Master Terms and Conditions
Master Terms and Conditions
(Last Updated 1/1/2021)
- Agreement Structure and Order of Precedence. These Master Terms and Conditions (“MTC”) govern the way in which US Retirement and Benefit Partners, Inc. (“USRBP”) and its related subsidiaries and affiliates (collectively “PARTNER FIRM”) will provide services to CLIENT (defined as any client company that is a party to any agreement that references and incorporates the MTC) and how CLIENT will obtain services from PARTNER FIRM, including under any applicable Statement of Work (“SOW”). The services to be provided are identified on one or more SOWs signed by the parties, which explicitly reference and incorporate the MTC. While the MTC is intended to cover the provision of the services generally, additional terms and conditions related to specific services may be set out in individual SOWs, which terms and conditions shall govern the relationship of the parties with respect to those specific services covered by the SOW. To the extent any terms and conditions of the MTC conflict with the terms and conditions of a SOW, the terms and conditions of the MTC shall control unless the SOW expressly states the intent to supersede a specific portion of the MTC.
- Acknowledgements. CLIENT acknowledges that certain services include the use of certain third-party software, including The Beacon, The Beacon Select, and/or Employee Navigator (collectively, the “Licensed Product”), pursuant to a third-party software license agreement (the “License Agreement”) and that PARTNER FIRM is a party to that License Agreement by and through its parent company, USRBP. CLIENT further acknowledges that the License Agreement permits the software portion of the Licensed Product to be utilized in marketing and enrolling voluntary insurance products of PARTNER FIRM (“Partner Products”) and other voluntary and core insurance products (“Other Benefits”), and the License Agreement permits the software system portion of the Licensed Product to be utilized by employees of PARTNER FIRM and third parties performing services on behalf of PARTNER FIRM to market, purchase, enroll or administer Partner Products and Other Benefits. CLIENT agrees to solely use the Licensed Product for the purpose of marketing Partner Products and Other Benefits to CLIENT’s employees and for the purpose of enrolling CLIENT’s employees in Partner Products and Other Benefits. CLIENT acknowledges that CLIENT’s rights to use the Licensed Product for the foregoing purposes are derived solely from the existence of the License Agreement and should the License Agreement be terminated for any reason, then CLIENT’s rights to use the Licensed Product will cease.
- Scope of Services. The scope of services for a particular project shall be specifically defined in a SOW. Each SOW will specify, inter alia, the type of work, approximate length of the project, payment rates, deliverables and their due dates, and completion criteria for successful completion of the services. The SOW is to be separately executed and when so executed shall be governed by the MTC. A separate SOW shall be completed and executed by the Parties for each additional project.
(a) Confidential Information. As used herein, “CLIENT’s Confidential Information” means, subject to the exceptions set forth in subsection (c) and (d) below, any information or data, regardless of whether it is in tangible form, disclosed by CLIENT directly to PARTNER FIRM that CLIENT has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary upon disclosure to PARTNER FIRM or which would be apparent to a reasonable person, familiar with CLIENT’s business and the industry in which it operates, to be of a confidential or proprietary nature the maintenance of which is important to CLIENT; unless such information is the subject of any of the exceptions set forth in Section 4 (c) and (d) below.
(b) Use and Disclosure of Confidential Information. PARNTER FIRM acknowledges that in the course of PARNTER FIRM’s performance of services under a SOW, CLIENT may directly disclose to PARNTER FIRM, CLIENT’s Confidential Information. PARNTER FIRM agrees that it will not (i) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under a SOW, or (ii) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to (a) its employees, affiliates, agents, customers and consultants who are required to have access to the Confidential Information in connection with the exercise of its rights and performance of its obligations under a SOW and (b) investors, prospective acquirers and professional advisers; provided that such employees, consultants, investors, prospective acquirers and professional advisers are bound by written agreements in accordance with the terms of this Section 2 (b). PARNTER FIRM agrees that it will not allow any unauthorized person access to CLIENT’s Confidential Information, and that PARNTER FIRM will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that PARNTER FIRM is required by law to make any disclosure of any of CLIENT’s Confidential Information, by subpoena, judicial or administrative order or otherwise, PARNTER FIRM shall first give written notice of such requirement to CLIENT (subject to any judicial non-disclosure order), and shall permit CLIENT to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to CLIENT in seeking to obtain such protection.
(c) Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to PARNTER FIRM prior to receipt from CLIENT directly from a source other than one having an obligation of confidentiality to CLIENT; (ii) becomes known (independently of disclosure by CLIENT) to PARNTER FIRM directly from a source other than one having an obligation of confidentiality to CLIENT; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of a related SOW by PARNTER FIRM; or (iv) is independently developed by PARNTER FIRM.
(d) Exception from Confidentiality Provision Regarding Terms of a SOW. In addition, neither of the Parties to a SOW will disclose the terms of the SOW to any other person or entity not a party to the SOW without the prior written consent of the other Party to the SOW, except that a Party to the SOW may disclose the terms of the SOW to its accountants, advisors, investors, acquirers and/or potential investors or acquirers and their advisors (collectively, “Representatives”), which Representatives have a “need-to-know” solely for the purpose of evaluating, negotiating or documenting a contemplated investment or acquisition; provided, however, that each such Representative is bound by a written agreement (or in the case of attorneys or other professional advisors, formal ethical duties) requiring such Representative to treat, hold and maintain the terms of the SOW as Confidential Information in accordance with the terms and conditions of this Section 4 (d).
- Risk of Loss. PARTNER FIRM shall not be responsible for, and CLIENT shall bear the risk of, loss during transmission of CLIENT’s records and data over all communications, links and devices.
- The Effective Date shall mean the date on which a SOW is fully executed by both parties, which will commence the set-up period. The Activation Date shall mean the date on which the Licensed Product is activated for use by CLIENT and its employees, terminating the set-up period. Subject only to the specific terms of a related SOW, any agreement between the Parties involving the Licensed Product shall commence on the Effective Date and shall continue in effect for two (2) years from the Activation Date (the “Initial Term”). Upon expiration of the Initial Term, and on each annual anniversary thereafter, an agreement between the parties shall automatically renew for an additional one-year period(s) (each a “Renewal Term”) unless terminated earlier by either Party upon written notice of not less than sixty (60) days from the next Renewal Term. Notwithstanding the foregoing, however, the term of a SOW shall expire immediately in the event the above-described License Agreement is terminated for any reason or in the event CLIENT is no longer permitted to use the Licensed Product under the terms of the License Agreement. CLIENT acknowledges that this Agreement does not grant CLIENT any rights to use the Licensed Product.
- Termination Without Cause. Notwithstanding the terms in Section 6, either Party may terminate a SOW or similar agreement at any time by providing advanced written notice of not less than (60) days to the other Party.
- Termination for Cause. SOWs and Related Agreements may be terminated for cause, as follows:
(a) If either Party breaches any material term or condition of a SOW or related agreement, except for CLIENT’s obligation to pay fees, and fails either to substantially cure such breach within thirty (30) days after receiving written notice specifying the breach or, for those breaches which cannot reasonably be cured within thirty (30) days, promptly commences curing such breach and thereafter proceeds with all due diligence to substantially cure such breach, then the Party not in breach may, by giving written notice to the breaching Party, terminate a SOW or related agreement as of a date specified in such notice of termination. All of the obligations of the Parties contained in a SOW or related agreement, except for CLIENT’s obligation to pay fees, shall be deemed to have been performed in an acceptable manner unless the Party not in breach provides the breaching Party with written notice as stated above within sixty (60) days of the event giving rise to the breach; provided the Party not in breach, knows or should have known about such breach.
(b) If CLIENT fails to pay when due any amounts owed hereunder within thirty (30) days of receiving written notice thereof, PARNTER FIRM may, by giving written notice thereof to CLIENT, terminate a SOW or related Agreement as of a date specified in such notice of termination.
(c) In the event that either Party hereto becomes or is declared insolvent or bankrupt, is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension or readjustment of all or substantially all of its obligations, then the other Party hereto may, by giving written notice thereof to such Party, terminate a SOW or related agreement as of the date specified in such notice of termination.
(d) Upon the termination of a SOW or related agreement for any reason, CLIENT will promptly pay to PARNTER FIRM all fees due up to the termination date pursuant to the related SOW.
- Payment Terms. PARTNER FIRM will invoice CLIENT monthly for the fees as outlined in the SOW. All fees will be invoiced and are due within thirty (30) days of the date of the invoice. If applicable and in the event that any third party fails to pay invoices when due, CLIENT agrees to pay PARNTER FIRM for the Services according to the rates and schedule described in the SOW.
Any amount not paid when due shall thereafter bear interest until paid at a rate equal to the lesser of one and one half percent (1½%) per month or the maximum rate allowed by applicable law.
- Limited Warranty and Service Level Agreement.
(a) PARNTER FIRM warrants all services under a SOW or related agreement will be performed in accordance with generally accepted industry standards by personnel or agents that are qualified to perform the services.
(b) PARNTER FIRM warrants that it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under a SOW or related agreement.
(c) NO OTHER WARRANTY. Except for the express warranties set out above in this section, PARNTER FIRM Services are provided on an “As Is” basis, and CLIENT’s use of PARNTER FIRM Services is at its own risk. PARNTER FIRM does not make, and hereby disclaims, any and all other express or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. PARNTER FIRM does not warrant that the services will be uninterrupted, error-free, or completely secure. PARNTER FIRM MAKES ABSOLUTELY NO WARRANTIES CONCERNING THE LICENSED PRODUCT.
- Limitation of Liability
Under no circumstances will PARNTER FIRM, its affiliates or related persons be liable to CLIENT for any consequential, indirect, special, punitive, or incidental damages or lost profits, whether foreseeable or unforeseeable, whether or not arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, based on CLIENT’s claims or those of its customers, including, but not limited to claims for:
- use of PARNTER FIRM Services,
- interruption in use or availability of data,
- loss of goodwill,
- use of third party software,
- accuracy or interpretation of resulting reports,
- stoppage of other work, or
- impairment of other assets
IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH PARNTER FIRM INCURS IN ANY ACTION OR PROCEEDING EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO PARNTER FIRM UNDER THIS AGREEMENT DURING THE YEAR ENDING ON THE DATE ON WHICH THE EVENT FORMING THE BASIS OF THE ACTION OR PROCEEDING FIRST OCCURRED.
CLIENT SHALL HOLD HARMLESS PARNTER FIRM AND ITS AFFILIATES FROM AND AGAINST ANY LIABILITY, CLAIMS, ACTIONS, DAMAGES OR LOSSES, FOR INJURY, INCLUDING DEATH, TO ANY PERSON OR DAMAGE TO ANY PROPERTY OR PROPERTY RIGHT ARISING OUT OF CLIENT’S USE OF THE LICENSED PRODUCT AND THE SERVICES EVEN IF SUCH LIABILITY, CLAIMS, ACTIONS, DAMAGES OR LOSSES ARE SOLELY CAUSED OR PARTIALLY CAUSED BY THE NEGLIGENCE OF PARNTER FIRM OR OF ANY LICENSORS OF ANY OF THE LICENSED PRODUCT OR ANY OTHER PRODUCT USED BY PARNTER FIRM IN PERFORMANCE OF THE SERVICES. SUCH OBLIGATIONS SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFIT PAYABLE BY OR FOR EITHER PARTY UNDER WORKER’S COMPENSATION, DISABILITY BENEFITS, OR OTHER EMPLOYEE ENTITLEMENT.
- Force Majeure.
Neither Party will be liable for any failure or delay in performing an obligation under a SOW or related agreement that is due to PARNTER FIRM beyond its reasonable control, including, but not limited to, fire, explosion, epidemics, earthquake, lightning, failures or fluctuations in electrical power or telecommunications equipment, accidents, floods, acts of God, the elements, terrorism, war, civil disturbances, criminal acts, acts of civil or military authorities or the public enemy, fuel or energy shortages, acts or omissions of any common carrier, strikes, labor disputes, regulatory restrictions, restraining orders or decrees of any court, changes in law or regulation or other acts of governmental, transportation stoppages or slowdowns or the inability to procure parts or materials. These causes will not excuse CLIENT from paying accrued amounts due to PARNTER FIRM through any available lawful means acceptable to PARNTER FIRM.
Neither Party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the other Party’s prior written approval. Any attempt to do so without such approval can result in the termination of the SOW or related agreement for cause.
Notwithstanding the foregoing, either Party may assign a SOW or related agreement to a related or unrelated entity in connection with a transfer of all, or substantially all, of its stock or assets to a third party, and the Parties hereto hereby consent to any such assignment.
A SOW or related agreement under the purview of the MTC shall bind each Party’s successors-in-interest.
In performing under a SOW or related agreement, both Parties are acting as independent contractors and neither Party undertakes to perform any obligation of the other, whether regulatory or contractual, or to assume any responsibility for the other’s business or operations. CLIENT understands and agrees that PARNTER FIRM may perform for or provide to third parties services similar to the PARNTER FIRM Services. Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between PARNTER FIRM and CLIENT. Neither Party shall hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of or binding upon the other Party.
Any notice or approval required or permitted under the MTC will be in writing and will be sent by fax, courier, or mail, postage prepaid, to the address specified in the signature block of a SOW or related agreement or to any other address that may be designated by prior written notice. Any notice or approval delivered by fax (with answer back) will be deemed to have been received the day it is sent. Any notice or approval sent by courier will be deemed received one (1) day after its date of posting. Any notice or approval sent by mail will be deemed to have been received on the fifth (5th) business day after its date of posting.
- Accuracy of Data and Records. CLIENT is solely responsible for the accuracy and integrity of data stored in the system. CLIENT is solely responsible for data input and maintenance of employee and benefit plan information.
- Any waiver, amendment or modification of any SOW or related agreement will not be effective unless executed in writing and signed by both Parties. All amendments shall be made in a supplemental statement of work (“SSOW”) and signed by both parties.
- Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New Jersey, U.S.A., to the exclusion of its conflict of laws provisions. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of a SOW or related agreement, unless either Party in good faith deems the unenforceable provision to be essential, in which case such Party may terminate a SOW or related agreement effective immediately upon notice to the other Party.
Venue for any dispute resolution proceeding shall be in Middlesex, County, New Jersey.
- Entire Agreement. A SOW or related agreement, signed by both parties, and which incorporates by reference the MTC, constitutes the complete and entire statement of all term, conditions and representations of the agreement between PARNTER FIRM and CLIENT with respect to its subject matter and supersedes all prior writings or understandings.
- Notwithstanding any other provisions of a SOW or related agreement to the contrary, Sections 4, 8, 10, 11, 16 and 19 shall survive the termination of an SOW or related agreement that incorporates by reference the MTC.
- THE LICENSED PRODUCT IS COPYRIGHTED WORK OF PARNTER FIRM OR ITS VENDORS AND SUPPLIERS AND IS PROTECTED BY THE COPYRIGHT LAWS OF THE UNITED STATES AND INTERNATIONAL TREATY PROVISIONS. CLIENT is prohibited from selling, loaning, renting, leasing, sublicensing, transmitting, distributing, redistributing, or otherwise transferring or assigning any part of the Licensed Product to any third party at any time whether with or without consideration. Without limiting the generality of the foregoing, any transmittal or transfer of the Licensed Product on the Internet or by other electronic means is prohibited. ANY REPRODUCTION OR DISTRIBUTION OF THE LICENSED PRODUCT NOT IN ACCORDANCE WITH THE EXPRESS TERMS OF THE LICENSE AGREEMENT IS PROHIBITED AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES. ANY ACTUAL OR ATTEMPTED SALE, LOAN, RENTAL, LEASE, LICENSE, SUBLICENSE, TRANSMISSION, DISTRIBUTION OR REDISTRIBUTION OR OTHER TRANSFER OR ASSIGNMENT OF THE LICENSED PRODUCT, IN WHOLE OR IN PART, IN ANY MEDIA OR BY ANY METHOD, SHALL IMMEDIATELY AND IRREVOCABLY TERMINATE THIS AGREEMENT AND YOUR RIGHTS TO USE THE LICENSED PRODUCT UNDER THE LICENSE AGREEMENT FOR ALL PURPOSES NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT acknowledges and agrees that the Licensed Product and all permitted copies are PARNTER FIRM’s exclusive property and a valuable trade secret of PARNTER FIRM. CLIENT may not disclose or make available to third parties the Licensed Product or any portion thereof without PARNTER FIRM’s prior written approval. PARNTER FIRM reserves title to, ownership of, and all proprietary rights to the Licensed Product, as well as any related work product and major or minor releases of the Licensed Product, if any. CLIENT shall not: (a) permit any copy of the Licensed Product to be shared or used concurrently by persons other than Authorized Users under the terms of the License Agreement; (b) modify (except as expressly provided otherwise herein), translate, disassemble, or reduce the Licensed Product to another form, or create derivative works based upon the Licensed Product, or cause or permit another to do so; (c) remove any proprietary notices, labels, copyright marks, or trademarks on the Licensed Product; or (d) adapt (except as expressly provided otherwise herein), rent, lease, commercially host, redistribute, loan, or attempt to license or sublicense the Licensed Product. CLIENT shall promptly and in good faith take all action reasonably necessary, advisable, or requested by PARNTER FIRM to assure compliance with this Section 7 by all employees, agents, and CLIENTs of CLIENT.