closest to the Party filing the dispute, in accordance with its Commercial Arbitration Rules and judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
13.3 Notices.
13.3.1 Notices and other communications under or in connection with this Agreement shall be given by e-mail, save that service of any notice of any legal proceedings in connection with this Agreement shall be made by registered mail, with tracking service. Any such notice, if so given, shall be deemed to have been served:
(a) after 1 Business Day, if it is sent by a nationally recognized courier with package tracking capabilities;
(b) after 3 Business Days, if it is sent by certified or registered mail with prepaid postage, and a return receipt was requested;
(c) if sent by hand, when delivered; or
(d) if sent by e-mail, 6 hours after sending, provided the sender has not received a notice of failed or delayed delivery.
13.3.2 All notices should be sent to the following addresses and indicated contacts:
(a) All notices for Confirmidy shall be addressed as follows:
Confirmidy, LLC
Attn: Counsel
116 Agnes Rd
Suite 200
Knoxville, TN 37919
Email: compliance@confirmidy.com
(b) All notices for Client shall be addressed to Client at the email and address provided on the Purchase Order.
13.4 Interpretative Provision. If any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
13.5 Confirmidy may enter similar agreements with third parties, independently develop, use, sell, or license documentation, products, or services which are similar to those provided under this Agreement.
13.6 Further Assurance. Each Party shall, at its own cost, do and execute, or arrange for the doing and executing of, each necessary act, document, and thing as may be reasonably necessary and requested of it by the other Party to implement this Agreement.
13.7 Assignment and Delegation. Neither Party may assign nor delegate, in whole or in part, by operation of law or otherwise, any of its rights or obligations under this Agreement without the other Party’s prior written consent, except for any delegation by Confirmidy to an affiliate or subcontractor to fulfill its obligations under this Agreement.
13.8 Authority to Bind. Each Party represents and warrants that it is fully qualified to enter into this Agreement, to perform the obligations hereunder, and has full legal power and authority to do so.
13.9 Successors and Assigns. This Agreement binds and benefits the Parties and their respective permitted successors and assigns.
13.10 No Third-Party Beneficiary Rights. No provision in this Agreement is intended, nor shall this Agreement create any rights with respect to the subject of this Agreement in any third party.
13.11 Independent Parties. This Agreement shall not be construed as constituting or creating a partnership, joint venture, agency or other association or relationship between Confirmidy and Client. To the extent that either Party undertakes or performs any duty for itself or for the other Party as require by this Agreement, the Party will be construed as acting as an independent contractor and not as a partner, joint venture, or agent of the other Party.
13.12 Compliance with Laws. Each Party shall comply with all applicable federal or state laws, rules, and regulations in performing services under this Agreement.
13.13 Amendments. The Parties may amend this Agreement only by an agreement in writing that both Parties execute.
13.14 Sole and Entire Agreement. The express terms of this Agreement constitute the sole and entire agreement between the Parties and supersedes all prior written and oral agreements or understandings. Each Party acknowledges that it is not relying, and will not seek to rely, on any term or condition which is not expressly set out in this Agreement.
13.15 Waiver, Rights Cumulative. Each of the rights of each Party under this Agreement may be exercised as often as is necessary, is cumulative and not exclusive of any other rights which that Party may have under this Agreement, law, or otherwise, and may be waived only in writing and specifically. Delay by a Party in exercising, or the non-exercise of a Party, of any such right shall not constitute a waiver of that right.
13.16 Severability. If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or incapable of being enforced by any rule of Law or public policy, all other terms, provisions, and conditions of this Agreement shall nevertheless remain in full force and effect.