These Broker Platform Terms of Service (these "Terms") constitute a legally binding agreement between you, as the broker or agency representative accepting these Terms ("Broker," "you," or "your"), and StretchDollar, Inc., together with its subsidiaries and affiliates, including StretchDollar Administrators, LLC and StretchDollar Brokerage, LLC (collectively, "StretchDollar," the "Company," "we," "us," or "our"). These Terms govern your access to and use of the StretchDollar broker platform (the "Platform"), including all associated tools, portals, features, and services made available through the Platform (collectively, the "Services").
BY CLICKING THE CHECKBOX INDICATING THAT YOU ACCEPT THE BROKER PLATFORM TERMS OF SERVICE, CREATING AN ACCOUNT, OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS IN THEIR ENTIRETY. IF YOU DO NOT ACCEPT THESE TERMS, YOU ARE STRICTLY PROHIBITED FROM ACCESSING OR USING THE PLATFORM.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE BROKER ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THESE TERMS, AND THAT SUCH ENTITY AGREES TO BE BOUND HEREBY.
STRETCHDOLLAR MAY SUPPLEMENT, AMEND, OR OTHERWISE MODIFY THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS ON THE PLATFORM. YOUR CONTINUED USE OF THE PLATFORM FOLLOWING ANY SUCH MODIFICATION CONSTITUTES YOUR ACCEPTANCE OF THE MODIFIED TERMS.
"Broker Data" means information, data, and other content, in any form or medium, that is submitted, uploaded, or otherwise provided by Broker to or through the Platform, including agency information, branding materials, licensing data, and employer client information submitted during onboarding.
"Broker of Record" or "BOR" means the licensed insurance broker or agency of record for purposes of individual health insurance policies purchased by employees of Clients enrolled through the Platform.
"Client" means an employer customer that enters into a services agreement directly with StretchDollar to utilize the ICHRA platform services.
"Client Services Agreement" means the separate agreement entered into directly between a Client and StretchDollar governing the Client's use of ICHRA administration services and the Platform.
"Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that either party considers confidential or proprietary, including information consisting of or relating to technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which a party has contractual or other confidentiality obligations.
"Documentation" means any manuals, instructions, or other documents or materials that StretchDollar provides or makes available to Broker in any form or medium describing the functionality, components, features, or requirements of the Platform or Services.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Participating Employee" means an employee of a Client who is enrolled in an individual health insurance plan through the Platform's ICHRA program.
"Platform Materials" means the Services, Documentation, and all other information, data, documents, materials, works, and content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by StretchDollar in connection with the Services or otherwise comprise or relate to the Platform.
"Privacy Policy" means StretchDollar's privacy policy, as may be updated from time to time and made available on the Platform.
"Resultant Data" means data and information related to Broker's and/or Client's use of the Services that is used by StretchDollar, including to compile statistical and performance information related to the provision and operation of the Services.
2.1 License Grant. Subject to Broker's compliance with these Terms, StretchDollar grants Broker a limited, non-exclusive, non-transferable, non-sublicensable, freely revocable right and license to access and use the Platform solely for the purpose of: (a) onboarding employer clients to StretchDollar's ICHRA platform services; (b) quoting prospective employer clients; (c) monitoring the status of client onboarding; and (d) viewing participation data for employer clients introduced by Broker.
2.2 Broker Account. To access the Platform, Broker must create an account and provide complete and accurate information, including, without limitation: (a) information about Broker's agency; (b) applicable state insurance licensing information; and (c) branding preferences, if any, for co-branded portal display. Broker is responsible for maintaining the confidentiality of its account credentials and for all activity occurring under its account. Broker shall immediately notify StretchDollar of any unauthorized use of its account.
2.3 Co-Branding. Broker may apply its own branding (including logo and color scheme) to the Platform interface on instances intended for display to Broker's prospective and existing clients, subject to StretchDollar's approval. All co-branded instances shall include "powered by StretchDollar" in a location determined by StretchDollar. All Platform features, updates, and configurations remain under StretchDollar's sole control.
2.4 Service and System Control. StretchDollar has and will retain sole control over the operation, provision, maintenance, and management of the Platform and all Platform Materials. StretchDollar reserves the right, in its sole discretion, to make any changes to the Platform and Platform Materials that it deems necessary or useful, including to maintain or enhance quality, competitive strength, cost efficiency, or performance, or to comply with applicable law.
2.5 Suspension or Termination of Access. StretchDollar may, directly or indirectly, suspend, terminate, or otherwise deny Broker's access to or use of all or any part of the Platform, without incurring any resulting obligation or liability, for any reasoning including without limitation if: (a) StretchDollar receives a judicial or other governmental demand or order requiring StretchDollar to do so; (b) Broker has failed to comply with any term of these Terms; (c) Broker is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; (d) these Terms expire or are terminated; or (e) StretchDollar determines, in its sole discretion, that suspension or termination is necessary to protect the Platform, its users, or StretchDollar's business interests.
Broker shall not, and shall not permit any person to, access or use the Platform or Platform Materials except as expressly permitted by these Terms. Without limiting the generality of the foregoing, Broker shall not:
(a) copy, modify, or create derivative works or improvements of the Platform or Platform Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Platform or Platform Materials to any person;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform or Platform Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Platform or access or use the Platform other than through authorized access credentials;
(e) input, upload, transmit, or otherwise provide to or through the Platform any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform or StretchDollar's provision of services to any third party;
(g) remove, delete, alter, or obscure any trademarks, documentation, warranties, disclaimers, or any intellectual property or proprietary rights notices from any Platform Materials;
(h) access or use the Platform or Platform Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law;
(i) access or use the Platform or Platform Materials for purposes of competitive analysis, the development or provision of a competing software service or product, or any other purpose that is to StretchDollar's detriment or commercial disadvantage; or
(j) use any automated means (including robots, scrapers, spiders, or other software) to access the Platform for any purpose without StretchDollar's express written permission.
4.1 Fee Structure. Fees for the Services shall be structured as follows:
(a) Monthly Platform Fee. StretchDollar will charge each Client a monthly platform fee (the "Monthly Fee"). The Monthly Fee is retained entirely by StretchDollar.
(b) Per Participating Employee Per Month Fee. In addition to the Monthly Fee, StretchDollar will charge each Client a fee for each Participating Employee per month (the "PEPM Fee"). The PEPM Fee shall be remitted to Broker by StretchDollar no less frequently than quarterly. Fee allocations shall be calculated based solely on actual collections. StretchDollar shall have no obligation to remit any amounts to Broker with respect to uncollected, delinquent, or reversed payments.
(c) Fee Changes. The above fees are subject to change based on market conditions. StretchDollar shall provide written notice to Broker of any rate changes.
4.2 Taxes. All fees and other amounts payable under these Terms are exclusive of taxes and similar assessments. Each party is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by such party hereunder, other than any taxes imposed on the other party's income.
5.1 BOR Election. Through the Platform, Broker may elect to either: (a) retain the Broker of Record designation for individual health insurance plans purchased by Participating Employees at the Clients introduced by Broker; or (b) route the Broker of Record designation back to StretchDollar Brokerage, LLC. Such election shall be made on a per-Client basis through the Platform at the time of client onboarding or as otherwise permitted by StretchDollar.
5.2 BOR Responsibilities. If Broker elects to retain the BOR designation, Broker shall assume full legal responsibility for brokerage services with respect to the applicable Participating Employees, including compliance with all applicable insurance and licensing laws.
5.3 BOR Transition on Termination. Upon termination of these Terms for any reason, if Broker holds the BOR designation for any Clients or Participating Employees, at the request of the applicable policyholder, Broker agrees to cooperate in good faith with StretchDollar to facilitate the orderly transition of the BOR designation, subject to the applicable policyholder’s consent and carrier requirements under applicable state law.
6.1 Responsible Platform Use. Broker shall use the Platform in a responsible, professional, and lawful manner. Broker shall not use the Platform for any fraudulent, deceptive, misleading, or illegal purposes, and shall not permit any of its employees, agents, or representatives to do so. Broker shall promptly report to StretchDollar any suspected fraudulent activity, security vulnerabilities, or unauthorized access to the Platform.
6.2 Client Vetting and Due Diligence. Prior to onboarding any prospective Client to the Platform, Broker shall conduct reasonable due diligence to verify the legitimacy of such prospective Client, including confirming that the prospective Client is a bona fide employer with actual employees eligible for ICHRA benefits. Broker shall not knowingly introduce to the Platform any entity that Broker knows or reasonably suspects to be engaged in fraudulent, illegal, or deceptive business practices.
6.3 Employee Onboarding and Plan Selection Assistance. Broker shall assist Participating Employees of Clients introduced by Broker with the employee onboarding process, including providing guidance on plan selection, answering employee questions regarding ICHRA benefits and available health insurance options, and facilitating enrollment through the Platform. Broker shall ensure that all information provided to Participating Employees is accurate, complete, and compliant with applicable law.
6.4 Compliance with Platform Policies. Broker shall comply with all policies, procedures, guidelines, and instructions issued by StretchDollar from time to time regarding the use of the Platform, the onboarding of Clients, and the provision of brokerage services through the Platform. StretchDollar may update such policies at any time, and Broker’s continued use of the Platform constitutes acceptance of any such updates.
6.5 Training and Competency. Broker shall ensure that all of its employees, agents, and representatives who access or use the Platform on Broker’s behalf are properly trained and competent to perform their duties, including with respect to applicable insurance laws and regulations, ICHRA requirements, and the proper use of the Platform.
6.6 Cooperation. Broker shall cooperate with StretchDollar and provide such information, documentation, and assistance as StretchDollar may reasonably request from time to time in connection with Broker’s use of the Platform, including for purposes of regulatory compliance, audits, investigations, or responding to Client inquiries.
6.7 Record Keeping. Broker shall maintain complete and accurate records of all Client and Participating Employee interactions, transactions, and communications made through or in connection with the Platform, and shall retain such records for the period required by applicable law or as otherwise directed by StretchDollar. Upon request, Broker shall provide StretchDollar with copies of such records.
6.8 Data Breach Notification. Broker shall notify StretchDollar in writing at compliance@stretchdollar.com within twenty-four (24) hours of Broker’s discovery of any actual or suspected unauthorized access to, acquisition of, or disclosure of any personal information, Confidential Information, or other data relating to StretchDollar, any Client, or any Participating Employee (a “Security Incident”). Such notification shall include a description of the nature and scope of the Security Incident, the types of information involved, and the remedial measures taken or proposed. Broker shall cooperate fully with StretchDollar’s investigation of any Security Incident, shall not issue any public statement or notification regarding a Security Incident without StretchDollar’s prior written approval (except as required by law, with advance notice to StretchDollar), and shall reimburse StretchDollar for all costs and expenses incurred in responding to or mitigating any Security Incident caused by Broker.
7.1 Direct Relationship with StretchDollar. Broker acknowledges and agrees that each Client will enter into a Client Services Agreement directly with StretchDollar. The Client Services Agreement is a direct contractual relationship between StretchDollar and the Client, and Broker is not a party thereto.
7.2 Survival of Client Services Agreement. Broker expressly acknowledges and agrees that the termination or expiration of these Terms, or Broker's cessation of use of the Platform, shall have no effect whatsoever on any Client Services Agreement. Each Client Services Agreement shall continue in full force and effect in accordance with its own terms, and StretchDollar shall continue to service all Clients regardless of Broker's relationship with StretchDollar. Broker shall have no right to interfere with, cause the termination of, or otherwise disrupt any Client Services Agreement.
7.3 No Exclusivity. Nothing in these Terms grants Broker any exclusive right to introduce Clients to StretchDollar or to use the Platform. StretchDollar may engage any number of additional brokers, agents, or referral partners, and may accept Clients directly without the involvement of any broker.
8.1 Ownership of Platform Data. All Resultant Data, and any information, data, or other content derived from StretchDollar's monitoring of Broker's access to or use of the Platform, is and shall remain the sole and exclusive property of StretchDollar. Broker hereby unconditionally and irrevocably assigns to StretchDollar all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2 Broker Data. Broker grants StretchDollar a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sublicensable, and universe-wide license to host, store, reproduce, transmit, distribute, modify, adapt, create derivative works, and otherwise use and exploit all Broker Data in connection with the Platform, the Services, and StretchDollar's business operations.
8.3 Access to Client Information. During the term of these Terms, Broker may be given visibility into certain Client and Participating Employee information through the Platform, including onboarding status and participation metrics. Such access is provided solely for Broker's internal use in connection with its brokerage services and shall not be resold or disclosed to any third party. Upon termination of these Terms for any reason, Broker's access to all Client and Participating Employee information shall immediately cease, and Broker shall have no further right to access, use, or retain such information.
8.4 Confidentiality. Each party agrees that it will not disclose or use Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under these Terms. Each party shall safeguard the Confidential Information of the other party from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own most sensitive information and in no event less than a reasonable degree of care. Notwithstanding the foregoing, StretchDollar's obligation of confidentiality under this Section shall not apply to information that: (a) is or becomes generally known to the public through no fault of StretchDollar; (b) was rightfully known to StretchDollar without restriction prior to disclosure by Broker; (c) is received by StretchDollar from a third party without restriction on disclosure; or (d) is independently developed by StretchDollar without reference to Broker's Confidential Information.
9.1 StretchDollar Ownership. All right, title, and interest in and to the Platform, the Platform Materials, and all Intellectual Property Rights therein, are and will remain with StretchDollar. Broker has no right, license, or authorization with respect to any of the Platform Materials except as expressly set forth in Section 2. All other rights in and to the Platform Materials are expressly reserved by StretchDollar.
9.2 No Rights Coupled with Interest. No rights or permissions granted to Broker under these Terms are coupled with an interest. Nothing contained in these Terms shall be construed as a waiver or limitation of StretchDollar's rights and remedies under applicable law.
9.3 Feedback. If Broker provides StretchDollar with any suggestions, ideas, enhancement requests, recommendations, or other feedback relating to the Platform or Services ("Feedback"), Broker hereby assigns to StretchDollar all right, title, and interest in and to such Feedback, and StretchDollar shall be free to use, implement, and exploit such Feedback without restriction or obligation to Broker.
10.1 Marketing License. Broker hereby grants StretchDollar an irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sublicensable, perpetual, and universe-wide license to use Broker's name, trade names, trademarks, service marks, logos, and other indicia of source or identity (collectively, "Broker Marks") in StretchDollar's marketing, advertising, press releases, promotional materials, customer lists, case studies, presentations, website content, and any other communications, in any language, manner, medium, or form, whether now known or hereinafter devised, as StretchDollar sees fit in its sole discretion. Notwithstanding the foregoing, Broker may opt out of some or all of the license granted under this Section 10.1 by providing written notice to StretchDollar at compliance@stretchdollar.com specifying the scope of such opt-out. Upon receipt of such notice, StretchDollar shall cease the specified use of the Broker Marks within thirty (30) days.
10.2 No Prior Approval Required. StretchDollar shall not be required to obtain Broker's prior approval before any specific use of the Broker Marks pursuant to Section 10.1. Broker represents and warrants that it has the authority to grant the rights set forth in this Section 10 and that StretchDollar's use of the Broker Marks as contemplated herein will not infringe or violate the rights of any third party.
10.3 Broker Use of StretchDollar Marks. Broker shall not use StretchDollar's name, trademarks, service marks, logos, or other indicia of source or identity except as may be expressly displayed within the co-branded Platform interface or as expressly authorized in writing by StretchDollar. Any unauthorized use of StretchDollar marks shall constitute a material breach of these Terms.
Broker represents, warrants, and covenants to StretchDollar that:
(a) Broker is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization;
(b) Broker has the full right, power, and authority to enter into and perform its obligations under these Terms and to grant the rights, licenses, consents, and authorizations granted herein;
(c) the individual accepting these Terms on behalf of Broker has been duly authorized to do so by all necessary corporate or organizational action;
(d) Broker holds, and will maintain at all times during its use of the Platform, all licenses, permits, registrations, and approvals required under applicable federal, state, and local law to conduct its business as an insurance broker or agency, including all applicable state insurance licenses in each jurisdiction in which Broker sells or solicits individual health insurance plans through the Platform;
(e) Broker is in compliance with, and will at all times remain in compliance with, all applicable federal, state, and local laws, rules, and regulations, including without limitation all insurance laws and regulations, anti-money laundering laws, anti-corruption laws, data protection and privacy laws, the Affordable Care Act, HIPAA to the extent applicable, and all other laws applicable to Broker's business and its use of the Platform;
(f) Broker will not use the Platform in any manner that is deceptive, misleading, fraudulent, or otherwise unlawful, or that could bring StretchDollar into disrepute;
(g) all information provided by Broker to StretchDollar in connection with Broker's use of the Platform is and shall remain truthful, accurate, and complete, and Broker will promptly update such information to maintain its accuracy;
(h) Broker will comply with all applicable privacy and data protection laws in connection with any personal information Broker accesses, collects, or processes through or in connection with the Platform;
(i) Broker is not listed on any United States government list of prohibited or restricted parties; and
(j) Broker will not make any representations, warranties, or promises to Clients or prospective Clients on behalf of StretchDollar that are not expressly authorized by StretchDollar in writing.
(k) Broker will promptly notify StretchDollar if any insurance license held by Broker is suspended, revoked, restricted, conditioned, or otherwise made subject to any disciplinary or enforcement proceeding in any jurisdiction.
12.1 AS-IS BASIS. THE PLATFORM AND ALL PLATFORM MATERIALS ARE PROVIDED TO BROKER ON AN "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS AND WITHOUT ANY WARRANTY. STRETCHDOLLAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, STRETCHDOLLAR MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR PLATFORM MATERIALS WILL MEET BROKER'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
12.2 System Delays. STRETCHDOLLAR SHALL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS, ANY DELAYS, FAILURES, LOSSES, INJURIES, LIABILITIES, OR DAMAGES ASSOCIATED WITH THE PLATFORM WHICH RESULT FROM ANY SYSTEM DELAYS, DOWNTIMES, INTERRUPTIONS, OR OTHER FAILURES OF, OR PROBLEMS WITH, THE PLATFORM WHICH ARE OUTSIDE OF STRETCHDOLLAR'S REASONABLE CONTROL.
13.1 Exclusion of Damages. IN NO EVENT WILL STRETCHDOLLAR OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO BROKER FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
13.2 Liability Cap. IN NO EVENT WILL STRETCHDOLLAR'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS ACTUALLY PAID BY STRETCHDOLLAR TO BROKER (IF ANY) UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY.
13.3 Application. THE WAIVERS AND LIMITATIONS IN THIS SECTION 13 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE.
14.1 Broker Indemnification. BROKER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS STRETCHDOLLAR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS (EACH, A "STRETCHDOLLAR INDEMNITEE") FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED BY SUCH STRETCHDOLLAR INDEMNITEE, OR ASSERTED AGAINST SUCH STRETCHDOLLAR INDEMNITEE BY ANY THIRD PARTY, ARISING OUT OF OR RESULTING FROM:
(a) Broker's acts, errors, or omissions in connection with its use of the Platform or its brokerage services;
(b) Broker's breach of any representation, warranty, covenant, or obligation under these Terms;
(c) Broker's violation of applicable law, including any insurance, licensing, privacy, or data protection laws;
(d) any claim by a Client, Participating Employee, or other third party arising from Broker's brokerage services or advice;
(e) Broker's infringement or misappropriation of any third party's Intellectual Property Rights; or
(f) any use of the Broker Marks by StretchDollar as authorized herein that results in a third-party claim of infringement, provided Broker represented it had authority to grant such license.
(g) any Security Incident (as defined in Section 6.8) or data breach arising out of or related to Broker’s acts, omissions, systems, or personnel, including any claims by affected individuals, regulatory investigations, fines, penalties, notification costs, credit monitoring costs, forensic investigation costs, and any other losses or expenses incurred by any StretchDollar Indemnitee in connection therewith; or
(h) any fraud or misuse of the Platform by Broker, any Client introduced by Broker, or any of their respective employees, agents, or representatives, including without limitation any Client’s failure to maintain sufficient funds, any reversed ACH transaction, or any resulting negative account balance.
14.2 No StretchDollar Indemnification. For the avoidance of doubt, StretchDollar does not assume any indemnification obligation in favor of Broker under these Terms.
15.1 Term. These Terms are effective as of the date Broker first accepts these Terms or accesses the Platform, whichever occurs first, and shall remain in effect until terminated in accordance with this Section 15.
15.2 Termination. Either party may terminate these Terms at any time, for any reason or no reason, by providing written notice to the other party in accordance with Section 16.8. Termination shall be effective upon the earlier of (a) the receiving party’s actual receipt of such notice or (b) one (1) business day after transmission of such notice by email to the receiving party’s designated notice address.
15.4 Effect of Termination.
(a) Upon any termination or expiration of these Terms: (i) all rights, licenses, consents, and authorizations granted by StretchDollar to Broker hereunder will immediately terminate; (ii) Broker shall immediately cease all use of the Platform and Platform Materials; (iii) Broker's access to all Client information, Participating Employee data, and Platform features will be immediately disabled; and (iv) Broker shall promptly return or destroy all Confidential Information of StretchDollar in Broker's possession or control.
(b) Survival of Client Services Agreements. For the avoidance of doubt, the termination of these Terms shall have no effect on any Client Services Agreement. StretchDollar shall continue to provide services to all Clients in accordance with their respective Client Services Agreements, and Broker shall have no right to cause the termination of or otherwise interfere with any Client Services Agreement.
(c) PEPM Fees Upon Termination. Following termination, Broker shall be entitled to receive PEPM Fees accrued but unpaid as of the effective date of termination for services already rendered, calculated based on actual collections. No PEPM Fees shall accrue or be payable for periods following the effective date of termination.
15.5 Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in these Terms that, by its nature, should survive termination or expiration, will survive: Section 1 (Definitions), Section 3 (Use Restrictions), Section 6 (Broker Duties and Obligations), Section 7 (Client Relationship), Section 8 (Data and Confidentiality), Section 9 (Intellectual Property), Section 10 (Marketing Rights), Section 11 (Representations and Warranties), Section 12 (Disclaimers), Section 13 (Limitation of Liability), Section 14 (Indemnification), Section 15.4 (Effect of Termination), and Section 16 (General Provisions).
16.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.2 Governing Law. These Terms, Broker’s access or use of the Platform or any Services, and all disputes, controversies, and claims arising from or in connection with any of the foregoing (whether grounded in contract, tort, statute, law, or equity) are governed by the laws of the Commonwealth of Pennsylvania in the United States of America and the applicable federal laws of the United States of America, without regard to its place of execution, its place of performance, or any conflicts of law analysis.
16.3 Dispute Resolution.
(a) Binding Arbitration. Except as may otherwise be mutually agreed upon by the parties in a separate written agreement, each party hereby irrevocably submits all disputes, controversies, and claims arising from or concerning these Terms, Broker’s access or use of the Platform or the Services, any transactions made on, through, or in relation to the Platform, and/or the parties’ relationship (whether grounded in contract, tort, statute, law, or equity) (collectively, “Disputes”) to binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or its successor for the resolution thereof, and such arbitration shall be the sole and exclusive method for resolving Disputes. The arbitration shall be binding, final, and confidential. EACH PARTY ACKNOWLEDGES AND AGREES THAT SUCH PARTY IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS THE MEMBER OF A CLASS IN ANY PURPORTED CLASS ACTION PROCEEDING.
(b) Arbitration Rules. The arbitration shall be conducted before a single arbitrator under the then-current JAMS Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”), as supplemented by the Federal Rules of Civil Procedure and the Federal Rules of Evidence if and where applicable as a gap-filler. If there is any conflict between a provision of the JAMS Rules, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or these Terms, then the conflicting provision of these Terms shall control. The construction, interpretation, and enforcement of this Section 16.3 is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
(c) Arbitration Process and Location. The party initiating the arbitration proceeding shall serve a written notice of arbitration on the other party in accordance with the JAMS Rules. The arbitration shall be held in Philadelphia County, Pennsylvania, United States of America. The arbitration shall be conducted in the English language. The arbitrator shall be selected in accordance with the JAMS Rules, unless otherwise agreed to by the parties. All issues or questions concerning either the scope of this arbitration clause or the arbitrability of any Disputes shall be referred to and finally decided by the arbitrator. The arbitrator may construe or interpret, but shall not vary or ignore, the terms and conditions of these Terms and shall be bound by applicable law.
(d) Arbitration Decisions and Awards. The arbitrator shall render a written final decision on the subject Dispute as soon as practicable and, in any event, not more than forty-five (45) calendar days after the close of evidence and briefing. The arbitrator’s decision shall be written, shall be in accordance with applicable law, and shall be supported by written findings of fact and conclusions of law setting forth the basis for the arbitrator’s decision. The arbitrator shall have no authority to award punitive, exemplary, or consequential damages, unless such an award is authorized by applicable law. The arbitrator shall have the authority to award attorneys’ fees and expenses if such an award is permitted under these Terms or applicable law. Subject to any applicable rights of appeal, the final decision of the arbitrator shall be binding and conclusive upon all of the parties who have been served with proper written notice of the arbitration proceeding. Judgment on any award rendered by the arbitrator may be confirmed in any state or federal court having jurisdiction thereof that is located in the Commonwealth of Pennsylvania, and may be entered in and enforced by any domestic, foreign, or international court having appropriate subject matter jurisdiction.
(e) Arbitration Fees and Expenses. JAMS’s administrative and filing fees, the arbitrator’s fees and expenses, and all other fees and expenses charged by JAMS and/or the arbitrator to administer or conduct the arbitration shall be shared equally among all parties to the arbitration; provided, that the prevailing party of the arbitration may recover an award of its share of such fees and expenses if such an award is permitted under these Terms or applicable law.
(f) Litigation. In the event a particular Dispute is not subject to arbitration (whether by decision of an arbitrator with binding authority, or otherwise according to these Terms or applicable law), each party hereby irrevocably submits to the exclusive personal jurisdiction and venue of the state courts of the Commonwealth of Pennsylvania and the United States federal courts in the Commonwealth of Pennsylvania for the litigation of said Dispute, and covenants and agrees that neither of the foregoing is an inconvenient venue or forum.
16.4 Waiver of Jury Trial and Class Action. REGARDLESS OF WHETHER A PARTICULAR DISPUTE IS SUBJECT TO ARBITRATION OR LITIGATION, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY DOES HEREBY WAIVE ITS RIGHT TO A TRIAL BY JURY, TO PARTICIPATE AS THE MEMBER OF A CLASS IN ANY PURPORTED CLASS ACTION OR OTHER PROCEEDING, OR TO NAME UNNAMED MEMBERS IN ANY PURPORTED CLASS ACTION OR OTHER PROCEEDING.
16.5 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to these Terms, each party shall bear the cost of its own attorneys' fees and court costs.
16.6 Assignment. Broker shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations under these Terms, whether voluntarily, involuntarily, or by operation of law, without StretchDollar's prior written consent. Any purported assignment or delegation in violation of this Section is void. StretchDollar may freely assign these Terms without restriction.
16.7 Force Majeure. StretchDollar shall not be liable for any failure or delay in performing its obligations under these Terms when and to the extent such failure or delay is caused by circumstances beyond its reasonable control, including acts of God, pandemic, epidemic, fire, flood, war, terrorism, government action, labor dispute, or internet or telecommunications failure.
16.8 Notices. All notices from Broker to StretchDollar under these Terms shall be sent to compliance@stretchdollar.com. All notices from StretchDollar to Broker under these Terms shall be sent by email to the email address then on file for Broker’s account on the Platform.
16.9 Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to make it valid and enforceable while preserving the intent of these Terms.
16.10 No Waiver. No failure or delay to exercise any right, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof.
16.11 Entire Agreement. These Terms constitute the entire agreement between the parties with respect to Broker's access to and use of the Platform and supersede all prior agreements, understandings, and negotiations with respect to such subject matter.
16.12 Electronic Acceptance. Broker acknowledges that by clicking "I Agree" or by accessing or using the Platform, Broker has electronically accepted these Terms, and such acceptance shall have the same legal force and effect as a manual signature.
16.13 Amendments. StretchDollar reserves the right to amend these Terms at any time by posting updated Terms on the Platform. Broker's continued use of the Platform following the posting of amended Terms constitutes acceptance of such amendments. It is Broker's responsibility to review these Terms periodically.
16.14 No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
16.15 Contact. Questions regarding these Terms may be directed to compliance@stretchdollar.com.
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