EHIM ONLINE
TERMS AND CONDITIONS
THE
FOLLOWING TERMS AND CONDITIONS (“T&C”) APPLY TO YOUR (“USER”)
USE OF THE EMPLOYEE HEALTH INSURANCE MANAGEMENT, INC. (“EHIM”) ONLINE SYSTEM.
EHIM is a
vendor that provides certain ministerial administrative services (“EHIM
Services”) to self-funded employee health plans (“Plan(s)”) for the
benefit of its eligible current and former employees and their eligible spouses
and/or dependents that meet the requirements as defined under the Plan (“Member”);
EHIM owns and/or
operates this proprietary web-based plan administration system and its
documents and data (“Online System”) as a tool to aid Plans and other authorized
individuals authorized by Plan to access and upload Member benefit information;
EHIM desires to
grant Users access to the Online System;
By accessing
this website, User agrees to be legally bound to and abide by the T&C set
forth below.
IT IS AGREED AS
FOLLOWS:
ARTICLE I
DEFINITIONS
Definitions Unless otherwise specified, the following words
and phrases, wherever capitalized, have the following respective meanings:
1.1 “Business Day” means any
day, Monday through Friday, not recognized as a holiday by the United States
Post Office.
1.2 “Client” means the
self-funded employer groups that provide the Plan as a benefit to its Members.
1.3 “Data Security” means
information technology (“IT”) and data security including, but not
limited to anti-virus software, operating systems, network and firewall
security and appropriate personnel policies.
1.4 “Intellectual
Property” means any unpatented inventions, patent applications, patents,
design rights, copyrights, trademarks, service marks, trade names, domain name
rights, trade secret rights and all other intellectual property rights,
derivatives thereof and other forms of protection of a similar nature worldwide
belonging to any person or entity.
1.5 “Key
Personnel” means owners, directors, officers, employees, representatives or
agents that perform services on behalf of EHIM to perform its obligation under the
T&C.
1.6 “Party”
or “Parties” means EHIM and User.
1.7 “User(s)”
means authorized users of the Online System who have been identified by Client
in writing to access and use the Online System and who have been issued a user identification
and password by EHIM to access the Online System.
ARTICLE II
LICENSE &
PURPOSE
2.1 License.
EHIM grants User the limited, revocable, nonexclusive and nontransferable
license to access, view and utilize the Online System solely for the purpose
described in this T&C. All rights not expressly granted to User are
reserved by EHIM.
2.2 Purpose. User may use the Online
System to enroll, view, manage and/or terminate eligible Members for benefits
under the Plan; monitor their benefit information or access reports. The
Online System will not be used for any purpose not expressly permitted by this
T&C and/or as otherwise required and/or permitted by law.
ARTICLE III
CLIENT
RESPONSIBILITIES
3.1 Authorized Users. User warrants
that (s)he is over the age of eighteen (18) and has the power and authority
from Client in writing to access and utilize the Online System on behalf of
Client.
3.2 User Identification and
Password. User warrants that the user identification(s) and password(s)
used to login was initially issued by EHIM to User to access the Online System.
User agrees that each user identification and password will only be used by the
authorized User to whom EHIM assigns it and will not be shared with or used by
any other person, including other authorized Users. If User believes his/her
password has been improperly used or disclosed, (s)he will immediately change
it to prevent improper or illegal access to Online System. User may be
required to change his/her password every so often.
3.3 Unauthorized Use. User will
immediately notify EHIM of any unauthorized Users and/or use of the Online System.
User will be liable for any fees, penalties and/or costs associated with the
unauthorized use. If the unauthorized User nevertheless accesses and utilizes
the Online System, the access and use will be governed by these T&C and may
be liable for fees, penalties and/or other costs.
3.4. User Responsibility. User
is solely responsible for any and all acts and omissions that occur under its
user identification.
3.5 Safeguards. User agrees to
use appropriate safeguards to prevent use of the Online System other than as
provided for by this T&C. Without limiting the foregoing, User
will take at least those measures to protect the Online System as it takes to
protect its own data of a similar nature, but in no case less than reasonable
care.
3.6 Compliance with Law.
User agrees to comply with federal, state and/or local privacy laws to prevent misuse
of Online System.
3.7 Accurate Data. User
acknowledges that EHIM cannot properly perform its responsibilities for the
Client, unless (s) he provides timely and accurate information. Therefore, User
will take reasonable care to ensure that all information is complete and accurate.
User acknowledges that EHIM will not be responsible for any errors, delays or
additional costs resulting from User’s delivery of incomplete, inaccurate or
untimely information to EHIM or through the Online System.
3.8 Prohibited Use.
User will not:
(a)
reverse engineer, disassemble or decompile any prototypes, software or other
tangible objects that embodies the Online System or those that are provided to,
inspected by or worked on by User under the T&C;
(b)
use the Online System for personal gain and/or benefit or any purpose other
than that as agreed to by the Parties;
(c)
attempt to or assist others to develop, produce, market or sell any products or
provide any services based on or utilizing, in whole or in part, the Online
System;
(d)
Make copies, excerpts or summaries of the Online System without first
requesting and receiving EHIM’s prior written consent to such action;
(e) Wrongfully
modify or disrupt the delivery of Member welfare or COBRA benefits;
(f) Disseminate,
store or transmit unsolicited messages, chain letters or unsolicited commercial
e-mail;
(g) Disseminate,
store or transmit material that, to a reasonable person, may be abusive,
obscene, pornographic, defamatory, harassing, grossly offensive, vulgar,
threatening or malicious;
(h)
disseminate, store or transmit files, graphics, software or other material that
actually or potentially infringe the Intellectual Property rights of any person
or entity;
(i) Erase or
alter any Intellectual Property notices;
(j) Create a
false identity or to otherwise attempt to mislead any person as to the identity
or origin of any communication;
(k) export,
re-export or permit downloading of any message or content in violation of any
export or import law, regulation or restriction of the United States and its
agencies or authorities, or without all required approvals, licenses or
exemptions;
(l) Interfere,
disrupt or attempt to gain unauthorized access to other accounts on the Online
System or any other computer network;
(m) Disseminate,
store or transmit viruses, Trojan horses, spyware, tracking cookies or any
other malicious or inappropriate code or program; or
(n) Engage in
any other activity deemed by EHIM to be in conflict with this T&C.
3.9 Equipment. User is solely
responsible for providing, maintaining and ensuring compatibility with the
Online System, including, but not limited to, telecommunications and Internet
access connections and links, web browsers or other equipment.
3.10 Best Practices. User
will maintain industry-standard best practices with regard to Data Security,
including maintaining up-to-date Data Security to access Online System. In the event User’s
systems or data are compromised due to his/her failure to maintain
industry-standard and up-to-date Data Security, User agrees to reimburse EHIM
for any and all costs and/or expenses related to restoring EHIM’s Online System
and/or its data to EHIM’s original status prior to the compromise.
3.11 Required
Disclosure. If User receives notice of a request enforceable by law
requiring that it use and/or provide access to Online System to a court, other
governmental Agent, private litigant or the like, User will provide EHIM with
prompt written notice of such requirement sufficiently in advance of such
required disclosure to allow EHIM an opportunity to seek a protective order or
other appropriate relief prohibiting or limiting such disclosure, and User will
provide such assistance as EHIM may reasonably request in obtaining such order
or other relief. Subject to compliance with the foregoing sentence, User may
furnish that portion (and only that portion) of the Online System that User is
legally compelled or is otherwise legally required to disclose.
ARTICLE IV
RESPONSIBILITIES
OF EHIM
4.1. Security. EHIM will provide
appropriate physical, electronic and procedural safeguards to protect and
secure the data on its Online System.
4.1. Accessibility. EHIM will use
commercially-reasonable efforts to make Online System available for access by
User, and, when necessary, will take reasonable actions necessary to restore
access. However, User understands that the Online System may be enhanced,
added to, withdrawn, inaccessible, inoperable and/or otherwise changed by EHIM
for any reason, without notice, including, but not limited to: (a) equipment
malfunctions; (b) routine maintenance and/or repairs; or (c) causes beyond
the control or not reasonably foreseeable by EHIM.
4.2. No Liability. EHIM
is not the Plan Administer and does not assume any fiduciary responsibility
towards the Plan. Client is the Plan Administrator and User will remain liable
for any Plan issues arising at all times.
ARTICLE V
ONLINE SYSTEM
OWNERSHIP
5.1 Ownership. The Online System is
the property of EHIM and EHIM owns all of the right, title and interest,
including, but not limited to, the Intellectual Property in the Online System,
and in their copies, results and proceeds, throughout the world, in
perpetuity.
5.2 Prohibited Use. The Online
System may not be copied, reproduced, sold, displayed or distributed for
commercial gain, or used in a fashion that infringes on EHIM’s Intellectual
Property rights, title or interest.
5.3
Infringement. Without limiting EHIM’s causes of action and/or remedies, any
use of the Online System other than as set forth herein will be considered an
infringement upon the EHIM System and thus, a violation of both federal and
state laws.
5.4 Retention of Data.
Notwithstanding anything to the contrary in this T&C, User may retain
copies of the Online System that is required to be retained by law and/or
regulation.
5.5 Notice Rights.
User will reproduce EHIM proprietary rights notices on such authorized copies,
in the same manner in which such notices were set forth in or on the Online System.
5.6 Return of Data. Within
ten (10) business days following delivery by EHIM to User of a written request
that all or specified portions of the Online System be returned to EHIM, User
will assemble and return to EHIM (or alternatively, with the consent of EHIM,
will destroy) all such documents and data in relation to the Online System,
including all copies, excerpts and/or summaries thereof that remains in User’s
possession, custody or control at that time.
ARTICLE VI
PROTECTED
HEALTH INFORMATION
6.1 Privacy. User will
use the Online System consistent with the privacy provisions set forth on EHIM’s
Web site located at www.ehimrx.com. EHIM will not monitor, edit, or disclose
any personal information about User’s account without his/her prior consent,
respectively, unless EHIM has a good faith belief that such action is necessary
to: (a) comply with legal process or other legal requirements of any
governmental authority; (b) protect and defend the rights or property of EHIM;
(c) enforce the T&C and/or any Client-EHIM Agreements; (d) protect the
interests of Users of the Online System; or (e) operate or conduct maintenance
and repair of the Online System or equipment. User has no expectation of
privacy with respect to the Internet generally since User’s addresses are
transmitted and recorded with each message which (s)he sends to/from the Online
System.
6.2 Protected Health Information.
User
understands and agrees that the Online System contains Protected Health
Information ("PHI"), which is regulated by the Health
Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"),
and as such will comply with all of the requirements of HIPAA, including but
not limited to the execution of any written agreements required by HIPAA,
(i.e., BAAs), safeguarding the confidentiality and the destruction or return of
PHI to the respective entity.
ARTICLE VII
PAYMENT
7.2 Suspension of Services. In the event the Client is
past due on any invoice as indicated under the Client-EHIM agreements, EHIM may
immediately, without notice, suspend, terminate or discontinue providing User
access to the Online System.
ARTICLE VIII
OBJECTIONS
8.1 Inaccuracies and
Errors. User must object in writing to any inaccuracies and/or errors
reflected in the Online System within ten (10) business days following receipt
of such documents specifying the reasons for the inaccuracy. EHIM will supply User
with documentation either remedying such inaccuracy or unacceptability or denying
the request within twenty (20) business days after receipt of such objection.
8.2 Failure to Notify.
Failure of User to notify EHIM of possible objections within the timeframe and
manner specified in this section will constitute a waiver of any possible
objections. As such, the Parties will consider the documents to be correct and
EHIM will have no liability for costs and/or damages claimed by User.
ARTICLE
IX
TERM, TERMINATION AND AMENDMENT
9.1
Term of Agreement. The T&C will be effective upon acceptance and will
continue until terminated. It will automatically renew upon the renewal of the
applicable Client-EHIM business relationship and/or contractual agreement.
9.2
Termination. The T&C may be terminated by EHIM or Client for any reason upon
thirty (30) days’ prior written notice to the other Party.
(a) Right to Term. EHIM reserves the right, in its sole
discretion and without notice, at any time and for any reason, to:
(i)
Remove or disable access to all or any portion of this Online System;
(ii)
Suspend User’s access to or use of all or any portion of the Online System; or
(iii)
Terminate the T&C.
(b) Automatic Termination. The T&C will automatically
terminate, unless EHIM agrees in writing to waive the termination, if:
(i)
User engages in activities that are illegal or otherwise in violation of the
law;
(ii) The respective Client and EHIM terminate their business
relationship and/or any other applicable contractual agreements with either
party; or
(iii) User is no longer is an authorized User.
9.3
Amendment. The
T&C may be amended from time to time by posting an updated T&C onto the
Online System. Continued use of the Online System following the effective date
of any amendment constitutes User’s acceptance of the modifications. The
T&C may not be supplemented, modified or otherwise revised through any
other means, even if the document contains a printed name or signature line
bearing the signature-like font.
ARTICLE
X
DISCLAIMER
OF WARRANTIES
10.1 No
Warranty. THE ONLINE SYSTEM IS PROVIDED “AS IS” AND EHIM MAKES NO
WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE ONLINE
SYSTEM, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY
AND/OR FITNESS FOR A PARTICULAR PURPOSE. USE OF THE ONLINE SYSTEM IS AT USER’S
SOLE RISK. EHIM NIETHER WARRANTS THAT THE ONLINE SYSTEM WILL BE UNINTERRUPTED,
ERROR FREE, COMPLETE OR TIMELY, NOR DOES IT WARRANT AS TO ANY RESULTS THAT MAY
BE OBTAINED BY USING THE ONLINE SYSTEM.
10.2 Links to Third Party Sites. The Online
System may contain links to other websites ("Linked Sites") or
third party content. Linking to such Linked Sites will allow User to leave the
Online System. Unless otherwise indicated, EHIM is not affiliated with any of
the Linked Sites or the authors of any third party content. The Linked Sites
are not under the control of EHIM and EHIM is not responsible for the contents
of any Linked Site, including, but not limited to, any link contained in a
Linked Site, or any changes or updates to a Linked Site. Unless otherwise
stated, EHIM does not control, endorse or make any representations about any
Linked Site, any information, software or other products or materials found in
a Linked Site, or any results that may be obtained from using these links.
EHIM is providing these links as a mere convenience, and the inclusion of any
link does not imply any form of affiliation or endorsement. If User decides to
access any of the Linked Sites or third party content from or on the Online System,
User does so entirely at his/her own risk.
ARTICLE
XI
LIMITATION
OF LIABILITY
11.1 Limitation of Liability. UNDER
NO CIRCUMSTANCES SHALL EHIM BE LIABLE TO USER OR ANY THIRD PARTY UTILIZING USER’S
ACCOUNT FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST
PROFITS), SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR
RELATING TO THE T&C, THE ONLINE SYSTEM OR THE INTERNET GENERALLY,
INCLUDING, WITHOUT LIMITATION, THEIR USE OR INABILITY TO USE THE SERVICE,
DAMAGE TO ANY EQUIPMENT, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE,
DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR
DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY
TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE ONLINE SYSTEM, OR ANY DATA OR
MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE ONLINE SYSTEM, WHETHER
SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO
EVENT SHALL EHIM'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL ANNUAL
FEES PAID BY CLIENT TO EHIM HEREUNDER. IF USER IS DISSATISFIED WITH THE
SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE
OF THE ONLINE SYSTEM AND TERMINATE THE T&C.
ARTICLE XII
INDEMNIFICATION
12.1 Indemnification. User will
indemnify, defend and hold harmless (“Indemnifying Party”) EHIM and its
Key Personnel (“Indemnified Party”) against any and all claims, actions,
obligations, damages, liabilities, lawsuits, settlements, judgments, costs,
fines, penalties and expenses, including reasonable attorney’s fees and
expenses (“Losses”), asserted against by any person, arising out of or
relating to: (a) the T&C; (b) User’s use of the Online System, including
any data or work transmitted or received by User and Client; (c) any
unacceptable use of the Online System, including, without limitation, any
statement, data or content made, transmitted or republished by User or Client which
is prohibited as unacceptable; (d) the failure of User’s equipment; (e) User’s or
Client’s failure to administer the Plan according to its terms or to immediately
notify EHIM of any change in Member’s status; (f) User’s or Client’s failure to
immediately notify EHIM of any change in respective User’s status; or (g)
User’s illegal, fraudulent or willful misconduct and/or gross negligence in the
performance of its responsibilities under these T&C.
12.2
Notification in Writing. The Indemnified Party will notify the
Indemnifying Party in writing promptly upon learning of any claim for which
indemnification may be sought under this Agreement, and will tender the defense
of such claim to the Indemnifying Party. The Indemnifying Party will have no
obligation to indemnify the Indemnified Party with respect to any claim settled
without the Indemnifying Party’s written consent. Notwithstanding anything to
the contrary, the Indemnified Party reserves the right, but not the obligation,
to obtain and manage its own representation and to participate, in its own
discretion, with any litigation, strategy, settlement, or resolution of any
such claim, at its own cost, and upon notice, to assume its own defense, naming
the Indemnifying Party as a party defendant, against whom the Indemnified Party
may seek damages inclusive of costs of counsel and litigation from the
Indemnifying Party.
ARTICLE XIII
MISCELLANEOUS
13.1 Assignment.
Neither Party may assign the T&C without the prior written consent of the
other Party, for which consent will not be unreasonably withheld. If agreed
upon, the
T&C will be binding upon, and inure to the benefit of and be enforceable by
any successor entity.
13.2 Third Party Rights. This
T&C is neither a part of the Plan nor is a third party beneficiary
contract. It is a contractual agreement solely between EHIM and User for
services related to the non-discretionary operation of the Plan and does not grant any rights to any other parties or
individuals.
13.3 Counterparts and
Facsimiles. This T&C
may be executed in multiple counterparts, each of which will constitute an
original, and all of which, taken together, constitute one and the same
original. Each Party will sign at least one counterpart, but is not required
to sign every counterpart. This T&C may be executed by facsimile signatures
and delivered via facsimile transmission or any other form of electronic
transmission, including e-mail, with such execution and delivery having the
same legal force and effect as if the original T&C had been executed and
delivered by both Parties.
13.4 Governing Law.
This T&C will be governed by the laws of the State of Michigan, without
reference to its conflict of law provisions, and Federal law where applicable.
Any and all claims and/or actions which either Party brings against the other
will be brought only in the courts located in the County of Oakland, State of
Michigan, or if brought in federal court, in the United States District Court
for the Eastern District of Michigan.
13.5 No Waiver.
Failure by either Party to insist upon compliance with any provisions of the T&C
at any time or under any set of circumstances will not operate to waive or
modify that provision or in any manner render it unenforceable as to any other
time or as to any other occurrence, whether the circumstances are or are not
the same, and no waiver of any of the T&C will be valid or of any force or
effect unless contained in a written memorandum specifically expressing such
waiver and signed by a person duly authorized by the respective Party to sign
such waiver.
13.6 Severability.
The invalidity or unenforceability of any provision in this T&C will in no
way affect the validity or enforceability of any other provision, and this T&C
will be construed in all respects as if such invalid, void or unenforceable
provisions, etc. were omitted.
13.7 Corporate
Obligations.
The obligations of EHIM under this T&C are solely corporate obligations and
no officer, director, employee, agent, shareholder or controlling person of
EHIM will be subject to any personal liability whatsoever, unless expressly
arising by operation of applicable law.
13.8 Appointment of
Agents.
EHIM may appoint any agents, independent contractors, administrators or other
parties, including, but not limited to, service providers and data processors,
to assist it in the administration of this T&C.
13.9
Rules of Construction.
The headings contained in this T&C are inserted for purposes of reference
only, constitute no part of this T&C and are not to be considered in the
construction thereof. Wherever in this T&C words are used in the
masculine, feminine or neuter gender, they will be read and be construed as in
the masculine, feminine or neuter gender wherever they would so apply, and vice
versa. Wherever words appear in the singular or plural, they will be read and
construed as in the plural or singular, respectively, wherever they would so
apply. This T&C is being entered into by and among competent and
sophisticated Parties who are experienced in business matters and represented
by counsel and other advisors, and has been reviewed by the Parties and their
counsel and other advisors. Therefore, any ambiguous language in this T&C
will not be construed against any particular Party as the drafter of the
language.
13.10 Independent
Parties.
No provision of this T&C is intended to create or will be construed to
create any relationship between EHIM and User other than that of independent
entities contracting with each other solely for the purpose of effecting the
provisions of this Agreement. Neither Party, nor any of their respective
representatives, will be construed to be the partner, agent, fiduciary,
employee, or representative of the other and neither Party will have the right
to make any representations concerning the duties, obligations or services of
the other except as consistent with the express terms of this T&C or as
otherwise authorized in writing by the Party about which such representation is
asserted.
13.11 Survival of
Obligations.
The various covenants, agreements, representations, promises, warranties,
rights, obligations and restrictions which accrue or come into existence
pursuant to this T&C and/or during the term of this T&C will survive
any termination of this T&C and be fully enforceable against the
responsible Party.
13.12 Force Majeure.
Neither Party will be liable for, nor will either Party be considered in breach
of this T&C due to any failure or delay in performance of its obligations
under this T&C as a result of a cause beyond its reasonable control
including but not limited to any act of God or public enemy, act of any
military, civil or regulatory authority, change in any law or regulation, fire,
flood, tornado, hurricane, earthquake, storm or other like event, labor strikes
and/or disruption or outage of computers or communications, equipment failure,
power or other utility failure, unless such disruption, outage or failure is a
result of the failure of User to update its Data Security in accordance with
industry standards.
13.13
Inconsistencies. If there are any inconsistencies between this T&C and any
other agreements regarding the subject matter of this T&C between the
Parties, the language in this T&C will control.
13.14
Entire Agreement. This
T&C constitutes the entire understanding of the Parties and supersedes any
prior oral or written communication or agreement between the Parties with
respect to the subject matter of this T&C.
13.15
Notice. Unless otherwise indicated by this
Agreement, any notice and other communications required to be given by one
Party to the other will be in one of the following methods: (a) displayed
electronically in the Online System; (b) registered or certified mail; (c)
recognized overnight delivery service with confirmed receipt; (d) facsimile
with confirmed receipt; or (e) e-mail with confirmed receipt, in any case
properly addressed to the other Party at such address as such Party will specify
from time to time by written notice delivered in accordance with this section.
Any such properly addressed and properly given notice will be deemed to be
effective upon posting, mailing, faxing, or emailing. Legal notices to EHIM
should be sent to EHIM, Attn: Legal Dept. 26711 Northwestern Highway, Suite
400, Southfield, MI 48033.
USER’S ACCESS, USE OR INSTALLATION OF
ANY PART OF THE ONLINE SYSTEM EXPRESSLY CONSTITUTES USER'S AGREEMENT TO AND
CONSENT TO BE BOUND BY ALL OF THE T&C. IF USER DOES NOT AGREE TO ALL OF
THE T&C, THAT PARTY MUST NOTIFY EHIM IN WRITING. UPON RECEIVING SUCH
NOTICE, EHIM WILL PROMPTLY DENY OR CANCEL ACCESS TO THE ONLINE SYSTEM AND USER MAY
NOT ACCESS, USE OR INSTALL ANY PART OF THE ONLINE SYSTEM.
USER
HAS READ, UNDERSTANDS AND AGREES TO THE T&C.
Last
Updated: November 14, 2016