ALOE HEALTH ICHRA SERVICES AGREEMENT
This Aloe Health ICHRA Services Agreement (this "Agreement"), effective as of [DATE] (the "Effective Date"), is by and between Anjoy Collective, Inc. dba Aloe Health, a Delaware corporation with offices located at 2 Fulton St. W, Grand Rapids, MI 49503 ("Aloe Health"), and the entity identified in the Order Form ("Employer"). Aloe Health and Employer may be referred to herein collectively as the "Parties" or individually as a "Party."
WHEREAS, Aloe Health operates a software platform that facilitates the administration of ICHRA for employer clients;
WHEREAS, Employer desires to engage Aloe Health to provide ICHRA administration services through the Platform (as defined below), and Aloe Health desires to provide such services, subject to the terms and conditions of this Agreement; and
WHEREAS, the Parties intend that Aloe Health will act as a Business Associate (as defined under HIPAA) with respect to certain Protected Health Information disclosed by or on behalf of Employer in connection with the Services.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) "Aggregated Statistics" means data and information related to Employer's use of the Services that is used by Aloe Health in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) "Aloe Health IP" means the Platform, the Services, the Documentation, and any and all intellectual property provided to Employer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Aloe Health IP includes Aggregated Statistics and any information, data, or other content derived from Aloe Health's monitoring of Employer's access to or use of the Services, but does not include Employer Data.
(c) "Authorized User" means Employer's employees, consultants, contractors, and agents (i) who are authorized by Employer to access and use the Services under the rights granted to Employer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder. For the avoidance of doubt, Authorized Users include Participants and Beneficiaries who are granted access to the Platform to manage their ICHRA benefits.
(d) "Beneficiary" means any individual who is or may become eligible to receive benefits under the Plan as a dependent of a Participant.
(e) "Business Associate" has the meaning set forth in 45 C.F.R. § 160.103.
(f) "Covered Entity" has the meaning set forth in 45 C.F.R. § 160.103.
(g) "Documentation" means Aloe Health's user manuals, handbooks, guides, and all other documentation relating to the Services provided by Aloe Health to Employer either electronically or in hard copy form.
(h) "Employer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Employer or an Authorized User through the Services, including but not limited to Protected Health Information and Participant Information.
(i) "Financial Account" means the bank or other financial account designated by Employer for funding payment of Fees, Healthcare Contribution Amounts, and other costs under this Agreement, or for receiving refunds and other payouts.
(j) "Healthcare Contribution Amounts" means the amounts provided by Employer to fund reimbursements under the Plan for Participants and Beneficiaries. Healthcare Contribution Amounts are not intended to create a trust.
(k) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations, including the Privacy Rule, the Security Rule, and the Breach Notification Rule, as defined and codified at 45 C.F.R. Parts 160 and 164.
(l) "Healthcare Notices" means the documents furnished to Participants through the Platform or other required method define or otherwise provide information regarding eligibility, contribution, spending, or reimbursement limits applicable under the Plan, including Plan documents, summary plan descriptions, and enrollment materials.
(m) "ICHRA" means an Individual Coverage Health Reimbursement Arrangement as defined in 26 C.F.R. § 1.36B-2(c)(5) and Department of Labor and Health and Human Services guidance.
(n) "Participant" means an individual who is eligible to participate in the Plan.
(o) "Participant Information" means information relating to Participants and Beneficiaries, including names, addresses, dates of birth, Social Security numbers, employment information, and benefit elections.
(p) "Personal Information" means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, as well as other information defined as "personal information," "personal data," or a similar term under applicable laws.
(q) "Plan" means Employer's ICHRA plan as established and maintained by Employer in accordance with applicable law.
(r) "Platform" means Aloe Health's proprietary web-based software platform (and any successor or complimentary applications or software) through which the Services are provided, including any user interfaces, dashboards, portals, and related tools made available to Employer, Authorized Users, Participants, and Beneficiaries for purposes of ICHRA enrollment, eligibility management, benefit elections, reimbursement requests, Healthcare Notice delivery, and access to third-party products and services.
(s) "Protected Health Information" or "PHI" has the meaning set forth in 45 C.F.R. § 160.103 and includes electronic Protected Health Information ("ePHI").
(t) "Services" means the ICHRA platform administration services described in the Order Form.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Employer's payment of Fees and compliance with all other terms and conditions of this Agreement, Aloe Health hereby grants Employer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Employer's use for the administration of its Plan. Aloe Health shall provide to Employer the necessary passwords and network links or connections to allow Employer and its Authorized Users to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Aloe Health hereby grants to Employer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Employer's internal business purposes in connection with its use of the Services and administration of the Plan.
(c) Use Restrictions. Employer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Employer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Aloe Health reserves all rights not expressly granted to Employer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Employer or any third party any intellectual property rights or other right, title, or interest in or to the Aloe Health IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Aloe Health may temporarily suspend Employer's and any Authorized User's access to any portion or all of the Services if: (i) Aloe Health reasonably determines that (A) there is a threat or attack on any of the Aloe Health IP; (B) Employer's or any Authorized User's use of the Aloe Health IP disrupts or poses a security risk to the Aloe Health IP or to any other customer or vendor of Aloe Health; (C) Employer, or any Authorized User, is using the Aloe Health IP for fraudulent or illegal activities; (D) subject to applicable law, Employer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Aloe Health's provision of the Services to Employer or any Authorized User is prohibited by applicable law; or (ii) any vendor of Aloe Health has suspended or terminated Aloe Health's access to or use of any third-party services or products required to enable Employer to access the Services (any such suspension described in subclause (i) or (ii), a "Service Suspension"). Aloe Health shall use commercially reasonable efforts to provide written notice of any Service Suspension to Employer and to provide updates regarding resumption of access to the Services following any Service Suspension. Aloe Health shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Aloe Health will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Employer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Aloe Health may monitor Employer's use of the Services and collect and compile Aggregated Statistics. As between Aloe Health and Employer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Aloe Health. Employer acknowledges that Aloe Health may compile Aggregated Statistics based on Employer Data input into the Services. Employer agrees that Aloe Health may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Employer, any Participant, any Beneficiary, or Employer's Confidential Information, and provided further that all such Aggregated Statistics are properly de-identified in accordance with HIPAA and other applicable laws.
3. Customer Responsibilities.
(a) General. Employer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Employer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Employer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Employer will be deemed a breach of this Agreement by Employer. Employer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.
(b) Plan Administration. Employer acknowledges and agrees that: (i) Employer is responsible for establishing and maintaining the Plan in compliance with all applicable laws, including ERISA, the Internal Revenue Code, HIPAA, and state laws; (ii) Employer is responsible for making all Plan design decisions and for administration of the Plan; and (iii) Employer is responsible for ensuring that its privacy notice contains appropriate provisions permitting disclosures to Aloe Health as a Business Associate.
(c) Employer Roster and Eligibility. Employer shall keep all information in its account current, including employee rosters, eligibility information, and contact information. Employer shall notify Aloe Health as soon as administratively possible and in any event within thirty (30) days in the event that any new Participants are hired or existing Participants are terminated or otherwise leave their employment with Employer. Retroactive terminations will not relieve Employer from paying for claims incurred prior to the notification date of the termination. Employer is responsible for any Fees, penalties, fines, or other amounts assessed as a result of Employer's failure to keep its account information current.
(d) Account Security. Employer shall keep all login credentials secure. Only Employer and those who are authorized to act on Employer's behalf may access Employer's account. Aloe Health may rely on any actions taken using Employer's credentials or by Authorized Users. Aloe Health may offer tools to help keep Employer's credentials and account secure, but it is Employer's responsibility to take the steps that are necessary to secure its account, which may include using tools or systems not provided by Aloe Health.
(e) Healthcare Notices. Employer must review and approve its Healthcare Notices (including Plan documents, summary descriptions, and contribution amounts) before offering the Plan to Participants. Participants must review and accept their Healthcare Notices before utilizing the Plan. Employer shall ensure that Participants comply with the terms of their Healthcare Notices. Use of funds in a manner inconsistent with the Healthcare Notices is prohibited, and Employer and Participants are responsible for all penalties, fines, or other amounts incurred that result from using funds in any manner inconsistent with the Healthcare Notices.
(f) Reimbursement Approvals. Aloe Health shall approve or disapprove requests for all medical expense reimbursements under the Plan in accordance with 26 U.S.C. § 213(d) and the guidance promulgated thereunder unless Employer has otherwise directed Aloe Health in writing. Employer agrees that Aloe Health is not liable for any loss in connection with Aloe Health's actions directly or indirectly relating to the approval or disapproval of medical expense reimbursement requests made by Aloe Health in accordance with applicable law or at the Employer's direction. Employer agrees to indemnify and hold harmless Aloe Health and its directors, officers, employees and agents from and against all amounts, including without limitation, taxes, expenses (including reasonable attorneys' fees), liabilities, claims, damages, actions, suits, regulatory fines or other charges incurred by or assessed against Aloe Health as a direct or indirect result of Aloe Health's approval or disapproval of medical expense reimbursement requests made in accordance with this Section, except to the extent such amounts arise from Aloe Health's own negligence, gross negligence, or willful misconduct.
4. Fees and Payment.
(a) Fees. Employer shall pay Aloe Health the fees ("Fees") as set forth in the Order Form without offset or deduction, except as expressly permitted under this Agreement. Aloe Health will invoice Employer or its designee not less frequently than monthly. Employer or its designee shall pay Aloe Health in accordance with the payment terms set forth in Section 4(b). Employer may withhold payment of any Fees that Employer disputes in good faith, provided that Employer delivers written notice to Aloe Health specifying the disputed amounts and the basis for such dispute within fifteen (15) days of receiving the applicable invoice; Employer shall pay all undisputed amounts in accordance with Section 4(b). Both Parties agree to negotiate in good faith to resolve any disputed amounts as quickly as possible.
(b) Timing of Payment. Aloe Health will invoice Employer on or around the first enrollment lock date of each month. Aloe Health will initiate ACH debit of all invoiced amounts five (5) business days following the invoice date pursuant to the Debit Authorization in Section 4(d). If an ACH debit is unsuccessful for any reason, Employer shall remit payment within five (5) business days of written notice from Aloe Health. Failure to remit payment within that timeframe will result in interest charged at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law for outstanding balances, and Aloe Health may suspend Employer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(c) Taxes. All Fees and other amounts payable by Employer under this Agreement are exclusive of taxes and similar assessments. Employer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Employer hereunder, other than any taxes imposed on Aloe Health's income.
(d) Debit Authorization. Employer authorizes Aloe Health to debit from Employer's designated Financial Account all amounts owed or committed under this Agreement, Healthcare Notices, and any applicable order form. Such debits may include (a) Healthcare Contribution Amounts, (b) amounts paid on behalf of Participants to third parties such as insurance carriers, (c) Fees, (d) taxes, and (e) amounts for Advances or Reserves. Where debits from Financial Accounts are unsuccessful for any reason, including insufficient funds, Aloe Health may attempt to re-debit Financial Accounts for amounts up to the full amount owed or committed. For ACH direct debits from a US bank account, Employer acknowledges that (i) the person authorizing the debit on behalf of Employer is authorized to permit Aloe Health to initiate debits from Financial Accounts; (ii) Aloe Health is authorized to debit all amounts owed or committed under this Agreement; and (iii) Employer or such authorized person shall complete all necessary documentation to authorize ACH debits. This debit authorization from Employer's Financial Accounts will remain in full force and effect until all amounts owed or committed under this Agreement and the Healthcare Notices are paid in full.
(e) Advances and Reserves. Aloe Health may, in its sole discretion, make advances to third parties on Employer's behalf where funds committed or owed by Employer are not immediately available ("Advances"). Advances may include but are not limited to payments to insurance carriers on behalf of Participants and reimbursements to Participants on behalf of Employer. Any Advances made by Aloe Health are immediately due and payable by Employer and may be collected from Employer's Financial Account. Aloe Health's having made an Advance does not guarantee or create any right to future advances. The foregoing does not limit Employer's responsibility for payment for Advances or any other commitments. Aloe Health may require that Employer provide a reserve ("Reserve") as a condition of use or continued use of the Services. If required, Aloe Health will determine and communicate the amount of the Reserve in advance of debiting Employer's Financial Account. Amounts held in a Reserve may be used to satisfy any of Employer's financial obligations under this Agreement or the Healthcare Notices.
5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information includes, without limitation, Employer Data, Participant Information, PHI, and the terms and conditions of this Agreement. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of the disclosing Party's Confidential Information. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are bound by confidentiality obligations at least as protective as those set forth herein. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party (to the extent permitted by law) and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed; provided, however, that the receiving Party may retain copies of Confidential Information as required by applicable law or its document retention policies, subject to the continuing confidentiality obligations herein. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), PHI, or Personal Information, such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection or applicable privacy laws.
6. HIPAA Compliance and Business Associate Obligations.
(a) Business Associate Relationship. The Parties acknowledge and agree that, to the extent Aloe Health receives, creates, maintains, uses, or discloses PHI on behalf of Employer in connection with the Services, Aloe Health is acting as a Business Associate of Employer (or the Plan, as applicable) as that term is defined under HIPAA. Aloe Health shall only use and disclose PHI to the extent permitted by this Agreement and applicable law.
(b) Permitted Uses and Disclosures of PHI. Aloe Health may use and disclose PHI solely: (i) as necessary to perform the Services under this Agreement; (ii) for the proper management and administration of Aloe Health's business, provided that any disclosures for such purpose are required by law or Aloe Health obtains reasonable assurances from the recipient that the PHI will be held confidentially; (iii) to provide data aggregation services relating to the health care operations of Employer, provided that such aggregated data is de-identified in accordance with HIPAA; and (iv) as otherwise permitted or required by applicable law.
(c) Safeguards. Aloe Health shall implement and maintain appropriate administrative, physical, and technical safeguards to protect the confidentiality, integrity, and availability of PHI, including ePHI, in accordance with HIPAA and other applicable law. Aloe Health shall comply with the applicable requirements of the HIPAA Security Rule.
(d) Subcontractors. Aloe Health shall ensure that any subcontractors or agents to whom Aloe Health provides PHI agree in writing to the same restrictions and conditions that apply to Aloe Health under this Agreement with respect to such PHI. Aloe Health may use its affiliates (including affiliates located outside the United States) as it considers appropriate in the provision of the Services, provided that PHI shall remain in the United States and be accessed only in a manner compliant with applicable law.
(e) Breach Notification. Aloe Health shall report to Employer any use or disclosure of PHI not permitted by this Agreement or any Security Incident (as defined in 45 C.F.R. § 164.304) of which Aloe Health becomes aware. In the event of a Breach (as defined in 45 C.F.R. § 164.402) of Unsecured PHI, Aloe Health shall notify Employer without unreasonable delay and in no event later than thirty (30) days after discovery of such Breach. Such notice shall include, to the extent known, the identification of each individual whose PHI has been, or is reasonably believed to have been, accessed, acquired, used, or disclosed during the Breach, as well as any other information required to be included in the notification to affected individuals under 45 C.F.R. § 164.404(c).
(f) Individual Rights. Aloe Health shall assist Employer in complying with HIPAA's individual right under 45 C.F.R. §§ 164.524, 164.526 and 164.528.
(g) No Medical Advice. Aloe Health does not offer medical advice or diagnoses, or engage in the practice of medicine, and the Services are not a substitute for professional medical advice, diagnosis, or treatment. Only medical professionals can determine the right course of treatment and advise what is safe, appropriate, and effective based on a person's needs. Participants and Beneficiaries are solely responsible for engaging medical professionals as appropriate for themselves and for their medical decisions or actions, including choices to elect or waive treatment. The Services are not a substitute for emergency care. If any Participant, Beneficiary, or other person has a medical or mental health emergency, they should seek immediate emergency treatment at the nearest emergency room or dial 911.
(h) Carrier Disclaimer. Without limiting the scope or generality of the foregoing disclaimers, Aloe Health does not warrant and fully disclaims all responsibility or liability for delays or errors made, actions taken, or inactions not taken by insurance carriers, brokers, or other third parties with respect to insurance plans. This includes any carrier's, broker's, or other party's failure to place or bind a plan correctly or on time, maintain an enrollment, or bill promptly or for the correct amounts. This disclaimer includes all direct and indirect consequences of such carrier's, broker's, or third party's actions or inactions. Aloe Health also does not warrant and fully disclaims all responsibility or liability for Employer's failure to pay premiums or other contributions toward a Participant's plan. Aloe Health will not be responsible to pay for reimbursements, care, or other costs if Employer or other responsible party fails to make the underlying payments.
(i) Tax Disclaimer. Aloe Health may provide general information related to the tax implications of the Plan for informational purposes. Aloe Health does not provide tax or legal advice. Employer and Participants are solely responsible for seeking appropriate advice from tax professionals who understand their circumstances and for payment of any taxes.
(j) Third-Party Offerings. Employer and Authorized Users may access or use third-party products or services through the Platform (including insurance policies and purchases made through any marketplace features), but Aloe Health does not control such third-party offerings and is not responsible for any loss or damage that may arise from the use of any third-party offerings. Employer's use of any third-party offerings is at Employer's own risk and subject to any terms, conditions, or policies (including any privacy policies) applicable to such third-party offerings. ALOE HEALTH DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO EMPLOYER'S OR ANY AUTHORIZED USER'S USE OF THIRD-PARTY OFFERINGS.
(k) Government Access. Aloe Health shall make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services for purposes of determining Employer's and Aloe Health's compliance with HIPAA.
(l) De-Identification. Aloe Health may de-identify PHI in accordance with 45 C.F.R. § 164.514. De-identified data shall be treated as Aggregated Statistics under Section 2(f).
(m) Return or Destruction of PHI. Upon termination of this Agreement, Aloe Health shall return to Employer or destroy all PHI received from, or created or received by Aloe Health on behalf of, Employer, if feasible. If return or destruction is not feasible, Aloe Health shall extend the protections of this Section 6 to such PHI and limit further uses and disclosures to those purposes that make the return or destruction infeasible.
(n) Interpretation. The provisions of this Section 6 shall be interpreted in a manner that permits Employer and Aloe Health to comply with HIPAA and other applicable law. Any ambiguity in this Agreement shall be resolved to permit compliance with HIPAA. To the extent that any provision of this Agreement conflicts with the requirements of HIPAA, HIPAA shall control. The Parties acknowledge that relevant authority under HIPAA may be amended, modified, and/or revoked from time to time, and this Agreement shall be construed in accordance with any such relevant authority as amended, modified, or revoked.
7. Intellectual Property Ownership; Feedback.
(a) Aloe Health IP. Employer acknowledges that, as between Employer and Aloe Health, Aloe Health owns all right, title, and interest, including all intellectual property rights, in and to the Aloe Health IP.
(b) Employer Data. Aloe Health acknowledges that, as between Aloe Health and Employer, Employer owns all right, title, and interest, including all intellectual property rights, in and to the Employer Data. Employer hereby grants to Aloe Health a non-exclusive, royalty-free license to reproduce, distribute, and otherwise use and display the Employer Data and perform all acts with respect to the Employer Data as may be necessary for Aloe Health to provide the Services to Employer, and a non-exclusive, perpetual, irrevocable, royalty-free license to reproduce, distribute, modify, and otherwise use and display Employer Data incorporated within the Aggregated Statistics, subject to the de-identification requirements of Sections 2(f) and 6(n).
(c) Feedback. If Employer or any of its employees or contractors sends or transmits any communications or materials to Aloe Health by mail, email, telephone, or otherwise, suggesting or recommending changes to the Aloe Health IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Aloe Health is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
8. Limited Warranty and Warranty Disclaimer.
(a) THE ALOE HEALTH IP IS PROVIDED "AS IS" AND ALOE HEALTH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ALOE HEALTH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALOE HEALTH MAKES NO WARRANTY OF ANY KIND THAT THE ALOE HEALTH IP, OR ANY PRODUCTS, SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET EMPLOYER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(b) Healthcare Disclaimer. ALOE HEALTH DOES NOT PROVIDE HEALTH CARE SERVICES OR MAKE HEALTH CARE DECISIONS. PARTICIPANTS AND BENEFICIARIES ARE RESPONSIBLE FOR MAKING HEALTH CARE DECISIONS IN CONSULTATION WITH THEIR HEALTH CARE PROVIDERS. PARTICIPANTS AND BENEFICIARIES MAY COMMENCE OR CONTINUE HEALTH CARE TREATMENT, AT THEIR EXPENSE, EVEN IF THE TREATMENT IS NOT COVERED UNDER THE PLAN. THE SERVICES ARE LIMITED TO MINISTERIAL AND ADMINISTRATIVE SERVICES RELATED TO THE PLAN AND DO NOT INCLUDE THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL ADVICE.
9. Indemnification.
(a) Provider Indemnification.
(i) Aloe Health shall indemnify, defend, and hold harmless Employer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Employer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Employer promptly notifies Aloe Health in writing of such Third-Party Claim, cooperates with Aloe Health, and allows Aloe Health sole authority to control the defense and settlement of such Third-Party Claim.
(ii) If a Third-Party Claim is made or appears possible, Employer agrees to permit Aloe Health, at Aloe Health's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Employer to continue use. If Aloe Health determines that neither alternative is reasonably available, Aloe Health may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Employer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Aloe Health or authorized by Aloe Health in writing; (B) modifications to the Services not made by Aloe Health; or (C) Employer Data.
(b) Employer Indemnification. Employer shall indemnify, hold harmless, and, at Aloe Health's option, defend Aloe Health from and against any Losses resulting from any Third-Party Claim (i) that the Employer Data, or any use of the Employer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; (ii) based on Employer's or any Authorized User's negligence or willful misconduct; (iii) based on Employer's or any Authorized User's use of the Services in a manner not authorized by this Agreement; (iv) arising from Employer's failure to comply with its obligations under Section 3(b) relating to Plan Administration; or (v) arising from Employer's failure to obtain required consents or authorizations from Participants or Beneficiaries; provided that Employer may not settle any Third-Party Claim against Aloe Health unless Aloe Health consents to such settlement, and further provided that Aloe Health will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) HIPAA Indemnification. Each Party shall indemnify, hold harmless, and defend the other Party from and against any Losses resulting from any Third-Party Claim arising from the indemnifying Party's breach of its obligations under Section 6 (HIPAA Compliance and Business Associate Obligations), including any breach of the Security Rule, Privacy Rule, or Breach Notification Rule caused by the indemnifying Party's acts or omissions.
(d) Sole Remedy. THIS 9 SETS FORTH EMPLOYER'S SOLE REMEDIES AND ALOE HEALTH'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ALOE HEALTH UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED, HOWEVER, THAT FOR CLAIMS ARISING FROM A BREACH OF SECTION 6 (HIPAA COMPLIANCE) OR A SECURITY INCIDENT RESULTING IN UNAUTHORIZED ACCESS TO PHI, SUCH PARTY'S AGGREGATE LIABILITY SHALL NOT EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO ALOE HEALTH UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (THE "SUPER CAP"); PROVIDED, FURTHER, THAT FOR DIRECT LOSSES ARISING FROM ALOE HEALTH'S ERRONEOUS OR MISDIRECTED DISBURSEMENT OF FUNDS FROM THE CUSTODIAL ACCOUNT CAUSED SOLELY BY ALOE HEALTH'S ACT OR OMISSION, ALOE HEALTH'S AGGREGATE LIABILITY SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT OF THE FUNDS SO ERRONEOUSLY OR MISDIRECTEDLY DISBURSED, NET OF ANY AMOUNTS RECOVERED OR RECOVERABLE THROUGH REVERSAL, RETURN, OR CLAWBACK (THE "DISBURSEMENT ERROR CAP"), PROVIDED THAT THE DISBURSEMENT ERROR CAP SHALL NOT APPLY TO ANY ERROR OR MISDIRECTION CAUSED IN WHOLE OR IN PART BY INACCURATE OR INCOMPLETE INSTRUCTIONS OR INFORMATION PROVIDED BY EMPLOYER, ANY AUTHORIZED USER, OR ANY THIRD PARTY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR TO DAMAGES ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until one (1) year from such date (the "Initial Term"). This Agreement will automatically renew for successive one (1) year terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Aloe Health may terminate this Agreement, effective on written notice to Employer, if Employer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Aloe Health's delivery of written notice thereof; or (B) materially breaches any of its obligations under Section 2(c), Section 3(b), or 5, and such breach remains uncured for fifteen (15) days after written notice thereof;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Employer shall immediately discontinue use of the Aloe Health IP and, without limiting Employer's obligations under 5, Employer shall delete, destroy, or return all copies of the Aloe Health IP and certify in writing to Aloe Health that the Aloe Health IP has been deleted or destroyed. No expiration or termination will affect Employer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Employer to any refund of prepaid Fees; provided, however, that if this Agreement is terminated by Employer for Aloe Health's uncured material breach, Aloe Health shall refund to Employer a pro rata portion of any prepaid Fees for Services not yet rendered as of the effective date of termination. Upon termination, Aloe Health shall return or destroy PHI as provided in Section 6(m). Aloe Health shall cooperate with Employer to facilitate an orderly transition of ICHRA administration services to Employer or a successor administrator, including providing reasonable assistance with data migration for a period of up to sixty (60) days following termination.
(d) Survival. This Section 11(d) and 1, 4, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement or in the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party; provided, however, that Aloe Health may revise or update the Documentation, service levels, or operational policies at its discretion upon thirty (30) days' notice to Employer through publication in Employer's account dashboard or by email; provided, further, that any amendment that materially affects Employer's rights, obligations, or fees under this Agreement shall require the prior written consent of both Parties. Continuing to access the Services after Aloe Health posts such updates constitutes Employer's consent to the revised terms. If Employer does not consent, Employer's sole remedy is to terminate this Agreement in accordance with Section 11. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Any dispute arising out of or related to this Agreement that the Parties cannot resolve through good-faith negotiation within thirty (30) days of written notice shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, before a single arbitrator, seated in Grand Rapids, Kent County, Michigan. Judgment on the arbitration award may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in any court of competent jurisdiction to prevent irreparable harm pending arbitration.
(g) Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may assign this Agreement without consent to an Affiliate or to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of such Party's assets. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Employer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Employer Data outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 5 or, in the case of Employer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(j) Regulatory Compliance. Each Party shall comply with all applicable laws and regulations in performing its obligations under this Agreement, including but not limited to HIPAA, ERISA, the Internal Revenue Code, the Affordable Care Act, and applicable state insurance and privacy laws. Aloe Health represents and warrants that it holds, and shall maintain in good standing during the Term, all licenses and certificates of authority required to provide the Services, including its Certificate of Authority as a licensed third party administrator issued by the Michigan Department of Insurance and Financial Services.
(k) Cooperation. At the written request of Employer, Aloe Health agrees to cooperate with and provide any relevant and necessary information regarding the Services and claims under this Agreement to Employer's service providers and third-party administrators, subject to applicable law and the confidentiality provisions of this Agreement.
(l) Electronic Signatures and Communications. Employer consents to the use of electronic signatures to consent to agreements or amendments; to approve billing or debiting Financial Accounts; to receive, accept, or waive Healthcare Notices or adopt the Plan; to receive tax forms and other reporting documentation related to the Services; and for other transactional purposes related to this Agreement or the Services. Employer acknowledges that electronic signatures are subject to the Electronic Signatures in Global and National Commerce Act (E-SIGN Act). Aloe Health may communicate with Employer through Employer's account dashboard, email, phone, text or SMS, video conference, or physical mail. Where a phone number is provided, Employer consents to receive communications from Aloe Health via text, SMS, or voice call, including communications through the use of automated phone dialing systems, to each phone number Employer provides. Employer may add or change the phone numbers provided, but Employer authorizes and consents to receive communications on each phone number it provides.
(m) Insurance Brokering Disclaimer. Aloe Health does not provide insurance to Participants and is not an insurance carrier or underwriter. Participants are each individually responsible for procuring their own insurance plan. Aloe Health is only responsible for the provision of administrative services as described in this Agreement, and Aloe Health is not responsible for the servicing of any insurance plan. Aloe Health cannot guarantee the issuance of any particular insurance plan to a Participant and is not responsible for any errors or delays on the part of the Participant and/or insurance carrier issuing the insurance plan. Other than Aloe Health's own internal cost to provide the Services, Aloe Health is not responsible or liable for costs to pay claims or any other costs associated with administration of the Plan.
(n) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.Services Agreement
Standard template. The employer name, effective date, fee schedule (Order Form), and signatures are completed for each customer.