End-User License Agreement

 

Terms and Conditions of Use

 

Welcome to the BRIX Website (the “Site”). Please read these terms and conditions of use carefully as they govern your rights and obligations while using this Site. BY ENTERING YOUR ID AND PASSWORD TO ACCESS THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. * If you do not agree to all of the terms and conditions, you are not authorized to access or otherwise use this Site.

 

EMPLOYEES

 

This Site is available only to users that have a registered Username and PIN and are employees of the employer indicated on the Site (the “Employer”).  If you do not have a valid registered Username and PIN or are no longer an employee of the Employer, you are not authorized to use or access this Site.

 

Your Employer, through direct or indirect agreement(s) with BenefitsXML, Inc. (“BXML”), is providing the information and services on this Site under these terms and conditions.  On this Site, you will be able to access certain information and documents relating to benefits made available by your Employer and to participate in certain services (the “Services”).  These Services will permit you to make various benefits elections through the Site and to update certain personal information, in each case through the use of certain software proprietary to BXML and its licensors (the “Software”).  You acknowledge and agree that it is your responsibility to submit instructions and information relating to the Services and to verify the accuracy and completeness of all such instructions and information.  BXML does not review the accuracy or completeness of the instructions or information you submit. 

 

You acknowledge and understand that BXML is merely making this Site available on behalf of the Employer and is not acting as an investment advisor, broker-dealer, insurance agent or intermediary or a financial or benefit planner.  BXML is not providing any benefits or any information related thereto. Your Employer is responsible for making available all benefits and information related thereto referenced or included on this Site.

 

BENEFITS ADMINISTRATORS

 

On behalf of the Employer, you will be able to access and input certain information relating to the benefits offered by the Employer and the Employer’s employees and their benefit options and elections.  The information that you input may be used and relied upon by the Employer’s employees that participate in the Services.  The Services permit employees of the Employer to make various benefits elections through the Site and to update certain personal information, in each case through the use of the Software.  As an authorized benefits administrator for the Employer, you acknowledge and agree, on behalf of the Employer, that it is the Employer’s responsibility to submit instructions and information relating to the Services and to verify the accuracy and completeness of all such instructions and information submitted by the Employer and the Employer’s employees. As an authorized benefits administrator for the Employer, you acknowledge that the Employer is responsible for making available all benefits and information related thereto referenced or included on this Site.

 

SECURITY

 

You agree to take any and all actions necessary to maintain the privacy of your Username and Pin, including, without limitation, safeguarding your Username and Pin in a private and secure place, adopting special precautions when accessing the Site from a computer that is available for use by other users and exiting from the Site at the end of each session.  In the event that you have reason to believe that a third party has access to your account, you should immediately choose a new PIN and notify your Benefits Administrator.

 

PROPRIETARY RIGHTS

 

The Software and other contents of the Site provided by BXML and its licensors, including but not limited to text, graphics and images, are protected by applicable copyright, patent, trademark, trade secret or other intellectual property laws. You may not reproduce, transmit, sell, display, distribute, publish, broadcast, circulate, modify, disseminate, commercially exploit or create derivative works based on such Software or contents in any manner without the prior written consent of BXML. Further, you agree not to attempt to reverse engineer, disassemble, decompile, or redistribute for consideration any Software.

 

You may not use the trademarks, logos and service marks ("Marks") found on the Site for any purpose, including, but not limited to, use as "hot links" or meta tags in other pages or sites on the World Wide Web, without the written permission of BXML. You are prohibited from creating or authorizing others to create any links from any other website or Internet location to any of the interior pages of this Site (“deep linking”).

 

All rights not expressly granted herein are reserved to BXML and its licensors.  Any use of the Software and other contents of the Site not expressly permitted by these Terms and Conditions of Use is a breach of these Terms and may violate copyright, patent, tradename and other laws.

 

LAWS

 

Transmission or use of any material in violation of these terms and conditions, or any applicable law, rule or regulation (whether of the United States or other countries), or the rights of any third party is prohibited.

 

CHANGES IN SERVICE AND CHANGES IN TERMS

 

BXML reserves the right at any time and from time to time to change, alter or modify the Service, or any portion thereof, with or without notice.  BXML may amend these terms and conditions at any time, without notice, by posting the amended terms and conditions on this Site.  All amended terms and conditions shall automatically be effective after they are posted on this Site.  If the modifications are unacceptable to you, you may terminate your use of the Service by giving notice of termination to BXML.  If you continue to access, use or download materials from the Site, you will be deemed to have accepted the amended terms and conditions.

 

LINKS TO SITE

 

The Site may contain links to other websites.  You acknowledge that such other sites are not under the control of BXML and you agree that BXML shall not be responsible for any information, content, products, or other links found at any such site or for your use of such information.  You further acknowledge and agree that BXML shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, use of, or reliance on, any such content, goods or services provided by any third party which is linked to the Site.  You understand that if you decide to access a linked third party site, you do so at your own risk.  BXML has not tested any software or verified any information found at such sites and links to such sites should not be construed as, or signify, an endorsement of the site or its contents by BXML. 

 

USE OF CERTAIN INFORMATION

 

Any personally identifiable information about an employee of the Employer that is provided by you or your Employer through the Site and is accessible by BXML is subject to BXML’s privacy policy. BXML’s privacy policy is posted on this Site. Printed copies are available upon request.

 

RIGHT TO TERMINATE

 

If you breach any of the terms or conditions, BXML may, at its sole discretion, suspend access to the Site or terminate your use of the Service, as it pertains to you. Whether or not a breach results in suspension or termination depends on several factors, including but not limited to, the severity of the breach, the potential harm to other users of the Site, and whether or not the breach is repeated or cured. If BXML suspends or terminates your right to access or use the Site, BXML will, within 24 hours, provide notice to you of such action.  Notwithstanding the foregoing, any violation by you of the terms listed under the heading ‘Proprietary Rights’ shall result in immediate and automatic termination of your permission to access and use this Site and the Service.

 

DISCLAIMER

 

YOU ACKNOWLEDGE THAT IN CONNECTION WITH THE BXMLSITE, INFORMATION WILL BE TRANSMITTED BY PARTIES SUCH AS LOCAL EXCHANGE CARRIERS AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES WHICH ARE OWNED, MAINTAINED AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG DISTANCE CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS AND OTHER third parties, ALL OF WHICH ARE BEYOND THE CONTROL OF BXML. ACCORDINGLY, BXML AND ITS LICENSORS ASSUME NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE SITE.

 

THE SERVICE IS PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ERROR-FREE AND UNINTERRUPTED SERVICE, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, BXML AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, BXML AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR OTHER SERVICES OR GOODS PROVIDED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE SITE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH THE SITE OR THROUGH ANY LINKS PROVIDED ON THE SITE. BXML AND ITS LICENSORS SIMILARLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SITE.

 

BXML AND ITS LICENSORS DO NOT WARRANTY, GUARANTY, OR MAKE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, OR ASSUME ANY LIABILITY TO YOU REGARDING (i) THE USE OR THE RESULTS OF THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY FINANCIAL RESULTS BASED ON USE OF THE SERVICES OR INFORMATION OR ANY DELAY OR LOSS OF USE OF THE SERVICES, OR (ii) SYSTEM PERFORMANCE AND EFFECTS ON OR DAMAGES TO SOFTWARE AND HARDWARE IN CONNECTION WITH ANY USE OF THE SITE, SERVICES OR INFORMATION.

 

LIMITATION OF LIABILITY

 

THE ACCURACY, COMPLETENESS, SEQUENCE OR TIMELINESS OF THE INFORMATION CANNOT BE GUARANTEED. BXML AND ITS AFFILIATES, AGENTS AND LICENSORS SHALL HAVE NO RESPONSIBILITY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, OR OTHER DAMAGES WHICH YOU MAY INCUR FOR ANY RELIANCE BY YOU ON INFORMATION OR FOR THE RELIABILITY, ACCURACY, COMPLETENESS, SEQUENCE OR TIMELINESS THEREOF, OR FOR ANY DELAYS OR ERRORS IN THE TRANSMISSION OR DELIVERY OF ANY PART OF THE INFORMATION OR SERVICES. (REGARDLESS OF WHETHER SUCH DAMAGES ARE REASONABLE OR FORESEEABLE).

 

IN ADDITION TO AND WITHOUT LIMITING THE FOREGOING, BXML AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY HARM CAUSED BY THE TRANSMISSION, THROUGH THE SERVICES, OF A COMPUTER VIRUS, OR OTHER COMPUTER CODE OR PROGRAMMING DEVICE THAT MIGHT BE USED TO ACCESS, MODIFY, DELETE, DAMAGE, CORRUPT, DEACTIVATE, DISABLE, DISRUPT, OR OTHERWISE IMPEDE IN ANY MANNER THE OPERATION OF THE SERVICES OR ANY OF YOUR SOFTWARE, HARDWARE, DATA OR PROPERTY.  BXML AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY LOSS THAT RESULTS FROM A CAUSE OVER WHICH BXML AND ITS LICENSORS DO NOT HAVE CONTROL, INCLUDING BUT NOT LIMITED TO FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT, UNAUTHORIZED ACCESS, STRIKES, FAILURES OF COMMON CARRIER OR UTILITY SYSTEMS, SEVERE WEATHER, OR OTHER CAUSES BEYOND BXML AND ITS LICENSORS’ CONTROL.

 

IN NO EVENT SHALL BXML, OR ITS AFFILIATES, AGENTS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN RELATION TO THESE TERMS AND CONDITIONS OR THE SERVICES PROVIDED HEREIN, even if BXML OR ITS LICENSORS have been advised of the possibility of such damages.

 

THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THESE TERMS AND CONDITIONS BETWEEN YOU AND BXML. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

GOVERNING LAW

 

These terms and conditions shall be treated as though they were executed and performed in New York, New York, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of New York, without regard to conflict of law principles. The language in these terms and conditions shall be deemed to be language chosen by you and BXML to express the mutual intent of the parties, and no rule of strict construction shall be implied against you or BXML. You agree that all legal proceedings arising out of or in connection with these terms and conditions shall be brought exclusively in the state courts of New York located in New York County, New York, or the U.S. District Court located in the Southern District of New York, and you expressly submit to the jurisdiction and venue of such courts and consent to extra-territorial service of process, should a dispute arise.

 

TERMINATION

 

Either you or BXML may terminate your access to the Services at any time. Any violation or breach by you of any of these terms and conditions will be cause for BXML to terminate your access to the Services without notice. You agree that BXML will not be liable to you or any third party for any termination of your access to the Services.

 

ASSIGNMENT

 

These terms and conditions and your rights and obligations hereunder may not be assigned by you without the written permission of BXML and shall inure to the benefit of BXML's successors and assigns whether by merger, consolidation or otherwise. BXML may assign these terms and conditions or any of its rights or obligations under these terms and conditions to a company affiliated with, or a successor to or assignee of, BXML, or to any other third party.

 

ARBITRATION

 

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, other than a controversy or claim relating to the validity of BXML’s intellectual property rights, shall be settled by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration shall take place in New York County, New York. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The arbitrators shall apply New York law, without regard to its rules of conflict of law.  Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Agreement and without any abridgment of the powers of the arbitrator(s).