Your subscription to the services covered by these US Benefit Administration Terms of Use includes access for you and your Authorized Users to HiBob’s US Benefit Administration module and the Benefits Adminstration Services (as defined below) provided through HiBob’s Platform (the “US Benefit Administration Module”), as specified in the applicable Order Form and in accordance with the HiBob Customer Subscription Terms and Conditions (together with these US Benefit Administration Terms of Use, the “Agreement”). By choosing to subscribe to HiBob’s US Benefit Administration Module, you acknowledge and agree to the following terms, which supplement the terms separately agreed upon by you and HiBob. Any terms not defined herein shall have the meaning as outlined in the Agreement.
1. DEFINITIONS.
API means the application programming interface(s) provided by PlanSource (defined below) that permit you to access the Benefits Administration Services.
End User means your current employees, former employees, or other participant(s).
End User Data means information and data provided from you, your Authorized User, or End User to HiBob in the course of accessing or using the Benefits Administration Services.
Provider means any third party that you have separately and independently engaged for other services, including your designated carrier; payroll, service, or insurance provider; broker of record; auditor, or other agent.
Benefits Administration Services means PlanSource software-as-a-service, API, Software, or any other benefit administration-related services as outlined in your applicable Order Form.
Software means object code versions of any downloadable software, which may include an agent or progressive web application to access the Benefits Administration Services and which includes updates, new releases, versions, modifications, or enhancements, pursuant to this US Benefit Administration Terms of Use.
2.1 Roles. HiBob provides access to the US Benefit Administration Module, and enables customers to manage certain benefit functions such as self-service enrollment, eligibility management, life events changes, and cost calculations, collect and manage benefits-related data and provide standardized reports. Access to and Support of the underlying operation of the Software and managing data exchanges with different Providers, are provided and handled by our Third Party Provider, PlanSource Benefits Administration, Inc. (“PlanSource” or “Third Party Provider”). HiBob reserves the right to engage with another third party provider for any portion of the services currently provided by PlanSource. In case of such intention, HiBob will provide notice to Customer in accordance with Sec. 14.2 of the Agreement.
2.2 Grant. Upon payment of fees and subject to compliance with the Agreement, HiBob grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, right during the term of your applicable Order Form for US Benefit Administration Module (“Term”) to access and use the service contemplated under the Agreement for your internal business purposes.
3.1 Use of US Benefit Administration Module. You acknowledge, agree, and warrant that you: (i) will be responsible for your, your Authorized Users’, and End Users’ activity and use of the US Benefit Administration Module and compliance with applicable laws and regulations, and, if you become aware of any violation, will immediately terminate the offending party’s access to the US Benefit Administration Module; (ii) are able to legally process and provide End User Data to HiBob and will be responsible for the accuracy, security, quality, integrity, and legality of the same; and (iii) are responsible for the security, completeness, and accuracy of your registration, account, and billing information (and will promptly notify HiBob of any unauthorized access or use of the same).
3.2 Restrictions. You shall not (and shall not permit your Authorized Users or End Users to), directly or indirectly: (a) exceed your rights to use the US Benefit Administration Services pursuant to the Agreement and the Order Form; (b) make any US Benefit Administration Module available to anyone other than you, your Affiliates, your Authorized Users, or End Users; (c) sell, resell, license, sublicense, distribute, rent, lease, loan, or otherwise transfer any US Benefit Administration Module; (d) reverse engineer, decompile, or disassemble, or otherwise obtain or attempt to create, derive, or obtain the source code or unauthorized access of the US Benefit Administration Module; (e) modify, translate, enhance, or otherwise change the US Benefit Administration Module or prepare derivative works of the US Benefit Administration Module unless expressly agreed between the parties; (f) use the US Benefit Administration Module to violate third party rights or applicable laws or to process unauthorized, infringing, libelous, unlawful, or tortious data that you are not authorized to process; (g) use the US Benefit Administration Module to store or transmit malicious code or interfere with, impair, or disrupt the integrity or performance of the US Benefit Administration Module or any party’s use of the US Benefit Administration Module; (h) use or otherwise exploit the US Benefit Administration Module for the purposes of benchmarking, competitive analysis, or the development of a competing software product; (i) circumvent or attempt to circumvent any methods employed by PlanSource to control access to the components, features, or functions of the US Benefit Administration Module; (j) conduct security testing on PlanSource’s infrastructure, US Benefit Administration Module, or other products; or (j) remove, obscure, or alter any proprietary notices, including trademark or copyright notices, from the US Benefit Administration Module.
4.1 Ownership. PlanSource (or its licensors) is the sole and exclusive owner(s) of all right, title, and interest in and to the Benefits Administration Services and PlanSource’s proprietary property (including all improvements, enhancements, or modifications of the foregoing or any other intellectual property or proprietary rights) and reserves and retains all right, title and interest in and to the same.
4.2 Feedback. You may provide suggestions, comments, or other feedback to HiBob or to the Third Party Provider with respect to the US Benefit Administration Module (“Feedback”). You grant HiBob and the Third Party Provider a worldwide, royalty-free, fully-paid, transferable, sublicensable, irrevocable and perpetual license to use and incorporate the Feedback for any purpose.
4.3 End User Data. You are the sole and exclusive owner of all right, title and interest in and to the End User Data and reserve all right, title and interest in and to the End User Data not expressly granted under the Agreement. You will be solely responsible for retaining copies of End User Data. If you choose to use third party systems and applications with the US Benefit Administration Module, or you authorize or direct HiBob or the Third Party Porivder to provide or exchange such End User Data to a Provider, you grant HiBob and the Third Party Porivder permission to allow such third-party systems and applications or Provider(s) to access, receive, or exchange such End User Data with such third-party systems and applications or Provider(s), as appropriate. To the extent that you are providing HiBob with access to data or information that constitutes classified information or protected health information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), HiBob shall process PHI in accordance with HiBob’s Business Associate Agreement, which is incorporated herein by reference.
4.4 Protection. During the term under the applicable Order Form, you shall comply with your respective obligations under applicable data protection and privacy laws, and maintain a security program that is reasonably designed to protect the security of, and prevent unauthorized access to End User Data. Such security program shall include the implementation of appropriate administrative, technical, and physical safeguards.
5.1 Termination. These US Benefit Administration Terms of Use may be terminated immediately upon written notice if you or your Authorized User(s) infringe upon or misappropriate the Third Party Provider’s intellectual property rights. Additionally, if, for any reason, HiBob’s US Payroll Services provider does not provide its approval or denies your access to the US Payroll Module, then the US Benefit Administration Module portion of your applicable Order Form shall be deemed terminated immediately without liability of HiBob or the Third Party Porivder with respect to such termination. Upon the US Payroll Services provider denial or failure to approve, HiBob will stop issuing new invoices for the US Benefit Administration Module and Customer shall be required to pay those fees associated with the US Benefit Administration Module due through the date the US Payroll Services provider’s determination is transmitted to HiBob and Customer.
5.2 Effect of Termination. Upon termination of these US Benefit Administration Terms of Use, you shall immediately cease use of the US Benefit Administration Module and will download End User Data prior to such termination. Following termination, HiBob will permanently delete End User Data as detailed under HiBob’s Benefit Administration Data Processing Addendum, which is incorporated herein by reference.
6. TAXES. You represent that your use of the US Benefit Administration Module will be only in the jurisdiction of your company’s territory of incorporation. If there will be any use of the US Benefit Administration Module in any territory other than your company’s territory of incorporation, you agree to remit and report applicable taxes due directly to the taxing authority of that jurisdiction.
7.1 ERISA. If you subscribed to Benefit Administration Service as outlined in an applicable Order Form, HiBob and Third Party Provider may provide administrative support for your health and welfare benefit plan(s) (“Administrative Services”). These services apply to benefit programs that you have established under a formal plan document, self-funded trust, or group health insurance policy (the “Plan(s)”). HiBob’s and Third Party Provider’s roles are strictly administrative and do not grant them any authority over the operation of the Plan that would classify them as a “plan administrator,” “plan sponsor,” or any other fiduciary under the Employee Retirement Income Security Act of 1974 (“ERISA”). To the extent that the Administrative Services involve HiBob and Third Party Provider supporting the Plan administrator (“Plan Administrator”), such assistance will be strictly limited to administrative and ministerial tasks as outlined in Department of Labor Regulations § 2509.75-8, D-2. HiBob and Third Party Provider will carry out these functions in accordance with the policies, guidelines, procedures, and directives established by the Customer and the Plan Administrator. As a result, all actions taken by HiBob and Third Party Provider in relation to the Plan remain subject to oversight, adjustment, or reversal by the Plan Administrator or any other authorized fiduciary. HiBob and Third Party Provider do not have discretionary control over the administration of the Plan, nor do they possess any authority to oversee or manage Plan assets.
HiBob and Third Party Provider have no power to make any decisions about the policy, interpretations, practices or procedures of any Plan(s). You shall have sole responsibility for the Plan(s). HiBob and Third Party Provider have no obligation to maintain or provide any Plan(s) documents or related forms, including to any Provider or regulating party, or make any determinations under any such Plan(s) or forms. Third Party Provider will perform the Benefits Administration Services within the framework of policies, interpretations, rules, practices, and procedures you or the administrator of the Plan(s) establishes. You or the administrator of the Plan(s) shall review on a continuing basis the services provided under this Agreement and shall be responsible for requesting any modifications to such services.
HiBob assumes no liability or obligation for Plan funding or payment of any benefits of the Plan, or any liabilities arising from: i) Plan ongoing operations or termination; ii) Plan changes related to its funding method from or to full or partial insurance; iii) an insurer’s failure to make required payments to the Plan or any Plan participant; iv) maintaining backups or copies of any legally required participant or beneficiary documents, as mandated by ERISA or other applicable law or regulation; or (v) for any of your or the Plan Administrator breaches of duties or responsibilities or omission made by you or the Plan Administrator. These obligations remain exclusively with you, the Plan, the Plan Administrator, or other people designated by the Plan.
7.2 GENERAL. THE US BENEFIT ADMINISTRATION MODULE PROVIDED HEREUNDER IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HIBOB AND, TO THE EXTENT APPLICABLE, ITS THIRD-PARTY PROVIDER DISCLAIM, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, LOSS OR CORRUPTION OF YOUR DATA, QUIET ENJOYMENT, OR ABSENSE OF DEFECT ALL IN RELATION TO THE US BENEFIT ADMINISTRATION MODULE OR RESULTS OF THE SAME. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE US BENEFIT ADMINISTRATION MODULE IS ACCURATE AND SUFFICIENT FOR YOUR PURPOSES AND ASSUME RESPONSIBILITY AND ENSURE MANUAL REVIEW OF ANY OUTPUT RESULTING FROM ANY AI FUNCTIONALITY IN THE US BENEFIT ADMINISTRATION MODULE (IF APPLICABLE). HIBOB AND ITS THIRD-PARTY PROVIDER SPECIFICALLY DISCLAIM RESPONSIBILITY FOR SYSTEMS, APPLICATIONS, AND PROVIDERS WITH WHICH YOU MAY UTILIZE THE US BENEFIT ADMINISTRATION MODULE.
8. LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HIBOB OR ITS THIRD-PARTY PROVIDER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE LIABILITY IS BASED. AS YOUR SOLE AND EXCLUSIVE REMEDY, THE MAXIMUM TOTAL LIABILITY OF HIBOB OR ITS THIRD-PARTY PROVIDER TO YOU WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED IN AGGREGATE, THE TOTAL AMOUNTS PAID TO HIBOB FOR THE US BENEFIT ADMINISTRATION MODULE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVEN RISE TO THE CLAIM.
9. INDEMNIFICATION. You will indemnify and hold harmless HiBob and its affiliates, officers, directors, employees and agents, from and against any claim or liability arising out of or due to: End User Data; your breach of this US Benefit Administration Terms of Use; your (or your Authorized User’s or End User’s) use of the US Benefit Administration Module in violation of third party rights, including any intellectual property or privacy rights, or any applicable laws; or your misuse of the US Benefit Administration Module. HiBob shall promptly notify you of any claims for which it seeks indemnification, and shall provide you with the authority to control and handle the claim, including the defense, provided that you shall not enter into any settlement negotiations relating to the claim without the express prior written approval of HiBob. HiBob’s failure to timely notify you under this section will not relieve you of your obligations under this section except to the extent you are materially prejudiced due to such failure. HiBob may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
10.1 Relationship. The parties are independent contractors in the performance of the US Benefit Administration Terms of Use, and nothing herein will create or imply any partnership, agency, or joint venture. Neither party will have or hold itself out to third parties as having authority to bind or enter into any agreement on the other party’s behalf. There are no third-party beneficiaries under these US Benefit Administration Terms of Use.
10.2 Choice of Law. The laws of the state of Delaware, without giving effect to its principles of conflicts of law, will govern all disputes arising out of these US Benefit Administration Terms of Use. Venue for any claim regarding these US Benefit Administration Terms of Use will be exclusively in state or federal court located in New Castle County, Delaware. If, for any reason, a court of competent jurisdiction finds any provision or portion of these US Benefit Administration Terms of Use to be invalid or unenforceable, the validity or enforceability of the remainder of these US Benefit Administration Terms of Use will not in any way be affected or impaired.
10.3 Force Majeure. Neither party is responsible for nonperformance or delay in performance of its obligations (other than payment of Fees) due to causes, events or circumstances beyond its reasonable control, including failure of third-party provider.
10.4 Dispute Resolution. Prior to initiating any claim or proceeding under, arising out of, or in connection with these US Benefit Administration Terms of Use, the parties will make a good faith effort to resolve the underlying dispute, including by: (a) elevating the issue to management of each party; and (b) reasonably sharing relevant documents, records and other materials, as reasonably requested, in connection with the dispute. You agree that regardless of any statute or law to the contrary, any claim arising out of, related to or connected with the use of the US Benefit Administration Module must be filed within one year after such claim arose.
10.5 Product-Specific Terms – Your Use of Generative AI. You, your Authorized Users, and your End Users may use generative AI features to submit inputs and receive generated outputs within the Software. When using generative AI features, the inputs and outputs are considered your End User Data. You are responsible for your End User Data and will not use the generative AI features in a way that infringes, violates, or misappropriates rights of any third party. You are responsible for your use of any output generated by the generative AI functionality, including evaluating the accuracy of such output.