Last modified and effective May 1, 2022
This SAAS Subscription Agreement (“Agreement”) is made and entered into as of the date of mutual execution of an Order Form or Statement of Work between ENROLLEASE, INC. (“EASE”), a Delaware corporation with offices at 500 Treat Avenue, Suite 200, San Francisco CA 94110, and the party detailed as Customer (“Customer”) on the applicable Order Form, Statement of Work or similarly executed document (together with EASE, the “Parties”). This Agreement governs access to EASE’s web-based platform, as it may be updated from time to time.
In consideration of the benefits and obligations exchanged, the Parties agree as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control of Customer or EASE.
“Broker Enabled Products” means any third-party application, system or service used by Customer but not supplied directly by EASE (e.g., third-party software to which Customer Data can be exported).
“Covered Products” as described in an Order Form, Statement of Work or similarly executed document.
“Ease Portal” means Ease’s online benefit administration, software as a service, accessed at a web site or IP address designated by EASE, which Customer is being granted access to under this Agreement.
“Indemnified Associates” are the Indemnified Party’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.
“Intellectual Property Rights” means patent rights, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secret rights, and all other intellectual property rights, derivatives thereof as well as other schedules of protection of a similar nature.
“User Agreement” shall mean the Terms of Service, and incorporated by this reference and may be amended by EASE from time to time.
2. MODIFICATIONS. EASE may in its sole discretion at any time and without prior notice, revise this Agreement. EASE will post a notice when the Agreement has been materially changed. All other non-material changes will simply be incorporated herein without notice to Customer. Customer agrees that by continuing to use or access EASE, Customer shall abide by the most recently revised Agreement. It is the Customer’s responsibility to review this Agreement periodically.
3. LICENSE GRANT & RESTRICTIONS. EASE hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Ease Portal and services, solely for its own business purposes, subject to the terms and conditions of this Agreement.
During the Term of this Agreement, Customer may access and use the Ease Portal and make available to its clients for online benefits enrollment, payroll services, PTO tracking, ACA reporting, and/or other features EASE offers.
Other than as stated above, Customer agrees not to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Ease Portal; (ii) modify or make derivative works based upon the Ease Portal; or (iii) reverse engineer the Ease Portal.
Customer will not: (i) knowingly send or store infringing, obscene, libelous or otherwise unlawful or tortious material to the Ease Portal; (ii) knowingly send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, or programs to or from the Ease Portal; (iii) interfere with or disrupt the integrity or performance of the Ease Portal; (iv) attempt to gain unauthorized access to the Ease Portal or its systems or networks; or (v) use EASE services or the Ease Portal in violation of applicable law.
4. CUSTOMER RESPONSIBILITIES. Customer is responsible for all activity occurring under Customer user accounts and will abide by all applicable laws, treaties and regulations in connection with its use of the Ease Portal.
5. CUSTOMER DATA. Customer Data is any data, information or material provided by Customer to EASE. Customer Data remains Customer’s proprietary and confidential information and will not be accessed, used or disclosed by EASE except for the limited purpose of supporting Customer’s use of the Ease Portal or EASE services. Customer has sole responsibility for the accuracy, legality, reliability, usage, and intellectual property ownership of the Customer Data. EASE may collect information that is related to Customer Data but that does not personally identify an individual (“Non-personal Information”). Non-personal information also includes information that could personally identify an individual when the information is in its original form, but EASE has aggregated, anonymized or de-identified the data in such a way that the information can no longer be used to identify an individual.
6. PARTNER & ENABLED PRODUCTS. The Ease Portal is developed with the ability for Customers to obtain links to and integrate with Partner Products and Enabled Products to support access to third-party services, tools, systems, and platforms (“Third-Party Services”). In all instances, Customer’s use or reliance upon Third-Party Services is voluntary. EASE does not make any promise or endorsement related to Third-Party Services. Customer shall consider the third party to be the contracting party and the third party shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third-Party Services. EASE reserves the right to stop making Third-Party Services available at any time and without notice.
7. SUBCONTRACTORS. EASE agrees to take appropriate measures designed to ensure that any of our agents or subcontractors who (a) perform obligations on EASE’s behalf in support of Covered Products and (b) require access to PHI on our behalf, are bound by written obligations that provide the same material level of protection for Customer Data, including execution of confidentiality terms. To the extent EASE uses subcontractors in performance of EASE obligations, EASE will remain responsible for their performance as if EASE performed.
8. INTELLECTUAL PROPERTY OWNERSHIP. EASE retains and owns all right, title and interest, including without limitation, all related Intellectual Property Rights, in and to the EASE Technology and Covered Products. This Agreement is not a sale and does not convey any rights of ownership, nor does it grant Customer any intellectual property rights in EASE, the Ease Portal or any of the components of the Ease Portal.
10. CHARGES AND PAYMENT OF FEES. EASE will assess fees and charges in accordance with the terms contained in the applicable Order Form, Statement of Work or similarly executed document and will process fees and charges electrically via automatic clearing house (ACH) or credit card transfer. Customer is required to maintain a valid funding source on file. Customer acknowledges and consents that EASE will have the right to automatically charge Customer for fees. If the Customer’s funding source is unable to support an undisputed fee, EASE may, in its discretion, refuse to complete the requested Service or Covered Product.
11. BILLING. EASE will charge Covered Product fees upon purchase or deployment of each Covered Product and at the then-current listed rate. EASE will charge Subscription fees on either an annual or monthly basis and as described in the applicable Order Form, Statement of Work or similarly executed document. In the instance that the Order Form, Statement of Work or similarly executed document is silent regarding frequency of charges, EASE will charge fees on an annual basis. Fees for EASE Services and Covered Products are not refundable. There are no refunds or credits for Subscription downgrades or reduction of Seat Licenses. Additional Seat Licenses will be charged at a pro-rata basis of the remaining Subscription Term. Fees are exclusive of any state or local sales, use or value added taxes, tariffs, duties, costs, expenses and other charges that may be levied on the Fees. Customer shall be responsible for the payment of any state or local sales, use or value added taxes, tariffs, duties, costs, expenses and other charges that may be levied on the Fees. EASE collects state income tax on our services as required by law.
12. TERM AND RENEWAL. The Term of this Agreement will begin on the Effective Date hereof and will remain in effect for one calendar year (the “Initial Term”). Thereafter, it will renew for successive 1-year periods (a “Renewal Term”), unless notice of non-renewal is provided by either Party no less than sixty (60) days before the end of the then current subscription term. The Subscription will renew at the Subscription level and Seat License count existing on the Renewal Date, unless notice of downgrade or Seat License reduction is provided to EASE no less than sixty (60) days before the end of the then current Subscription term.
13. TERMINATION. EASE may, at its sole discretion, terminate this Agreement or suspend Customer’s access to EASE when Customer commits a material breach and such breach is not cured within thirty (30) days of Customer’s receipt of notice specifying in detail the nature of the breach. In the event of an uncured material breach, the termination becomes effective thirty (30) days after receipt of the breach notice. Any unauthorized use of EASE by Customer will be deemed an incurable breach, resulting in waiver of the notice requirement and EASE’s right to immediately terminate this Agreement and suspend Customer’s access to EASE. In no event will suspension or termination relieve Customer of its obligation to pay any fees due and owing to EASE.
14. REPRESENTATIONS & WARRANTIES. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. EASE represents and warrants that (a) it will provide EASE in a manner consistent with general industry standards; (b) EASE will perform substantially in accordance with the provided documentation; (c) it will use best efforts to detect software viruses and other undesirable components and will promptly take all reasonable steps to remove or neutralize any such components; and (d) it will use leading commercial encryption technology designed to encrypt Customer Data in its possession. EASE representations and warranties shall not apply to non-conformities, errors or problems caused by acts (a) within the control of Customer or any of its Representatives; (b) arising from Customer’s negligence or improper use of the Covered Products, unauthorized modifications made to the Covered Products, use of the Covered Products in an unsupported operating environment or manner or interoperability issues arising from devices, equipment or browsers used by Customer to access the Covered Products; or (c) that arise from Customer’s or any third party’s software or systems (including Broker Enabled Products).
15. INDEMNIFICATION. Indemnitor shall defend and indemnify the Indemnified Party and its Indemnified Associates against an Indemnified Claim (as defined below). Indemnitor’s obligations set forth in the preceding sentence include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments.
Indemnitor’s obligations will be excused to the extent that the Indemnified Party or any Indemnified Associate failed to provide prompt notice of the Indemnified Claim or failed to reasonably cooperate and such failure materially prejudiced the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires an admission of wrongdoing or liability or subjects the Indemnified Party to any ongoing affirmative obligations.
Customer will indemnify, defend and hold EASE, its affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with or related to Customer’s use of, misuse of or failure to use the Covered Products or Services, including without limitation (i) claims by Customer’s clients, customers, users, subscribers, and employees, and (ii) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information (collectively, any “Indemnified Claim”).
EASE will indemnify and defend Customer and Customer affiliates, officers, directors, employees, attorneys and agents from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with: (i) a claim by a third party alleging that EASE directly infringes an Intellectual Property Right of a third party or (ii) a claim of unauthorized disclosure or exposure of personally identifiable information or other private information caused by the act or omission of EASE or any of its agents, subcontractors, or employees.
16. DISCLAIMER. THE REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT ARE THE PARTIES’ COMPLETE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES. EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTIES OF ANY KIND.
17. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS ARISING UNDER A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER THIS AGREEMENT OR FOR CLAIMS OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND ARISING FROM CUSTOMER’S USE OF EASE.
18. NOTICE. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email to a regularly monitored email address.
19. ASSIGNMENT. Customer is prohibited from assigning this Agreement without the prior written consent of EASE. Any purported assignment in violation of this section will be void.
20. GENERAL. This Agreement will be governed by laws of the state of California without regard to the choice or conflicts of law provisions of any jurisdiction. If any provision of these terms and conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be construed to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and EASE as a result of this Agreement. The failure of either Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by the other Party in writing. This Agreement comprises the entire agreement between Customer and EASE and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein.
21. CONSUMER PRIVACY AND PROTECTION. The Parties acknowledge and agree that EASE is a service provider for the purposes of various local Consumer Protection laws, such as the California Consumer Privacy Act. EASE certifies that it understands the rules, restrictions, requirements and definitions of the local Consumer Privacy and Protection laws. EASE (a) acknowledges and confirms that it does not receive any personal information from Company as consideration for any services or other items provided to Customer and (b) agrees to refrain from taking any action that would cause any transfers of personal information to or from EASE to qualify as a sale of personal information. EASE shall not retain, use, or disclose any personal information provided by Company except as necessary for the specific business purpose of performing the services for Company pursuant to the Agreement or otherwise as permitted. EASE further agrees to implement commercially reasonable security measures to protect such confidential information and agrees to maintain the confidentiality of and safekeep and protect Company’s confidential information in accordance with all applicable laws, regulations, rules and guidelines, including but not limited to, privacy protections under local Consumer Privacy and Protection laws.
22. PUBLICITY. EASE may display the Customer’s name and logo on its website and in marketing materials.
23. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective upon the mutual execution of supporting terms by all parties.