"A Full Service Healthcare Solutions Company"


RIDER A

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 UseUser 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 LiabilityEHIM 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 DataWithin 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 TermEHIM 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 NoticeUnless 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

 

 

   




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