Unum Care Hub Marketplace Terms & Conditions

These Unum Care Hub Marketplace Terms and Conditions (“T&C’s) govern Customer’s subscription to Unum’s cloud-based employee-driven lifestyle marketplace platform and related offerings for employee self-care, parental, caregiving, and/or behavioral health support referred to as Unum Care Hub Marketplace (the “Marketplace”) as more specifically identified in the applicable order form for the Solution (each, an “Order”) executed by Unum and Customer. Unum and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The term “Agreement” includes these T&C’s and any in-force Order, as well as any exhibits, schedules or addenda attached hereto, all of which are incorporated herein by reference.

1. DEFINITIONS.

Capitalized terms used but not otherwise defined in this Agreement shall have the following meanings:

“Authorized Users” means Customer employees who have been granted access to the Marketplace pursuant to authorized and validated email addresses and/or unique user identifications and passwords, regardless of whether or not the Authorized User actually accesses the Solution.

“Customer Data” means the data provided by Customer and the Authorized Users in connection with the use of the Marketplace. 

“Documentation” means Unum’s standard user electronic documentation generally made available to customers of the Marketplace. 

“Professional Services” means Unum’s professional training, consulting, design, development, installation, implementation and integration services. 

“Marketplace” means, collectively, remotely hosted subscription, software-as-a-service access (on hardware owned or operated on behalf of Unum) to Unum’s electronic software solution identified in the Order, including all software applications, application program interfaces, modules, databases, hardware, infrastructure, documentation and system administration, maintenance, support, management and monitoring activities that Unum provides as part of such subscription, together with any updates or

“Subscription Term” means, collectively, the Initial Term identified in the Order together with all Renewal Terms (if any) entered into in accordance with this Agreement.

“Third Party Materials” means services, applications or content offered by Third parties, including without limitation vendors or Third Parties (as defined immediately below), to Customers or Authorized Users via the Marketplace or otherwise related to Customer’s or Authorized Users’ use of the Marketplace and which Customer or its Authorized Users may elect to purchase directly from such Third Party.

“Third Party” means another party offering services to Customer and its Authorized Users via the Marketplace. 

2. SAAS SERVICES AND UNUM OBLIGATIONS

  • 2.1. Provision of Access. Subject to the terms and conditions of this Agreement, Unum hereby grants Customer a limited, non-exclusive, non-transferable, non-assignable right during the term specified in the applicable Order to access the Marketplace and permit Authorized Users to use the Marketplace, up to the maximum number of individual Authorized Users specified in the Order. Notwithstanding anything to the contrary in this Agreement, Unum may immediately terminate an Authorized User’s access to the Marketplace or any part thereof if Unum determines, in its reasonable discretion, that such Authorized User is not in compliance with any terms governing such Authorized User’s access to the Marketplace.  Unum shall host the Marketplace and may update the functionality, user interface, usability and other user Documentation, training and educational information of, and relating to the Marketplace from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Marketplace and its customers’ use of the Marketplace.  
  • 2.2. Implementation, Support, and Other Marketplace. In connection with Customer’s subscription to the Marketplace hereunder, Unum will provide its applicable ongoing standard support for the Marketplace and may also provide Customer with certain ancillary services if set forth in an Order, such as implementation and onboarding support or training for Authorized Users and reasonable technical support services.
  • 2.3. Availability. Unum will use commercially reasonable efforts to make the web-based portion of the Marketplace available 24 hours per day, 7 days per week, except for:  (i) planned downtime (of which Unum shall use reasonable efforts to provide advance electronic notice), and (ii) any unavailability caused by circumstances beyond Unum’s reasonable control, including, for example, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Unum employees), Internet service provider failure or delay, denial of service attack, or any event relating to any non-Unum applications or services. 
  • 2.4. Unum shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its provision of the Marketplace, including without limitation those related to privacy, electronic communications and anti-spam legislation and Unum shall comply with the export laws and regulations of the United States and other applicable jurisdictions in provisioning the Marketplace and obtain any permits, licenses and authorizations required for such compliance (collectively, “Applicable Laws”).
  • 2.5. Unum, as part of its standard Marketplace offering, will make daily backup copies of the Customer Data in Customer’s “live” account and stores and maintain such data for a period of time consistent with Unum’s standard business processes, which period shall not be less than thirty (30) days. Customer is responsible for regularly backing up its Customer Data outside of the Marketplace. In the event of any loss, destruction, damage or corruption of Customer Data caused by Unum or the Marketplace, Unum, as its sole obligation and liability and as Customer’s sole remedy, will use commercially reasonable efforts to restore Customer Data from Unum’s most current backup of Customer Data.
  1. 3. CUSTOMER OBLIGATIONS
  • 3.1. General. Customer is responsible and liable for all uses of the Marketplace resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.  Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Marketplace and shall cause Authorized Users to comply with such provisions.  Without limiting any of the foregoing, Customer will be responsible for the confidentiality and use of Authorized Users’ passwords and user names.
  • 3.2. Usage Restrictions. Customer will not (and will ensure that its Authorized Users do not):  (a) reverse engineer, decompile, disassemble or translate any aspect of the Marketplace, or otherwise attempt to derive source code, trade secrets or know-how in or underlying the Marketplace or any portion thereof; (b) interfere with, modify, disrupt or disable features or functionality of the Marketplace, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Marketplace; (c) copy, sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Marketplace or content or components therein to any third party except as expressly permitted herein; (d) provide use of the Marketplace on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet "links" to the Marketplace or "frame" or "mirror" the Marketplace on any other server, or wireless or Internet-based device; (e) use the Marketplace for any illegal, unauthorized or otherwise improper purposes, including without limitation to store or transmit infringing, libelous, or otherwise unlawful or tortious material, to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights; (f) interfere with or disrupt the integrity or performance of the Marketplace, interfere with the ability of any other person to use or enjoy the Marketplace, or attempt to gain unauthorized access to the Marketplace or related systems or networks; (g) access or provide access to the Marketplace by Authorized Users residing outside of the United States, or upload Confidential Information regarding individuals residing outside of the United States to the Marketplace; (h) access or use the Marketplace to circumvent or exceed Marketplace account limitations or requirements; (i) use the Marketplace for the purpose of building a similar or competitive product or service; (j) send any communication from the Marketplace that is unlawful, harassing, libelous, defamatory, or threatening; (k) access the Marketplace by any means other than through the interfaces that are provided by Unum; or (l) do any “mirroring” or “framing” of any part of the Marketplace, or create Internet links to the Marketplace which include log-in information, user names, passwords, and/or secure cookies. 
  • 3.3. Usage Restrictions.  Unless otherwise specified in this Agreement, only an Authorized User may access his or her account at any given time, and an Authorized User’s customized URL to access the Marketplace and user identification and password may not be shared with any other individual.  Authorized User accounts may not be shared or used by more than one individual Authorized User.
  • 3.4. Benefit Plan Laws. Customer acknowledges and agrees that it retains the sole responsibility to determine the applicability to one or more aspects of the Marketplace of certain employee benefit plan laws, including the Employer Retirement Income Security Act of 1974 (“ERISA”), the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Patient Protection and Affordable Care Act of 2010 (the “ACA”), the Internal Revenue Code of 1986 (the “Tax Code”), and the Health Insurance Portability and Accountability Act of 1996 together with the Health Information Technology for Economic and Clinical Health (“HIPAA”), in each case including the regulations promulgated thereunder and as may be amended from time to time (such laws and regulations, together with other federal and state laws that regulate employee benefits, collectively, the “Benefit Plan Laws”).
  • 3.5. Export Regulation. The Marketplace utilizes software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and associated regulations.  Customer shall not, directly or indirectly, export, re-export, or release the Marketplace or the underlying software or technology to or make the Marketplace or the underlying software or technology accessible from any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. 
  • 3.6. Census Information. Customer shall provide Unum with accurate census information about its eligible employed workforce, as well as identification of recently terminated employees, on a no less than monthly basis and in accordance with the guidelines and standards set forth in the Unum Care Hub Eligibility File User Guide provided by Unum following execution of these T&C’s.
  • 3.7. Additional Obligations
    • 3.7.1. Customer will:  (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Marketplace and notify Unum promptly of any such unauthorized access or use; (b) use the Marketplace only in accordance with this Agreement and Applicable Laws and government regulations; and (c) comply with terms of service of any Third Party that may be provided on or through the Marketplace.  Unum shall have no responsibility or liability for the accuracy, quality, or legality of the Customer Data.  Customer also represents and warrants that it and its Authorized Users, as applicable, have sufficient rights to use the Customer Data in connection with the Marketplace, and to grant the license set forth in Section 6.1 below.
    • 3.7.2. Authorized Users will be subject to the terms of use located on the registration page for the Marketplace.  Unum may discontinue Customer’s and its Authorized Users’ access to the Marketplace in the event that Authorized Users are not in compliance with these online terms.
    • 3.7.3. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Marketplace or under Customer’s account (collectively, “Electronic Communications”). Unum will act as though any Electronic Communications it receives under an Authorized User’s passwords, user name, and/or account number will have been sent by Customer.
    • 3.7.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Marketplace, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
    • 3.7.5. Any procurement by Customer of Third Party Materials or services is solely between Customer and the applicable Third Party. Unum is not responsible for any aspect of such Third Party Materials, including but not limited to any such aspects that Customer may procure or connect to through the Marketplace, or any descriptions, promises or other information related to the foregoing, or intellectual property issues relating solely to the Third Party Materials. If Customer accesses, installs or enables Third Party Materials for use with the Marketplace, Customer agrees that Unum may enable such third party providers to access Customer Data as required for the interoperation of such Third Party Materials with the Marketplace, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider pursuant to a separate privacy policy or other terms governing Customer’s access to or use of the Third Party Materials. Unum does not warrant or support, and is not liable for, the Third Party Materials or any data Customer or its Authorized Users exchange with the Third Party, whether or not such Third Party Materials are designated by Unum as interoperable with the Marketplace, unless expressly provided to the contrary in an Order.   Unum shall not be responsible for any use, disclosure, modification or deletion of Customer Data resulting from any such access to Third Party Materials or by third party providers. No procurement of such Third Party Materials is required to use the Marketplace.

4. CONFIDENTIALITY

  • 4.1. Definitions. “Confidential Information” means information of a Party that is not generally known to the public disclosed by that Party to the other Party, including ideas, know how, designs, data, procedures, formulas, and specifications, and information regarding a Party’s finances, strategies, business plans, employees, suppliers, and customers. “Personal Information” means information not publicly available that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household; however, it does not include information that has been de-identified or aggregated. “Publicly available” means the Personal Information has lawfully been made available from federal, state, or local government records. Personal Information includes but is not limited to, an individual’s name, address, phone number, fax number, e-mail address, date of birth, Social Security number or other individual identifier, credit card information, employee identification number, or Internet Protocol address. It also includes any personally identifiable financial, biometric, or health information, internet or other electronic network activity, geolocation data, professional and employment data, or audio, video or similar recordings.  Personal Information may be in any media or format, including computerized, electronic or optical records and paper files. “Authorized User Personal Information” means Personal Information of Authorized Users, other than employee census information provided to Unum by Customer.
  • 4.2. Without limiting the foregoing, Customer’s Confidential Information shall include Customer Data, provided, that Customer Data is further subject to the provisions of Section 5 (Protection of Customer Data).  Solely for purposes of this Agreement, Customer Data shall include, as between Unum and Customer, all Authorized User Personal Information, provided, that the foregoing shall not be interpreted to grant Customer any right or interest in or to Authorized User Personal Information.  Confidential Information of Unum also includes the Marketplace, including its functionality and processes.  Confidential Information shall not, however, include any information which the recipient can establish:  (i) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient without the use of any of the discloser’s Confidential Information, where such independent development has been documented by the recipient. 
  • 4.3. Obligations. Each Party shall use efforts consistent with the manner in which it protects its own Confidential Information but in no case less than commercially reasonable effort to preserve the confidentiality the other Party’s Confidential Information. Each Party agrees not to use Confidential Information provided to it by the other Party for any purpose other than the performance of its rights and obligations under this Agreement and shall disclose Confidential Information of the other Party only:  (i) to its employees, officers, directors, agents, affiliates, contractors, attorneys, accountants, auditors, licensors and other professional advisors, who, in each case, have a need to know in connection with that Party’s obligations under this Agreement and are under an obligation to keep such information confidential and using standards of confidentiality not less restrictive than those required by this Agreement; or (ii) in order to comply with the order or demand of a court or government agency, and only if such Party (a) gives prompt and detailed notice of the demand to the other Party, including the Confidential Information demanded and the purpose of the demand, (b) cooperates with the other Party in contesting the demand, and (c) in any event, only discloses Confidential Information to the extent necessary to comply with the demand.  As between the Parties, each Party acknowledges that the disclosing Party shall at all times be and remain the sole owner of its Confidential Information (subject to Authorized Users retaining ownership of all Authorized User Personal Information).  Notwithstanding the foregoing, Unum may disclose Authorized User Personal Information at any time if such disclosure is in accordance with Applicable Laws and any written authorization given by the Authorized User to whom such Authorized User Personal Information pertains.  Additionally, Customer consents to Unum disclosing Customer’s company name to any third-party partner with which Unum works to provide the Marketplace, in order to ensure accurate display of any Customer employee benefits in the Marketplace and to ensure Unum can provide to Customer accurate Customer-specific reporting.   

5. PROTECTION OF CUSTOMER DATA

  • 5.1. Protection and Security of Customer Data. Unum will use commercially reasonable efforts to safeguard Customer Data against unauthorized access, use or disclosure.  Without limiting the foregoing, Unum will assess, manage, and control risks relating to the security and confidentiality of Customer Data and implement and maintain at all times an Information Security Program.  For purposes of the foregoing, “Information Security Program” means administrative, physical, and technical safeguards, consistent with Applicable Laws and regulations regarding the security, confidentiality and integrity of Personal Information, that are designed, adopted and maintained to (i) protect the security and confidentiality of Authorized User Personal Information; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Data; and (iii) protect against unauthorized access to or use of the Customer Data.
  • 5.2. Security Incidents.
    • 5.2.1. Security Incidents. For the purposes of this Agreement, “Security Incident” shall mean any confirmed unauthorized access or acquisition of Authorized User Personal Information in Unum’s possession or control that compromises the security, confidentiality, or integrity of Authorized User Personal Information, as defined by applicable security breach notification laws or regulations.
    • 5.2.2. Report of Security Incidents.  In the event of a confirmed Security Incident involving Authorized User Personal Information, Unum agrees to report to Customer as soon as feasible, within five (5) business days of determination. Such report shall include the nature of the incident, a general description of the information involved to the extent legally permitted, and the corrective actions taken, and any other information as required by law.
    • 5.2.3. Investigation and Mitigation. Unum agrees, at its own expense, to investigate any Security Incident. Should it become legally required to notify regulatory authorities or the impacted individuals of a Security Incident, or to offer credit monitoring services to the impacted individuals to help prevent identity theft, then Unum will provide such notice and offer credit monitoring services at no cost to the Customer, for a period of one year, or a period of time otherwise required by Applicable Law, whichever is greater. If Customer should choose to send a separate communication, any costs associated with such communication will be borne by Customer, and Unum shall have the right to approve that portion of any notification sent by Customer that references Unum by name, function or capacity.
  • 5.3. Privacy.
    • 5.3.1.     Unum will not disclose or share Authorized User Personal Information with Customer except if required pursuant to Applicable Law or order of a court or government agency or with the express written authorization of the Authorized User to whom such information pertains.  Customer agrees that it has no right to access and will not request from Unum or seek to obtain any Authorized User Personal Information.
    • 5.3.2.     Without limiting the foregoing, the Parties agree to comply with all Applicable Laws regarding Authorized User Personal Information and agree to execute any documents, agreement or certification that may be required by such laws or the regulations.  Customer agrees and warrants that the Marketplace is not being offered to the Customer or its Authorized Users in the United Kingdom, the European Union or the European Economic Area, nor are they intended to be utilized outside of the United States.

6. LIMITED LICENSE AND STASTICAL DATA

  • 6.1. Limited License to Unum. By it or its Authorized Users submitting any Customer Data to Unum in connection with Customer’s use of the Marketplace, Customer hereby grants Unum a limited license to use, copy, and create derivative works of such Customer Data solely for the purpose of providing Customer and its Authorized Users with the Marketplace.  For avoidance of doubt, even if an Authorized User ceases its relationship with Customer at any time, the license to all Customer Data specified in this Section 6.1 and the rights with respect to Statistical Data in Section 6.2 herein shall survive the termination of the relationship and/or the termination of this Agreement.
  • 6.2. Anonymous Statistical Data. Notwithstanding anything else in this Agreement or otherwise, Unum may monitor use of the Marketplace and use and distribute data and information related to such use that does not identify and cannot be used to identify Customer or any Authorized User (“Statistical Data”) in an aggregate manner and for any purpose. Customer grants Unum a royalty free, worldwide, perpetual, transferable right to use, modify, distribute and incorporate into the Marketplace (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Authorized Users related to the operation or functionality of the Marketplace. Any rights in the Marketplace or Unum’s intellectual property not expressly granted herein by Unum are reserved by Unum.

7. PAYMENT OF FEES

  • 7.1. Customer will pay Unum the then applicable fees described in the Order for the Marketplace in accordance with the terms therein (the “Fees”). Unum reserves the right to change the Fees and to institute new Fees at the end of the initial Term (as defined on the Order) or then-current renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
  • 7.2. Except as otherwise specified in this Agreement or in an applicable Order, payment obligations are non-cancelable, and Fees paid are non-refundable.   Undisputed fees not paid when due shall be subject to a late fee equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by Applicable Law.  Unum may, upon notice, suspend access to the Marketplace for nonpayment of undisputed fees.
  • 7.3. Pursuant to the payment terms set forth in the Order, Unum may choose to bill through an invoice, in which case, unless a different time period is stated in the applicable Order, full payment for invoices issued in any given month must be received by Unum within thirty (30) days of receipt of an undisputed invoice.  An invoice shall be deemed undisputed if Customer fails to notify Unum in writing of any disputed amounts prior to the due date of such invoice.
  • 7.4. Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Unum’s net income. If Unum has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Unum with a valid tax exemption certificate authorized by the appropriate taxing authority. In the event Unum is required to pay Taxes on Customer’s behalf, Customer shall promptly reimburse Unum for all amounts paid. 
  • 7.5. Notwithstanding anything in this Section 7, Third Parties may change pricing for the Third Party Materials from time to time.

8. UNUM INSURANCE PRODUCTS

Any purchase or usage by Customer of the insurance products or other services offered through one of Unum’s insuring affiliates or subsidiaries are not part of the Marketplace provided under this Agreement.

9. TERM AND TERMINATION

  • 9.1. Term. Subject to Section 9.2 below, the initial Term of this Agreement will begin on the Effective Date and shall continue thereafter as specified in the applicable Order (“Initial Term”).  Upon expiration of the Initial Term, and unless otherwise set forth in an applicable Order, the term shall automatically renew for successive one (1) year renewal terms (each, a “Renewal Term”), at Unum’s then-current Fees and each Third Party’s then-current pricing, unless either Party provides notice of non-renewal as set forth herein.  The term of Customer’s subscription to the Marketplace shall be for the Initial Term Period and any Renewal Term.  Either party may provide notice of non-renewal at least sixty (60) days prior to the commencement of the applicable Renewal Term. Customer acknowledges that it is Customer’s responsibility to provide a current email address to Unum and to monitor such address for such notices. Customer may elect not to renew a Subscription Period by providing written notice to Unum at least thirty (30) days prior to the commencement of the then-current Renewal Term.
  • 9.2. Termination. Either Party may terminate this Agreement if the other Party materially breaches this Agreement, and such breach has not been cured within thirty (30) days of providing notice thereof. 
  • 9.3. Effect of Termination. Upon expiration or termination of this Agreement for any reason, Customer shall discontinue all use of the Marketplace.  Should Customer provide notice of termination to Unum under this Section 9, Customer will remain responsible for payment of all Fees due under this Agreement for the entire Subscription Term. For clarity, upon termination, Unum shall have no obligation to maintain or provide any Customer Data and may, at its option, destroy or permanently delete Customer Data stored within the Marketplace in a manner and method consistent with Applicable Law and industry practices, subject to regulatory retention requirements.

10. INDEMNIFICATION

  • 10.1. Indemnification by Customer. Customer shall indemnify and hold Unum, its suppliers and licensors harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of (a) a third-party claim that the Customer Data infringes or misappropriates the intellectual property or proprietary rights of such third party, (b) Customer’s failure or alleged failure to comply with Applicable Law, including but not limited to any Benefit Plan Laws, or (c) any dispute between Customer and any of its Authorized Users relating to the Marketplace or the Customer Data.
  • 10.2. Indemnification by Unum. Unum shall indemnify and hold Customer harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of a third-party claim that the Marketplace infringes or misappropriates the intellectual property or proprietary rights of such third party, or Unum’s failure to comply with Applicable Law.  This obligation shall not apply if the alleged infringement, misappropriation or failure to comply with law, results from (a) Customer’s or its Authorized User’s breach of this Agreement, (b) the use of the Marketplace in combination with data, software, hardware, equipment, or technology not provided by or used at the direction of Unum, (c) modifications to the Marketplace not made by Unum, or (d) Customer Data.  If such a claim is made or appears possible, Customer shall permit Unum, at Unum’s sole discretion, to (i) modify or replace the Marketplace, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use without infringement.  If Unum determines that neither alternative is reasonably available, Unum may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and in such event, Unum will refund to Customer that portion of any prepaid Fees that are unused as a result of such termination.
  • 10.3. Process. A Party seeking indemnification hereunder shall promptly notify in writing the other Party of any claim for which defense and indemnification is sought.  Each Party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that:  (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other Party.   Each indemnifying Party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the Parties.  The indemnified Party may, at its own expense, participate in the defense of any such claim.

11. WARRANTY; DISCLAIMERS; LIMITATIONS ON LIABILITY

  • 11.1. Mutual Warranties. Each Party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
  • 11.2. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE MARKETPLACE AND ANY OTHER MATERIALS, SOFTWARE AND/OR INFORMATION PROVIDED BY UNUM ARE PROVIDED “AS IS,” AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY UNUM, ITS SUPPLIERS AND ITS LICENSORS.  UNUM SHALL NOT BE LIABLE FOR ANY ACTION OR FAILURE TO ACT BY CUSTOMER, AUTHORIZED USERS, OR OTHERS AS A RESULT OF THE RECOMMENDATIONS OBTAINED UTILIZING THE MARKETPLACE; RATHER, CUSTOMER AND ITS AUTHORIZED USERS ARE RESPONSIBLE FOR DETERMINING THE SUITABILITY OF ANY COURSE OF ACTION. UNUM DOES NOT GUARANTEE THE RESULTS OF ANY COURSE OF ACTION RECOMMENDED BY THE MARKETPLACE AND IS NOT DISPENSING MEDICAL ADVICE.  IN ADDITION, UNUM DOES NOT PROVIDE ANY WARRANTIES REGARDING (I) THE ACCURACY OF THE RESULTS OBTAINED THROUGH USE OF THE MARKETPLACE, (II) THE ACCURACY OF THE DATA CONTAINED WITHIN THE MARKETPLACE, (III) THAT THE MARKETPLACE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, (IV) THE SECURITY OF THE MARKETPLACE FROM INTRUSION OR ATTACK, OR (V) THE NETWORK, COMMUNICATIONS LINKS OR INFRASTRUCTURE USED BY CUSTOMER OR ITS AUTHORIZED USERS.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE MARKETPLACE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS.  UNUM IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND UNUM’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY UNUM.
  • 11.3. Limitation. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS OR VIOLATIONS BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S, ITS SUPPLIERS’ AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CLAIM SHALL BE LIMITED TO TWO TIMES (2X) THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM.  THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.  THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT EITHER PARTY’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
  • 11.4. Exclusion of Certain Damages and Limitations of Types of Liability. EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF THIS AGREEMENT.  THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.

12. RESERVATION OF RIGHTS; NO EXCLUSIVITY.

Customer and its Authorized Users have no rights in or to the Marketplace except as expressly granted in this Agreement.  Unum reserves to itself (or its licensors, as applicable) all rights to the Marketplace not expressly granted to Customer or its Authorized Users under this Agreement.  Unum (or its licensors, as applicable) retains all copyright, trademark, patent, and other intellectual property rights in and to the Marketplace.  As between the Parties, Customer acknowledges that the Marketplace, all copies of the Marketplace, any derivative works, compilations, and collective works of the Marketplace, and any know-how and trade secrets related to the Marketplace are the sole and exclusive property of Unum and contain Unum’s confidential and proprietary materials.  This Agreement shall not restrict Unum from providing or performing the same or similar services for any third party.

13. SURVIVAL

Certain provisions contained in this Agreement, which by their terms are intended to survive the termination of this Agreement, shall survive the termination, cancellation, expiration or completion of performance of this Agreement, including, without limitation, accrued rights to payment, confidentiality obligations, warranties and disclaimers, and limitations of liability.

14. NOTICES

Either Party may give notice to the other Party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. 

15.DISPUTE RESOLUTION

Each Party agrees that before it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the Parties shall hold at least one meeting (in person or by video or tele-conference) for the purpose of attempting in good faith to resolve the dispute. The Parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section 15 shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.

16. ADDITIONAL TERMS

Unum shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation, or other correspondence from Customer unless expressly assented to in writing by Unum and counter-signed by its authorized agent.  

17. GENERAL

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Marketplace shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, and each Party hereby consents to the jurisdiction of such courts.  No joint venture, partnership, employment, agency or exclusive relationship exists between the Parties as a result of this Agreement or use of the Marketplace.  The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.  This Agreement, together with its exhibits and addenda and each Order, comprises the entire agreement between Customer and Unum regarding the subject matter contained herein. This Agreement may only be amended in writing by authorized representatives of each Party.

Treatment Program Addendum

To the extent Customer’s subscription includes Unum Behavioral Health and/or Musculoskeletal Support (“MSK”) (collectively, the “Treatment Program”), the following additional terms apply:

  1. Benefit Plan Laws
    • 1.1. Notwithstanding anything to the contrary in the Agreement, if Customer’s subscription to the Marketplace includes the Treatment Program, then Customer specifically acknowledges and agrees that Unum intends for the Clinical Services (as defined below) to be offered to Customer employees as an “employee assistance program” and an “excepted benefit” under the ACA, the portability provisions of HIPAA, and the Tax Code, and that as such, Unum intends for Customer’s offering of Clinical Services to its employees to be compatible with Customer’s offering of a high-deductible health plan and health savings accounts to its employees.
    • 1.2. Customer further acknowledges that Customer taking any of the following actions may jeopardize such compatibility and result in significant adverse tax consequences for its employees:

      a) Coordinating the Clinical Services with, or including the Clinical Services in, any major medical plan offered by Customer to its employees; or

      b) Requiring Customer employees to pay any premiums, contributions, or cost-sharing in order to utilize the Clinical Services or as a result of usage of the Clinical Services.

    • 1.3. Customer will ensure that all of its benefit plan information, disclosures and authorizations relating to the Clinical Services are accurate and in compliance with all applicable Benefit Plan Laws.  The information provided in this Section is intended to assist Customer in determining its compliance with Benefit Plan Laws, but Unum makes no representation or warranty concerning the accuracy or completeness of the information provided herein.
  2. Compliance. Customer agrees to comply with terms of service of any Clinical Services that may be provided on or through the Marketplace.
  3. HIPAA. If Customer’s subscription to the Marketplace includes the Treatment Program, then to the extent that any Authorized User elects to engage any Clinical Services through the Marketplace, Authorized User Personal Information that is collected through the Marketplace may constitute protected health information under HIPAA, and in such context, Unum is acting as the business associate (as defined under HIPAA) of the provider of the Clinical Services and will protect such Authorized User Personal Information in accordance with the provisions of HIPAA and the business associate agreement between Unum and the provider of the Clinical Services.
  4. Clinical Services
    1. 4.1. If Customer’s subscription to the Marketplace includes the Treatment Program, then one aspect of the Marketplace involves, for some Authorized Users and subject to Section 1 above, behavioral health counseling by licensed behavioral health providers (such aspects, the “Clinical Services”).  The Clinical Services are provided directly to Authorized Users by an independent, unaffiliated party with which Unum has an agreement to provide the Clinical Services to Authorized Users (the “Clinical Provider”).  The Clinical Services will only be provided for a specific Authorized User if the Marketplace indicates that the Clinical Services are appropriate for such Authorized User and the Authorized User expressly consents to engage the Clinical Services. Additionally, the Marketplace may recommend that an Authorized user engage with the Clinical Provider for certain sub-clinical services, such as stress and resiliency coaching by certified wellness providers.  Unum may share with the Clinical Provider Authorized User Personal Information who elects to engage with the Clinical Provider with that Authorized User’s written authorization, and the Clinical Provider may share Authorized User Personal Information relating to the Authorized User’s engagement with the Clinical Provider back with Unum, again with the Authorized User’s written authorization. For Customers whose subscription to the Marketplace does not include the Treatment Program, such Customers’ Authorized Users will not have access to the Clinical Services.
    2. 4.2. The Marketplace may also include access for the Customer to certain training and learning offerings (the “Learning Services”).  If the Learning Services are included in Customer’s subscription to the Marketplace, they will be delivered separately from the web-based portions of the Marketplace.
    3. 4.3. Any usage by Customer or an Authorized User of Clinical Services and any exchange of data between Customer or an Authorized User and the Clinical Provider in relation to the Clinical Services, is solely between Customer or the Authorized User and the Clinical Provider.  Unum does not warrant or support, and is not liable for, the Clinical Services or any data Customer or its Authorized Users exchange with the Clinical Provider, whether or not such Clinical Services are designated by Unum as interoperable with the Marketplace, unless expressly provided to the contrary in an Order.  Unum is not responsible for any use, disclosure, modification or deletion of Customer Data, including Authorized User Personal Information, by a Clinical Provider.   The Clinical Services are provided directly by licensed or certified independent providers over whom Unum does not exercise any control.

LIFESTYLE SPENDING ACCOUNT (LSA) ADDENDUM TO T&C’s

  1. ADDENDUM TO T&C’s
    • 1.1. Capitalized terms not otherwise defined in this Addendum will have the meanings set forth in the Agreement. In the event of a conflict between the terms of this Addendum and the terms of the Agreement, this Addendum will control.
    • 1.2. Unum reserves the right to modify this Addendum at any time, effective immediately upon posting on the Marketplace. Customer and its Authorized Users agree to be bound to any modifications to this Addendum when using the Marketplace after any such modification is posted.
  2. LIFESTYLE SPENDING ACCOUNT (LSA)
    • 2.1. A Lifestyle Spending Account (“LSA”) is an employer-sponsored benefit that allows employees to set aside money for discretionary spending.  If Customer is offering LSAs to its Authorized Users for use with respect to services offered via the Marketplace, then Customer must enter into this Addendum.
    • 2.2. As part of the Marketplace, Unum offers Customer the ability to fund an LSA and create an associated spend card for each Authorized User through the accumulation of deposits in an account at Celtic Bank Corporation (“Issuing Bank”) and managed by Stripe, Inc. (“Program Manager”).
    • 2.3. Issuing Bank is not affiliated with Unum, but is Unum’s exclusive U.S. bank service provider for LSAs. Program Manager is not affiliated with Unum, but administers Unum’s LSA program.
  3. ISSUING BANK AND PROGRAM MANAGER ADDITIONAL TERMS
  • 3.1. In addition to the Agreement and this Addendum, each LSA is governed by the Program Manager’s Connected Account Agreement (https://stripe.com/legal/connect-account), the Program Manager’s Issuing Accountholder Terms (https://stripe.com/legal/issuing-accountholder), and the Issuing Bank’s Terms (https://stripe.com/legal/celtic-spend-card).
  • 3.2. By clicking “submit application,” Customer agrees to the Issuing Bank Terms, Stripe Connected Account Agreement, and Stripe Issuing Accountholder Terms, and Customer consents to electronic signatures as set forth in the Issuing Bank Terms.

Further, each LSA is also governed by the Program Manager’s E-Sign Disclosure (https://stripe.com/issuing/e-sign-disclosure/legal) and the Issuing Bank’s Authorized User Terms (https://stripe.com/legal/issuing/celtic-authorized-user-terms). Authorized Users will also be presented with these additional disclosures and terms in connection with activating or using their LSA associated spend card.