Benergy Terms and Conditions
Benergy Terms & Conditions
BENERGY SUBSCRIPTION SERVICES TERMS AND CONDITIONS
These Subscription Services Terms and Conditions and each Customer Agreement submitted by You (the company identified as the "Customer" on the Customer Agreement) and accepted by Ebix, Inc., a Delaware corporation having its principle placed of business at 5 Concourse Pkwy, Suite 3200, Atlanta, GA 30328 ("Us" or "We"), constitute the "Agreement" for Your access to the subscription services described on the Customer Agreement(s) ("Subscription Services").
1. Subscription Services.
You subscribe to the Subscription Services and We grant to You a non-exclusive, non-transferable, non-assignable license to access and use the Subscription Services solely for Your internal use by Your Users to manage and communicate Your information with Your employees. You are only authorized to access and use the Subscription Services identified on a fully executed Customer Agreement during the Term identified. We may update, enhance, or modify the Subscription Services from time to time to include new features, improve functionality, and address customer feedback without notice. You shall maintain a copy of all computer software applications required to access the Subscription Services on computers owned or operated by You. You will not be entitled to receive a copy of the software used to provide the Subscription Services. We will provide the Subscription Services pursuant to Our service levels viewable at
. We may make available end-user instructions for use and operation of the Subscription Services ("Documentation") electronically or otherwise, and You and the individuals you authorize to access the Subscription Services ("Users") may use the Documentation only in connection with use of the Subscription Services.
2. Reservation of Rights.
All rights granted in this Agreement are a license, not a sale. We reserve all rights not expressly granted in this Agreement. You may not, and will not permit any third party to, copy, modify, adapt, or create derivative works of the Subscription Services or Documentation, remove any copyright or other proprietary rights notices, or disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code for the Subscription Services.
We will make available certain consulting and professional services to You as mutually agreed upon in writing from time to time. We will provide such services pursuant to Our then current rates unless otherwise mutually agreed upon in writing.
4. Login Information.
Each of Your Users will be required to provide password and login identification ("Login Information") in order to access the Subscription Services. You are fully responsible for all uses of the Login Information attributable to You and Your Users. You will (i) protect the confidentiality of all Login Information, (ii) require Login Information for each User; (iii) notify Us of any breach of the confidentiality of any Login Information, and (iv) update and maintain current the Login Information in a manner to notify Us if any individual is no longer authorized to use the Login Information or misuses the Login Information. You will not provide Login Information to any person that is not Your employee or contractor. Without liability or limiting any other remedies available to Us, We reserve the right to suspend or terminate access by any User accessing the Subscription Services under user/login rights granted to You if such use represents a breach of the terms and conditions of this Agreement or security risk to Our systems.
5. Your Data.
In order to utilize the Subscription Services as intended, You are responsible to provide information and data for inclusion in the Subscription Services ("Your Data") and as otherwise described in this Agreement. You grant Us the right to copy, transmit and use Your Data in connection with providing the Subscription Services or other services You order. We acknowledge that Your Data constitutes Your Proprietary Information. You grant Us a limited license to access, copy, display, reproduce, and transmit Your Data solely for the purpose of providing the Subscription Services and performing Our obligations under this Agreement, and You warrant that You are authorized to provide Your Data to Us for these purposes. Additionally, We may use the Your Data in an aggregated manner without identifying You or Your employees for purposes of optimizing the Subscription Services or providing information to Our prospective customers, investors or advisors.
6. Your Obligations.
You represent and warrant that (a) You will provide all information reasonably necessary for Our provision of the Subscription Services and to allow You and Your Users to use the Subscription Services as intended; (b) You and Your Users are authorized to provide all data and information submitted to the Subscription Services and other of Your Data that may be relevant to Us; (c) You shall fully comply, and be and remain in compliance, with all applicable laws, rules and regulations; (d) You and each of Your Users shall be responsible for providing Your own Internet access (including all equipment, software and services required to obtain and maintain such access); and (e) the use of Your Data by Us as contemplated in this Agreement will not infringe the copyrights, patents, trademarks, service marks, trade secrets, confidential information or privacy right of any third party or constitute a defamation, invasion of privacy, or violation of any right of publicity or other third party right. You will use commercially reasonable efforts to implement reasonable physical, technical and administrative safeguards for Your information technology systems as required by law, including without limitation preventing any virus, Trojan horse, worm or other disabling code from being transmitted to or introduced into the Our systems.
7. Fees and Payment.
You will pay Us the fees for the Subscription Services and any other related services as specified on any Customer Agreement that You submit and We accept ("Subscription Fees"). Any services for which the fees are not set forth on a Customer Agreement shall be paid for at Our then-current time and materials rates unless otherwise agreed in writing by the parties. Except as otherwise set forth in a Customer Agreement, all amounts are due 10 days after invoice date and if not paid within thirty days of the invoice date will incur interest at 1.5% per month or the maximum rate under applicable law, if less. You will reimburse Us for out-of-pocket expenses reasonably incurred in rendering any services ordered hereunder, including without limitation, reasonable travel and transportation expenses, lodging, and meals. All amounts are exclusive of all sales, use, withholding, excise, value added, ad valorem or other similar taxes incurred or owed in connection with this Agreement and You shall pay any and all such taxes. You will not be responsible to pay for any taxes based solely on Our income.
We warrant to You that the Subscription Services shall materially comply with any specifications or Documentation We provide to You so long as the Subscription Services are used in accordance with the Documentation. We will repair or provide a workaround for any Subscription Services if We receive a written notice from You within the Warranty Period describing the warranty breach. The "Warranty Period" will be the ninety (90) days following the date the applicable Subscription Service is first made available for Your use for production purposes, which We may also described as the "Go-Live Date". This is Your exclusive remedy and Our sole and complete obligation with respect to the warranty for the Subscription Services. Other than as expressed in this Section 8, NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE MADE WITH RESPECT TO THE SUBSCRIPTION SERVICES OR ANY SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ERROR-FREE, ORIGINALITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE RELY ON DATA PROVIDED BY YOU, AND THEREFORE WE DO NOT GUARANTY OR WARRANTY THE ACCURACY, COMPLETENESS OR ADEQUACY OF ANY DATA OR OTHER INFORMATION PROVIDED AS PART OF THE SUBSCRIPTION SERVICES OR ANY RESULTS ASSOCIATED WITH USE OF THE SUBSCRIPTION SERVICES. You acknowledge that transmission of information via the Internet is not secure, and third parties out of Our control provide access to and maintain Internet connectivity for You to access and use the Subscription Services. We are not responsible for any interception or corruption of information or data during any transmission over the Internet or any related telecommunications network or at Your network access point. We expressly disclaim any and all liability related to Your use of such telecommunications services and related networks, including without limitation any erroneous transmissions, corruption or loss of data, or inability to access the Subscription Services as a result of telecommunications or Your equipment failure. No information contained in any of the Subscription Services or any process related thereto constitutes legal or tax advice. You should obtain legal advice to ensure its compliance with laws applicable to its business.
This Agreement shall be effective for the Initial Term set forth on the Customer Agreement. Unless either party notifies the other party in writing at least sixty (60) days prior to the end of the then existing term, the term will automatically renew for successive, twelve month periods (each a "Renewal Term") (the Initial Term and all Renewal Terms are the "Term"). Fees may be increased annually by the All Urban Consumer Price Index (CPI) or 3%, whichever is greater, after the first twelve (12) months.
Either of us may terminate this Agreement (i) if the other commits a material breach of this Agreement that remains uncured thirty (30) days after written notice of such breach is delivered to the other, or (ii) immediately if the other assigns any of its assets to its creditors, or voluntarily or involuntarily petitions for the protection of bankruptcy court. Rights of termination are in addition to any other remedies available to the parties, at law or in equity. Upon any termination or expiration of this Agreement (i) All license rights shall immediately terminate and You and Your Users shall immediately cease use of the Subscription Services and We may immediately terminate You and Your Users access to the Subscription Services; and (ii) Any amounts owed hereunder shall be immediately due and payable. The sections of this Agreement intended to survive shall continue past any termination of this Agreement. Upon Your failure to pay any amounts owed under this Agreement when due or material breach of this Agreement, You agree that, in addition to any other remedies available at law or equity, We may prevent You and Your Users’ access to the Subscription Services. We will give You at least fifteen (15) days written notice prior to such suspension or termination. You acknowledge and agree that We will have no liability for any loss of access to the Subscription Services. We may exercise the rights prior to expiration of the thirty (30) day cure period set forth above. Any suspension or termination of access to the Subscription Services will accelerate any minimum amounts owed or fees due under this Agreement.
Both of us shall protect the non-public proprietary information and trade secrets of the other ("Proprietary Information") with the same standard of protection and care that it uses for its own Proprietary Information, but in no event less than reasonable care and diligence. Except as authorized in this Agreement or otherwise in writing by the disclosing party, neither of us shall disclose, publish, transmit or make available all or any part of such Proprietary Information except in confidence or a need-to-know basis to our own employees and third party contractors who have undertaken a written obligation of protection and confidentiality at least as protective as stated above, and shall not duplicate, transform or reproduce such Proprietary Information except as expressly permitted hereunder. Information will not be considered Proprietary Information to the extent that such information: (a) is already known to the receiving party free of any confidentiality obligation at the time it was obtained; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) is rightfully received from a third party without restriction and without breach of this Agreement; or (d) is required to be disclosed by law or court order. In the event that either party is required by law or court order or regulatory authority to disclose any Proprietary Information, such disclosure may be made only after the other party has been notified and has had a reasonable opportunity to seek a court order or appropriate agreement protecting disclosure of such Proprietary Information. With regard to Trade Secrets, the obligations in this Section shall continue for so long as such information continues to be a Trade Secret. With regard to Confidential Information, the obligations in this Section shall continue for the term of this Agreement and for three (3) years thereafter.
12. Our Indemnity Obligations.
We agree to defend You and pay any and all amounts payable under any final judgment or verdict , or agreed to in a written settlement executed by such, resulting from any third party allegation against You that the Subscription Services directly infringe such third party’s U.S. patent, U.S. copyright or U.S. trademark or misappropriate such third party’s trade secret. Should Your use of the Subscription Services be determined to have infringed, or if, in Our judgment, such use is likely to be infringing, We may, at Our sole option and discretion: (i) procure for You the right to continue using the Subscription Services, or (ii) replace or modify them to make their use non-infringing while achieving substantially similar results. If neither of the above options is or would be available on a basis that We find commercially reasonable, We may terminate Your license to the Subscription Services, You will cease using the Subscription Services and We will refund to the You any pre-paid and unused fees paid for such infringing Subscription Services. Our obligations under this section will be subject to Your providing prompt written notice of the claim; giving Us sole control of the defense and settlement of the claim (including selection of counsel); providing information reasonably available and assistance reasonably necessary to facilitate the settlement or defense of such claim and, to the extent permitted by law, making any of Your defenses available to Us. THIS SECTION 12 SETS FORTH YOUR EXCLUSIVE REMEDY AND OUR SOLE AND COMPLETE LIABILITY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION.
13. Your Indemnity Obligations.
In addition to any other obligations of indemnity provided in this Agreement, You agree to indemnify, defend and hold harmless Us, Our affiliates, and Our affiliates' directors, officers, shareholders, employees and agents from and against any claims, actual and direct liabilities or damages, causes of action or injuries, together with costs and expenses, including reasonable attorneys' fees, arising out of or resulting from (a) any breach of this Agreement or any violation of law by You or Your representatives, or (b) any third party claim related to or that arises in connection with Your use the Subscription Services, except to the extent any such claim is subject to Section 12 or Our development efforts based upon Your Data or direction.
14. Limitations of Liability.
WE WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TIME, SAVINGS, DATA, OR GOODWILL, DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES OR OTHER PRODUCTS OR SERVICES, OR COST OF REPLACEMENT GOODS OR SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE SUBSCRIPTION SERVICES, PRODUCTS, SERVICES OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, EVEN IF SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR ANY DIRECT DAMAGES FOR BODILY INJURIES OR TANGIBLE PROPERTY DAMAGE PROXIMATELY CAUSED BY US, THE MAXIMUM AGGREGATE LIABILITY OF US IN ALL EVENTS SHALL BE LIMITED TO THE AMOUNT OF FEES YOU PAID TO US UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST CLAIM.
15. Governing Law.
This Agreement shall be governed, construed, and interpreted in accordance with the internal laws of the State of Georgia.
Upon receiving at least 30 days prior written notice, You will permit Us to review Your books and records and other information, including without limitation insurance quotations and/or proposals, Federal or State payroll information or other information relating to the Your use of the Subscription Services or to otherwise determine the number of Your employees. If any such review reveals any unauthorized use by You, We will provide You with a copy of the audit results and an invoice for fees associated with such unauthorized use. The invoiced fees shall be based upon the rates set forth in this Agreement or any attachment to this Agreement and, if applicable, the standard rates of any third party auditor. You will have thirty (30) days from receipt of the invoice and audit results from Us to pay such fees or to refute or dispute such fees in writing. If such audit reveals any underpayment, then We will notify You of the amount of such under payment, and You will pay such amount immediately together with all costs associated with such audit including a fifty (50%) underreporting assessment.
You grant Us a royalty-free, limited, nontransferable (except in connection with an assignment of this Agreement), nonexclusive license during the term of this Agreement to use and display Your logos and trademarks in customer lists, advertising materials, trade show materials and other literature identifying Our customers; provided that We agree to comply with Your written guidelines delivered to Us from time to time. Either You or We may issue an initial press release announcing this relationship within ninety (90) days of execution of the Agreement. The party writing the press release will provide the other with a proposed copy of the press release at least ten (10) days prior to release for review. If the submitting party does not receive written comments within ten (10) days, the press release will be deemed approved. After such initial press release, neither of us will make any public statements or issue any press releases relating to this Agreement without the prior approval of the other.
Our relationship with You is as an independent contractor, and this Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship or to authorize either of our companies to enter into any commitment or agreement binding on the other. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its rules regarding conflict of laws. This Agreement and all rights and obligations may not in any event be assigned in whole or in part by either party without the prior written consent of the other, except the rights and obligations of Ebix may be assigned without consent to another entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities and/or assets of Ebix. Any attempted assignment in contravention hereof shall be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of the parties, their legal representatives, successors, and assigns as permitted by this Agreement. Except for any payment obligations hereunder, neither party shall be liable for failure to perform any of its respective obligations hereunder if such failure is caused by an event outside its reasonable control, including but not limited to, an act of God, war, natural disaster, utility or telecommunications failure, or changes in governmental regulations. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach. No modifications, waivers, additions, or amendments to this Agreement shall be effective unless made in writing expressly references this Agreement and is signed by handwritten signature by duly authorized representatives of the parties. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. All notices required to be given hereunder shall be given in writing and shall be delivered either by hand, by certified mail with proper postage affixed thereto, or by overnight courier addressed to the signatory at the address set forth on the Customer Agreement, or such other person and address as may be designated from time to time in writing. All such communications shall be deemed received by the other party upon the earlier of actual receipt or actual delivery.
19. Broker Obligations.
The following applies if You are a broker authorized to resell the Subscription Services:
We grant you a non-exclusive, non-transferable, non-assignable license to access and use the Subscription Services (i) to market and distribute the Subscription Services to Your employer clients who access and use the Employer Subscription Services to manage and communicate their benefits information to their employees ("Clients") and to use the Employer Subscription Services on behalf of Clients to manage and communicate Client’s benefits information to the Client and its employees, and (ii) to access and demonstrate a demonstration version of the Employer Subscription Services to prospective Clients via a designated URL. You shall not make any representations, warranties, or guarantees with respect to the Subscription Services except as expressly authorized in writing by Us. You shall comply with any and all applicable laws which pertain to the sales and marketing of insurance products. You shall not engage in any activities, practices or business endeavors that would: (a) prevent Our ability to perform Our obligations; (b) adversely impact Our reputation; or (c) constitute a false or misleading representation to a Client or others regarding Us or the Subscription Services.
In order to protect Our intellectual property, each of Your clients must be legally bound to the then-current Sublicense Terms and Conditions viewable at
(each a "Client") prior to its access and use of the Subscription Services or Your use of the Subscription Services on a Client's behalf. Our obligations to provide the Subscription Services is subject to Our timely receipt of all applicable fees from You.
You will provide Us all relevant information for each Client that enters into a Subscription Services Agreement with a term in effect beyond the termination or expiration date of this Agreement.
We grant You a personal, non-exclusive, nontransferable, nonassignable, non-sublicensable, revocable, limited license to use Our trade names, logos, trademarks, and service marks associated with the Subscription Services (collectively the "Ebix Marks") solely in connection with Your marketing and demonstration of the Subscription Services. You must comply with Our guidelines for the use of Ebix Marks (including without limitation styles and notices) as We may provide from time to time. Your right to use the Ebix Marks continues only during the Term of this Agreement. All goodwill associated with Your use of the Ebix Marks shall benefit Us. You will suspend any use of the Ebix Marks if there is any failure of compliance with applicable restrictions or guidelines, and may only resume use upon notice by Us that the failure of compliance has been remedied. You will promptly notify Us of any and all misuse or infringements or attempted misuse of any of the Ebix Marks that may come to Your attention, and You will assist Us in taking such action against the infringers as We may elect in Our discretion.
Educators & Students
Terms & Conditions
The website owner is: Ebix Inc.10 10th Street NE, Ste. 500, Atlanta, Georgia 30309
2013 © Ebix, Inc. All rights reserved.