EFFECTIVE JULY 26, 2019

These terms and conditions apply to organizations accessing the Maxwell Health platform in connection with the Sun Life + Maxwell Health offering with Gallagher Benefits Services, Inc as broker of record.

Please direct questions related to our privacy practices to info+privacypolicy@maxwellhealth.com

THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT MADE BETWEEN YOU (“YOU” OR “YOURS” SHALL MEAN THE BUSINESS ENTITY LISTED ON THE RELEVANT EMPLOYER INFORMATION FORM OR SIMILAR DOCUMENT WHERE YOU AGREED TO PRICING FOR THE SERVICE (“PAYMENT TERMS”) AND DAILYFEATS, INC. D/B/A MAXWELL HEALTH (“MAXWELL”).

THIS LEGAL AGREEMENT SET FORTH BELOW GOVERNS YOUR USE OF THE MAXWELL HEALTH SAAS-ENABLED, ONLINE BENEFITS PLATFORM (THE “SERVICE”). TO AGREE TO THESE TERMS & CONDITIONS, CLICK “AGREE”. IF YOU DO NOT AGREE TO THESE TERMS & CONDITIONS, DO NOT CLICK AGREE AND DO NOT USE THE SERVICE. SUPPLEMENTAL TERMS & CONDITIONS THAT MAY BE POSTED ON THE MAXWELL SITE FROM TIME TO TIME ARE EXPRESSLY INCORPORATED HEREIN BY REFERENCE. MAXWELL HEALTH RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MAKE CHANGES OR MODIFICATIONS TO THESE TERMS & CONDITIONS AT ANY TIME. YOUR CONTINUED USE OF THE SERVICE SHALL BE DEEMED TO BE YOUR ACCEPTANCE OF SUCH REVISED TERMS.

1. ACCESS TO SERVICE

Grant.  Subject to these terms and conditions of the Agreement and payment of the applicable fees, Maxwell hereby grants You, for the term of the Agreement, a non-exclusive, limited right to use the Service and to permit “Users” to use the Service as set forth or described in Schedule A hereto named the “Service Description”. For the purposes of this Agreement, “Users” shall be defined as individuals who are authorized by You to use the Service. You are responsible for all activities conducted by the Users. You and your Users will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation.

Restrictions. You agree that, except as expressly permitted under this Agreement, you will not yourself, or through any parent, subsidiary, affiliate, agent or other third party, entity or other business structure (i) use, sell, lease, license or sublicense the Service, (ii) decompile, disassemble, re-program, reverse engineer or otherwise attempt to derive or modify the Service in whole or in part, (iii) write or develop any derivative software or any other software program based upon the Service, (iv) provide, copy, transmit, disclose, divulge, or make available to, or permit use of the Service by any third party or entity or machine without Maxwell’s prior written consent, (v) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices of Maxwell or its licensors, (vi) attempt to circumvent, or circumvent or disable any security or other technological features or measures used by Maxwell, (vii) use any device, software or routine that interferes with the proper working of the Service, or (viii) otherwise attempt to interfere with the proper working of the Service.

2. YOUR RESPONSIBILITIES

You, shall authorize access to and assign unique passwords and user names to each User. User logins are for designated Users and cannot be shared or used by more than one User. You shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Maxwell of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Maxwell Hosted Service account numbers.

You will be responsible for the confidentiality and use of Users’ passwords and user names. You will also be responsible for all electronic communications sent by You and your Users entered through the Service or under Your account.

You expressly consent to Maxwell’s receipt and storage of electronic communications and/or Your and User data, and You acknowledge and understand that these electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Maxwell. Maxwell is not responsible for any electronic communications and/or Your or User data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by Maxwell, including but not limited to, the Internet and Your local network.

3. TERM AND TERMINATION

The term of this Agreement shall commence upon your acceptance of the Payment Terms and will continue through the period your initial pricing is in place (the “Initial Term”).  Thereafter, this Agreement will renew upon mutual agreement of the parties in a process initiated by Maxwell annually for successive one (1) year terms (collectively with the Initial Term, the “Term”), unless either party declines to renew this agreement.

A. In the event of any default by You of any term, covenant, or obligation under this agreement, including the non-payment of fees, Maxwell may temporarily limit access to the Service until such default is cured. 

B. Maxwell may terminate this Agreement immediately in the event that (i) You or any of your employees or representatives take part in any action to reveal unauthorized confidential user identification information, confidential passwords, copyright infringements, or any action which may reveal the proprietary rights of Maxwell that may create or allow others to duplicate, reverse engineer or otherwise permit others to recreate the Service; (ii) in the event that You, become insolvent or make an assignment for the benefit of creditors, shall be subject to voluntary or involuntary bankruptcy, insolvency, receivership, conservatorship, or like proceedings (including, but not limited to, the takeover of a party by a regulatory agency) pursuant to applicable laws, which is not dismissed within ninety (90) days, or ceases to conduct its normal and customary business operations without a successor; or (iii) the continued performance of this Agreement under the then-current terms and conditions becomes impracticable or impossible due to any change in applicable laws, rules and regulations.

Either party may terminate this Agreement for convenience on 60 days written notice to the other party. 

You agree that following the termination or expiration of this Agreement, Maxwell may immediately deactivate Your account and all access to the Service and that following a reasonable period of time (but not less than ninety (90) days) shall be entitled to delete Your account and data from Maxwell’s servers.

Any provision of this Agreement, which contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, consumer data protection, data security, intellectual property, audit rights, limitation of liability, dispute resolution, indemnification, and transition services provisions) shall survive termination or expiration of this Agreement and continue in full force and effect.

4. PAYMENTS

You agree to accept the Service, and Maxwell agrees to provide the Service to You in accordance with the payment terms and conditions as set forth in the Payment Terms.

Payments for Additional Products Sold through the Service.  Maxwell reserves the right, in its sole discretion, to set all prices, commissions, fees, margins or any other amounts to be received in payment for any third-party products that are made available to You and/or Users through the Service whether or not such amounts are paid entirely to Maxwell or split between the parties (including establishing the amount both Maxwell and You will receive in the splitting of any such fees).  Maxwell also reserves the right to update such prices, commissions, fees, margins or any other amounts to be received in payment for any products that are sold through the Service at any time in its sole discretion.

5. INTELLECTUAL PROPERTY RIGHTS / OWNERSHIP

You agree that the Service is a proprietary service and that all right, title and interest in and to the Service, including all associated intellectual property rights, are and shall at all times remain with Maxwell.  The Service contains trade secrets of Maxwell and proprietary information protected by United States copyright laws. You may not copy or distribute the Service or the accompanying documentation, electronically or otherwise, for any purpose. 

As between Maxwell, You, and User, all title and intellectual property rights in and to any of Your data shall be owned exclusively by You and all title and intellectual property rights in and to any User data is owned exclusively by the User and neither by You nor Maxwell.  You shall grant Maxwell a limited license to use Your data and, to the extent allowed, to use the User data respectively for the purpose of delivering the Services pursuant to this Agreement.

6. LIMITED WARRANTY, REMEDIES AND LIABILITY. 

Each party represents and warrants to the other party that: (i) it is duly organized and authorized to enter into and to perform all obligations under this Agreement, and is not a party to any agreement with a third party that would restrict its ability to perform such obligations; (ii) it is and will be able to fully perform its obligations under this Agreement; (iii) it will comply in all material respects with all applicable federal, state and local laws, statutes, ordinances, rules and regulations within the United States; and (iv) it holds all permits, licenses and similar authority necessary for performing its obligations under the Agreement.

Other than as expressly provided in this Agreement, none of the parties hereto make any additional representations or warranties, express or implied, regarding the Service and/or its use.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SERVICE AND ITS USE.

WITH THE EXCEPTION OF EITHER PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 7 HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE TO YOUR DATA, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THAT POSSIBILITY.

WITH THE EXCEPTION OF DAMAGES PAYABLE TO A THIRD PARTY PURSUANT TO MAXWELL’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 HEREIN, NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF MAXWELL UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID TO MAXWELL IN THE PREVIOUS TWELVE (12) MONTH PERIOD. THE PROVISIONS OF THIS ARTICLE 6 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

7. INDEMNIFICATION

Maxwell shall defend any action, suit, or proceeding brought against You alleging that the Maxwell intellectual property (“Maxwell IP”) infringes any United States patent, trademark or copyright of a third party, and Maxwell shall indemnify and hold You, its officers, directors and employees, harmless against damages finally awarded against You, costs, expenses, and losses (including, without limitation, court costs and reasonable attorneys’ fees and expenses) in connection with any such action, suit or proceeding; provided, that (i) You notify Maxwell promptly in writing of the claim in question, (ii) Maxwell has sole control of the defense and all related settlement negotiations, and (iii) You provide Maxwell with all commercially reasonable assistance, information and authority to perform the above at Maxwell’s expense. 

In the event that Your use of the Maxwell IP is enjoined by a court of competent authority, Maxwell shall, at its sole option and at its expense, either (I) procure for You the right to continue using of the Maxwell IP, or (II) modify the Maxwell IP to avoid infringement without material impairment of their functionality.  If Maxwell determines in its reasonable discretion that neither of the foregoing remedies can be obtained upon commercially reasonable terms, this Agreement shall terminate and Maxwell shall refund to You any upfront fees paid by You on a prorated line basis for full months not already used.  THIS SECTION STATES MAXWELL’S SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.

Maxwell shall indemnify, defend and hold You harmless against all losses, damages, claims, liabilities, and expenses (including reasonable legal fees) resulting from Maxwell’s grossly negligent acts or omissions, or willful misconduct in performing under this Agreement.  Maxwell is responsible under this section for the actions of its employees, customers, agents, and subcontractors. 

You shall indemnify, defend and hold Maxwell (and its affiliates, employees and agents) harmless against all losses, damages, claims, liabilities, and expenses (including reasonable legal fees) resulting from (i) Your grossly negligent acts or omissions, or willful misconduct in performing under this Agreement; and (iii) claims that materials supplied by You infringe or conflict with the rights of third parties.  You are responsible under this section for the actions of your employees, agents, and subcontractors.

8. CONFIDENTIALITY

The parties acknowledge and agree that each party will be provided Confidential Information of the other party. “Confidential Information” means (i) with regards to Maxwell, the Service, Maxwell’s information and Maxwell’s Intellectual Property Rights related to, connected with or arising out of the Service, and (ii) with regard to You, Your information, usage metrics related to You, and any non-public information regarding Your business, in whole and in part, and (iii) with regard to either party, any other information which is designated in writing to be confidential or proprietary, or if given orally, is designated at the time of disclosure as confidential or proprietary.

Each party agrees to treat the other party’s Confidential Information in the same manner as it treats its own Confidential Information, to take reasonable security precautions to safeguard the other party’s Confidential Information from theft or from access by unauthorized persons, to not use the other party’s Confidential Information in any way detrimental to such party, and to not, directly or indirectly, disclose or divulge the other party’s Confidential Information to any third party without the prior written consent of the other party.  Notwithstanding, Maxwell may disclose Confidential Information to its affiliates and contractors and representatives (“Maxwell Representatives”) where the Maxwell Representatives  owe to Maxwell an enforceable obligation of confidentiality and are bound to use the Confidential Information only as necessary for the provision of the Service. It shall not be a breach of these obligations of confidentiality to disclose Confidential Information pursuant to a subpoena, court order, requirement or request of a governmental agency, or where such disclosure is required by operation of law provide that the party in receipt of such process shall, to the degree reasonably possible, provide notice to the other party in order that the other party may oppose such process in a timely way.

The receiving party shall have no obligation with respect to Confidential Information of the other party that: (i) is or becomes publicly known through no wrongful act, fault or negligence of the receiving party; (ii) was disclosed to the receiving party by a third party who was free of obligations of confidentiality to the party providing the information; (iii) is approved for release by prior written authorization of the other party. 

The receiving party shall notify the disclosing party upon becoming aware of any actual or suspected breach of the security of disclosing party’s Confidential Information.  In any event such notification shall occur within 72 hours following confirmation that a breach has occurred.   A breach of security refers to any known or suspected breach or default in the confidentiality, integrity, accuracy, security or privacy of disclosing party’s Confidential Information.

If a party uses or discloses or attempts to use or disclose any of the Confidential Information in contravention of this Agreement, then in addition to other available remedies, the party who owns the Confidential Information shall have the right to injunctive relief enjoining any such use, disclosure or attempt to use or disclose, it being acknowledged that legal remedies are inadequate.

9. APPLICABLE LAWS 

To the extent a party’s obligations under this Agreement or applicable Schedule will require such party to obtain any approval, consent, permit, license, authorization or similar permission pursuant to Applicable Laws, such party shall secure the required approval, consent, permit, license, authorization or similar permission, at its own expense, prior to performing such obligations. 

Without limiting the foregoing, You shall be solely responsible to ensure that Your use and implementation of the Service does not violate any applicable law, rule or regulation.

10. GENERAL

A. If any term, provision or part of this Agreement is to any extent held invalid, void or unenforceable, the remainder of this Agreement shall not be impaired or affected thereby, and each term, provision and part shall continue in full force and effect, and shall be valid and enforceable to the fullest extent permitted by law.

B. Neither this Agreement nor the rights or obligations hereunder may be assigned by either party, by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that either party may freely assign this Agreement (i) in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets, stock, or securities, or (ii) to any entity which is a successor to the assets or the business of that party.

C. This Agreement will be governed by the laws of the Commonwealth of Massachusetts.  The venue for any dispute hereunder will be a court of competent jurisdiction located in Suffolk County, Massachusetts, and the parties irrevocably submit to the exclusive jurisdiction of such courts.

D. No party shall be liable to any other party for any delay, failure in performance, loss or damage due to fire, explosions, power blackouts, earthquakes, floods, the elements, strikes, embargo, labor disputes, acts of civil or military authority, war, terrorism, acts of God, interruption or failure of telecommunication, digital transmission links, Internet failures and delays, terrorism or other causes similar to the foregoing (“Force Majeure Events”); provided that such cause was not within the reasonable control of the party affected.  If such Force Majeure Event continues for more than thirty (30) days, Customer may terminate this Agreement without liability as of the date specified in a written notice to Maxwell

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