These Terms and Conditions (“T&Cs”) govern the subscription for services described in Section 1.1, below, pursuant to the applicable order (“Order”) executed between Colonial Life (“Colonial Life”) and the customer identified in the Order (the “Customer”). Capitalized terms (whether in the singular or plural) shall have the meanings in the text of these T&Cs, including exhibits, addenda, and any Order (collectively, the “Agreement”). Colonial Life and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
1.1 Services. Subject to these terms and conditions, Colonial Life hereby agrees during the term specified in the initial order form attached to this Agreement or such subsequent order forms as may be executed by the Parties (each an “Order Form”) to provide certain HR Consultation Services (the “Services”) to Customer, together with its Authorized Users (“Users”). The Services, elected at the Customer’s option, includes Colonial Life’s Human Resources consultation on one or more of the following specific inquiries for advice until the Term is met:
(a.) review of Customer’s COVID safety policy; and/or
(b.) review of best practices regarding COVID accommodations request guidelines and/or
(c.) review of best practices regarding COVID accommodation strategies; and/or
(d.) suggested manager and/or Human Resources talking points regarding COVID vaccination; and/or
(e.) review of EEOC guidance regarding religious and medical accommodation requests.
Colonial Life may act directly or through its employees and agents or further delegate its authority through contracts, letters or other documentation or procedures to other affiliates, persons or entities.
The Services shall not include specific advice or guidance regarding specific employment decisions about individual employee situations or scenarios. Colonial Life shall have no liability or responsibility for Customer’s ultimate decision making in connection with the Services, which are purely advisory and consultative in nature.
1.2 Changes to Services. Colonial Life reserves the right in its sole discretion to amend, update or modify any portion of the Services at any time for any reason it deems sufficient.
2.1 General. Customer has the exclusive final responsibility and the exclusive discretionary authority for all decisions it shall make in connection with advice from the Services. Customer is responsible and liable for all uses of the Services, directly or indirectly, including any and all resulting employment disputes, if any, whether such access or use is permitted by or in violation of this Agreement or applicable law. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Users aware of this Agreement's provisions as applicable to such User's use of the Services and shall cause Users to comply with such provisions.
Subject to the Section 2.2 below, Customer shall email its specific inquiry that is limited to those articulated in 1.1.(a.) through 1.1.(e.) to firstname.lastname@example.org to access the Services. Such communication should not reference or identify any individual employee or identifiable individual employee issue.
2.2 Fees and Payment Terms. In consideration of the rights granted herein, Customer shall pay Colonial Life the amounts specified in each applicable Order Form (the “Fees”).
2.2.1 Except as otherwise specified in this Agreement or in an Order Form (i) fees are based on up to four (4) hours of Service subscriptions purchased according to the usage tiers specified in the applicable Order Form, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
2.2.2 Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Services (collectively, “Sales Tax”). If Colonial Life is obligated pay or collect Sales Tax for which Customer is responsible, Colonial Life will include such amounts on the applicable invoice and Customer shall include payment for such amount unless Customer provides Colonial Life with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall be solely responsible for the payment of any Sales Tax. In the event Colonial Life is required to pay Sales Tax on Customer’s behalf, Customer shall promptly reimburse Colonial Life for all amounts paid.
2.2.3 All amounts shall be paid to Colonial Life within thirty (30) days of receipt of an undisputed invoice. An invoice shall be deemed undisputed if, within such thirty (30) day period, Customer fails to notify Colonial Life in writing of any disputed amounts.
2.2.4 Undisputed fees not paid when due shall be subject to a late fee equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Colonial Life may upon notice, suspend access to the Service for nonpayment of undisputed fees. Amounts payable to Colonial Life shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Colonial Life.
3.1 Definition. “Confidential Information” means non-public information of a Party disclosed by that Party to the other Party. Customer’s Confidential Information shall include Customer Data, provided that Customer Data is further subject to the provisions of Section 4 (Protection of Customer Data). Colonial Life’s Confidential Information shall include: all information, materials, data, and other content, in any form or medium, that is not generally known to the public, including ideas, know how, designs, data, procedures, formulas and specifications belonging to or in the possession of Colonial Life, and its respective agents, officers and employees; business plans, strategies, forecasts, projects and analyses; finances and pricing structures; business processes, methods, trade secrets, and models; and information about its employees, customers and suppliers. Confidential Information of Colonial Life also includes the Services, including their functionality and processes. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
3.2 Obligations. Each Party shall use efforts consistent with the manner in which it protects its own Confidential Information but in no case less than commercially reasonable effort to preserve the confidentiality the other Party’s Confidential Information. Each Party agrees not to use Confidential Information provided to it by the other for any purpose other than the performance of its rights and obligations under this Agreement and shall disclose Confidential Information of the other only: (i) to its employees, officers, directors, agents, affiliates, subcontractors, attorneys, accountants, auditors, licensors and other professional advisors, who, in each case, have a need to know in connection with the disclosing party’s obligations under this Agreement and are under a written obligation to keep such information confidential and using standards of confidentiality not less restrictive than those required by this Agreement or (ii) in order to comply with the order of a court or other governmental body, and only if such Party (a) gives prompt and detailed notice of the demand including the Confidential Information demanded and the purpose of the demand, (b) cooperates with the other Party in contesting the demand, and (c) in any event, only discloses Confidential Information to the extent necessary to protect or enforce its legal rights or to defend itself. As between the Parties, each Party acknowledges that the disclosing Party shall at all times be and remain the sole owner of its Confidential Information and the recipient of any Confidential Information shall use efforts consistent with the manner in which it protects its own Confidential Information but in no case less than commercially reasonable efforts to preserve the confidentiality of any Confidential Information of the other Party.
4.1 Ownership of Customer Data. As between Colonial Life and Customer, Customer will retain all rights, title and interest to Customer Data.
4.2 Protection and Security of Customer Data. Colonial Life will use commercially reasonable efforts to safeguard Customer Data against unauthorized access, use or disclosure. Without limiting the foregoing, Colonial Life will assess, manage, and control risks relating to the security and confidentiality of Customer Data and implement and maintain at all times an Information Security Program. For purposes of the foregoing, “Information Security Program” means written policies and procedures, consistent with applicable state and federal laws and regulations regarding the security, confidentiality and integrity of personal information (“Applicable Privacy Law”), adopted and maintained to (i) protect the security and confidentiality of Customer Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Data; and (iii) protect against unauthorized access to or use of the Customer Data.
4.3 Breach Notification. In the event that Colonial Life becomes aware of any actual breach of security, as that term is defined by Applicable Privacy Law, of Customer Data, Colonial Life will promptly notify Customer within five (5) days of Colonial Life’s confirmation of such breach, and provide, to the extent available at the time of notice: (i) the nature of the incident and (ii) the information involved, and the corrective actions taken. Additionally, each Party will reasonably assist the other party in remediating or mitigating any potential damage, including providing legally required notification to regulatory authorities or impacted individuals. Colonial Life shall have the right to approve that portion of the notification that references Colonial Life or the Services by name, function or capacity; provided that such approval shall not be unreasonably withheld or delayed. Customer and Colonial Life agree to cooperate, in good faith, in preparing a mutually agreeable notification.
4.4 Return of Customer Data. Subject to any federal, state, regulatory or internal business requirements, and upon request of Customer, Colonial Life shall destroy all Customer Data once Colonial Life no longer requires it. If Colonial Life determines that destroying the Customer Data is not feasible, the protections and requirements of this Agreement and the parties’ respective rights and obligations hereunder shall be extended so long as Colonial Life maintains such Customer Data. Once Colonial Life no longer requires the Customer Data, it shall then destroy the information in a manner consistent with then-existing industry standards for the for the safe destruction of records containing Customer Data.
4.5 Privacy. The Parties agree to comply with all Applicable Privacy Laws regarding personally identifiable health, financial, or other personal data and they agree to execute any documents, agreement or certification that may be required by such laws or the regulations. Customer agrees and warrants that the Services are not being offered to the Customer or its Users in the European Union or the European Economic Area, nor are they intended to be utilized outside of the United States.
5.1 Limited License to Colonial Life. By submitting any Customer Data to Colonial Life in connection with Customer’s use of the Services, Customer hereby grants Colonial Life a limited license to use, copy, create derivative works, publicly perform and distribute such content and data for the purpose of providing Customer and its Users with the Services. For avoidance of doubt, even if a User ceases its relationship with Customer at any time, the license to all Customer Data specified in this Section 5.1 and the rights with respect to Aggregated Statistics in Section 5.2 herein shall survive the termination of the relationship and/or the termination of this Agreement.
5.2 Anonymous Statistical Data. Notwithstanding anything else in this Agreement or otherwise, Colonial Life may monitor use of the Services and use data and information related to such use in an aggregate manner, but in each case in a manner that is anonymized and does not identify Customer or its Users (“Aggregated Statistics”). Colonial Life may use or distribute Aggregated Statistics for any legally permissible purpose, provided that such data and information is anonymized and does not identify Customer or its Users.
6.1 Either Party or third parties may make products or services available on or through the Services that are not part of the Services provided under this Agreement (the “Non-Colonial Life Products/Services”). The Services may contain features designed to interoperate with Non-Colonial Life Products/Services. To use such features, Customer may be required to obtain access to such Non-Colonial Life Products/Services from the providers of such products and services and may be required to grant Colonial Life access to Company’s account(s) associated with such Non-Colonial Life Products/Services. Colonial Life cannot guarantee the continued availability of the features or the interoperability of such Non-Colonial Life Products/Services with the Services and may cease providing and/or supporting such features without entitling Customer to any refund, credit or other compensation (for example, and without limitation, if the provider of Non-Colonial Life Products/Services ceases to make the Non-Colonial Life Products/Services available in a manner acceptable to Colonial Life and Colonial Life correspondingly takes action to block or prevent the use of such Non-Colonial Life Products/Services in connection with the Services).
6.2 Any usage by Customer of Non-Colonial Life Products/Services and any exchange of data between Customer and any Non-Colonial Life Products/Services provider in relation to any such third-party product or service, is solely between Customer and the applicable Non-Colonial Life Products/Services provider. Colonial Life does not warrant or support, and is not liable for, any Non-Colonial Life Products/Services or any data Customer or its Users exchange with such Non-Colonial Life Products/Services the providers thereof, whether or not such Non-Colonial Life Products/Services are designated by Colonial Life as interoperable with the Services, unless expressly provided to the contrary in an Order Form. If Customer chooses to use any Non-Colonial Life Products/Services in conjunction with one or more of the Services, Customer grants Colonial Life permission to allow the provider of the Non-Colonial Life Products/Services to access Customer Data through such Non-Colonial Life Products/Services as required for the interoperation of such Non-Colonial Life Products/Services with the Services. Colonial Life is not responsible for any use, disclosure, modification or deletion of Customer Data resulting from access by such provider of any Non-Colonial Life Products/Services or the Non-Colonial Life Products/Services themselves.
Any usage by Customer of Colonial Life Insurance Products (as defined below) offered as part of Customer’s benefit plan is not part of the Services provided under this Agreement. The features of these Services are designed to be independent of Colonial Life Insurance Products and Customer will be required to allow Colonial Life Insurance Products access to such Customer accounts associated with Customer’s benefit plan. “Colonial Life Insurance Products” means the insurance products offered through one of Colonial Life’s insuring subsidiaries and made available on or through the Services that are not a part of the Services provided under this Agreement. Under no circumstances shall the Services provided pursuant to this Agreement be deemed to be those of a third-party administrator pursuant to any applicable laws.
9.1 Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
9.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND ANY OTHER MATERIALS, SOFTWARE AND/OR INFORMATION PROVIDED BY COLONIAL LIFE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COLONIAL LIFE, ITS SUPPLIERS AND ITS LICENSORS. COLONIAL LIFE SHALL NOT BE LIABLE FOR ANY ACTION OR FAILURE TO ACT BY CUSTOMER, USERS, OR OTHERS AS A RESULT OF THE ACTION PLANS OR RECOMMENDATIONS OBTAINED UTILIZING THE SERVICES; RATHER, CUSTOMER AND ITS USERS ARE RESPONSIBLE FOR DETERMINING THE SUITABILITY OF ANY COURSE OF ACTION. COLONIAL LIFE DOES NOT GUARANTEE THE RESULTS OF ANY PROGRAM OR SUGGESTED ACTION PLAN AND IS NOT DISPENSING MEDICAL, LEGAL, BUSINESS OR OTHER ADVICE. IN ADDITION, COLONIAL LIFE DOES NOT PROVIDE ANY WARRANTIES REGARDING (I) THE ACCURACY OF THE RESULTS OBTAINED THROUGH USE OF ANY OF THE SERVICES, (II) THE ACCURACY OF THE DATA CONTAINED WITHIN ANY OF THE SERVICES, (III) THAT ANY OF THE SERVICES WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, (IV) THE SECURITY OF ANY OF THE SERVICES FROM INTRUSION OR ATTACK, OR (V) THE NETWORK, COMMUNICATIONS LINKS OR INFRASTRUCTURE USED BY CUSTOMER OR ITS USERS. CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. COLONIAL LIFE IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND COLONIAL LIFE’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY COLONIAL LIFE.
9.3 Limitation. EXCEPT WITH RESPECT TO VIOLATIONS BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S, ITS SUPPLIERS’ AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO TWO TIMES (2X) THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT EITHER PARTY’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
9.4 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF THIS AGREEMENT. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
Customer and its Users have no rights in or to the Services except as expressly granted in this Agreement. Colonial Life reserves to itself (or its licensors, as applicable) all rights to the Services not expressly granted to Customer or its Users under this Agreement. Colonial Life (or its licensors, as applicable) retains all copyright, trademark, patent, and other intellectual property rights in and to the Services. As between the parties, Customer acknowledges that the Services, all copies of the Services, any derivative works, compilations, and collective works of the Services, and any know-how and trade secrets related to the Services are the sole and exclusive property of Colonial Life (or its licensors, as applicable) and contain Colonial Life’s (or its licensors’, as applicable) confidential and proprietary materials. This Agreement shall not restrict Colonial Life from providing or performing the same or similar services for any third party.
Certain provisions contained in this Agreement, which by their terms are intended to survive the termination of this Agreement, shall survive the termination, cancellation, expiration or completion of performance of this Agreement. These provisions include but are not limited to: Sections 3 (Confidentiality), 4 (Protection of Customer Data), 5 (Limited License and Aggregated Statistics), 8 (Term), 9 (Warranty; Disclaimers; Limitations on Liability), 12 (Notice and Requests), 13 (Additional Terms), 14 (General) and any payment obligations.
Either Party may give notice to the other Party by means of electronic mail to the primary contact designated on the Order Form or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement.
Colonial Life shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Colonial Life and counter-signed by its authorized agent. The parties may add new features or functionality to the Services through a fully executed Order Form or supplement the terms of this Agreement at any time by signing a written addendum, each of which shall be deemed incorporated by this reference upon execution. The terms of any Order Form or addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable Order Form or addendum, all Order Forms or addenda shall terminate upon the expiration or termination of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. This Agreement, together with its exhibits and addenda and each Order Form, comprises the entire agreement between Customer and Colonial Life regarding the subject matter contained herein. This Agreement may only be amended in writing by authorized representatives of each party.