These Additional Terms are incorporated within, and apply to, the License and Services Agreement (the “Agreement”) between ComplianceDashboard, LLC., (“Licensor or CD”) and Licensee, each a (“Party”) and collectively, the (“Parties.”)
1.1 “Client” means an employer or other entity to which Licensee provides benefit plan administration, advising, consulting, or brokerage services.
1.2 “Compliance System” means Licensor’s proprietary web-based federal compliance education and monitoring system, which is designed to assist employers with the administration of an employer’s health benefits and 401(k) plans. The Compliance System contains the following:
A. An email distribution system that automatically sends reminders on compliance requirements and required distributions of plan information, and automated monitoring of email recipients and follow-up processes;
B. Audit trail of compliance notices sent, and tasks performed;
C. Calendar overview of compliance tasks, indicating task and e-mail reminder status;
D. Links to educational resources relating to compliance requirements;
E. A content management system (“CMS”) including a document manager, that permits Licensee to manage Clients, users, content flow, and selection of notices by a Client;
F. The Dashboard®;
G. HIPAA, MEWA, and 401(k) education modules; and
H. Any other editorial content created by or on behalf of Licensor.
1.3 “ERISA” means the Employee Retirement Income Security Act of 1974 as amended.
1.4 “MEWA” means Multiple Employer Welfare Arrangements or a group ERISA plan sponsored by an association on behalf of member employers
1.5 “Services” means the Licensor’s services as described in the Agreement, these Additional Terms, or any Schedule appended to the Agreement, as applicable
1.6 “Additional Terms, Terms of Use” means the material designated as such on Licensor’s internet web pages.
2.1 Licensor grants to Licensee a personal, non-exclusive, non-transferrable, right and license to use the Compliance System and make the Compliance System available for the use of its Clients. Licensee may not assign this Agreement nor transfer the rights granted to Licensee by this Agreement. Any information contained in or relating to this Agreement or on the Compliance System may not be disclosed, sublicensed, published, printed, released, distributed, or transferred to any other party by Licensee without the prior written consent of Licensor. However, Licensee may share information about the Compliance System only with its Clients and only in connection with their use of the Compliance System.
2.2 When marketing the Compliance System, Licensee shall fairly and accurately describe its capabilities. Licensor shall not be responsible for any act or omission inconsistent with this obligation. Licensee shall take commercially reasonable steps to assure its Clients do not permit third parties to access the Compliance System.
2.3 Licensee may request Licensor to complete additional Services. Such Services shall be determined between the Parties and reflected in subsequent Schedules. Services will be determined based on the nature of the request, applicable legal, contractual, or other determinants, and agreement of the Parties.
2.4 To the extent Services relate to legal and regulatory compliance issues under applicable federal laws, rules, and regulations, Licensor may modify the Compliance System or Services as necessary to comply with changes in said laws, rules, and regulations. Licensor will timely notify Licensee’s Clients of such changes. Additionally, Licensor may modify the design or operation of the Compliance System at any time, provided that such modifications shall not materially diminish the scope or functionality of the Compliance System.
2.5 Licensor will update the Compliance System with new applicable federal laws and revisions to applicable federal laws known by Licensor.
2.6 Licensor shall have sole control over the content of the Compliance System. Any changes requested by Licensee shall be sent to Licensor for approval and inclusion in the Compliance System. Licensor may withhold approval at its sole discretion.
2.7 Licensor shall be responsible for ensuring that a complete and current copy of the Compliance System is maintained on a server located at a remote location.
2.8 Licensor will provide email and telephone assistance regarding use and management of the Compliance System to Licensee’s designated representatives. Such assistance shall be available between the hours of 9:00 AM and 5:00 PM Eastern Daylight Indiana Time on Licensor’s regular business days.
2.9 If requested by Licensee, and at a mutually agreeable time and date, Licensor will provide training to Licensee staff or Clients via remote technology (i.e.: teleconference or web demonstration) to assist with presenting the Compliance System to Licensee’s staff, Clients, or prospective Clients.
2.10 Licensor will embed name or logo mark of Licensee within the Compliance System website in a prominent position. Licensee hereby grants to Licensor all rights minimally necessary to permit Licensor to comply with this provision.
2.11 Licensor will program web site links and published contacts so that all inquiries and questions will be directed to a representative of Licensee.
2.12 Acknowledgements.
A. Licensee acknowledges that the license and Services provided by Licensor under this Agreement are only intended to provide Licensee and its Clients with educational assistance regarding the various duties and obligations of Licensee or its Clients related to health benefits plans and 401(k) plan administration.
B. Licensee acknowledges and shall require its Clients to acknowledge that neither the Compliance System, Licensor, nor its affiliates are attorneys, and that nothing provided by the Compliance System, Licensor, or its affiliates shall constitute legal advice.
C. The inclusion of hyperlinks within the Compliance System is for informational purposes only. Licensor does not warrant the accuracy of any information found as a result of following hyperlinks contained therein, nor does the inclusion of such hyperlinks herein constitute endorsement of the content of any other website.
3.1 Licensee agrees that the Compliance System is the sole property of Licensor and constitutes a valuable asset and trade secret of Licensor. Licensee further acknowledges and agrees that Licensor has an exclusive proprietary right and interest in and to the Compliance System, information, documents, charts, diagrams, source codes, or the like relating in any way to the Compliance System.
3.2 Licensee, therefore, agrees to use the Compliance System only as provided in this Agreement and only during the terms of the license granted by this Agreement.
3.3 Licensee agrees not to provide or otherwise make available any materials, documents, charts, diagrams, test materials, or other information relating to the Compliance System in any form, to any person other than Licensee’s or Licensor’s employees without the prior written consent of Licensor.
3.4 Licensee agrees to, and will provide to Licensor one or more Licensee logo for the sole purposes of (1) promotion of Compliance Services to Licensee’s Clients, and (2) promotion on Licensor website indicating Licensee is a client of Licensor. Licensee may opt-out upon written request to Licensor. From time-to-time Licensor may request permission from Licensee to use Licensee or Client feedback for marketing purposes, and if so, will request such in a separate writing.
3.5 Licensee further agrees that it will not, without the prior written consent of Licensor: (a) market the Compliance System to any third party other than the Licensee’s own Clients or prospective Clients; (b) publish or otherwise disclose to any third party information relating to performance of the Compliance System; (c) publish or otherwise disclose to any third party, information produced using the Compliance System; (d) modify, reuse, disassemble, decompile, reverse engineer, or otherwise translate the Compliance System or any portion thereof; or (e) attempt to create a competing compliance web tool.
3.6 The terms of this Section shall survive the completion of the Services or the expiration or termination of this Agreement.
In connection with this Agreement, each Party is an independent contractor and as such, is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other or to bind the other in any manner. Nothing herein shall be deemed or construed to create a joint venture, partnership, or agency relationship between the Parties for any purpose.
THE COMPLIANCE SYSTEM IS PROVIDED BY LICENSOR “AS IS” WITHOUT WARARNTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE COMPLIANCE SYSTEM REMAINS WITH LICENSEE AND ITS CLIENTS. IN NO EVENT SHALL LICENSOR BE LIABLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES, OR ANY DAMAGES (INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE) WHATSOEVER ARISING OUT OF LICENSEE’S USE OF, OR INABILITY TO USE, THE COMPLIANCE SYSTEM, EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGE. USE OF THE COMPLIANCE SUSTEM IS SUBJECT TO THE THEN-CURRENT TERMS OF USE AS FOUND ON THE COMPLIANCE SYSTEM WEB PAGE.
The failure of any Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
Neither Party shall delegate its duties or assign its rights under this Agreement, in whole or in part, without the prior written consent of the other Party. However, Licensor may assign this Agreement or its rights and duties hereunder, without Licensee’s consent to (a) any affiliate of Licensor; (b) any purchaser of the ownership rights to the Compliance System; or (c) any purchaser of all or substantially all the assets of Licensor, provided that the assignee agrees to perform the Services.
Neither Party shall be liable nor deemed to be in default for any (a) delay or failure in performance under this Agreement; or (b) other interruption of service deemed resulting, directly or indirectly, from (i) acts of God; (ii) civil or military authority; (iii) riots or civil disobedience; (iv) acts of public enemy; (v) war; (vi) accidents; (vii) fires; (viii) explosions; (ix) earthquakes; (x) floods; (xi) failure of transportation; (xii) machinery; (xiii) supplies or utilities; (xiv) vandalism; (xv) strikes; (xvi) pandemics; or (xvii) other work interruptions beyond the reasonable control of any Party. However, the Parties shall make good faith efforts to perform under this Agreement in the event of any such circumstances.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, without giving effect to principles respecting conflicts of laws. Any action pursuant to this Agreement shall be brought and tried in a court of competent jurisdiction in Marion County, Indiana, and each Party hereby irrevocably consents to the personal and subject matter jurisdiction of any such court.
If either Party should waive any breach of any provision of this Agreement, such Party will not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provisions of this Agreement.
12.1 All notices, demands, requests, consents, approvals, or other communications required or permitted hereunder shall be sent in writing via (ii) first class mail; or (iii) a nationally recognized overnight delivery service,(in each case with all postage or other delivery charges prepaid) or (b) electronic mail.
12.2 Such notice shall be sent to the address of the Party to whom it is directed, as indicated on the signature line of the Agreement, or to such other address as such Party may specify by giving notice to the other in accordance with the terms hereof. Any such notice shall be deemed to be received (i) when delivered, if by hand; (ii) on the next business day following timely deposit with a nationally recognized overnight delivery service, (iii) two days after the post mark date, if by first class mail; or (iv) upon receipt of delivery status notification in the case of electronic mail.
The Agreement (including these Additional Terms and the Terms of Use) contains the entire agreement of the Parties. There are no other promises or conditions applicable with respect to its subject matter whether oral or written. The Agreement supersedes any prior written or oral agreements or understanding between the Parties with respect to the subject matter.
Material contained in ComplianceDashboard is a compilation of generally published information by the Department of Labor and other public agencies regulating employee benefit plans and employee benefit issues. It is not legal advice, and should not be construed as legal advice. If legal advice or other professional assistance is or may be required with regard to any issues referenced in this website, the services of a competent legal or tax professional should be immediately sought. The inclusion of links within the ComplianceDashboard website is for informational purposes only. ComplianceDashboard does not warrant the accuracy of information outside this website that is found as a result of following links contained herein, nor does the inclusion of those links herein constitute endorsement of the content of any other website. If you have questions regarding this disclaimer, please contact us at 877-328-7880.