MyHealthily Terms of Service
Effective Date: December 1, 2021
These Terms of Service (“Agreement” or “Terms of Service”) are a binding contract between the Account Owner(s) (as defined below) (referred to herein as “Account Owner”, “You” “you”, “your” or “Your”) and MyHealthily Insurance Solutions, LLC (referred to herein as “MyHealthily” or “Us” or “We”). The Terms of Service shall govern Your and the Team Employees’ use of the Service, and Your and the Team Employees’ rights and obligations with respect to User Data that placed in the Service, and associated Intellectual Property Rights thereto, as well as your creation of an account through which You and the Team Employees will access the Service (hereinafter an “Account”) for use in connection with the Service. By accessing, using, subscribing, purchasing, or downloading the Service, or any goods, materials, or content from the Website, You agree to, and ensure that all who access the Service through Your account, follow and be bound by the following terms and conditions and any other terms and conditions embodied in any other agreements you enter into with Us. If you do not agree with the Terms of Service, neither You nor the Team Employees may use the Website or the Service. The following Terms of Service applies to all Users including Brokers/Agents/Producers, Clients/Employers and Employees except where specifically noted otherwise.
For Brokers/ Agents/Producers: My Healthily agrees that you are the owner of any insurance product account with an Client/Employer or Employee.
For Brokers/ Agents/Producers: You hereby represent and warrant that you and your Team Employees as required by law, are licensed insurance agents, brokers or producers for the solicitation of Client/Employers and/or Employees for health care insurance products (e.g., a health insurance or HMO policy) and other ancillary insurance policies (e.g., a life or disability insurance policy).
For Brokers/ Agents/Producers: You and applicable Team Employees must possess and maintain every license required by law to perform services under this Agreement, including in every state in which you conduct business under this Agreement. You and applicable Team Employees must provide proof of licensure to My Healthily upon My Healthily’s request. You must immediately notify My Healthily of any expiration, termination, revocation, suspension or any other action by a Department of Insurance or any other governmental agency affecting licenses required to perform services under this Agreement.
If You know, or have a suspicion or the good faith belief that, a Team Employee has violated the Terms of Service, You are is responsible for immediately revoking access rights to the User(s). Additionally, if you become aware that a Team Employee no longer possesses the requisite licenses or other credentials or is no longer employed by or affiliated with the You, You have the responsibility to immediately revoke access rights to these Users.
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.
These Terms of Service apply to Your and the Team Employees use of the Service and ALL transactions made on or through the Website in your use of the Service. The Account Owner manifests agreement to these Terms of Service by any act demonstrating your assent thereto, including clicking any button containing the words “I agree”, “Create my account” or similar syntax, by accessing the Website, by establishing an Account, or using the Service, whether you have read these Terms of Service or not. By clicking any such button or otherwise indicating Your assent, You agree to these Terms of Service. You should print a copy of these Terms of Service for your business and personal records.
These Terms of Service may be modified by MyHealthily effective immediately by notifying you as provided in Section 29 below. By continuing to access or use the Service after the effective date of any such change, you agree to be bound by the modified Terms of Service.
- “Account Owner” means the individual who establishes the Account, licensed agents, brokers or producers and their authorized users, the owner of the Account, and any other entity and/or person in whose name the Account is established, all of whom are agreed to be jointly and severally obligated under these Terms of Service. The Account Owner is responsible for the obligations and activities under the Account as well as the obligations and activities of all Users and Team Employees within the Account (including without limitation payment for the Account and deletion of the Account). The use of the phrase “Account Owner” in the singular shall also mean use in the plural.
- “Brokers” or “Agents” or “Producers” means licensed insurance agents, brokers or producers for the solicitation of Clients/Employers and/or Employees for health care insurance products (e.g., a health insurance or HMO policy) and other ancillary insurance policies (e.g., a life or disability insurance policy).
- “Client(s)/Employer(s)” means the organization or entity which is a Broker, Agent or Producer’s customer or prospective customer.
- “Dispute” will have the broadest meaning possible and means any dispute, action, or other controversy between you and MyHealthily relating to the Service, any transaction or relationship between you and MyHealthily resulting from your use of the Service, communications between you and MyHealthily, or this Agreement – whether in contract, warranty, tort, laws, or regulations.
- “Employee” means a Client/Employer’s employee, or other person who is a beneficiary of an insurance policy.
- “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time;
- “Intellectual Property Rights” means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law;
- “Protected Health Information” or “PHI” means protected health information as defined by HIPAA’s Privacy Rule found at 45 C.F.R. §160.103.
- “Servers” are computers or devices that host the Service.
- “Service” means MyHealthily’s technology and software platforms available on the Websites and any affiliated sub-domains and mobile applications and sites (on launch), Software, and Servers, designed to enable customers to manage communications with users a containing a dashboard for accessing and managing customer data regarding those users, which are part of the “Service” whether or not stated separately within these Terms of Service, when made available by MyHealthily.
- “MyHealthily Software” or “Software” is the software provided to you by MyHealthily and/or its suppliers under license or with respect to which you have access, in connection with the Service.
- “Team Member” means Account Owner’s staff, contractors, administrators, or other service providers who are granted access to the Account with the authorization of the Account Owner.
- “Transaction Data” means customer information, User Data, account information or other data or information of any kind that is provided by or generated or collected on your behalf, or the Clients/Employers or their Employees, by the Service.
- “User Data” means any data or images that you or the Clients/Employers or their Employees, upload, stream or submit to the Servers, Website, or other areas of the Service, or generated or collected on your behalf from the Servers, Website, the Service or third parties, including but not limited to Protected Health Information as that term is defined below, video, image and sound data and Transaction Data;
- “User(s)” means the Account Owner(s), and/or Team Member.
- “Website” means the websites and services available from the domain and sub-domains of https://myhealthily.com, and any related or successor domains and mobile applications and sites from which MyHealthily may offer the Service.
2. Verification for MyHealthily
By accepting these Terms of Service in connection with an Account, the person acknowledging agreement or assenting to these Terms of Service represents that they are at least 18 years of age, or the legal age of majority where in the place of residence if that jurisdiction has an older age of majority, and has the legal authority to contractually agree to these Terms of Service on behalf of the Account Owner. You further agree that as a condition to accessing the Service, you will submit to Account and Account Owner verification as required by MyHealthily, and provide only true and accurate identification documentation to MyHealthily or its third party service providers as requested by MyHealthily. You are responsible for the security of any account verification information, such as user names and passwords, including without limitation your Users’ user names and password. You agree that any Users who are under 13 years old require their parent or legal guardian’s consent to collect their User Data or for their use of the Service, which consent you and the Account Owner are responsible for obtaining, prior to the use by such User of the Service.
3. Establishing an Account
You must establish an Account with MyHealthily to use the Service. You agree to provide accurate, current, and complete information about You and the individual who establishes the Account (“Registration Data”) as prompted by the Registration Form and as required to be added in the “Settings” or other page on the Website, and to use the Account management tools provided to keep your Registration Data accurate, current and complete. MyHealthily will designate You as the Account Owner and assign an account name (your “Account Name”). You and your Team Members must each choose a user name to identify yourselves under the Account Name.
4. Responsibility for Use of Account
You, as the Account Owner, are responsible for all activities conducted through your Account, including activities of the Team Members and Users, and you are responsible for all activities conducted through your user name and are responsible for Users to whom you grant access to your Account, including Clients/Employers and Employees and those you authorize to access your Account on behalf of yourself, or clients. In the event that fraud, violation of law, regulation or rule, or conduct that violates these Terms of Service occurs (whether by you or someone else) that is in any way connected with your Account, we may suspend or terminate your use of the Service and your Account as described in Section 21 and you shall be financially responsible to MyHealthily for the consequences of such use.
5. Selection and Use of Account Password
At the time Your Account is created, You must select a password. You are responsible for maintaining the confidentiality of Your password and are responsible for any damages, claims, losses or other harm resulting from Your disclosure of Your password, authorization of the disclosure of Your password, or any person’s use of Your password or Your Account and those who gain access to your Account or Account Name. At no time should you respond to an online request for a password other than in connection with the log-on process to the Service. Your disclosure of Your password to any other person is at your own risk.
You and each of those using your Account must have separate user names and passwords. Team Members and Users may not share entry identifications and authentication passwords and any sharing may result in a suspension or termination of access for the User and the Account Owner, and/or an increase in charges, at MyHealthily’s sole discretion.
6. Fees and Billing
For Brokers/ Agents/Producers: MyHealthily provides the Service for the fees and other charges set forth on the Website at https://app.myhealthily.com/shop/agency/pricing or other location on the Website. All prices listed exclude all sales taxes, fees, use taxes, charges, duties, levies and similar governmental charges (“Sales Taxes”) imposed on the provision of the Service and all such Sales Taxes shall be borne solely by and paid by the Account Owner to MyHealthily and deemed to be in addition to the fees charged in connection with the Service. Where applicable, Account Owner shall be responsible for all Sales Taxes and MyHealthily reserves the right to collect Sales Taxes retroactively. We may, at any time, add new services for additional fees and charges, or prospectively modify fees and charges for existing services (including prospectively charging fees for the Service not previously charged for) on notice as provided herein. You acknowledge that it is Your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by MyHealthily and/or its payment processor, continue to be valid and sufficient for such purposes. We may suspend or terminate Your use and Your Account’s use, as provided in Section 21, in the event of any payment delinquency. Other services are available from MyHealthily and the agreement with respect to those services and fees due to MyHealthily incorporate by reference these Terms of Service as well as any specific terms and conditions presented to you. You will not be entitled to any refund, at any time including without limitation on termination or expiration of the Agreement. All payments once made to MyHealthily shall have been earned by MyHealthily as of the date of payment. You will not be entitled to any refund for the partial use of the Service or credits at any time.
ALL COMMISSIONS TO BE PAID TO BROKERS/AGENTS/PRODUCERS ARE PAID BY THE INSURANCE CARRIERS OR AUTHORIZED THIRD PARTY ADMINISTRATORS. WITHOUT A SEPARATE WRITTEN AGREEMENT SIGNED BY AN OFFICER OF MY HEALTHILY, MY HEALTHILY IS NOT RESPONSIBLE FOR THE PAYMENT OF ANY COMMISSONS TO BROKERS/AGENTS/PRODUCERS.
7. Modification of Service
MyHealthily reserves the right to add, modify, discontinue or eliminate aspect(s), features or functionality of the Service from time to time for any reason including without limitation for purposes of compliance with applicable laws and regulations and direction of regulatory agencies, to effect improvements in security and functionality, to correct errors, or for any other purposes, at its sole discretion.
We will make no use of PHI that is not permitted by these Terms of Service, the BAA (as defined below) or that is prohibited by applicable law, including but not limited to HIPAA.
It is Your responsibility to comply with all applicable privacy and data protection laws and to ensure that You have provided all required notices and obtained all necessary consents (including with respect to third parties access) from Your Users, and Clients/Employers and Employees, and that the User (including without limitation Your and Clients/Employers and Employees) have agreed to the collection of their User Data (including PHI) and the access of their User Data by You, by us, and, where applicable, other third parties. Any sample documentation that is provided by MyHealthily for obtaining consent or other information from Users is for illustration only, and You alone (and not MyHealthily) are responsible to ensure that such documentation is adequate and enforceable. MyHealthily does not provide legal or compliance advice and You are responsible for retaining competent counsel and advisors for these purposes.
In the event that we receive a subpoena, court order, or other legal request compelling the disclosure of any of Clients/Employers’ or Employees’ User Data (including PHI) or any of Your data or information or any User Data, we will notify You of the existence of such subpoena, court order or other legal request prior to disclosing the PHI or other data or information or any User Data. unless ordered to not do so by a court of competent jurisdiction, requested not to do so by law enforcement, or unless our legal counsel advises us that prior notification is not required or in violation of applicable law.
In the event of termination of this Agreement, whether by your cancellation of the Agreement, your breach of, or as otherwise provided in these Terms of Service, there is an download feature in the Service which will enable you to retrieve your User Data contained within the Service prior to the account termination date. It is your sole responsibility to download from your Account a file or files containing the User Data contained within the Service before the account termination date and to ensure the secure preservation of User Data (including PHI) for Clients/Employers or Employees pursuant to federal and state law. MyHealthily will delete the User Data for your Account as provided in Section 22 of these Terms of Service.
9. No Responsibility for Acts of Omissions of Third Party Websites
10. Your Rights and Obligations with Respect to User Data
In connection with User Data you upload or submit to or which is created by the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize MyHealthily to use, retain, copy, and process the User Data in the Service and as contemplated by this Agreement and that You guarantee and are solely responsible for the accuracy, integrity and/or completeness of the User Data. You agree that by uploading or submitting any Content or User Data to or through the Service, and permitting Your Users (including without limitation clients) to upload any Transaction Data into the Service, You hereby automatically at such time grant MyHealthily (and its affiliates) a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, perform and display User Data and Transaction Data (including User Data and Transaction Data that is created, collected or generated by the Service or MyHealthily using the User Data and Transaction Data you submit) solely for the purposes of providing the Service. You agree that the license includes the right to copy, analyze and use any of Your User Data and Transaction Data as MyHealthily may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section is referred to as the “Service Data License.” You also acknowledge that the Service Data License granted to MyHealthily with respect to Your content will survive the termination of your Account to permit MyHealthily: (i) to retain server copies of particular instances of Your User Data, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section for any other copies or instances of the same User Data that You have not specifically deleted from the Service. Notwithstanding anything to the contrary herein, You hereby provide MyHealthily (and its affiliates) an irrevocable perpetual royalty free, assignable license, authority, and permission to obtain, copy, and use, at MyHealthily’s request, without notice to You, from Clients/Employers and/or Employees, all of Your Transaction Data and User Data for purposes of providing You the Service.
You acknowledge that You are responsible for all information and User Data you and those who are under the Account (including without limitation Clients/Employers and/or Employees and Team Members) input into the Service. You hereby acknowledge that authorized users of unlocking any previously locked progress notes may be a violation by You and Your Team Members of applicable professional standards and /or applicable law. You understand and agree that You are bound by various laws and regulations, including but not limited to HIPAA, which require that You preserve the availability, accuracy, integrity, and confidentiality of PHI and personally identifiable information. You also acknowledge and agree that all of your activity within the Service is automatically logged (including into audit logs), including the unlocking and changes to the progress notes, and that such activity may be audited by Account Owners, account administrators, regulators, or others.
11. Customer Support
Customer support is available by notifying firstname.lastname@example.org.
12. Interruption of Service
MyHealthily may on occasion need to interrupt or suspend the Service, with or without prior notice, to protect the integrity or functionality of the Service or for maintenance purposes. You agree that MyHealthily is not liable for any interruption or suspension of the Service (whether intentional or not), and You understand that neither You nor any Team Members of Users will be entitled to any refunds of fees or other compensation for interruption or suspension of service. Likewise, You agree that in the event of loss of any User Data, we will not be liable for any purported damage or harm arising therefrom.
13. MyHealthily’s Intellectual Property Rights and Limited License Granted to You
Intellectual Property Rights. MyHealthily owns Intellectual Property Rights in and to the Service, except User Data, including the MyHealthily Software, the Websites, and the Servers, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the “MyHealthily Marks”). You understand that such Intellectual Property Rights are apart from any rights You may have in User Data you upload or submit to the Service, as discussed above. You acknowledge and agree that MyHealthily and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Data. Except as expressly granted in this Agreement, all rights, title, and interest in and to the Service, except all User Data, and in and to the MyHealthily Marks are reserved by MyHealthily. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the MyHealthily Marks.
Limited License. MyHealthily hereby grants You a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to access and use the Service specifically as set forth in these Terms of Service and expressly conditioned upon You and Your Account remaining active, in good standing, and in full compliance with these Terms of Service. You agree that you will not (i) allow any person or entity not authorized by MyHealthily to use or access the Software, (ii) attempt to copy any ideas, features, functions or graphics contained in the Service; (iii) use the MyHealthily Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than You, (iv) alter or modify the MyHealthily Software, (v) sell, assign, sublicense, rent, lease or otherwise transfer the MyHealthily Software or any rights in connection therewith, or (vi) attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Service or otherwise attempt to derive the source code for the Software.
Feedback and other Input. You may provide suggestions, ideas and/or feedback (collectively, “Feedback”) to MyHealthily or in the use of the Service or Website regarding MyHealthily Website, products or Service. You agree that MyHealthily will be free to use, irrevocably, in perpetuity and for any purpose, all Feedback provided to it by You or our Team Members and that all right title and interest in Feedback is assigned to MyHealthily. The foregoing grant of rights is made without any duty to account to You or to any of the foregoing persons or entities for the use of such Feedback.
Mobile Application License. Subject to Your compliance with these Terms of Service, and to the extent available for commercial release to you, MyHealthily grants You a limited non-exclusive, non-transferable license to use any of the MyHealthily mobile applications and to access the Website via a single mobile device or computer that You own or control and to run such copies of the MyHealthily mobile applications on such device solely for Your own personal use.
You shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the MyHealthily mobile application in any way; (ii) modify or make derivative works based upon the Website or MyHealthily mobile application; (iii) create Internet “links” to the Website or “frame” or “mirror” the MyHealthily mobile application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the MyHealthily mobile application in order to (a) design or build a competitive product or service, (b) design or build a product using similar ideas, features, functions or graphics of the Website or MyHealthily mobile application, or (c) copy any ideas, features, functions or graphics of the Website or MyHealthily mobile application; or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Website or MyHealthily mobile application.
14. Prohibited Conduct While Using the Service
For Brokers/Agents/Producers: Any rates and quotes you obtain for any Client/Employer or Employee through the Service, or Website must be for the use and benefit of MyHealthily, which you agree is the managing general agent with respect to accounts for which you obtained the rates and quotes. You agree that you will not go direct to any insurance carriers with respect to any rates or quotes obtained through use of the Service or the Website and will only use the rates and quotes to submit application and enrollment forms through the Service and the Website. You agree that you will not copy or reproduce the rates and quotes except to submit application and enrollment forms through the Service and the Website.
For Brokers/Agents/Producers/Clients/Employers/Employees: You agree that You will not, and will cause Team Members and Users to not:
- Post, display or transmit information or data, User Data, or Transaction Data, that violates any law, regulation or rule, or the rights of any third party including without limitation Intellectual Property Rights;
- Impersonate any person or entity without their consent, or otherwise misrepresent your affiliation;
- Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or personally identifiable information about other users without their consent;
- Engage in malicious, disruptive or other conduct that impedes or interferes with other Users’ normal use of the Service; or
- Attempt to gain unauthorized access to any other User’s Account, password or User Data, or allow more than one person to use an Account.
- You agree that You and your Team Members and Users will not upload, publish, or submit to any part of the Service any User Data that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless You, the appropriate Team Member or Users are the owner of such rights or have permission from the rightful owner to upload or submit the User Data and to grant MyHealthily all of the license rights granted in this Agreement. You agree that MyHealthily will have no liability for, and You agree to defend (at MyHealthily’s option), indemnify, and hold MyHealthily harmless for, any claims, losses or damages arising out of or in connection with Your use of any User Data.
15. Violation of Terms of Service
Any violation by You, Your Team Members or Users of these Terms of Service may result in immediate suspension or termination of your Account without any refund or other compensation at MyHealthily’s option.
You agree not to hold MyHealthily liable for the Content, User Data, actions, or inactions of You or other Users of the Service or of other third parties. As a condition of access to the Service, you release MyHealthily (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute You have or claim to have with one or more other users of the Service or with other third parties, including whether or not MyHealthily becomes involved in any resolution or attempted resolution of the dispute. If You are a California resident, You waive California Civil Code Section 1542 (as may be amended). The statute currently provides: “A general release does not extend to claims that the creditor or the releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or release party.” If You are a resident of another jurisdiction, You waive any comparable statute or doctrine.
17. Disclaimer of Express and Implied Warranties
MyHealthily does not guarantee premium and related insurance rates that are provided through use of the Service or Website. All premium and related insurance rates are subject to approval and issuance of a policy by the applicable insurance carrier and rates may vary from that displayed for many reasons including without limitation demographic and criteria changes and other reasons outside the control of MyHealthily.
MYHEALTHILY PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE SOFTWARE, THE WEBSITES, THE SERVERS, AND YOUR ACCOUNT, STRICTLY ON AN “AS IS” BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO VALUE, EITHER EXPRESS OR IMPLIED, IS GUARANTEED OR WARRANTED WITH RESPECT TO ANY CONTENT. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN YOUR USER DATA OR ANY EXPENDITURE ON YOUR PART, MYHEALTHILY AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON MYHEALTHILY’ SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICE ON THIS BASIS. MyHealthily does not ensure continuous, error-free, secure or virus-free operation of the Service, the Software, the Websites, the Servers, or your Account, and You understand that You shall not be entitled to refunds or other compensation based on MyHealthily’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to You.
MyHealthily does not guarantee that by mere use of the Software you will be in compliance with HIPAA or other applicable law or regulation, and you understand and agree that you are responsible for maintaining administrative, technical and physical safeguards necessary to ensure the confidentiality, availability, and integrity with respect to PHI and to otherwise comply with HIPAA and other applicable law or regulation.
18. Limitation of Liability
IN NO EVENT SHALL MYHEALTHILY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, EQUITY OWNERS, MANAGERS, SUBSIDIARIES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE MYHEALTHILY SOFTWARE, THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT MYHEALTHILY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL MYHEALTHILY’S CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF ONE HUNDRED FIFTY DOLLARS (U.S. $150.00). Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to You.
MyHealthily will defend You from and against any claim by a third party alleging that the Service when used as authorized under this Agreement, processed accurate and timely input provided by You and failed to accurately transmit such input to an insurance carrier or third party administrator and will indemnify and hold harmless You from and against any damages and costs finally awarded against you resulting from such claim. You agree to defend, indemnify and/or hold harmless MyHealthily, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from: (i) any breach or alleged breach by You or your Team Members or Users of these Terms of Service, including without limitation your representations and warranties relating to your data, User Data; (ii) claims, losses and causes of action asserted by any Users, and by Brokers/Agents/Producers, claims, losses and causes of action asserted Clients/Employers or Employees, or (iii) your acts, omissions or use of the Service, including without limitation your negligent, willful or illegal conduct. In any matter in which you have agreed to indemnify MyHealthily, without the express written consent of MyHealthily, You may not settle any matter or admit liability if, upon doing so, you are admitting liability or fault on the part of MyHealthily. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
20. Legal Relationship Between You and MyHealthily; No Third Party Beneficiaries
You acknowledge that Your participation in the Service, including your creation or uploading of Content in the Service, does not make You a MyHealthily employee and that You do not expect to be, and will not be, compensated by MyHealthily for such activities, and You will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture, franchise relationship is intended or created by this Agreement. There are no third party beneficiaries, intended or implied, under this Agreement.
21. Suspension and Termination of Accounts
You may terminate this Agreement by closing your Account at any time for any reason. Subject to MyHealthily’s obligations pursuant to Section 8, in such event, MyHealthily shall have no further obligation or liability to You under this Agreement or otherwise. You may not suspend Your own Account. If you suspend Your Account, then the Account will be deemed terminated (see Sections 8 and 21 herein, regarding deletion of your User Data on termination). In addition, MyHealthily may suspend or terminate Your Account, without notice, for breach if You violate this Agreement, or any terms regarding payment of required fees and charges due under this Agreement. MyHealthily may, at its sole discretion, provide you a grace period prior to termination, in the event of a breach or Your failure to pay fees and charges, without waiving its rights hereunder to terminate immediately upon such events. We may suspend or terminate Your Account (or the access of any Team Member) if we determine in our discretion that such action is desirable for any reason, or advisable to comply with applicable legal requirements, or to protect the rights or interests of MyHealthily or any third party. Under no circumstances, will you will be entitled to compensation or a refund for any interruption, suspension or termination, and You acknowledge MyHealthily will have no liability to You or your Team Members or Users in connection with any interruption, suspension or termination.
22. Termination of Licenses Upon Termination of Account
Upon termination of Your Account, all licenses granted by MyHealthily to use the Website, Software, and the Service will automatically terminate, and User Data in Your Account will be retained by MyHealthily. While My Healthily has a general policy not to delete or destroy User Data for a period of seven (7) years, MyHealthily reserves the right to delete or destroy User Data, in part or in full, at its discretion without notice. You are responsible for exporting all account data and ensuring the secure preservation of PHI for the Clients/Employers or Employees pursuant to federal and state law, and ethical requirements. During the time frame beginning on termination or expiration of Your Account, your access to the Service will be limited to downloading your User Data.
23. Liability for Unpaid Fees Upon Termination of Account
Upon termination by You or by MyHealthily of your Account, You will not receive any refund of any amounts previously paid and You will remain liable for any charges incurred or unpaid amounts owed by You to MyHealthily.
24. Survival of Terms After Termination
The following terms will survive any termination of this Agreement: Sections 1, 2, 4, 6, 8, 11, 13, 17 and 20 through 38. You will not be entitled to any refund on termination or expiration of the Agreement.
25. Dispute Resolution
In the event of a Dispute between You and MyHealthily (including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the Dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Bergen County, NJ. In the event that there is any Dispute between You and MyHealthily that is determined not to be subject to arbitration pursuant to the preceding sentence, You agree to submit in that event to the exclusive jurisdiction and venue of the state and federal courts located in the Bergen County, NJ]. You agree that this Agreement and the relationship between you and MyHealthily shall be governed by the Federal Arbitration Act and the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
Class Action Waiver
Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by You, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
26. Disclaimer of Warranties as to Use Outside of the United States
MyHealthily is a United States-based service. We make no warranty or representation that any aspect of the Service is appropriate for use outside of the United States or may be used for persons who are not then located outside the United States. Those who access the Service from other locations are responsible for compliance with applicable local laws or regulations. The Software is subject to applicable export laws and restrictions.
27. Assignment of Agreement and Account
You may not assign this Agreement or Your Account without our prior written consent. You may not transfer or sublicense any licenses granted by MyHealthily in this Agreement without our prior written consent. We may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under this Agreement without your consent.
28. Integration, Interpretation of Section Headings and Severability
The agreements, understandings and policies referenced in this Agreement sets forth the entire agreement and understanding between You and MyHealthily with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings. MyHealthily reserves the right to modify this Agreement and Terms of Service at any time upon notification to you as provided in Section 29. If any future change is unacceptable to You, You should discontinue using the Service. Your continued use of the Service will always indicate your acceptance of this agreement and any changes to it.
You acknowledge that no other written, oral or electronic communications will serve to modify or supplement this Agreement, and You agree not to make any claims inconsistent with this understanding or in reliance on communications not part of this Agreement. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
MyHealthily may provide notice to you and obtain consent from you (1) through the Website (2) by electronic mail at the electronic mail address associated with your Account; and/or (3) by written mail communication to you at the address associated with your Account. You must submit all notices required or permitted under this Agreement to MyHealthily Insurance Solutions, LLC, c/o Compliance Manager, Jeremy McClendon, 25 Rockwood Place, Suite 210, Englewood, NJ 07631.
30. No Responsibility for Acts or Omissions of Third Party Service Providers
MyHealthily may refer names of certain third party service providers, insurance carriers, rate and form vendors, product and technology vendors and brokers and agents (“Service Providers”) to you upon your request or in connection with the Service. Any Service Providers referred to You by MyHealthily are not owned or controlled by MyHealthily. You agree that MyHealthily is not responsible or liable in any way for the acts or omissions of any Service Providers, including, without limitation, any negligent, willful or illegal conduct. You further agree to conduct your own investigation and due diligence regarding any Service Providers referred to you by MyHealthily. You agree to defend (at MyHealthily’s option), indemnify and hold harmless MyHealthily from all damages, liabilities, claims, expenses and losses relating to the referral of Service Providers to You.
31. Business Associate Agreement
For purposes of complying with the requirements of HIPAA to the extent applicable, You and MyHealthily agree to be bound by each of the terms and provisions of the MyHealthily Business Associate Agreement, which can be found at https://www.MyHealthily.com/baa (the “BAA”) and which is incorporated in full by this reference. If any provision hereof is potentially or actually in conflict with the provisions of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.
32. Consent to Electronic Communications
For Brokers/Agents/Producers: You are responsible for obtaining either requisite consent or ceasing email communication to any Client/Employer or Employee in the event that such Client/Employer or Employee opts out of receipt of any such communications.
33. Liability Insurance
For Brokers/Agents/Producers: You must maintain general liability, professional liability, and a minimum of $1,000,000 per occurrence in errors and omissions insurance or bonds in amounts and in forms standard and adequate for Your business and agreeable to MyHealthily. You must provide MyHealthily proof of insurance upon MyHealthily’s request. You must immediately notify MyHealthily in writing if Your insurance terminates, is cancelled, suspended, or changes in a material way, including but not limited to a change in the amount of insurance.
Our Copyright Agent for notice of claims of copyright infringement on or regarding this site can be reached as follows:
Executive Counsel PLC, 2883 Macao Drive, Herndon VA 20171 Attn: Nelson Blitz.
MyHealthily Terms of Service v2.1 September 2021