END USER SERVICES AGREEMENT
Modified last on November 16, 2020
PLEASE READ THIS AGREEMENT AND ANY CORRESPONDING ORDER CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
This End User Services Agreement (“Agreement”) sets forth the terms and conditions under which PlanSource Benefits Administration, Inc. (“PlanSource”) agrees to provide certain hosted “software as a service” for its proprietary online, web-based applications and platform (“Platform”) to you (“End User” or “Employer Group”), together with, if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, and training, as well as certain add-on benefits outsourcing services made available by PlanSource via the Platform or otherwise (each such service and the Platform together are the “Services”). By accepting these terms and conditions through the process of executing an Order or otherwise accessing or using the Services, you agree to this Agreement. If you do not agree to the terms and conditions contained in this Agreement, do not access or use the Services.
The terms of this Agreement shall apply to your access to and use of the Services identified in an Order (including, any exhibits and/or statements of work thereunder). The terms of the Order between End User and PlanSource shall control over any conflicting terms in this Agreement. This Agreement, without waiving or otherwise releasing any right or obligation under any prior agreement or similar document or agreement of PlanSource, including but not limited to its End User License Agreement, Technology and Services Agreement, Platform License and Services Agreement, Software as a Services Agreement, and Statement of Services (collectively, “Prior Agreements”), hereby amends and restates any such Prior Agreement as of the Effective Date.
If you are obtaining or have obtained any Service from a PlanSource authorized reseller of the Services (“Authorized Reseller”) then the terms of this Agreement shall apply to you only with regard to those Services that you obtain directly from PlanSource. The terms of the agreement by which you order or obtain any Service from an Authorized Reseller is be between you and Authorized Reseller and such agreement shall not amend or modify any terms of this Agreement. In addition, if the fees you pay under this Agreement are discounted based on your relationship with Authorized Reseller or with any PlanSource referral partner (“Referral Partner”), or if an Authorized Reseller or Referral Partner pays any fees on your behalf, the discounted fees or payment arrangement between you and the Authorized Reseller or Referral Partner shall be in effect for so long as the relationship remains in effect. If the relationship is terminated for any reason, PlanSource, upon written notice to you (such notice which may be sent via email), will adjust the fees in the applicable Order to its current retail fees or otherwise agreed-upon fees. This adjustment will be effective the first day of the month immediately following delivery of notice to you.
- a. This Agreement specifies the general terms and conditions pursuant to which PlanSource will provide the Services. Specific terms for a transaction, including the Services to be provided by PlanSource, fees, payment term, term and renewal and other applicable terms and conditions, shall be set forth in an ordering document that references this Agreement and is mutually executed or entered into through electronic consent by PlanSource and End User or, an order form, quote or other ordering document issued by PlanSource and signed by End User (each such ordering document is a “Order” and this Agreement, together with the applicable Order, is the “Agreement”). End User’s Affiliates may engage PlanSource under this Agreement pursuant to Orders that are entered into directly by PlanSource and such Affiliate, or by PlanSource and End User (on behalf of such Affiliate), provided that End User shall ensure that each such Affiliate complies with all obligations under this Agreement, and End User shall be responsible for all acts and omissions of such Affiliate. Except as otherwise set forth in writing via written amendment or otherwise, there will be no force or effect to any different or inconsistent terms of any related ordering document or similar form of End User (or any of its Affiliates), even if signed by the parties after the date hereof. “Affiliate” means, with respect to either party, any entity controlled by, controlling, or under common control with such party, either now or in the future. An entity “controls” another entity when it owns more than fifty percent (50%) of the voting interests of the controlled entity.
2. Restrictions and Responsibilities.
- a. End User will not, and will not permit or assist any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, the Platform, or any other software, documentation or data related to the Services, or any portion thereof; (ii) modify, translate, or create derivative works based on the Services or Platform (or any portion thereof), or copy, publicly display, sell, sublicense, loan, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Platform; (iii) remove, obscure or alter any proprietary notices (including but not limited to trademark and copyright notices) on any of the Services or Platform (or any portion thereof); (iv) use the Services or Platform for any benchmarking purposes, or for application service provider, timesharing or service bureau purposes, or any purpose other than End User’s own internal use as contemplated by this Agreement; (v) use the Services or Platform other than in accordance with this Agreement and in compliance with all applicable documentation and applicable laws and regulations (including but not limited to any applicable privacy, data protection and intellectual property laws); (vi) take any action that imposes, or may impose an unreasonable or disproportionately large load on PlanSource’s infrastructure as determined by PlanSource, in its sole discretion, or otherwise interfere with the proper working of the Services, including conducting any load or penetration testing on the Services; (vii) upload invalid data, viruses, worms, or other software agents through the Services; or (viii) disable or bypass the measures that PlanSource may use to prevent or restrict access to the Services or use the Services or Platform in excess of service capacity limits or usage restrictions set in this Agreement or otherwise determined by PlanSource. End User acknowledges that the Services may include features to prevent use after the applicable term or use inconsistent herewith. In addition, End User shall keep the Services and Platform strictly confidential and shall not provide them or otherwise make them or any part thereof available to any third party including without limitation, any third party who provides products or services similar to the Services without PlanSource’s express written consent.
- b. The successful implementation and ongoing use of the Services is contingent upon End User fulfilling its responsibilities in any applicable Service Exhibit attached to this Agreement or any Order. PlanSource will not be liable for any delays or failure to provide the Services that are caused by End User’s failure to fulfill such responsibilities or otherwise comply with any requirements set forth in any Service exhibit.
- c. End User will cooperate with PlanSource in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as PlanSource may reasonably request. End User will also cooperate with PlanSource in establishing a password or other procedures for verifying that only designated employees of End User have access to any administrative functions of the Services.
- d. End User will be responsible for maintaining the security of its account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of End User’s account.
3. End User Data.
- a. End User shall be solely responsible for the accuracy, quality, content, and legality of any data, information, or material originated by End User that End User submits, collects or provides in the course of using the Services (“End User Data”). PlanSource is under no obligation to review, edit, censor, control, or question the completeness or accuracy of any End User Data. PlanSource will not be responsible for any losses or expenses that arise from End User’s submission of incorrect, incomplete, or untimely End User Data. PlanSource, in its sole discretion, may charge a fee to take corrective action resulting from End User’s incorrect, incomplete, or untimely submission of End User Data.
- b. Each party shall apply reasonable technical, organizational and administrative security measures, as appropriate relative to the Services, to keep End User Data protected in accordance with industry standards. Service interaction with End User Data varies depending on the nature of the Service. End User shall at all times retain a current copy of End User Data outside the Services for backup and archival purposes. If PlanSource reasonably believes a problem with the Services may be attributable to End User Data, End User shall cooperate with PlanSource to identify the source of and to resolve the problem. End User shall comply with all intellectual property laws and obligations related to the End User Data, as well as all legal duties applicable to End User by virtue of using the Services, including providing all required information and notices and obtaining all required consents from its employees, consultants and agents, as applicable. This Agreement states PlanSource’s exclusive obligations with respect to care of End User Data.
- c. PlanSource shall have no obligation to maintain, or make any determination regarding, any legally required participant or beneficiary documents, whether mandated by the Employee Retirement Income Security Act of 1974 and regulations thereunder, as amended (“ERISA”) or other applicable law or regulation. Except to the extent PlanSource is required to maintain documents in its provision of the Services, End User or its insurance carrier will, as mandated by applicable law or agreement, be responsible for maintaining required documents regarding employee eligibility for insurance coverage. PlanSource will not be liable for any discrepancies between the End User Data maintained in the Services or otherwise in PlanSource’s possession or control, and the information maintained by End User or its insurance carrier except to the extent such discrepancies are caused by PlanSource.
- d. End User may download its End User Data in a file in PlanSource’s standard format at any time during the term of this Agreement. PlanSource has no obligation to maintain End User Data following expiration or termination of this Agreement or the affected Services.
- e. PlanSource will retain and dispose of all End User Data in accordance with PlanSource’s data retention and disposal policies and procedures. PlanSource will retain End User Data only as long as is necessary to implement, administer, and manage the Services during the Term, or to comply with applicable legal or regulatory obligations.
- f. Subject to the terms of this Agreement, End User acknowledges and agrees that PlanSource may use all data inputted into or collected by the Services, including but not limited to the End User Data, on a historical, aggregated and de-identified basis (collectively, “Usage Data”) in compliance with applicable laws and this Agreement to provide the Services and for any commercial purposes, including but not limited to the distribution and provision of the Usage Data to other PlanSource customers and for the preparation and distribution of benchmarking, research, and analytical materials. Usage Data shall not identify End User as the source of any specific data, pattern or finding, nor shall it include any personally identifiable information of any individual users of the Services. PlanSource shall maintain appropriate security measures for all Usage Data in accordance with the terms and conditions of this Agreement. PlanSource will be the sole and exclusive owner of all right, title and interest to such Usage Data and, notwithstanding anything to the contrary, shall be free to use and disclose on a world-wide and royalty-free basis the Usage Data for its business purposes set forth herein.
4. Acquisition of Non-PlanSource Products.
- a. PlanSource may from time to time make available to End User the option to purchase and integrate certain online applications and software products owned and provided by third party vendors with whom End User separately contracts to provide services, which are not owned or operated by PlanSource (“Non-PlanSource Products”). Any such integration will be available only upon request by End User and pursuant to a separate written agreement that includes confidentiality and non-disclosure requirements between End User and the third party vendor who provides such Non-PlanSource Product (the “Non-PlanSource Product Vendor”). Any acquisition by End User of such Non-PlanSource Products, and any exchange of data or information between End User and the Non-PlanSource Product Vendors, is solely between End User and the applicable Non-PlanSource Product Vendor. Except as otherwise expressly stated in writing, PlanSource does not endorse any Non-PlanSource Products, whether or not they are designated by PlanSource as “certified” or otherwise. Subject to Section 4.c, no purchase of Non-PlanSource Products is required to use the Services except a supported computing device, operating system, web browser, and Internet connection.
- b. If End User requests the integration of any Non-PlanSource Product for use with the Platform, End User acknowledges that, PlanSource may allow the Non-PlanSource Product Vendors to access End User Data to the extent required for the interoperation of such Non-PlanSource Products with the Services. PlanSource shall not be responsible for any disclosure, modification, or deletion of any End user Data resulting from any such access by Non-PlanSource Product providers except to the extent such disclosure, modification, or deletion of the End User Data is caused by PlanSource.
- c. The Services may contain features designed to interoperate with Non-PlanSource Products. To use such features, End User may be required to obtain access to such Non-PlanSource Products from their providers. If the provider of any Non-PlanSource Product discontinues making the Non-PlanSource Product available for interoperation with any corresponding Service, PlanSource may discontinue providing such Non-PlanSource Product without entitling End User to any refund, credit, or other compensation.
5. Privacy and Data Protection; HIPAA and GDPR.
- b. PlanSource will comply with all applicable data privacy and security laws and regulations that apply to the provision of the Services, including without limitation the Health Insurance Portability and Accountability Act of 1996, and regulations thereunder (“HIPAA”), and its implementing regulation, the Standards of Privacy of Individually Identifiable Health Information and the Health Information Technology for Economic and Clinical Health Act (“HITECH”), as amended from time to time, and the EU General Data Protection Regulation (“GDPR”).
- c. To the extent that PlanSource receives or has access to personally identifiable health information, PlanSource covenants that it will treat, hold, protect and return such information in accordance with the terms of its HIPPA Business Associate Agreement available at http://plansource.com/collateral/HIPAA_BAA.PDF, which is incorporated into this Agreement by reference.
- a. PlanSource may perform certain administrative services under this Agreement for End User’s group employee benefits plan(s) (collectively, referred to as the “Plan(s)”). Such Services shall not include or imply any discretionary authority by PlanSource over the operation of the Plan that would cause PlanSource to be deemed the “plan administrator,” “plan sponsor” or other “fiduciary” as defined under ERISA. Accordingly, to the extent the Services require PlanSource to assist the Plan administrator (“Plan Administrator”), the performance of such Services shall consist of only those ministerial functions enumerated in the Department of Labor Regulations § 2509.75-8, D-2 (relating to report preparation required by governmental agencies, employee communications material, recommendations regarding plan administration, etc.) and PlanSource shall perform such Services within the framework of policies, interpretations, rules, practices, and procedures established by End User and Plan Administrator. Consequently, all PlanSource activities with respect to, or on behalf of the Plan shall be subject to review, modification, or reversal by Plan Administrator or any other fiduciary so authorized by the Plan. PlanSource shall have no discretionary or final authority to control or manage administration of the Plan, or to manage or invest assets of the Plan.
- b. PlanSource shall have no responsibility, risk, liability or obligation for the funding of the Plan or for the payment of any benefits of the Plan or other liabilities, whether resulting from the ongoing operations of the Plan, termination of the Plan, a change by the Plan in its funding method from or to full or partial insurance, or the nonpayment by an insurer of amounts due to the Plan or any Plan participant. Such responsibility, risk, liability, and obligation shall at all times reside and remain solely with End User, the Plan, the Plan Administrator, or such other persons designated by the Plan.
7. Proprietary Rights.
- a. Except as otherwise provided in this Agreement, PlanSource and its suppliers and licensors own and shall retain ownership of, and all rights, title and interest (including without limitation all Intellectual Property Rights) in and to: (i) the Platform and the Services; (ii) any software, applications, inventions or other technology developed by or on behalf of PlanSource in connection with the Services, including but not limited to the Platform; and (iii) Usage Data and Documentation and any improvements or derivative works thereof. End User will have no rights with respect to PlanSource Intellectual Property Rights, the Services, Usage Data, or any related guides and other documentation for the Services that PlanSource provides to End User (“Documentation”) other than those expressly granted under this Agreement and PlanSource expressly reserves all other rights in and to the Platform, the Services, Usage Data, and the Documentation. Notwithstanding the foregoing, as between PlanSource and End User, End User owns all End User Data, and all other electronic data that End User, or any of its respective employees, agents, or representatives, load or enter into the Platform or otherwise provide and all results from processing such data, including compilations and derivative works of such data or information. “Intellectual Property Rights” means any and all registered and unregistered intellectual property rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- b. The Platform consists in whole or in part on software running on servers controlled by PlanSource. End User does not have the right to receive, nor shall PlanSource provide End User, either an object code or source code version of the Platform. Neither the source code nor object code version of the Platform, nor any related Documentation pertaining to or describing the same, shall be considered a deliverable under this Agreement. End User’s usage rights are constrained by the terms of this Agreement and are limited to accessing the Services via a designated portal using usernames(s) and password(s) .
- c. If End User provides PlanSource with reports of defects in the Services or propose or suggest any changes or modifications (collectively “Feedback”), PlanSource shall have the right to use and exploit such Feedback including, without limitation, the incorporation of such Feedback into PlanSource’s software products and/or services, including the Services, without any obligation to End User or diminishment of PlanSource’s Intellectual Property Rights.
- a. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. PlanSource Confidential Information includes the Platform, the Services and any and all object code and source code relating thereto, the Documentation, all pricing and fees relating to the Services as well as any non-public information or material regarding PlanSource’s legal or business affairs, finances, technologies, clients, employees, contractors, Affiliates, properties, or data; and Confidential Information of each party includes the terms and conditions of this Agreement (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that, without breach of any obligation owed by Receiving Party to Disclosing Party: (i) is or becomes generally known to the public; (ii) was lawfully known to Receiving Party prior to its disclosure by Disclosing Party without any obligations of confidentiality or other restriction on use or disclosure; (iii) is received from a third party that, to Receiving Party’s knowledge, is not under any obligation of confidentiality to the Disclosing Party; or (iv) was independently developed by Receiving Party.
- b. Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care): (i) not to use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by Disclosing Party in writing, to limit access to Confidential Information of Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality no less stringent than those herein. Except as otherwise permitted by this Agreement, neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance hereunder.
- c. Receiving Party may disclose Confidential Information of Disclosing Party to the extent compelled by law to do so, provided Receiving Party gives Disclosing Party prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure. If Receiving Party is compelled by law to disclose Disclosing Party’s Confidential Information as part of a civil proceeding to which Disclosing Party is a party, and Disclosing Party is not contesting the disclosure, Disclosing Party will reimburse Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- d. Upon the written request of Disclosing Party or termination of this Agreement, Receiving Party shall return or destroy all Confidential Information of Disclosing Party, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form. Each party may retain a copy of the other party’s Confidential Information to the extent required by applicable law or regulation for archival purposes. To the extent that it is impracticable to return or destroy any Confidential Information, and with respect to any copies retained for archival purposes, receiving party shall continue to maintain the Confidential Information in accordance with this Agreement. The confidentiality obligations set forth in this Agreement shall survive the termination of this Agreement and remain in full force and effect until such Confidential Information, through no act or omission of receiving party, ceases to be Confidential Information as defined hereunder.
9. Term and Termination.
- a. This Agreement is effective when End User accepts the term and conditions herein and is valid for the Order in which this Agreement is incorporated by reference. This Agreement shall automatically terminate when all Orders expire or are terminated.
- b. The “Initial Term” of a Service starts on the date of such Order and continues for the time period stated therein. Except as otherwise set forth in the Order, Services subscriptions shall automatically renew for additional “Renewal Terms” equal to the original duration of the expiring term, unless either party gives the other notice of non-renewal at least 180 days before the end of the then current term.
- c. Upon completion of the Initial Term, PlanSource may terminate an Order by providing End User written notice of termination 60 days prior to the end of Initial Term or Renewal Term in effect, with such termination to be effective at the end of the current Initial or Renewal Term.
- d. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement or the applicable Order Form for the affected service and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party. Either party may terminate this Agreement upon written notice if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within 90 days of its commencement or an assignment for the benefit of creditors.
- e. If End User terminates an Order, or any Service provided hereunder, without cause or proper notice at any time during the current term, or if PlanSource terminates this Agreement at any time for End User’s material breach, then End User will pay PlanSource early termination charges with respect to the terminated Services in an amount equal to any unpaid fees for the remaining term of such terminated Services, plus the balance of any unpaid non-recurring charges associated with such terminated Services. End User agrees the actual damages in the event of such termination would be difficult or impossible to ascertain, and that such termination charges are intended, therefore, to establish liquidated damages for such early termination and are not intended as a penalty.
- f. If requested by End User, upon termination or non-renewal of this Agreement by either party, provided that PlanSource hasn’t terminated this Agreement or any Service provided hereunder due to End User’s breach, PlanSource shall provide End User with continued Services (as are already being provided to End User and under the same terms and conditions in effect at the time of termination or non-renewal), for a period mutually determined by the parties (“Transition Period”) following the effective date of termination or non-renewal. If requested by End User, PlanSource shall provide transition services under the terms of this Agreement as modified by this provision in order to facilitate the orderly transfer by End User from use of PlanSource’s Service to alternate services (collectively “Transition Services”). Such Transition Services shall be provided to End User at the Service Fees rates applicable upon the effective date of termination and for the duration of the Transition Period and shall be provided without interruption of the Services. To the extent End User requests Transition Services that are beyond the scope of this Agreement, the parties shall, by mutual written agreement, define the additional scope and pricing.
- g. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
10. Fees and Payment.
- a. Except as otherwise set forth in an Order, End User agrees to pay for all products and services ordered under the Agreement as set forth in an Order. End User will provide PlanSource with valid and updated billing and invoicing data or approved purchase order information and complete and accurate billing and contact information.
- b. If PlanSource invoices End User on an annual basis for any Services, End User authorizes PlanSource to bill and invoice: (i) at the time that End User orders any products or services, for all products and services set forth in the Order; (ii) for End User’s usage that exceeds the usage limits set forth in the Order; and (iii) at the time of any renewal, for the amount charged for any Renewal Terms. PlanSource will invoice End User at the time of the initial Order and approximately one month in advance of the start of any renewal or subsequent billing period. All amounts invoiced hereunder that are not the subject of a written good faith dispute are due and payable upon receipt of the invoice. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
- c. If any amount owing by End User is 60 days or more overdue, PlanSource may, without limiting its other rights and remedies, accelerate End User’s unpaid fee obligations so that all such obligations become immediately due and payable, suspend the Services until such amounts are paid in full, and seek collection of all amount past due, including reasonable attorney’s fees and costs of collections. PlanSource will give End User at least seven days prior notice that its account is overdue, before suspending the Services.
- d. Upon the first anniversary of the Effective Date, the fees will automatically increase each year by 6% above the prior-year’s pricing. Notwithstanding any of the foregoing, PlanSource reserves the right to modify the Fees (and applicable discounts) at any time as may be necessary to compensate for changes in: (i) local, state, or federal laws applicable to the Services that impact the administration of the End User’s group health plan and that result in new features, functionality, or deliverables designed to comply with changes to applicable laws; (ii) Non-PlanSource Products costs that are necessary to integrate the Non-PlanSource Product purchased by End User within the Platform (e.g., custom API); (iii) carrier products, offerings, credits and discounts exclusive to End User; or (iv) changes in End User’s participation in any applicable carrier program.
- e. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonized, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). End User is responsible for paying all Taxes associated with its purchases pursuant to this Agreement, if applicable. If PlanSource has the legal obligation to pay or collect Taxes for which End User is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by End User, unless End User provides PlanSource with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, PlanSource is solely responsible for taxes assessable against PlanSource based on its income, property and employees.
- f. If End User makes any payments under this Agreement by electronic funds transfer through the Automated Clearing House network (ACH), End User authorizes PlanSource to: (i) initiate debit entries to its account at the depository financial institution identified on an authorization form to be provided by PlanSource; and (ii) debit End User’s account in such amounts and at such times as are necessary to pay PlanSource: (1) any fees or charges associated with the Services, including, without limitation, finance charges; and (2) any other amount that End User owes under this Agreement. This authorization will remain in full force and effect until PlanSource receives written notice from End User of its intent to terminate the Agreement, at which time the authorization shall continue in such time and such manner as to afford PlanSource and the depository financial institution a reasonable opportunity to act upon the termination. End User will maintain immediately available funds sufficient to cover all transactions initiated by PlanSource under this Agreement. If End User does not have sufficient funds in its account to pay amounts due at the time required, or if End User refuses to pay, PlanSource will attempt to notify End User electronically, by telephone, or in writing, but in any event, PlanSource may suspend or refuse to perform further Services. PlanSource will charge a fee of $35.00 for each non-sufficient funds transaction. Should the Services be recommenced following suspension, PlanSource may require End User to pre-pay for the Services and charge a reconnection service fee. The ACH network is controlled and managed by the National Automated Clearinghouse Association (“NACHA”) and its member organizations. Where submitting charges over the ACH network, End User is required to comply NACHA Operating Rules and any additional ACH authorization or electronic funds transfer agreements PlanSource provides to End User.
11. Warranties; Disclaimers.
- a. PlanSource hereby represents and warrants that Services shall be performed in a timely, workmanlike and professional manner and in accordance with sound and generally accepted industry standards and practices and in accordance with, and at all times, PlanSource shall comply with any and all applicable laws, codes, rules, regulations or other governmental or regulatory requirements relating to its obligations pursuant to this Agreement.
- b. End User warrants that: (i) it will not misrepresent any Services in terms of capabilities or usage; and (ii) it will comply with all applicable laws, codes, rules, regulations or other governmental or regulatory requirements relating to its obligations pursuant to this Agreement.
- c. The Platform will be accessible 99.0% of the time, measured monthly (the “Uptime Guarantee”). The Uptime Guarantee shall not apply where downtime or interruption of the Platform results from: (i) regular planned outages for repairs and upgrades (i.e., monthly maintenance, quarterly software deployment, etc.) scheduled in advance and announced with reasonable advance notice; (ii) occasional unplanned outages scheduled in advance and announced at least two weeks in advance (iii) other emergency, but planned outages we deem necessary to maintain the performance, integrity, security, and availability of the system, and of which we will make commercially reasonable efforts to notify you as soon as practicable (typically 1-3 days in advance), provided that such outages are scheduled after business hours in order to cause minimal disruption to your use of the Platform; (iv) issues or failures with End User’s equipment, service providers, software, communications or internet providers; (v) the actions, omissions, or failures of any End User third party providers that are not contracted with PlanSource in order to provide the Services; (vi) the material acts or omissions of End User; (vii) any suspension or termination of End User’s access to the Services by PlanSource consistent with the terms of this Agreement; or (vii) a Force Majeure Event.
- d. If PlanSource fails to comply with the Uptime Guarantee, it will use commercially reasonable efforts to provide End User with an error correction or work-around that corrects the reported non-conformity. The remedies set forth in this Section 11.d will be End User’s sole remedy for PlanSource’s failure to meet the Uptime Guarantee.
- e. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, PLANSOURCE AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE SERVICES, THE PLATFORM, AND THIRD PARTY SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF SERVICE. PLANSOURCE AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS END USER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PLANSOURCE AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT: (I) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; OR (II) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL END USER PURCHASES OR OBTAINS THROUGH THE SERVICES WILL MEET END USER’S REQUIREMENTS. END USER ACKNOWLEDGES THAT NEITHER PLANSOURCE NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PLANSOURCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY PLANSOURCE, THE SERVICES ARE PROVIDED TO END USER ON AN “AS IS” BASIS.
12. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS, OR SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. PLANSOURCE’S MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR REALATED TO THIS AGREEMENT OR ANY ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO PLANSOURCE FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVEN RISE TO SUCH CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED FROM END USER TO PLANSOURCE UNDER SUCH ORDER. UNLESS OTHERWISE SET FORTH IN THIS AGREEMENT, THE REMEDY HEREUNDER IS INTEDED TO BE THE SOLE AND EXCLUISVE REMEDY FOR END USER FOR ANY BREACH OF THIS AGREEMENT BY PLANSOURCE.
- a. End User acknowledges that by entering into and performing its obligations under this Agreement, PlanSource does not assume and should not be exposed to the business and operational risks associated with End User’s business. Accordingly, End User shall indemnify and hold harmless PlanSource, its officers, directors, employees and Affiliates against all liabilities, obligations, losses, costs, damages, and other expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by PlanSource that result from a third party claim to the extent such Loss arises from: (i) any material breach by End User of this Agreement; (ii) End User’s use of the Services; (iii) a third party’s use of the Services authorized or facilitated by End User; (iv) the inaccuracy or incompleteness of Data input into, or modified within the Services by End User; (v) a claim or allegation that the End User Data, or PlanSource’s authorized use thereof, infringes a U.S. patent or copyright or misappropriates the Intellectual Property Rights of any third party; (vi) any violation of any law or regulation by End User, or any of its officers, directors, employees, contractors or agents; or (vii) or willful misconduct or gross negligence by End User or any of its employees, agents or contractors.
- b. Provided that End User is then not in material default of this Agreement, PlanSource shall indemnify and hold harmless End User and its Affiliates and each of their employees, officers, directors, and agents against any and all Losses to the extent such Losses arises from: (i) any material breach of this Agreement by PlanSource or any of its employees, agents, or contractors; (ii) any breach of applicable law or regulation by PlanSource or any of its employees, agents, or contractors; (iii) a claim or an allegation that the Services, or any permitted use thereof by End User infringes a U.S. patent or copyright or misappropriates the Intellectual Property Rights of any third party; or (iv) willful misconduct or gross negligence by PlanSource or any of its employees, agents or contractor.
- c. Notwithstanding the indemnity obligations specified under this paragraph or anything to the contrary under this Agreement, PlanSource shall have no defense or indemnification obligation or other liability for any Loss arising from: (i) End User’s use of the Services other than in accordance with this Agreement; (ii) modification of the Services by any party not under the supervision or control of PlanSource; (iii) the combination of the Services with any materials contributed by End User or any third parties if the Services would not infringe without such combination; (iv) any third-party products, services, hardware, software or other materials; or (v) any obligation of End User to indemnify PlanSource hereunder.
- d. In the event a party seeks indemnification hereunder (the “Indemnified Party”), it shall inform the other party (the “Indemnifying Party”) of a Loss as soon as reasonably practicable after it receives notice of the Loss, shall permit the Indemnifying Party to assume direction and control of the defense of the Loss (including the right to settle the claim solely for monetary consideration), and shall cooperate as requested in the defense of the Loss. Any delay or failure by the Indemnified Party to give notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent, if at all, that it is materially prejudiced by reason of such delay or failure.
14. Dispute Resolution. The parties will attempt in good faith to resolve informally any disputes or disagreements relating to this Agreement. The aggrieved party will notify the other party in writing of the nature of the dispute with as much detail as possible. Each party will designate a representative with full authority to address and resolve the dispute. The designated representatives will meet (in person or by telephone) no later than 15 business days after the date of the written notification to reach an agreement about the nature of the dispute and the corrective action the parties will take. If the designated representatives do not meet or are unable to agree on corrective action, the parties will have 30 days within which to institute a one-day mediation with a third-party mediator mutually agreeable to both parties. The parties will share the cost of the mediation, exclusive of attorneys’ fees. Neither party may initiate legal action arising out of or relating to this Agreement until the party initiating legal action has reasonable attempted to comply with this dispute resolution procedure, provided, however, that neither party shall be required to comply with this section in the event of the other party’s breach of any confidentiality obligations of this Agreement.
15. Relationship of the Parties. The parties are independent contractors in the performance of this Agreement. This Agreement does not create or imply any partnership, agency, or joint venture. Neither party will have, or hold itself out to third parties as having, authority to bind or enter into any agreement on the other party’s behalf.
16. Subcontractors. PlanSource may use subcontractors, including offshore subcontractors, in its delivery of the Services. PlanSource will ensure its subcontractors comply with the obligations and restrictions in this Agreement and will be solely responsible for the performance of such subcontractors under this Agreement.
17. Press Release; End User List. End User may not issue any press release or other public statement regarding the terms or subject matter of any agreement or relationship with PlanSource without PlanSource’s prior written consent. End User agrees that PlanSource may use End User’s name or logo to identify End User as a customer of PlanSource on PlanSource’s website, in a press release, and as a part of a general list of PlanSource’s customers for use and reference in PlanSource’s corporate and marketing literature. The permissions granted under this paragraph are revocable by a party in its reasonable discretion.
18. Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, PlanSource may assign this Agreement with notice to End User in connection with any merger or acquisition or sale of all or substantially all of PlanSource’s or any of its Affiliate’s assets or stock. Such assignment will not in any event relieve the assignor of any obligations that accrue under this Agreement prior to any such assignment.
19. Force Majeure. Except for End User’s payment obligations under this Agreement, neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control (“Force Majeure Events”), including but not limited to: (i) acts of God; (ii) war (or the threat of war), acts of terrorism or other civil disorder or unrest; (iii) government orders, laws and regulations; (iv) disasters, strikes or other labor disturbances (except those involving the employees or agents of the party seeking the protection of this clause); (v) epidemics, pandemics and quarantines; (vi) national or regional emergencies; or (vii) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event.
20. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Florida, without giving effect to its principles of conflicts of law. Venue for any action brought under this Agreement will be exclusively in Orange County, Florida.
21. Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission, with confirmed answer back, or electronic mail, with confirmation of receipt, to PlanSource or End User at the respective addresses the parties provide to each other or to such other addresses as the parties may from time to time specify by notice given as provided in this paragraph. In the case of PlanSource, the address is 101 S. Garland Avenue, Ste. 203, Orlando, Florida 32801, Attention: Legal Department.
22. Modifications and Updates. PlanSource may on one or more occasions modify or update this Agreement. PlanSource will post notices of Agreement modifications or updates through links placed on the PlanSource website or login pages or provide notification by other means. Please review this Agreement periodically for modifications or updates. If End User uses the Services after PlanSource posts any modifications or updates, End User will be deemed as having accepted them. If End User does not agree to any modified or updated terms of the Agreement or changes to other PlanSource policies, End User should discontinue its use of the Services, and this will be End User’s sole and exclusive remedy. If there is a conflict between this Agreement and the most current version of this Agreement posted on the PlanSource website, login pages, or otherwise provided to End User, the most current version will prevail. For questions regarding this Agreement or to request a paper copy of this Agreement or any previous versions, please email PlanSource at Legal@plansource.com.
23. Severability; Waiver. If any provision of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of this Agreement shall continue in force, and if any such provision may be made enforceable by limitation, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law. All waivers by either party will be effective only if in writing. Any waiver or failure by either party to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
24. Non-Solicitation. During the Term and for a period of one year after expiration or termination of this Agreement, End User will not, directly or indirectly, solicit or attempt to solicit, divert, or hire away any person employed by PlanSource without its written consent; provided that nothing in herein shall prohibit the use of general solicitation in a publications or by other means.
25. No Legal Advice. The Services do not include, and PlanSource does not provide, investment, tax, compliance, or legal advice. If End User requires legal or other expert advice, End User should consult its own legal counsel or professional advisor. End User will engage appropriate counsel for any legal advice or compliance with labor and employment law matters or any and all other legal and compliance matters and provide findings to PlanSource as required for system updates or corrections.
26. Entire Agreement. This Agreement, including any exhibits, schedules and attachments hereto, constitutes constitute the entire understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous agreements, proposals, understandings, commitments, or negotiations with respect thereto, including, without limitation, any confidentiality or non-disclosure agreements, whether written or oral, and any prior click-wrap, shrink-wrap, or browse-wrap agreements between the parties with respect to the terms and conditions hereof. There are no other oral or written understandings, terms, or conditions, and neither party has relied upon any representation, express or implied, not contained in this Agreement.