Terms and Conditions
Confidential
1. Recitals.
1.1. Maven and Provider Group have entered into a separate agreement for which Maven provides various administrative and operational services and where Provider Group employs or contracts with Coaches to furnish health coaching, education, wellness consultations, and health services, if applicable, via Remote Consultation, defined herein;
1.2. Maven desires to offer services to Customer which consist of providing technology, support, administrative and operational resources to connect Participants with Provider Group and certain health and wellness Coaches;
1.3. Customer desires to offer the Program (as defined below) to the Eligible Customer Beneficiaries; and
1.4. Pursuant to the terms of this Agreement, Maven and Provider Group desire to make available the Program to the Eligible Customer Beneficiaries and provide the Program to Participants.
1.5. In exchange for the promises made hereunder and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
2. The Program. The Maven program (“Program”) includes one (1) or more product lines in the product description document attached hereto as Appendix A (each, a “Product Line”). Upon enrollment in certain Product Lines, Maven shall provide to Participants (as defined below) (a) access to health coaches, consultants, and professionals, including physicians, nurse practitioners, primary care providers, midwives, physical therapists, nutritionists, mental health counselors, lactation consultants, and doulas that are employed or contracted by Provider Group, to connect with patients virtually (collectively, “Coaches”) for coaching, education, wellness consultation, and other health services via secure video conferencing or messaging (each virtual consult, a “Remote Consultation”), (b) access to breast milk shipping services. Coaches participate in the Program pursuant to the particular licensed or certified function identified for such Coach on the Maven website or mobile app, and pursuant to separate agreements between Coaches and Provider Group and/or Coaches and Maven, or/and c) support Participant reimbursement for eligible expenses pursuant to Customer’s applicable employee benefit plan. The Program will be available to Customer's eligible employees and/or their dependents as designated by Customer in the Order Form (collectively, “Eligible Customer Beneficiaries”).
3. Election and Acceptance to Participate in the Program. Maven will accept any Eligible Customer Beneficiary into the Program without regard to further verification that the Eligible Customer Beneficiary is pregnant, postpartum, lactating, adopting, pursuing surrogacy, or pursuing fertility or egg freezing treatment. Once an Eligible Customer Beneficiary is enrolled in the Program, the Eligible Customer Beneficiary will then be deemed a “Participant”; provided that the Eligible Customer Beneficiary (a) accepts and continues to abide by Maven and Provider Group’s Terms of Use, Privacy Policy (each of which are publicly available on or via the Maven website), and other policies as made available to such Eligible Customer Beneficiary through the Maven website or mobile app, and updated from time to time (collectively “Participant Terms and Conditions”), (b) acknowledges through acceptance of the Participant Terms and Conditions that Maven may suspend or terminate participation in the Program for failure to comply with the Participant Terms and Conditions, (c) acknowledges and agrees to an informed consent and release form, and (d) has provided, to the extent applicable or required, a medical history questionnaire.
4. Establishing a Provider-Participant Relationship.
4.1. Onboarding Questionnaire. Prior to or following acceptance as a Participant, each Eligible Customer Beneficiary may be required to complete an onboarding questionnaire by Provider Group, Maven, or a Coach in order to be accepted into the Program and/or receive certain services within a particular Product Line. In the event an Eligible Customer Beneficiary is requested, but fails to complete a medical history questionnaire, the Eligible Customer Beneficiary may not be eligible to participate in the Program as a Participant, or may not receive access to certain Coaches, at the discretion of Maven or Provider Group.
4.2. Informed Consent. Prior to acceptance as a Participant, each Eligible Customer Beneficiary must acknowledge and agree to an informed consent and release form, related to the provision of care, including via Remote Consultations, by Coaches, and to confirm the Eligible Customer Beneficiary’s understanding, among other things, that neither Provider Group nor any Coach is obligated to accept the Eligible Customer Beneficiary, and that continuing to provide the Program to any Eligible Customer Beneficiary who becomes a Participant is in the medical discretion of the Coach.
5. Marketing. During the Term, Customer grants to Maven a non-exclusive, non-transferable, limited license to use Customer’s corporate name to publicly refer to Customer, including on Maven's website, as a customer of Maven, and to use Customer’s name, trade names, brands and logos (“Customer Marks”), orally and in written materials, including on its websites, in connection therewith (subject to Customer’s written trademark usage guidelines, as may be modified in writing from time to time); and Customer may publicly refer to Maven orally, in writing, and on web sites operated by Customer, as a service provider of Customer, consistent with the requirements of the license to Maven Marks granted under Section 7.2. The Parties may also participate in other marketing and referral activities as may be mutually agreed in writing from time to time. Consent to the use of names, trade names, brands and logos may be withdrawn by a consenting Party upon 30 days prior written notice to the other Party; provided that Customer acknowledges and agrees that withdrawal of the right to use the Customer Marks will not apply to materials that have already been published or otherwise disseminated by Maven. Unless explicitly agreed to in writing by the Parties, Maven shall not be obligated to translate any marketing materials, program overviews, websites, applications, Technology, and other communications owned or provided by Maven. All promotional and educational materials referencing the Maven Card, the bank issuing the Maven Card, or the Maven Card association/network: (a) must comply with all applicable laws and rules, (b) must be submitted to Maven for review to ensure compliance with such laws and rules, (c) and cannot be distributed or otherwise used by Customer without prior consent. Maven reserves the right to terminate use of the Maven Card, upon notice to Customer, if it is reasonably suspected or determined that the promotion thereof is not in compliance with applicable laws and rules.
6. Obligations of Parties
6.1. Provider Group Obligations. Provider Group acknowledges and agrees that all clinical services associated with the Remote Consultations shall be:
6.1.1. Provided by Coaches who are properly trained and experienced in the provision of such services via Remote Consultation;
6.1.2. Provided upon the request of Participants in accordance with the schedule and response times identified by the Coach(es), as applicable; and
6.1.3. Made available using the Technology.
6.2. Maven Obligations. Maven acknowledges and agrees to the following obligations.
6.2.1. Access to Technology. Subject to Customer complying with the terms of this Agreement, Maven shall (a) provide the Participants with access to the Technology, including Maven’s websites and mobile applications, and (b) maintain and support such Technology for the provision of Remote Consultations by the Coaches.
6.2.2. Reports. Maven shall provide reports of aggregate utilization periodically and in a format mutually agreed upon by the Parties.
6.2.3. Program Communications. Maven shall provide or otherwise review Program Communications (as defined below) for use by Customer as further set forth herein.
6.2.4. Eligible Customer Beneficiary Communications. Maven may deploy email and text message communications directly to Eligible Customer Beneficiaries or Participants about the Program as needed to support utilization; provided, that upon an Eligible Customer Beneficiary or Participant’s request to Maven to unsubscribe from Program Communications or other communications sent by Maven, Maven shall cease any such communications with such Eligible Customer Beneficiary. For clarity, Customer is responsible for the coordination and administration of Eligible Customer Beneficiary and Participant requests to opt-out of Customer-initiated and transmitted communications.
6.2.5. Fee Validation. Maven agrees to utilize the Eligibility File provided by Customer to validate that any fees charged to the Customer reflect only participation of Eligible Customer Beneficiaries.
6.2.6. Wallet Reimbursement & Wallet Invoices. Maven will collect expense reimbursement information from Wallet-enrolled Participants using its online platform, review expense reimbursement requests received from Wallet-enrolled Participants against the applicable benefit plan rules confirmed by the Customer, and will defer to the Customer for resolution of any questions that arise which are not clearly determined by the applicable benefit plan rules. Maven will compile receipts and expenses provided by Wallet-enrolled Participants and prepare aggregated Wallet expense reports and invoices (“Wallet Invoices”), which it will send to Customer on a weekly basis for any week in which a Wallet-enrolled Participant submits a reimbursement request. Customer shall confirm which Wallet Invoice expenses are approved to be reimbursed and ensure that sufficient funds are available for Maven or its designated agent to process approved reimbursement payments within 3 business days of Customer’s receipt of a Wallet Invoice.
6.3. Customer Obligations. Customer acknowledges and agrees to the following obligations.
6.3.1. Program Communications. During the Term, Customer shall provide Eligible Customer Beneficiaries and/or Participants with certain communications about the Program, provided that the content and form of such information has been mutually approved and agreed in advance by Maven and Customer, which mutual approval shall not be unreasonably withheld or delayed (“Program Communications”). At a minimum, Customer agrees (a) to cooperate with Maven on a kick-off campaign within 30 days of the earliest Product Line’s Launch Date (as set forth in the Order Form) (the “Kick-Off Campaign”); (b) to provide Program Communications to Eligible Customer Beneficiaries on a quarterly basis, such as by distributing and posting such information in high-visibility areas at Customer’s location(s) where its employees work and/or by uploading such information to Customer’s corporate intranet and/or distributing communications via email; and (c) to provide Program Communications to any Eligible Customer Beneficiaries who notify Customer of their pregnancy. In addition, Customer hereby authorizes Maven to communicate directly with Eligible Customer Beneficiaries and Participants, in a mutually agreed upon manner and format, for the purpose of informing Eligible Customer Beneficiaries and Participants about the Program including, but not limited to deploying email, mail, or text communications directly to Eligible Customer Beneficiaries and Participants about the Program. Further, Customer agrees to cooperate with Maven to facilitate any Maven-led Customer or third-party training sessions as may be reasonably requested by Maven to support delivery of services to Eligible Customer Beneficiaries.
6.3.2. Prohibition on Third-Party Use. Except as required by law, Customer shall not: (a) sell, resell, rent, lease, loan, sublicense, disseminate, assign, transfer, hypothecate, grant a security interest in or otherwise provide the Program, the Technology, or Confidential Information of Maven, Provider Group, or Coaches to any third party (other than the Participants as applicable); (b) make the Program, the Technology, or Confidential Information of Maven, Provider Group, or Coaches available for use by any third party (other than the Participants as applicable); or (c) use the Program, the Technology, or Confidential Information of Maven, Provider Group, or Coaches for the benefit of any third party (other than the Participants, as applicable).
6.3.3. Eligible Customer Beneficiaries. Upon execution of this Agreement and thereafter on the first business day of each week during the Term, the Customer shall provide to Maven an updated list of Eligible Customer Beneficiaries who are eligible to enroll in the Program. Each such list shall be in the form of a CSV file transmitted to Maven by or on behalf of Customer via an SFTP service and shall include, at a minimum, each Eligible Customer Beneficiary’s date of birth, email address, and unique employee ID (each such list, an “Eligibility File”). Customer and Maven may mutually agree on an alternate Eligibility File format or delivery frequency. Customer is responsible to ensure that Eligibility Files are true and accurate, and agrees that Maven does not determine whether an individual is an Eligible Customer Beneficiary. Notwithstanding the foregoing, this section does not apply if Customer has selected the Email Domain eligibility verification method on the Order Form. Customer understands, acknowledges, and agrees that any Eligible Customer Beneficiary included in the Eligibility File will be considered eligible for Wallet reimbursements unless otherwise indicated by Customer in writing. Customer agrees to provide notice of termination or departure of eligible Customer employees and Wallet-enrolled Participants within 1 business day of termination to deactivate such Participant’s Maven Card. In the event that Customer does not notify Maven within the aforementioned timeline, Customer will be responsible for all costs incurred for subsequent Maven Card transactions made by the terminated employee.
6.3.4. Maven Wallet. Customer shall complete Maven’s Wallet onboarding survey to confirm the design of its applicable benefit plan(s), including but not limited to member enrollment eligibility requirements, eligible expense types that Participants can have reimbursed, and tax treatment. Customer shall promptly respond to any questions from Maven regarding clarification of applicable benefit plan rules.
6.3.4.1. Customer will, at its discretion, either: A) remit Customer-provided reimbursement funds to the applicable Participant’s bank account within 5 business days of Customer approving the reimbursement, provided that sufficient Customer funds have been made available for reimbursement and the applicable Participant has provided their bank account information; or B) provide a report of approved reimbursement amounts, type, and tax treatment to facilitate Customer’s direct reimbursement of the applicable Participant(s) via its payroll system.
6.3.4.2. Customer’s obligations under this Attachment shall continue for a minimum of 90 days beyond the termination of the Agreement, to facilitate Maven’s provision of its administrative reimbursement services for Participants enrolled in Wallet prior to termination of the Agreement who wish to submit reimbursement requests for eligible expenses incurred prior to the termination of the Agreement.
6.3.4.3. Customer acknowledges and agrees that it is solely responsible for any communications to members about its employer-sponsored benefit plans, including any communications necessary to inform members of alternative claim submission procedures upon the termination or expiration of this Agreement.
6.3.4.4. Customer is responsible for all amounts paid on behalf of its employees even in the event of fraud or Customer’s inability to collect amounts from their employees for ineligible expenses.
6.3.5. Compliance with Maven’s Policies. Customer shall comply with all of Maven’s usage and security policies, rules, and procedures with respect to any technology, websites, mobile applications, software, hardware, equipment, and/or other personal property, as applicable (collectively, the “Technology”) provided by Maven to Customer in connection with this Agreement, including that Customer, at a minimum, shall treat such Technology with the same level of security and utilization procedures that Customer applies to its own technology and equipment of a similar nature, and in any case no less than a reasonable degree of care, and shall not alter or interfere with any of Maven’s Technology except upon the express direction of Maven. Furthermore, Customer acknowledges and understands that any use by a Participant of Maven’s websites, mobile applications, and backend technologies by such Participant will be subject to the Terms of Use, Privacy Policy, and other policies, which are available on Maven’s website and as may be amended from time to time. Each wallet-enrolled Participant is responsible for timely submitting valid proofs of payment, itemized invoices for services, applicable bank account information, and any requested substantiation documentation to Maven and/or its designated agent.
6.3.6. Third Party Services. The Program and Technology may contain third party products, services, or content. Unless otherwise indicated, the Participant Terms and Conditions applicable to the Program and Technology shall also apply to such third-party products and/or services.
6.3.7. International Jurisdictions. If Customer desires for Maven to make the Program available to Eligible Customer Beneficiaries and Participants in locales outside of the United States, Customer will indicate the Jurisdictions, as defined in Appendix C at the time of contracting. Following the Effective Date of the Agreement, Customer may request that Maven add additional Jurisdictions to the Agreement by providing Maven with sixty (60) days advance written notice (which may be provided by email to Customer’s customer success representative), and Maven will notify Customer of its willingness and ability to add such new Jurisdictions(s).
7. Intellectual Property.
7.1. Maven Intellectual Property. All materials developed, owned, designed, or derived by Maven or any of its employees, representatives, affiliates, and assignees, and any patents, copyrights, trademarks, service marks, trade secrets, trade names, or other intellectual property rights , any improvements thereto, and or derivative works thereof (collectively, “Intellectual Property”) are the sole property and Confidential Information of Maven. Maven grants to Participants a limited, non-exclusive, revocable license to utilize certain of its Intellectual Property during the Term of this Agreement for the sole and exclusive purpose of utilizing the Technology in accordance with this Agreement. Any Intellectual Property resulting from work performed pursuant to this Agreement (“Maven Information and IP”) shall be deemed to be the Intellectual Property and Confidential Information of Maven, and shall be maintained and used consistent with the terms of this Agreement. For the avoidance of doubt, the Maven Information and IP do not include works made for hire, deliverables, or other Intellectual Property to be owned by Customer. Maven reserves all rights, including those not expressly granted in this Agreement. Except for the license granted in Section 7.2 of this Agreement, nothing in this Agreement creates any interest or right, express or implied, in the Maven Intellectual Property with respect to Customer.
7.2. Use of Name and Mark by Customer. Maven hereby grants to Customer the non-exclusive, non-transferable, limited license to use its corporate name (Maven Clinic Co.) and trademark-service mark (MAVEN; U.S. Patent & Trademark Office Serial No. 86325838) (collectively the “Maven Marks”) in connection with the Program; provided that any and all such use shall be: (a) limited to the Term of this Agreement, unless earlier revoked by Maven, and thereafter removed from and discontinued in all forms of electronic, written, and oral communications; (b) limited to use only by Customer; (c) limited to communications with Eligible Customer Beneficiaries and Participants, consistent with the terms of this Agreement; and (d) limited to use in one or more content and form that has been mutually approved by Maven and Customer pursuant to Section 5.1 hereof. For the avoidance of doubt, any other use by Customer or its employees, contactors, or other representatives of the Maven Marks is not permitted.
8. Fees and Invoice Terms.
8.1. Fees. As consideration for Maven’s operation and support of the Program and for the Coaches’ provision of services through the Program, Customer agrees to pay to Maven, the fees set forth in the Order Form which is attached hereto and incorporated herein by reference (collectively, the “Fees”). Invoices shall be electronically mailed to Customer at the billing email address set forth on the Order Form attached to this Agreement. Customer agrees to pay fees within 30 days (“Net 30 Day Term”) of the receipt of said invoice for services via ACH or electronic means.
8.2. Late Payments. If Customer fails to make any required payment within the Net 30 Day Term, Maven shall have the right to charge a 1% late payment fee per month on the outstanding balance.
8.3. Suspension and Termination. If Customer fails to make any required payment within 60 days of the date of Maven’s invoice and after receipt of email notification of late payment and a 15 day opportunity to cure, Maven shall have the right to terminate this Agreement and suspend or terminate the user accounts of the Participants. Maven, in its sole discretion, reserves the right to terminate Customer and/or Wallet-enrolled Participant access to Maven Card services if payment obligations are not paid in full in a timely manner.
8.4. Taxes. All prices and fees set forth in the Agreement (including any Attachments) are net amounts to be received by Maven or Provider Group. Customer shall be responsible for any and all taxes and assessments that arise from this Agreement and related transactions, except for taxes based upon Maven or Provider Group’s net income. If Customer represents that it is a tax-exempt entity, it shall provide to Maven a copy of its tax exemption certificate or similar documentation substantiating its tax exemption prior to or immediately after the Effective Date.
9. Treatment of Confidential Information
9.1. Confidential Information. The Parties may desire to disclose to each other materials concerning its business, including but not limited to products, business plans, technology, Customer and employee information, financial information, and other similar information which is confidential to the disclosing Party, and is marked “Confidential” or which a reasonable person would know constitutes confidential information (“Confidential Information”). Each Party will, with the same degree of care it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care, prevent the disclosure of the other Party’s Confidential Information to third parties during the Term and for 3 years after the termination or expiration of this Agreement. The receiving Party’s obligations shall not apply to information that: (i) is or later becomes part of the public domain through no fault of the receiving Party; (ii) is received from a third party having no obligations of confidentiality to the disclosing Party; (iii) is independently developed by the receiving Party without the use of or reference to the disclosing Party’s Confidential Information; or (iv) is required by law or regulation to be disclosed.
9.2. Disclosure and Notification. If the receiving Party becomes legally compelled to disclose any Confidential Information pursuant to subsection (iv) above, and to the extent authorized by law, the Party required to make disclosure shall notify the other to allow the Party to assess whatever exclusions or exemptions may be available to it under such law or regulation.
9.3. Protection of Confidential Information. Unless otherwise permitted by this Agreement, the Business Associate Agreement, or as required by applicable law, the receiving Party may only disclose Confidential Information to employees, contractors or, other representatives who have a need to know in order to carry out the Agreement and who are subject to confidentiality obligations consistent with or more stringent that this Section. The receiving Party shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody the other Party’s Confidential Information and which are provided to the receiving Party under this Agreement. This Agreement, the Order Form, and all other attachments thereto are considered Confidential Information.
10. Representations and Warranties. Each Party hereby represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. In addition, Customer hereby represents and warrants that (x) it shall only use the data received from Maven in accordance with this Agreement; (y) it owns or otherwise has sufficient right to grant Maven access to and use the Eligibility File in accordance with the terms of this Agreement; and (z) Customer will be solely responsible for the accuracy and completeness of the Eligibility File. Customer acknowledges and agrees that Maven’s obligation to store or maintain any Participant data obtained in the course of performance of the services shall not extend beyond the Term of this Agreement.
11. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
11.1. Disclaimer. MAVEN, PROVIDER GROUP, AND THEIR AFFILIATES (COLLECTIVELY, THE “PROVIDER PARTIES”) MAKE NO WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE TECHNOLOGY, INFORMATION OR SERVICES PROVIDED HEREUNDER, EXCEPT AS EXPRESSLY SET FORTH HEREIN. THE TECHNOLOGY, INFORMATION AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE PROVIDER PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION. THE PROVIDER PARTIES DO NOT WARRANT THAT THE OPERATION OF THE TECHNOLOGY OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND NONE OF THE PROVIDER PARTIES ARE RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR SERVICES.
11.2. Limitations Regarding Technology and Services. Maven and Provider Group shall not be responsible for failure to provide services as a result of conditions caused by Customer or Customer’s employees, agents, affiliates, and representatives. Additionally, an interruption in Maven’s services due to circumstances beyond the reasonable control of Maven, such as a failure of telecommunications or network systems not controlled by Maven, shall not be considered a service outage or service deficiency for purposes of any remedy provided herein.
11.3. Exclusions of Remedies; Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO PARTY HEREUNDER SHALL (i) BE RESPONSIBLE FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER SPECIAL DAMAGES THAT ANOTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED, OR (ii) HAVE AN AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT EXCEEDS THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO MAVEN FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EARLIEST DATE ON WHICH THE EVENTS GIVING RISE TO THE LIABILITY OCCURRED, UNLESS CUSTOMER SUFFERS DAMAGES CAUSED BY A DATA BREACH OF MAVEN’S SERVERS, IN SUCH INSTANCE MAVEN’S MAXIMUM AND AGGREGATE LIABILITY SHALL BE NO GREATER THAN FIVE TIMES (5X) THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO MAVEN OR PROVIDER GROUP FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EARLIEST DATE ON WHICH THE EVENTS GIVING RISE TO THE LIABILITY OCCURRED.
THE FOREGOING LIMITATIONS SHALL NOT APPLY IN THE EVENT THAT MAVEN OR PROVIDER GROUP SUFFERS DAMAGES AS A RESULT OF CUSTOMER’S BREACH OF SECTION 6.3.3, ARTICLE 7, OR ARTICLE 9 OF THE AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES HEREUNDER BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMITATION.
11.4. Limitations Regarding Maven Wallet. Customer, as the fiduciary, plan sponsor, and plan administrator of its employee benefit plan(s), acknowledges that it is fully responsible, and Maven shall have no liability, for the establishment, design and administration of Customer’s employee benefit plan(s) and all tax compliance and payroll reporting associated with any such employee benefit plan(s). Customer understands, acknowledges and agrees that: (A) Maven is not a plan sponsor, plan administrator or fiduciary with respect to any Customer plan supported by Maven Wallet; (B) Maven shall have no responsibility or liability with respect to any Customer plan supported by Maven Wallet; and (C) to the extent that Maven provides any administrative or other services with respect to a Customer plan, (I) all such services shall be non-discretionary, ministerial services taken on behalf of Customer and at Customer’s specific direction, (II) Maven shall not take on any fiduciary or other obligations as a result of such services under the Employee Retirement Income Security Act of 1974, as amended (ERISA), or any other law, and (III) Customer shall remain solely responsible and liable for such services and any underlying obligations.
12. Indemnification.
12.1. Indemnification by Provider Parties. Maven and Provider Group will defend, hold harmless, and indemnify Customer and Customer’s owners, employees, officers, managers and directors from and against all liability, demands, damages, costs or expenses (including reasonable attorney’s fees) (collectively, “Liabilities”) arising from any claim, action or proceeding, in each case brought by a third party (each, a “Claim”) to the extent such Claim arose as a direct result from grossly negligent acts or omissions or intentional misconduct by Maven, Provider Group, or any of its or their employees, except to the extent caused by the gross negligence or intentional misconduct of Customer. Notwithstanding anything to the contrary herein, no Provider Party shall have any liability or obligation to Customer to the extent that any Liability results from the Technology or use of the Technology other than in accordance with this Agreement, or used in a manner for which it is not recommended by the Provider Parties.
12.2. Indemnification by Customer. Customer will defend, hold harmless and indemnify Maven and Provider Group and its and their owners, employees, officers, managers and directors from and against all Liabilities arising from any Claim to the extent such Claim is shown by a court of competent jurisdiction to have arisen as a direct result from grossly negligent acts or omissions or intentional misconduct by Customer or any of its employees, or to the extent such Claim is related to any Customer employee benefit plan supported by Maven Wallet, except to the extent the Liability is shown to be caused by the gross negligence or intentional misconduct of Maven or Provider Group.
12.3. Indemnification Procedure. An indemnitee that intends to claim indemnification under this Section 12 (“Indemnitee”) will promptly notify the indemnifying Party (“Indemnitor”) in writing of any Claim with respect to which such Indemnitee intends to claim indemnification, and the Indemnitor will have sole control of the defense and settlement of the Claim; provided that the Indemnitor will not enter into any settlement that admits the fault of such Indemnitee or otherwise materially adversely prejudices Indemnitee without such Indemnitee’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. The Indemnitee will have the right to participate, at its own expense, with counsel of its own choosing in the defense or settlement of the Claim. The indemnification obligations under this Section 12 will not apply to amounts paid in settlement of any Claim if such settlement is effected without the consent of the Indemnitor. The Indemnitee and its employees, at the Indemnitor’s request and expense, will provide full information and reasonable assistance to Indemnitor and its legal representatives with respect to Claims.
13. Term and Termination.
13.1. Term. Unless otherwise stated in an applicable Order Form, the term of this Agreement will commence on the Effective Date and will expire on the third anniversary of the Launch Date as set forth in the Initial Order End Date (the “Initial Term”), unless earlier terminated in accordance with this Section 13. Thereafter, this Agreement will automatically renew on the applicable anniversary of the Launch Date for successive terms of 3 years at the end of the then-current term (each, a “Renewal Term”) and, at Maven’s prevailing list prices at the time of renewal, unless a Party provides written notice of its desire to terminate at least 60 days prior to the expiration of the Initial Term or any Renewal Term (the Initial Term and any Renewal Terms, collectively referred to herein as the “Term”).
13.2. Termination of Agreement.
13.2.1. Mutual Agreement. The Parties may mutually agree to execute a written agreement to terminate the Agreement.
13.2.2. Material Breach. Any Party may terminate the Agreement, if another Party commits a material breach of this Agreement, and such breach is not cured to the non-breaching Parties’ reasonable satisfaction within 30 days following written notice thereof.
13.2.3. Bankruptcy. Any Party may terminate the Agreement, immediately upon written notice, if a Party files or is subject to any voluntary or involuntary bankruptcy, receivership, or assignment for the benefit of creditors or similar proceeding.
13.3. Paid in Full. Notwithstanding anything herein to the contrary, upon the effective date of the expiration or termination of this Agreement, Maven shall be paid all undisputed fees and charges which have been earned or incurred pursuant to this Agreement, through the effective date of such expiration or termination, and Customer agrees to pay such fees and charges within 30 days of the effective date of the expiration or termination of this Agreement.
13.4. Survival. Notwithstanding anything to the contrary that may be contained herein, upon the expiration or other termination of this Agreement the following sections shall survive and continue in full force and effect: Sections 7, 9, 11, 12, and 16 and such other obligations of the Parties which by their nature would be intended to be applicable following such termination.
14. Compliance.
14.1. Health Care. The Parties enter into this Agreement with the intent of conducting their relationship and implementing the provisions hereof in full compliance with applicable law. Nothing contained in this Agreement, including any compensation paid or payable, is intended or shall be construed: (i) to require, influence or otherwise induce or solicit any Party regarding referrals of business, or recommending the ordering of any items or services, of any kind whatsoever to another Party or any of its affiliates, or to any other person, or otherwise generate business between the Parties, or (ii) to interfere with a Participant’s right to choose a health care provider, or with a physician’s medical judgment regarding the ordering of any items or services.
14.2. Applicable Privacy and Security Laws. Maven and Provider Group will comply with all applicable laws related to privacy and security, including the implementation of reasonable and appropriate physical, administrative and technical safeguards to the privacy and availability of individually-identifiable personal information collected hereunder.
14.2.1. Maven Card Data Sharing. In compliance with applicable laws and rules, Customer agrees that Maven and its contracted administrator may share required data with the bank issuing the Maven Card.
14.3. Compliance with Applicable Laws. Customer hereby represents and warrants that, as of the Effective Date it is operating in compliance with all applicable laws related to the services and other subject matter of this Agreement. Customer hereby undertakes and agrees that, for the duration of the Term of this Agreement, it shall comply in all material respects with applicable laws as they relate to this Agreement and the services. Maven will cooperate with Customer and law enforcement in recovering Maven Card transaction amounts reported as fraudulent transaction activity by Wallet-enrolled Participants provided that (i) Wallet-enrolled Participants comply with the cardholder agreement, which is distributed or made available at the time of mailing of the Maven Card, for the timely reporting of such fraudulent activity and (ii) complies with Maven’s policies and procedures for reporting such fraudulent transaction activity.
14.4. HIPAA. Only to the extent applicable to Customer and Maven, the Parties agree to comply with (i) the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as amended from time to time (collectively “HIPAA”), (ii) the Business Associate Agreement, if attached hereto.
Customer acknowledges and agrees that certain services provided by Maven on the platform or as part of the Program, including Maven Wallet and the processing of reimbursement for eligible expenses related to certain counseling or medical care, if selected by Customer, may not be available to all Eligible Customer Beneficiaries and/or Participants where the provision of such services are prohibited by applicable law. Maven reserves the right to immediately discontinue any of the services provided under this Agreement in the event Maven determines, in its sole and exclusive discretion, that the provision of such service(s) are prohibited by applicable law. In the event that Maven discontinues a service as a result of the events contemplated in the foregoing sentence, Maven agrees to give Customer reasonably prompt notice that such service(s) were or will be discontinued.
15. Insurance. All Parties will hold insurance adequate to cover their obligations under this Agreement and in accordance with applicable law.
16. Miscellaneous
16.1. Assignment. Maven and Provider Group may assign this Agreement or any of its rights or obligations hereunder without the prior consent of the other Parties, provided, however, that any Party may, with notice to the other Parties, assign this Agreement and any or all of its rights and obligations hereunder to any of its affiliates or to any entity which acquires all or substantially all of a Party’s assets or stock pursuant to any merger, stock or asset transfer, consolidation, or other business combination. This Agreement shall be binding upon and inure to the benefit of both Parties and respective successors and assigns. Any assignment not in accordance with this Section 16 shall be null and void.
16.2. Notices. All notices or approvals required or permitted hereunder shall be in writing and shall be deemed to have been given upon: (i) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; or (ii) delivery if sent by a courier service that confirms delivery in writing. In the event that a Party’s address (including e-mail address) changes after execution of this Agreement, notice of the new address shall be furnished in writing to the other Parties and a copy of such notification will be attached to the original of this Agreement.
16.3. Dispute Resolution.
16.3.1. Informal Dispute Resolution. The Parties shall attempt, in good faith, to resolve any controversy, claim, or dispute arising out of this Agreement through negotiations. If a disagreement arises that cannot be resolved through informational discussion, the aggrieved Party shall bring the issue to the other Party for resolution by sending a written demand a description of the issue (“Dispute”). Any Dispute shall be referred promptly to the level of management of each Party authorized to resolve the dispute who will meet to discuss and seek to resolve the Dispute.
16.3.2. Arbitration. If the Dispute is not resolved through the informal processes in preceding paragraph, any Party may initiate arbitration proceedings by submitting the Dispute for binding arbitration to the American Arbitration Association no later than one year from the date of the written demand. Disputes between the Parties will be resolved through arbitration in accordance with this Section, whether in connection with matters within the scope or outside the scope of this Agreement. The arbitration will proceed according to the commercial dispute procedures of the American Arbitration Association, and in front of a single arbiter. If a Party does not file for arbitration within one year after the date of the written demand, the Dispute will be waived. Arbitrations shall be conducted in New York, New York. The Parties waive any right to class arbitration and any and all claims to punitive, exemplary, or special damages pursuant to the arbitration of Disputes under this Section. The decision of the arbitrator shall be binding, and judgment on the arbitration award may be entered in any court having jurisdiction over such award. This Section survives the termination of this Agreement, and any Disputes arising after termination shall be resolved by binding arbitration pursuant to this Section.
16.4. Injunctive Relief. Notwithstanding the preceding section, Customer recognizes that irreparable injury may result to Maven and Provider Group in the event of Customer’s failure to comply with any of the terms of this Agreement, and that the full amount of the damages that would be incurred by Maven and Provider Group as a result of any such breach may be difficult to ascertain. Accordingly, Customer hereby agrees that, in the event of any such breach or threatened breach, Maven and Provider Group may be entitled to seek appropriate injunctive relief, in addition to other remedies and causes of action available to Maven and Provider Group, without the need to post bond or prove the inadequacy of monetary damages.
16.5. Governing Law. This Agreement shall be governed in accordance with and interpreted under the laws of the State of New York without giving effect to its choice of law provisions.
16.6. Change in Law. If any change in any applicable federal, state or local government laws, rules or regulations (each, a “Law” and, collectively, “Laws”) would render unlawful the conduct under this Agreement of any Party hereto or materially alter the ability of Maven to perform or provide the Program or Technology, then the Parties shall negotiate in good faith to restructure the business arrangement between the Parties to conform with the then existing Laws.
16.7. Relationship of the Parties. Maven, Provider Group, and Customer are, and shall at all times function as independent contractors under this Agreement. Maven and Provider Group are not employees, principals, agents, or partners of Customer, and Customer is not an employee, principal, agent, or partner of Maven or Provider Group. Except to the extent otherwise specifically contemplated herein, neither Maven nor Provider Group is authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of Customer, nor is Customer authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of Maven or Provider Group. The employees, agents, and representatives of a Party shall at all times be under the exclusive direction and control of such Party.
16.8. Severability; No Waiver. If any provision of this Agreement shall be deemed invalid or unenforceable, in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties. The failure of a Party to require performance of any obligations of any other Party hereunder shall not be deemed a waiver and shall not affect its right to enforce any provision of this Agreement at a subsequent time.
16.9. Third-Party Beneficiaries. No provisions of this Agreement are intended nor shall be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any other person under this Agreement.
16.10. Construction; Headings. Titles and headings to sections in this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this Agreement. The terms “herein,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular section or other portion hereof. Except as expressly provided otherwise, references herein to “days” are to calendar days. Any use of the term “including” in this Agreement shall be construed as if followed by the phrase “without limitation.”
16.11. Counterparts. This Agreement may be executed in one or more duplicate counterparts, each of which shall be deemed an original, but which collectively shall constitute one and the same instrument. A photocopy or scanned copy of a signature of this Agreement shall have the same force and effect as an original ink signature.
16.12. Amendment. Any term or provision of this Agreement may be amended or modified only by a writing signed by the Parties; provided, however, that Maven may change or amend the List of Attachments included on an Order Form by posting such changes to Maven’s website.
16.13. Force Majeure. If a Party fails to perform any of its obligations under this Agreement due to any cause beyond the reasonable control of such Party, including an act of God, act or omission of civil or military authorities of the state in which a Party is located, fire, strike, flood, riot, delay in transportation, pandemic, endemic, failure or diminishment of power or telecommunications or data networks or services, refusal of a license by a government agency, or inability due to the aforementioned causes to obtain necessary labor, materials or facilities, such Party will not be deemed liable under this Agreement for failing to fulfill such obligations.
16.14. Entire Agreement. This Agreement, including all Exhibits, Order Forms, Appendices, Attachments, Schedules and Addendums hereto, all of which are incorporated herein by reference, constitutes the entire understanding and agreement of the Parties, whether written or oral, with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings among the Parties with respect to such subject matter.
Last updated: June 5, 2023