LAST UPDATED: October 11, 2024

MBA TERMS OF SERVICE

These Terms of Service (together with all other documents incorporated by reference, in each case as amended from time to time, collectively, this “Agreement”) is legally binding on the parties and shall govern your rights with respect to your use of the My Benefits Advice web-based platform (the “Platform”) made available by My Benefits Advice LLC (“MBA”).

The parties hereby agree as follows:

1.             Authorization and Use of the Services.

(a)           Access and Use.  Subject to and conditioned on your and your Authorized Users' (as defined below) compliance with the terms and conditions of this Agreement, MBA hereby authorizes you to access and use, during the Term (as defined in Section 2), the Platform solely for your internal business purposes by and through Authorized Users.  This authorization is non-exclusive and non-transferable.  “Authorized Users” means your employees, representatives, contractors or agents who are authorized to use the Platform on your behalf and have been supplied a valid user name and password to access and use the Platform.

(b)           Access and Security Guidelines.  Each Authorized User will be assigned a unique user identification name and password (“Access Credentials”) for access to and use of the Platform. You and your Authorized users shall be responsible for ensuring the security and confidentiality of all Access Credentials. You will use best efforts to prevent unauthorized access to, or use of, the Platform, and notify MBA promptly of any such unauthorized use.

(c)            Use Limitations and Restrictions. You shall not, and shall not permit any Authorized User or third-party to, access or use the Platform for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing, you shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform to any third-party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (iv) input, upload, transmit or otherwise provide to or through the Platform any data, content, materials and/or information (collectively, the “Customer Data”) that is unlawful or injurious, or contain, transmit or activate any viruses, worms, Trojan horses, corrupted files, hoaxes, bots, harmful code, denial-of-service attacks, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology that are of a destructive or deceptive nature; (v) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform or MBA’s provision of the Platform to any third party, in whole or in part; (vi) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Platform, including any copy thereof; (vii) access or use the Platform in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; or (viii) access or use the Platform in any manner or for any purpose that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable.  You are solely responsible for the Customer Data.

(d)           Changes.  MBA may make any changes to the Platform (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Platform) that MBA deems necessary or useful to improve the Platform or for any other reason, from time-to-time in MBA’s sole discretion, and without notice to you. 

(e)           Subcontractors.  We may, in our discretion, engage subcontractors to aid us in providing the Solutions and performing the Platform under this Agreement.  We use Amazon Web Services (the “Hosting Services Provider”) for cloud-based infrastructure and hosting and storage services for the Platform, and such Hosting Services Provider will host and store certain portions of Customer Data that is processed through the Platform.  For more information, please visit https://aws.amazon.com/agreement/.  You hereby specifically approve and consent to our use of this Hosting Services Provider in the manner described.

2.             Term and Termination. This term of this Agreement shall commence on the date you commence access and use of the Platform and will remain in effect unless and until this Agreement is terminated in accordance with its term (the “Term”). Either party may terminate this Agreement (i) immediately if the other party fails to cure any material default or breach of any term or condition hereof within thirty (30) calendar days of receiving written notice thereof from the party seeking to terminate this Agreement, or (ii) for convenience upon forty-five (45) days’ prior written notice to the other party.  Without limiting the foregoing, in the event of a breach that gives rise to the right by MBA to terminate this Agreement pursuant to clause (i) above, MBA may suspend or otherwise deny your and/or any Authorized User's access to or use of all or any part of the Platform, without incurring any resulting obligation or liability, until the breach is cured and all fees shall continue to accrue during the period of such suspension.  Upon any termination of this Agreement, the rights granted hereunder will automatically terminate, and MBA may immediately terminate your and your Authorized Users’ access to the Platform. Notwithstanding anything in this Agreement to the contrary, Sections 3 and 5-10 hereof survive any termination or expiration of this Agreement.

3.             Ownership.  You acknowledge all right, title, and interest, including all intellectual property rights, in and to the Platform are and will remain with MBA. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants to you any intellectual property rights or other right, title, or interest in or to (including any license under) the Platform, whether expressly, by implication, estoppel, or otherwise.  MBA reserves all rights not expressly granted to you in this Agreement.  Further, you may submit suggestions or recommended changes with respect to the Platform to MBA ("Feedback").  You hereby assign to MBA all right, title, and interest in, and MBA is free to use, without any attribution, restrictons or compensation, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although MBA is not required to use any Feedback.

4.             Your Responsibilities. You are responsible and liable for all uses of the Platform resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all activities that occur under your Authorized Users’ accounts, and any activities occurring under your Authorized User’s accounts that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Platform, and shall cause Authorized Users to comply with such provisions.        

5.             Confidential Information. You acknowledge and agree that the Platform, including the methods, algorithms, source code, structure and logic, technical infrastructure, techniques and processes used by MBA in developing, producing, marketing and/or making the Platform available for subscription, are MBA’s “Confidential Information”.  You agree to (a) hold in confidence and not publish or disclose to any third parties any of the Confidential Information and (b) use the same degree of care (and in any event not less than reasonable care) to safeguard the confidentiality of the Confidential Information that it uses to protect its own trade secret information. 

6.             Representations and Warranties.

(a)           You represent and warrant that:  (i) your are duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) you have the full right, power and authority to enter into and perform your obligations under this Agreement; (iii) the individual that has acknowledged and agreed (i.e., accepted) the terms and conditions of this Agreement on your behalf has been duly authorized by all necessary corporate or organizational action; (iv) this Agreement constitutes a legal, valid and binding obligation, enforceable against you in accordance with its terms; (v) you have obtained all approvals, consents and/or rights to allow MBA to access, use, store, and/or process all Customer Data as reasonably necessary or required to perform deliver and provide the Platform to you as contemplated under this Agreement; and (vi) MBA’s access, use, storage and proceesing of the Customer Data shall not violate any applicable law (including any applicable privacy laws) and shall not misappropriate, infringe or otherwise violate any intellectual property right or other right of any third party.

(b)           THE PLATFORM IS PROVIDED "AS IS" AND MBA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  MBA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  MBA MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

7.             Indemnification. You agree to indemnify, defend, and hold harmless MBA and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding based on, or arising in connection with, your or your Authorized Users' (a) negligence or misconduct or (b) breach of this Agreement, including without limitation, any use of the Platform in a manner that is not authorized or that otherwise violates the terms hereof. You may not enter into any settlement and/or other third-party agreement related to any indemnifiable claim without MBA's prior written consent.

8.             Limitations of Liability. IN NO EVENT WILL MBA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER MBA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.  IN NO EVENT WILL MBA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNTS PAID BY CLIENT TO MBA DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM AGAINST MBA HEREUNDER. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9.             Equitable Relief.  You acknowledge and agree that a breach or threatened breach of any of its obligations under Section 1(a), 1(c) and/or 5 would cause MBA irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, MBA will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.

10.           Force Majeure.  MBA shall not be liable for delays in performance or for non-performance due to unforeseen circumstances or any events or causes beyond MBA’s reasonable control, including cyber-attacks, acts of God, war, epidemic, fire, flood, weather, sabotage, strikes or labor disputes, civil disturbances or riots or governmental action.

11.           Changes to Terms.  MBA may change the terms of this Agreement at any time by posting modified, updated or new applicable terms and conditions and revising the “Last Updated” date at the top of this Agreement.  Your continued use of the Platform after any such posting means that you accept the changes in this Agreement.  It is therefore important that you review this Agreement regularly to ensure you are updated as to any modifications.

12.           Miscellaneous.  This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.  Except as provided in Section 11, no amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  This Agreement and its interpretation shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of laws provisions.   Each of the parties hereto consents to the sole and exclusive jurisdiction of any state or federal court located within the State of North Carolina.  If any party shall bring an action to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs from the unsuccessful party. You shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without MBA’s prior written consent. Any purported assignment, transfer, or delegation in violation of this Section is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.  All notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); or (c) by certified or registered mail, return receipt requested (upon verification of receipt).  Unless otherwise designated in writing by you, all notices to you shall be delivered to your principal place of business, attention “Legal Department”.  All notices to MBA shall be addressed as follows: My Benefits Advice LLC, PO Box 820, Cary, North Carolina 27512-0820. Any party may change the address to which notice is to be given by notice given in the manner set forth above.  The parties shall be independent contractors and the relationship between the parties shall not constitute a partnership, joint venture or agency.  No party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior written consent of such other party.