- LICENSE GRANTS.
Authorized User License. You are an Authorized User that has been identified as a Subscriber as set forth herein. Benefit Next hereby grants you a limited, revocable, non-exclusive, nontransferable license to access and use for your internal business purposes the Benefit Next Service. This license permits you to (i) access the Benefit Next Service via the Internet, and (ii) use the features and functions provided. Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to you or any third party. Moreover, all access to any software utilized in connection with the Benefit Next Service shall be on a remote and Software-as-a-Service basis. You will not have any right to any programming code or a full copy of any software.
One-User One-License. Authorized Users are provided with one set of sign-on credentials per license to access the Benefit Next Service. You agree that the sign-on credentials provided to you are yours alone and shall not be shared with others not so authorized by Benefit Next. Benefit Next has the right to monitor access of the Benefit Next service at any time and without notice to determine compliance with this one-user to one-license requirement or to otherwise determine utilization of the Benefit Next Service by Authorized Users. Benefit Next has the right to immediately and without notice terminate your access to the Benefit Next Service should a violation of this agreement be found. In such event, no refund of pre-paid subscription fees is due.
Enrollment Limits. If this agreement includes a subscription to the Benefit Next “ZipEnroll” product, then the monthly enrollment limit permissible under this Agreement are 100 enrollments per month. A month is defined as the first day of the month continuing to the last day of the month. An enrollment is considered to be a successful enrollment of a client or household in a plan that is offered under the healthcare.gov marketplace. Successful enrollments do not include the payment of the premium by the client or household, or enrollments that may be cancelled after successful enrollment is completed.
- LICENSE GRANT RESTRICTIONS. Except as provided above, you may not modify, alter, comingle, merge, translate, decompile, create derivative work(s) of, distribute, disassemble, reverse engineer, benchmark, broadcast, transmit, reproduce, attempt to examine the source code for, publish, license, sub-license, transfer, sell, resell, exploit, rent, timeshare, outsource, provide on a service bureau basis, lease, grant a security interest in, transfer any right(s) in, or otherwise use in any manner not expressly permitted herein the Benefit Next Service or any part thereof. In addition, you may not remove or alter any proprietary notice on the Benefit Next Service. All rights not expressly granted to you herein are hereby reserved by Benefit Next, and you expressly acknowledge and agree that other than to the extent expressly permitted under Section 1, nothing herein provides to you any right to distribute or provide the Benefit Next Service (or access thereto) to any other person or entity.
- USER OBLIGATIONS. By downloading, accessing, and/or using the Benefit Next Service, you also represent that you agree to abide by all applicable laws and regulations with respect to your use of the Benefit Next Service and not to use the Benefit Next Service for any unfair, harassment, or deceptive purposes. Benefit Next assumes no responsibility or liability for any claims that may result directly or indirectly from the communications or interactions you establish using the Benefit Next Service.
- AUTHORIZED USER REGISTRATION AND USERNAME HANDLING POLICY. Authorized Users should consider their username and password as confidential information. Doing so ensures that only you will be able to access your account through the Benefit Next Service. You agree to immediately notify Benefit Next if you become aware of any loss or theft of your password or any unauthorized use of your username and password. Benefit Next cannot and will not be liable for any loss or damage arising from unauthorized access to your account by others. Benefit Next reserves the right to delete or change a password at any time and for any reason.
- DATA. You agree that you, not Benefit Next, is and shall be fully responsible for retaining your clients’ records, information or other client data. You accept full responsibility for obtaining any client and other third party consents or authorizations (in compliance with any other applicable law, regulation and governmental licenses) in connection with your use the Benefit Next Service for such clients or third parties. You grant Benefit Next the limited right and license to retain and use certain client data as may be required by law or otherwise for its own administrative and business purposes, which may include testing, improving, and developing Benefit Next functionality, as well as statistical analysis of such data.
- PROPRIETARY RIGHTS. Benefit Next and/or its licensors, as applicable; retain all ownership right, title, and interest in and to all programs, software, databases, information, and documentation associated with the Benefit Next Service. Benefit Next and all other names, logos, and icons identifying Benefit Next and its products and services are proprietary trademarks of Benefit Next and/or its licensors, as applicable, and any use of such marks without the express written permission of Benefit Next is strictly prohibited. Except as expressly provided herein, Benefit Next does not grant any express or implied right to you or any other person under any intellectual or proprietary rights. Accordingly, unauthorized use of the Benefit Next Service may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, United States copyright, trade secret, patent, and trademark law.
- FEES; PAYMENT TERMS. You acknowledge and agree that you will pay, in advance, the subscription fee specified on the recurring payment form attached to this agreement. Your continued use of the Benefit Next Service is conditioned upon timely payment of the Subscription Fee set forth therein. Benefit Next reserves the right to increase or modify the applicable annual Subscription Fee at any time, which changes may become applicable to you at the end of your then-current term.
- CONFIDENTIALITY. You acknowledge and agree that the Benefit Next Service contains certain proprietary trade secrets and non-public information of Benefit Next and/or its licensors (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information of Benefit Next (and/or its licencors) in a manner consistent with the maintenance of Benefit Next’s rights therein, using at least a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
- SECURITY. You shall not, nor shall you permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by Benefit Next for use of the Benefit Next Service. Benefit Next reserves the right at any time, and without notice, to modify, suspend, terminate, or interrupt operation of or access to the Benefit Next Service, or any portion thereof, in order to protect the Benefit Next Service or Benefit Next’s rights or business. You will immediately notify Benefit Next if you become aware of any unauthorized use of the Benefit Next Service.
- WARRANTY DISCLAIMER. THE BENEFIT NEXT SERVICE AND ANY ASSOCIATED INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANT-ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS WELL AS ANY WARRANTY RELATED TO THE USE, OR THE RESULTS OF THE USE, OF THE BENEFIT NEXT SERVICE IN TERMS OF AVAILABILITY, ACCURACY, SECURITY, RELIABILITY, OR OTHERWISE. BENEFIT NEXT AND ITS THIRD PARTY LICENSORS DO NOT WARRANT THAT THE BENEFIT NEXT SERVICE WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY, AND PERFORMANCE OF THE BENEFIT NEXT SERVICE IS WITH YOU.
- LIMITATION OF LIABILITY. BENEFIT NEXT SHALL NOT BE LIABLE FOR ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND BENEFIT NEXT’S CONTROL, INCLUDING, BUT NOT LIMITED TO, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, OR NATURAL DISASTERS, STRIKES, OR OTHER LABOR PROBLEMS, WARS, OR GOVERNMENTAL RESTRICTIONS. MOREOVER, YOU AGREE THAT IN NO EVENT SHALL BENEFIT NEXT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE BENEFIT NEXT SERVICE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF BENEFIT NEXT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF BENEFIT NEXT OR ITS THIRD PARTY LICENCORS FOR ANY REASON WHATSOEVER RELATED TO USE OF THE BENEFIT NEXT SERVICE OR ANY CLAIMS RELATING TO THIS AGREEMENT OR THE PRODUCT SHALL NOT EXCEED FIVE THOUSAND DOLLARS ($5000.00) .
- INDEMNITY. You agree to defend, indemnify, and hold harmless Benefit Next and its board of directors, committee members, affiliates, employees, licensors, agents, directors, officers, partners, representatives, shareholders, attorneys, successors, and assigns from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your use of the Benefit Next Service (including, for Subscribers, use by an Authorized User), including any loss or theft of your clients’ information, and any breach by you of this Agreement. You shall use reasonable efforts to cooperate with Benefit Next in defense of any claim, and you acknowledge and agree that Benefit Next reserves the exclusive right, in its sole discretion, to participate in any claim and assume, at your sole expense or such other cost sharing arrangement agreeable to Benefit Next, the control, defense, and/or settlement of any matter otherwise subject to this indemnification obligation.
- GOVERNING LAW. This Agreement and all matters or issues related to this Agreement shall be governed by and construed under the laws of the State of Florida without application of principles of conflicts of laws. Each of the Parties irrevocably and unconditionally agrees that any legal proceeding arising out of or relating to this Agreement may be brought either in the United States District Court for the Middle District of Florida, Fort Myers Division or, if that court lacks jurisdiction, in any court of competent jurisdiction in Lee County, and consents to the jurisdiction of each such court in any proceeding. All such proceedings shall be conducted without a jury, and you hereby agree as condition of using the Benefit Next service to a waiver of any jury trial.
- TERM. Unless sooner terminated in accordance with the terms set forth in this Agreement, the term of this Agreement shall begin as of the Effective Date hereof and shall continue in accordance with the term specified in the recurring payment agreement. The term of this Agreement shall be automatically renewed for successive periods of the same term unless either party notifies the other of its desire not to renew at least thirty (30) days before the end of the initial term or any successive term thereafter.
- TERMINATION. Either party will have the right to terminate this Agreement after a material breach of the Agreement by the other party (which, in the case of you, incudes your Authorized Users) which breach has not been cured fifteen (15) days after the date that the breaching party received written notice from the other party of the breach. Notwithstanding the foregoing, Benefit Next will have the right to terminate immediately in accordance with the stated terms in this Agreement. You may provide notice of non-renewal of this Agreement at any time by providing notice to Benefit Next via e-mail at firstname.lastname@example.org, provided that such non-renewal will become effective upon the expiration date of the then-current term and you will not be entitled to any refund of any portion of the subscription fee already paid. Upon termination or expiration, Benefit Next shall have the right to immediately revoke and delete your username and any other log-in credentials or related data, including those of your Authorized Users. In addition to the miscellaneous clause below, the provisions concerning Benefit Next’s ownership rights in its proprietary information and intellectual property, confidentiality, indemnity, disclaimers of warranty, limitation of liability, termination, and governing law will survive the termination or expiration of this Agreement for any reason.
- MISCELLANEOUS. You agree that Benefit Next and/or it licensors shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. Accordingly, you hereby waive any requirement that Benefit Next post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Benefit Next to enforce any provision of this Agreement. The parties agree that this Agreement is for the benefit of the parties hereto as well as Benefit Next’s licensors with respect to enforcing rights in such licensors’ intellectual property or data. This Agreement is personal to you, and you may not assign your rights or obligations to any other person or entity without Benefit Next’s prior written consent. If any provision (or part thereof) contained in this Agreement is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein. You and Benefit Next are independent contractors. No joint venture, partnership, employment, or agency relationship exists between you and Benefit Next as result of this Agreement or your utilization of the Benefit Next Service, and you shall have no right to bind Benefit Next without its prior written permission. This Agreement represents the entire agreement between you and Benefit Next with respect to using the Benefit Next Service, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and Benefit Next with respect to the Benefit Next Service. Unless otherwise agreed to by Benefit Next, please note that Benefit Next reserves the right to change the general terms and conditions of this Agreement applicable to all Authorized Users and under which the Benefit Next Service is extended to you by providing you in writing or electronically a copy of such revised terms. Benefit Next may also change any aspect of the Benefit Next Service and any other term or condition of this Agreement with each new annual subscription period. Your continued use of the Benefit Next Service will be conclusively deemed acceptance of any change to this Agreement or the Benefit Next Service.