Terms and Conditions

These terms and conditions for services (these “Terms“) govern the provision of services by Consova, LLC (hereinafter “Consova”) to the entity that has accepted these terms (hereinafter “Client”). Client and Consova shall be referred to in these Terms individually as a “Party” and collectively as the “Parties”.

These Terms create a set of master legal terms and conditions that apply to all services performed for, and reports or other items delivered to, Client by Consova (“Services”) as described in statements of work or other exhibits that are now, or in the future may be, agreed upon, and into which these Terms, by Client’s acceptance hereof, are incorporated by reference (collectively, “Statements of Work”). The Parties agree that these Terms shall govern in the event of any conflict between these Terms and a Statement of Work, except where the Statement of Work specifically by its terms amends these Terms or where the Statement of Work supplies a term on which these Terms are silent.

If Client is acting as plan sponsor of an employee benefit plan to provide health and welfare benefits for Client’s current and former Employees and other eligible plan participants and their eligible dependents (hereinafter the “Plan”), such Plan must be identified in any attached Statement of Work that describes Services being performed for Client as the Plan sponsor. If Client is a consultant to, or agent of, a plan sponsor of a Plan, then such Plan must be identified in any attached Statement of Work that describes Services being performed on behalf of the Plan and all references to Employees and their eligible dependents shall be deemed to refer to Employees of the Plan sponsor and their eligible dependents.

The Parties agree to the following:

1. Agreement Term and Scope

If either Party has breached any material term of a Statement of Work or any material term contained herein, then the other Party may terminate the Statement of Work and these Terms if the breaching Party fails to cure such breach within 10 business days after it has received written notice specifying the breach of a material term from the other Party. Upon termination of the Agreement for any reason, Consova will send all eligibility information and all material collected on behalf of Client that are in Consova’s possession to Client.

2. Information

Consova shall be entitled to rely on the accuracy, completeness and reliability of all information provided by or on behalf of Client, and on all written decisions and approvals of Client (including information supplied by current and former employees and other eligible plan participants, hereafter referred to as “Employees,” and their eligible dependents). Consova shall have no responsibility to correct, investigate or locate any such information that is incorrect or missing, such as names, dates of birth, addresses or similar information. Client shall be solely responsible for applying independent business judgment with respect to eligibility and other decisions Client makes after reviewing Consova’s Services and work product (including decisions on implementation or other course(s) of action), and Client shall be solely and exclusively responsible for the effect of such decisions.

3. Confidentiality; Intellectual Property

1. Each Party will have access to, and may make available to the other party, information that the disclosing Party and its agents, Employees or contractors regard as “sensitive,” “confidential” or “private,” whether or not such information is marked or designated as confidential or proprietary information by the disclosing party (“Confidential Information”). Each Party shall protect the other’s Confidential Information in the same manner as it protects its own confidential information of like kind (which shall be protected at least in the manner required by applicable laws, regulations and contracts, and in not less than a reasonable manner). The Parties shall not disclose the other Party’s Confidential Information to any third party during or after completion of the Services, unless a Party is: (i) required to disclose such Confidential Information by law, subpoena or other lawful court order, and (ii) the Party who is subject to such law, subpoena or other lawful court order gives the Party who originally supplied such Confidential Information reasonable advance notice of the pending disclosure to the extent permitted under applicable law. Without limitation, these Terms, the details regarding the methodology or processes Consova uses to perform the Services (including, but not limited to, the Dependent Verification Program and process), and Consova’s related know-how in the performance of its Services under these Terms and related Statements of Work are “Consova Confidential Information.” Consova recognizes the sensitive and confidential nature of the data that will be provided to it pursuant to these Terms and related Statements of Work, and Consova agrees (i) to treat any information or data received from Client or Employees as Confidential Information, regardless of whether such information is marked or designated as such; (ii) to ensure that the data is used solely for the purposes expressed in these Terms and related Statements of Work; (iii) to ensure that the transmission, handling, storage, use and eventual elimination of this data will preserve the confidentiality of same and will only be viewed by Consova employees with a need to know such information; and (iv) to comply with all applicable laws and regulations related to confidentiality of the data. Consova understands and agrees that it may be required to execute one or more Business Associate Agreements (“BAA”) or related contracts mandated by HIPAA (as amended by HITECH) concerning use and disclosure of protected health information and related data if requested by Client and required by law. In the event of any conflict between the BAA between the Parties and these Terms or a Statement of Work, the terms of the BAA shall control.
2. Client agrees that it will only use any reports or information generated by performance of the Services to the extent permitted by these Terms and applicable law. Except as otherwise specifically provided in any Statement of Work, Consova does not transfer or assign to Client any copyright, trademark, patent, trade secret or other intellectual property rights or interests of any kind (collectively, “Rights”) of Consova in the Services or any related know-how. Any Rights and related know-how and other Consova proprietary or Confidential Information used to perform the Services, or included in any deliverable, including but not limited to software, appliances, methodologies, code, templates, tools, policies, records, working papers, knowledge, or screenshots or patentable subject matter of any kind (collectively, “Consova Information”), shall remain the exclusive property of Consova.

4. Scope of Services

Consova shall be obligated only to provide the Services specified in the Statements of Work that are executed by both Parties. Any changes in such Services must be set forth in a written amendment to the relevant Statement(s) of Work and duly executed by the Parties.

5. Standards of Performance and Regulations; Representations and Warranties

Client acknowledges that the Services will involve analysis, judgment and other performance from time to time in a context where the participation of Client or its agents or personnel are necessary. Consova’s sole representations and warranties are set forth in these Terms. Consova represents and warrants that (i) it possesses the necessary capabilities, facilities, technology, know-how, intellectual property rights, personnel and expertise to enable it to perform the Services and its obligations under these Terms, any Statement of Work, and the BAA (ii) it shall perform its Services with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with industry custom and practice would use in the conduct of an enterprise of a like character and with like aims, in accordance with any applicable standards or specifications and applicable laws and regulations, and (iii) the Services provided by Consova hereunder are original and do not, and will not, infringe any intellectual property rights, including patent, copyright, and trade secrets or violate any rights of any third parties whatsoever. Consova otherwise disclaims, and Client acknowledges that it has not relied upon, any other express or implied warranties regarding the Services, including all implied warranties of fitness for a particular purpose, merchantability or performance. It is understood that unless Client and Consova agree otherwise, in writing, Consova shall have no responsibility to update any of its work or re-perform any of its Services after its completion. Consova reserves the right in whole or in part to decline to perform Services if information comes to Consova’s attention indicating that performing such Services could cause Consova to be in violation of applicable law, regulations or standards or engage in a conflict of interest. Client represents and warrants that it has all necessary right, power and authority to accept these Terms, to provide the Confidential Information to Consova, and to perform the duties and obligations required of Client by these Terms, and that in doing all of the foregoing, Client shall act in compliance with applicable laws and regulations including (but not limited to) HIPAA, HITECH and ERISA.

6. Indemnification and Risk Allocations; Limitation of Liability

1. Subject to Section 6(b) and Section 6(c):
   
   1. Consova (acting as the Indemnifying Party) will indemnify and hold Client and its subsidiaries and affiliates and each of their directors, officers, Employees and agents (each, a “Client Indemnified Party”) harmless against losses, liabilities, penalties, fines, costs, damages, and expenses that such Indemnified Party incurs, including reasonable attorneys’ fees and court costs, arising out of claims or suits by persons or entities (other than a Party) against such Client Indemnified Party for damages or injuries directly caused by the Indemnifying Party’s (i) material breach of its obligations under these Terms, the BAA, or the relevant Statement(s) of Work, (ii) violation of applicable law or regulation; and (iii) gross negligence or willful misconduct; and
   2. Client (acting as the Indemnifying Party) will indemnify and hold Consova and its subsidiaries and affiliates and each of their directors, officers, employees and agents (as “Consova Indemnified Party”) harmless against losses, liabilities, penalties, fines, costs, damages, and expenses that such Consova Indemnified Party incurs, including reasonable attorneys’ fees, arising out of: (A) claims or suits by persons or entities (other than a Party) against the Consova Indemnified Party for damages or injuries directly caused by the Indemnifying Party’s material breach of its obligations under these Terms and related Statements of Work, and (B) claims or suits by Employees and/or their dependents against a Consova Indemnified Party for damages or injuries arising from loss or reduction of insurance or other benefits arising from Consova’s performance of its obligations in material compliance with its rights and obligations under these Terms, the BAA, or the relevant Statement(s) of Work and in compliance with its representations and warranties under these Terms.
2. In no event shall either Party be liable to the other Party or its officers, directors, employees (including, with respect to the Client, its Employees and their dependents) and agents pursuant to Section 6(a) or otherwise under or in connection with these Terms, related Statements of Work and the BAA or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability but excluding gross negligence or intentional misconduct for: any incidental, consequential, special, enhanced, punitive, exemplary or indirect damages, demands, costs (including but not limited to attorneys’ fees), loss of business, revenue, profits, productivity, lost data or downtime arising out of or related to these Terms, related Statements of Work and the BAA or the Services, regardless of whether such persons were advised of the possibility of such damages or losses or such damages or losses were otherwise foreseeable. Except as set forth in Section 6(c), an Indemnifying Party’s total liability for its indemnification obligations under or in connection with these Terms, related Statements of Work and the BAA for all claims, suits, losses or damages of any kind, in the aggregate, shall in no event exceed the amounts paid and payable by Client to Consova under applicable Statements of Work.
3. The limitations on an Indemnifying Party’s total liability for its indemnification obligations under or in connection with these Terms, related Statements of Work and the BAA and the exclusions from liability in Section 6(b) shall not apply (i) where the claim, suit, loss or damage is a result of the Indemnifying Party’s fraud or willful misconduct, (ii) to claims or suits by Employees and/or their dependents against a Consova Indemnified Party for damages or injuries arising from loss or reduction of insurance or other benefits arising from Consova’s performance of its obligations pursuant to these Terms and related Statements of Work, (iii) a breach of Section 3 by the Indemnifying Party, or (iv) a breach of the BAA. Notwithstanding the foregoing, however, in no event shall the Indemnifying Party be liable hereunder for any amount in excess of the insurance coverages carried by Consova, a list of which shall be provided upon Client’s request.

7. Successors and Assigns

These Terms are binding on each Party hereto and on each of its authorized and permitted successors, assigns, heirs and legal representatives.

8. Survival

The terms of Sections 3, 6, 7, 8, 11, and 12 shall survive termination of these Terms and related Statements of Work, and any other provisions that by their nature and context are intended to survive.

9. No Waiver

No waiver of any breach of these Terms by any Party shall constitute a waiver of any prior, concurrent or subsequent breach of these Terms by that Party. All waivers must be in writing and signed by the waiving Party.

10. Audit

Client shall have the right to conduct an audit of Consova’s books and records created in the course of performing the Services to ensure compliance with all terms and conditions of these Terms. Any such audit shall be conducted upon reasonable (at least 30 days’) prior written notice to Consova and shall not unreasonably interfere with Consova’s business activities. If an audit reveals that Consova has not performed in accordance with the requirements of these Terms, then Consova shall make internal process or other changes so that Consova performs in accordance with the requirements of these Terms. Consova will provide appropriate physical facilities, system access, and a system demonstration for members of the audit team and system documentation and data associated with the audit, upon the request of the Client. Consova will provide access to workflow and customer service areas, as well as a description of Consova’s internal audit results, SSAE 16 reports, and quality control functions. Consova will reasonably support Client’s on-site audit activities and investigate all suspected errors using the same techniques and diligence as if the errors were identified by Consova employees. Consova will provide status reports identifying Consova’s progress on issues identified as audit errors until such errors are corrected. Consova also recognizes that Client shall have the right to audit Consova’s records relating to the performance of the Services by Consova when such audit is initiated by or at the request of any government agency directed to Client.

11. Records Retention

Participant data and other data records of Client information will be maintained in accordance with Consova’s Records Retention Policy and applicable law.

12. Miscellaneous

1. No Party shall be liable for any delay or failure in performance due to circumstances beyond its reasonable control.
2. Except to the extent expressly provided in Section 6, no third-party beneficiaries are intended under these Terms, including, but not limited to, any current or former Employees and/or their dependents. Except as provided in the preceding sentence, nothing express or implied in these Terms is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
3. No Party may use the other Party’s name trade name, trademarks, service marks, copyright protected information or other intellectual property without the prior written consent of the other Party. Neither Party will make any public statement or press release regarding these Terms, any Statement of Work or any aspect thereof without the prior written approval of the other Party.
4. These Terms and related Statements of Work, including their formation and the Parties’ respective rights and duties and all disputes that might arise from or in connection with these Terms, related Statements of Work, or their respective subject matter, shall be governed by and construed in accordance with the substantive laws of Delaware, without giving effect to any conflicts of laws or rules. The Parties mutually, expressly, irrevocably, and unconditionally waive trial by jury for any proceedings arising out of or relating to these Terms and related Statements of Work. Except for actions to enforce Section 3 or any other action where time is of the essence to preserve or protect a Party’s rights, before either Party may file a complaint or commence or seek other judicial action or relief, the Parties shall make every reasonable attempt to first resolve any dispute between them through good faith negotiations by persons with authority to resolve such dispute for at least thirty (30) days after written request of a Party, and, if such dispute is not then resolved by the end of such thirty (30) day period, at the written request of either Party, the Parties shall participate in non-binding, mandatory mediation for up to eight (8) hours over one business day to seek resolution of any claim, demand or dispute arising out of these Terms, related Statements of Work, or related matters.
5. Consova is an independent contractor and shall not be construed as having a trustee, joint venture, partnership, agency or fiduciary relationship with the Client or its officers, directors, members, managers, employees (including, with respect to the Client, its Employees and their dependents) and agents. These Terms and related Statements of Work constitute a contract for the provision of services and not a contract of employment of Consova or any of its personnel.
6. No Party may make any assignment of any of its rights, duties or obligations to any third party without the written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that (i) Client may assign these Terms and related Statements of Work to an affiliate or subsidiary of Client under common control or ownership with Client by providing prior written notice to Consova, and (ii) Consova may assign these Terms and related Statements of Work and the BAA to a successor in interest of its business pursuant to a sale of all or substantially all of its assets, a sale of its equity securities representing a majority of its voting control, (iii) a merger, or (iv) similar transaction.
7. These Terms, including any Statements of Work, BAA or other agreements expressly incorporated by reference into a Statement of Work, sets forth the entire understanding between and among the Parties regarding the subject matter addressed herein, supersedes all prior and contemporaneous agreements, arrangements and communications and may not be modified or amended except by the mutual written agreement of the Parties. If any term hereof is found unenforceable or invalid this shall not affect the other terms hereof, all of which shall continue in effect as if the stricken term had not been included.
8. The headings used in this Agreement are inserted only for the purpose of convenience and reference, and in no way define or limit the scope or intent of any provision or part hereof.