These Terms and Conditions (“Terms”) govern each Agreement or Statement of Work (“SOW”) by and between Digital Insurance LLC (“OneDigital”) and the Client set forth in the Agreement or Statement of Work (“Client”), and OneDigital’s provision of services to Client, effective as of the date in the Agreement or SOW. These Terms with the Agreement and any SOW, exhibit, addendum, or amendment, which are incorporated herein, are collectively referred to as the Master Service Agreement (“MSA”). By signing the Agreement, SOW, exhibit, addendum, or amendment, Client agrees to these terms. Any capitalized terms not defined in these Terms have the meanings outlined in the Agreement and SOW. The terms of the last Agreement, SOW, exhibit, addendum, or amendment entered into between OneDigital, and Client will supersede all prior Agreements or SOWs and any conflicting or inconsistent provisions of the Terms.
This MSA describes the non-exclusive products, tools and services that OneDigital recommends for Client and its employees, where applicable, and provides a detailed disclosure of the compensation associated with all such products, tools and services. Upon Client election of any product, tool and/or service, this MSA will satisfy all applicable state requirements for written agreement and compensation disclosure.
This MSA includes the services and/or products of the applicable Agreement or SOW selected hereunder (“Services”). All terms of the Agreement or SOW are incorporated by reference hereto as an addition to Section 2 of this MSA. As a result of special relationships between OneDigital and particular vendors, some products and services may include more favorable rates, product terms or services. OneDigital will work closely with Client to determine whether these products are appropriate for it and its employees. OneDigital occasionally may assist Client with coordinating certain outside services not listed in the Agreement or SOW below.
OneDigital will fully disclose all commissions and/or fees to Client according to the fee structure outlined in the applicable Agreement or SOW(s). This MSA, and any applicable Agreement or SOW(s) constitutes OneDigital’s disclosure of direct and indirect compensation it will or reasonably expects to receive for the term of this MSA in connection with the Services. This disclosure includes the disclosures OneDigital is required to make under ERISA Section 408(b)2) and applicable state laws. OneDigital may share a portion of its disclosed compensation with other plan service providers subject to 408(b)(2). Any other plan service providers subject to 408(b)(2) disclosure requirements are required to make its own independent disclosure and any such disclosures are not included in this OneDigital disclosure. In certain instances, this disclosure may include disclosures on behalf of a OneDigital affiliate(s). For purposes of this MSA, “Underlying Agreement or SOW” means the agreement between the Parties to assign OneDigital as broker of record for Client, or when applicable, the signed Service Agreement or SOW between the Parties.
The Agreement or SOW and its contents, including the fee arrangement reached by the Parties, are confidential, as is any advice that OneDigital provides Client. To that end, by signing below, the Parties agree not to disclose the contents of the Agreement or SOW to third parties unless required to do so by law or authorized in writing by the other Party to so disclose.
Each Party further agrees that it will not disclose any non-public, confidential or proprietary information of the other Party, including, but not limited to, specifications, samples, patterns, designs, plans, proprietary concepts and proposals, security and compliance documentation, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the other Party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with this MSA.
Each Party agrees to use best practices and exercise, at a minimum, the same degree of care to protect the other parties confidential or proprietary information that it does with respect to the protection of its own information of the same type or degree of sensitivity. The obligations of the Parties under this Section survive termination of this MSA and binds the Parties, their successors and assigns.
The obligations contained herein shall not apply to: (i) information which is now in or hereafter enters the public domain without a breach of this MSA; (ii) information known to the Recipient prior to the time of disclosure by the disclosing Party or independently developed by the Recipient’s Representatives without access to the Information; (iii) information disclosed in good faith to the Recipient by a third person known by the Recipient to be legally entitled to disclose the same.
OneDigital retains all copyright and other intellectual property rights in the methodologies, methods of analysis, ideas, concepts, know-how, models, tools, techniques, skills, knowledge and experience, and any graphic or digitized representations of any of these, possessed by OneDigital before the commencement of, or acquired by OneDigital during or after, the performance of the Services. Excluding Client’s underlying data, any and all materials created by OneDigital, including any materials created for Client’s use, are the exclusive property of OneDigital and shall not be deemed "work made for hire" under the United States copyright laws. If any Service materials are deemed "work made for hire,” Client hereby conveys, transfers, and assigns to OneDigital all Intellectual Property Rights and other rights in and to any and all such materials throughout the world in perpetuity.
Client and OneDigital acknowledge that when certain information, reports and data generated under this MSA are subject to applicable laws and regulations pertaining to the confidentiality of medical records, the parties agree to comply in all respects with such laws, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). When Services under this MSA are subject to HIPAA, the Parties will enter into separately a Business Associate Agreement (“BAA”). This MSA does not modify, supersede or otherwise affect any provision of the BAA. Additional information about OneDigital’s privacy policies can be found at https://www.onedigital.com/privacy-policy/.
Any California resident’s personal information disclosed by the Client is only for limited and specified purposes of OneDigital fulfilling its obligations under this MSA. OneDigital shall comply with applicable obligations under the California Privacy Rights Act (the “Act”) regarding California residents, including providing the same level of privacy protection as required thereunder. Company may take reasonable and appropriate steps to help ensure that OneDigital uses any such disclosed personal information in a manner consistent with the Client’s obligations under the Act. OneDigital shall notify Client if it makes a determination that it can no longer meet its obligations under the Act. The Client may, upon such notice from OneDigital, take reasonable and appropriate steps to stop and remediate unauthorized use of such personal information.
By signing below, Client agrees to release, indemnify and hold OneDigital, and its affiliates, successors, assignees, employees, officers, and directors (collectively, “Indemnitees”) harmless, from and against any and all liability, claims, demands, actions or causes of action, damages, losses, costs or expenses (including without limitation reasonable attorney’s fees and legal expenses) suffered or incurred by Indemnitees arising out of, or in connection with this MSA or the services provided by OneDigital, including, but not limited to, (a) all costs incurred due to employee incurred claims, erroneous information, modifications of OneDigital work product, a lapse or lack of coverage, erroneous enrollment in or continuation of coverage, or a state or federal agency penalty assessment; (b) Client’s breach of any representation, warranty, or obligation under this MSA; (c) instructions provided by Client to OneDigital; (d) any negligent act or omission of Client in connection with the services received under this MSA; (e) any information provided by Client or Client’s representatives, agents, or vendors, to OneDigital upon which OneDigital reasonably relies in providing services; (f) Client or any other third party’s modifications to OneDigital’s work product without prior written approval from OneDigital therefor; (g) work product, or any portions thereof, not prepared by OneDigital; or (h) Client’s submission of state or federal employment, tax, or benefit-related forms, filings, or submissions; except to the extent such claims are a result of (i) OneDigital’s performance of unauthorized services, or (ii) fraud, gross negligence, or intentional misconduct committed by OneDigital.
OneDigital agrees to release, indemnify and hold Client, and its affiliates, successors, assignees, employees, officers, and directors (collectively, “Indemnitees”) harmless, from and against any and all liability, claims, demands, actions or causes of action, damages, losses, costs or expenses (including without limitation reasonable attorney’s fees and legal expenses) suffered or incurred by Indemnitees arising out of, or in connection with this MSA or the services provided by OneDigital, directly relating to (a) OneDigital’s breach of any representation, warranty, or obligation under this MSA; (b) OneDigital’s performance of unauthorized services; or (c) fraud, gross negligence, or intentional misconduct committed by OneDigital.
Under no circumstances shall either Party be liable to the other Party for indirect, incidental, consequential, special, exemplary or punitive damages (even if such damages are foreseeable or that Party has been advised or has constructive knowledge of the possibility of such damages) arising from such Party’s performance or non-performance pursuant to any provision of this MSA (including such damages incurred by third parties), such as, but not limited to, loss of revenues, loss of data, anticipated profits or lost business. CLIENT AGREES THAT TO THE FULLEST EXTENT PERMITTED BY LAW, ONEDIGITAL’S TOTAL LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR IN ANY WAY RELATING TO THE SERVICES PROVIDED OR THIS MSA, FROM ANY CAUSE OR CAUSES, SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID OR OWING TO ONEDIGITAL BY CLIENT UNDER THIS MSA FOR THE MOST RECENT TWELVE (12) MONTHS OF SERVICE THAT PRECEED ONEDIGITAL’S RECEIPT OF NOTICE OF SUCH CLAIMS. Notwithstanding anything herein to the contrary, however, this section shall not limit either Party’s liability to the other for: (a) willful and malicious conduct; (b) direct damage to real or personal property; (c) bodily injury or death caused by negligence; or (d) such Party’s indemnification obligations hereunder.
Client understands, acknowledges, and agrees to the following: (a) OneDigital does not provide legal advice; (b) no attorney-Client relationship is created, nor should be inferred, by or from the services or products OneDigital provides; (c) under no circumstances will OneDigital exercise any decision-making authority on behalf of Client; (d) Client will provide OneDigital with the most current, accurate, and complete information available to it when using the Services; and (e) OneDigital makes no warranties with respect to third-party services provider through vendors other than OneDigital. OneDigital represents and warrants that to the best of its knowledge, the compensation disclosure contained herein is accurate as of the date of this disclosure. Except as otherwise provided herein, OneDigital makes no express or implied representations or warranties arising by law or otherwise, all of which are expressly disclaimed.
OneDigital certifies that it maintains all required state licensure for all of its employees providing Services to Client along with the appropriate liability and errors and omissions coverage required by the applicable states.
Except for the obligations to make payments for services rendered, neither Party shall be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, droughts, famines, cyclones, hurricanes, storms, tempests, explosions, fires, flood, embargo, riot, sabotage, acts of public enemy, revolutions, rebellions, invasions, civil unrests, civil commotions, blockades, picketing, boycotts, sanctions, embargoes, radioactive contamination, health epidemic or interference by any governmental agency, labor shortage or dispute, governmental act or failure of the internet (not resulting from the actions or inactions of such affected Party.
This MSA will be governed by and construed and enforced in accordance with the laws of the state identified in the Agreement or SOW.
If any provision of this MSA, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this MSA and such provision as applied to other persons, places or circumstances shall remain in full force and effect.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Party at the addresses set forth in the signature block of the Agreement or SOW or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), certified or registered mail (in each case, return receipt requested, postage prepaid), or delivery receipt electronic mail. Except as otherwise provided in this MSA, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employee/employer or agency relationship. OneDigital shall be an independent contractor pursuant to this MSA. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
Neither this MSA nor any of the rights or obligations hereunder may be assigned by any party without the prior written consent of the non-assigning Party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser of OneDigital, or all or substantially all of the assets of OneDigital, shall be entitled to the benefits of this MSA, whether or not this MSA is assigned to such purchaser.
No waiver by either Party of any of the provisions of this MSA is effective unless explicitly set forth in writing and signed by both Parties. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this MSA operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
This MSA may be executed in one or more counterparts, including, but not limited to, facsimiles and scanned images. Each counterpart shall for all purposes be deemed to be an original.
This MSA, and any incorporated Agreement or SOW, constitutes the entire understanding among the parties and supersedes, in their entirety, any and all understandings, agreements, contracts, arrangements, communications, discussions, representations, warranties, whether oral or written, among the Parties respecting the engagement. No provision of this MSA may be modified, waived or changed except by a writing signed by the Parties hereto. The Confidentiality, Intellectual Property, Data Protection, Indemnification, and Limitation of Liability provisions of the MSA shall survive termination of this Agreement.