AFFILIATE ASSOCIATE AGREEMENT

THIS AFFILIATE ASSOCIATE AGREEMENT (the “Agreement”) is made and entered into as of the date signed below (the “Effective Date”) by and between XBENEFITS, LLC, an Indiana limited liability XBENEFITS (the “XBENEFITS”), and you (“Affiliate”), individually referred to as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, XBENEFITS is an affiliate program which provides referral services on the internet at XBENEFITS.com (the “Website”);

WHEREAS, XBENEFITS has developed a proprietary online platform (the “Platform”) that allows Affiliate to offer and refer employers certain healthcare and wellness services for employers’ employees (the “Services”) from its affiliated vendors;

WHEREAS, Affiliate desires to market, promote, and advertise the programs and services available through the Platform to employers or employer groups or associations that are not known to XBENEFITS (the “Leads”) through Affiliate’s website, social media user-generated content, online software application, or other online marketing or advertisements (“Affiliate’s Sites”) and other Promotions (as defined below); 

WHEREAS, XBENEFITS desires to compensate Affiliate for Leads that subsequently acquire or subscribe to the Services offered by XBENEFITS or its Vendors (“Clients”); and

WHEREAS, Affiliate’s marketing, promotion, and advertisement of the programs and services available through the Platform for conversion of Leads into Client constitute the program (the “Program”).

AGREEMENT

NOW, THEREFORE, in consideration of the promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

  • Recitals. The above Recitals are hereby incorporated into this Agreement and are contractual. 
  • Marketing Fees. Affiliate will earn a marketing fee for referral of Leads which are thereafter converted to Clients, wherein a Lead executes a certain master service agreement between XBENEFITS, its affiliates, subsidiaries, or other partners (individually, a “Vendor”) grants the employees of Client (or the employees of Client customers, as the case may be) access to (and participation in) the Services. The marketing fee will be set forth on the Website for XBENEFITS under the FacaSave Marketing Fee Schedule and may be changed from time to time by XBENEFITS by posting and notifying Affiliate of a different marketing fee through email or the Platform.
  • Approval.
    • Application Participation in the Program is subject to XBENEFITS’s approval (in XBENEFITS’s sole and absolute discretion). Prospective Affiliates must first submit an application to XBENEFITS through the Website in order to become an “approved” Affiliate eligible to advertise, market, and earn marketing fees. After the application has been submitted, XBENEFITS will notify the prospective Affiliate in writing (by e-mail or otherwise) whether the Affiliate has been approved to participate in the Program (in XBENEFITS’s sole and absolute discretion).
    • Prior Approval for Sites. Affiliate is not authorized to link any Sites to the XBENEFITS Website for any Affiliate website that has not been approved in advance by XBENEFITS (in XBENEFITS’s sole and absolute discretion).
    • Acceptance of Additional Policies. If approved, Affiliate must acknowledge its acceptance of this Agreement by clicking-through the acceptance button on this webpage, indicating the Affiliate’s acceptance of all terms and conditions of this Agreement. This Agreement shall apply only to approved Affiliates who accept the following:
      1. Vendor and Products Requirements Policy
      2. XBENEFITS Marketing Fee Schedule
      3. Digital Millennium Copyright Act (“DCMA”) and Trademark Policy
      4. Return and Cancellation Policy
      5. XBENEFITS Privacy Policy
      6. Security Policy
      7. Network Abuse Policy
      8. Legal Notice
      9. XBENEFITS Prohibited Vendor and Affiliate Activities Guidelines

ONLY AFFILIATES WHO ACCEPT THIS AGREEMENT AND THE XBENEFITS POLICIES MAY PARTICIPATE IN THE PROGRAM.

The XBENEFITS Polices are hereby incorporated herein as if fully set forth. In the event of conflict between the XBENEFITS Policies and this Agreement, this Agreement shall control. 

  • No Additional Claims. Other than the payment of the marketing fees, Affiliate shall have no claims to any additional compensation, marketing fees or business derived by or through XBENEFITS.
  • Independent Contractor. Participation in the Program does not constitute an employment, broker or agency relationship between Affiliate and XBENEFITS nor does it create any partnership, joint venture, franchise, or sales representative relationship between the parties.
  • Registration. Prior to receiving access to the Platform and Documentation, Affiliate shall register for an account in order to provide the services more fully described herein. 
  • Truthfulness of Information. Affiliate warrants and represents that it shall only provide true, accurate, current, and complete information and shall use commercially reasonable efforts to update and maintain said information as necessary. 
  • Promotion of Services. If Affiliate promotes, markets, or otherwise advertises (“Promote” or a “Promotion”) any product which is listed for advertisement via the Platform, whether via the Platform, Website, or via any other online or offline channel or medium, including for the purpose of earning a percentage of the sale price of any Service sold as a result of such Promotion, Affiliate agrees, acknowledges, represents and warrants that:
    • Affiliate will abide by XBENEFITS’s Policies.
    • When Affiliate Promotes a Service, Affiliate will use the applicable Vendor’s trademarks, logos, trade names or service marks in accordance with such Vendor’s trademark guidelines, which will either be supplied by XBENEFITS or set forth in the Vendor’s guidelines, if applicable. For purposes of this Agreement, “Vendor” includes any person or entity that submits one or more Services for marketing by an Affiliate via the Platform.
    • Affiliate will not make any unlicensed or unauthorized use of, or otherwise infringe, violate, or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (collectively “IP Rights”) of any entity or individual.
    • Affiliate will not interfere with or manipulate rankings of XBENEFITS’s Platform, tracking of marketing fees, or the normal flow of traffic to, through, or from the XBENEFITS Services.
    • If Affiliate Promotes any Service, Affiliate must be in compliance with XBENEFITS’s and Vendor’s terms and conditions provided to XBENEFITS and Affiliate, which are incorporated into this Agreement by this reference, at all times.
    • Affiliate will not Promote violence, sexually explicit materials, Services from any website, blog, social network, forum, or other medium that contain, host or promote illegal content or material, illegal activities, alcohol, tobacco or prescription drugs, discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age.
    • Affiliate will not Promote any Services or services to children under the age of thirteen (13).
    • Affiliate will not defame any person.
    • Affiliate will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by an agreement.
    • Affiliate will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
    • Affiliate will not in any way copy the “look and feel” of any third-party website, or otherwise imply that the Promotion is in fact a third-party website.
    • All communications and/or representations made by Affiliate in connection with any Promotions and/or in relation to any Service will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false, deceptive, or breaking a law. Such disclosures and disclaimers must be made in a clear and conspicuous manner and will otherwise comply with Affiliate’s country and all U.S. federal and state laws, including U.S. Federal Trade Commission (“FTC”) regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTC’s Endorsement Guidelines.
    • XBENEFITS reserves the right but is not obligated to review Affiliate’s Promotion activity. Affiliate agrees that XBENEFITS, in its sole discretion and at any time, may require changes to Affiliate’s Promotion and delivery pages, customer support or other items related to the content of Affiliate’s Promotional associate efforts.
    • Affiliate will provide valid contact information, including but not limited to a working email address and phone number, where XBENEFITS can send inquiries and receive a non-automated reply by end of the following business day.
    • XBENEFITS does not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by a Vendor, nor is it responsible for any bonuses, prizes or other incentives offered by Vendors or associates via the Services. Affiliate’s use of any information presented by an associate or Vendor is voluntary, and Affiliate’s reliance is at Affiliate’s sole risk. Affiliate acknowledges and understands that XBENEFITS does not verify statements, claims, incentives, or Promotions made by Vendors via the XBENEFITS dashboard or service.
    • Affiliate will comply with all applicable laws, rules and regulations, and will not interfere with any other user’s business or use of the Services. XBENEFITS reserves the right to take any action against Affiliate for violating this provision, including account suspension and/or termination, in accordance with Section 5 hereof.
    • All Promotions shall be subject to the approval of XBENEFITS and Vendor. XBENEFITS will provide Affiliate with approval of such Promotions as reasonably requested by Affiliate.
  • Term and Termination. The term of this Agreement will begin upon Affiliates registration and XBENEFITS’s acceptance for or use of the Platform. Either Affiliate or XBENEFITS may terminate this Agreement at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written notice of termination provided that the effective date of such termination will be seven (7) calendar days from the date notice is provided. Affiliate can provide termination notice by logging into its account on the Platform and selecting the option to close its account in “Account Settings”. In addition, XBENEFITS may terminate this Agreement or suspend Affiliate’s account immediately upon written notice to Affiliate for any of the following: (a) Affiliate is in material breach of this Agreement, (b) Affiliate otherwise fails to cure within seven (7) days of XBENEFITS’s notice to Affiliate regarding any other breach of this Agreement (including any Program Policy); (c) XBENEFITS believes that it may face potential claims or liability in connection with Affiliate’s participation in the Program; (d) XBENEFITS believes that its brand or reputation may be tarnished by Affiliate or in connection with Affiliate’s participation in the Program; (e) Affiliate’s participation in the Program has been used for deceptive, fraudulent or illegal activity; (f) XBENEFITS believes that it is or may become subject to tax collection requirements in connection with this Agreement or the activities performed by either party under this Agreement; (g) XBENEFITS has previously terminated this Agreement (or suspended Affiliate’s account) with respect to Affiliate or other persons that XBENEFITS determines are affiliated with Affiliate or acting in concert with Affiliate for any reason, or (h) XBENEFITS has terminated the Program as XBENEFITS generally make it available to participants. For the avoidance of doubt and without limitation for purposes of the foregoing subsection (a) any violation of Section 4 or the XBENEFITS Policies will be deemed a material breach of this Agreement. 

XBENEFITS may hold accrued unpaid marketing fee income for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancelations or returns). 

Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 2, 5, 6, 7, 8, 9, 10, 11, 12, 14, and 15 of this Agreement and as specified in the XBENEFITS Policies, together with any payable but unpaid payment obligations under this Agreement, will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.

  • License to and Use of Platform
    • Subject to the terms and conditions hereof, XBENEFITS hereby grants to Affiliate a non-exclusive, non-sub-licensable, non-transferable, limited license to offer access to and use of XBENEFITS’s Platform and the attendant user, technical, marketing, advertising, and other documentation (collectively, the “Documentation”) to Affiliate. 
    • Affiliate may develop interfaces and/or modules that operate in conjunction with the Platform.  Affiliate shall own, vis-a-vis XBENEFITS, all right, title and interest in any interfaces and/or modules developed by Affiliate, but only to extent that none of the interfaces and/or modules in any way infringes on any software (object code or source code), any patent  rights, copyrights, trade secrets and other industrial and/or intellectual property rights, derivative works therefrom or registrations therefore (collectively, “Intellectual Property Rights”) of or related to the Platform or Documentation.  All such Intellectual Property Rights with respect to the Platform and Documentation are and shall remain the sole and exclusive property of XBENEFITS.
    • If Affiliate or any customers suggest any new features, benefits, functionality or other aspects for the Platform, or any portion thereof, and XBENEFITS, in its sole discretion, at any time adopts any such new feature, functionality or other aspect of the Platform, any such new feature, benefit, functionality or other aspect of the Platform shall be the sole and exclusive property of XBENEFITS
    • Ownership.
      • Intellectual Property Ownership. Affiliate’s rights with respect to the Platform and the Documentation are limited to the licenses expressly granted in this Agreement.  All right, title and interest in and to the Platform and the Documentation, and all Intellectual Property Rights related thereto, shall  at  all  times  remain  the sole and  exclusive property of XBENEFITS, except for the licenses expressly granted in this Agreement. Affiliate hereby unconditionally and irrevocably assigns to XBENEFITS or XBENEFITS’s designee, Affiliate’s entire right, title and interest in and to any Intellectual Property Rights that Affiliate may now or hereafter have in or relating to the Platform or  the Documentation.
      • Affiliate Cooperation and Notice of Infringement.   Affiliate shall, during the term of this Agreement (the “Term”):
        • Take all commercially reasonable measures to safeguard the Platform and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access or use;
        • At XBENEFITS’s expense, take all steps as XBENEFITS may reasonably require to assist XBENEFITS in maintaining XBENEFITS’s ownership of the Intellectual Property Rights in the Platform and Documentation;
        • Promptly notify XBENEFITS in writing if Affiliate or any customer becomes aware of:
          • any actual or suspected infringement, misappropriation or other violation of XBENEFITS’s Intellectual Property Rights in the Platform or Documentation; or
          • any claim that the Platform or Documentation, including any production, use, marketing, sale, or other disposition of the Platform or Documentation, in whole or in part, infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of any other person; and
          • fully cooperate with and assist XBENEFITS in all reasonable ways in the conduct of any claim, suit, action or proceeding by XBENEFITS to prevent or abate any actual or threatened infringement, misappropriation or violation of XBENEFITS’s rights in, and to attempt to resolve any claims relating to, the Platform and Documentation, including having  Affiliate’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
      • Except for the limited licenses expressly granted under this Agreement, XBENEFITS grants, by implication, waiver, estoppel or otherwise, to the Affiliate or any third party no other Intellectual Property Right in or to any of the Platform or Documentation.
    • Except as this Agreement expressly permits, Affiliate shall not, and shall not permit any other person to:
        • copy the Platform or Documentation, in whole or in part;
    • Warranties. Affiliate represents, warrants, and covenants that (a) Affiliate will participate in the Program and create, maintain, and operate Affiliate’s Site and Promotions in accordance with this Agreement, (b) neither Affiliate’s participation in the Program nor Affiliate’s creation, maintenance, or operation of Affiliate’s Site or Promotions will viola
      1. te any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over Affiliate (including all such rules governing communications, data protection, advertising, and marketing), (c) Affiliate is lawfully able to enter into contracts (e.g. Affiliate is not a minor or otherwise legally prevented from contracting), (d) Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) Affiliate will not participate in the Program or use the Platform if Affiliate is the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where Affiliate is using the Platform (f) Affiliate will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information Affiliate provides in connection with the Program is accurate and complete at all times. Affiliate can update Affiliate’s information by logging into Affiliate’s account on the Website and selecting “Account Settings”.

      XBENEFITS does not make any representation, warranty, or covenant regarding the amount of traffic or marketing fee income Affiliate can expect at any time in connection with the Program, and we will not be liable for any actions Affiliate undertake based on Affiliate’s expectations.

    • Disclaimers. THE PROGRAM, THE WEBSITE, THE PLATFORM, ANY PRODUCTS AND SERVICES OFFERED ON THE WEBSITE, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, THE PRODUCT ADVERTISING API, DATA FEED, PRODUCT ADVERTISING CONTENT, XBENEFITS’S AND XBENEFITS’S AFFILIATES’ DOMAIN NAMES, TRADEMARKS AND LOGOS (INCLUDING THE XBENEFITS MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF XBENEFITS OR XBENEFITS’S AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER XBENEFITS NOR ANY OF XBENEFITS’S AFFILIATES, LICENSORS, OR VENDORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES. XBENEFITS AND XBENEFITS’S AFFILIATES, LICENSORS, AND VENDORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. XBENEFITS MAY DISCONTINUE ANY SERVICE, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF XBENEFITS’S AFFILIATES, LICENSORS, OR VENDORS WARRANT THAT THE SERVICES WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER XBENEFITS NOR ANY OF XBENEFITS’S AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, AFFILIATE’S SITE, PROMOTIONS, OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY AFFILIATE FROM XBENEFITS OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER XBENEFITS NOR ANY OF XBENEFITS’S AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY AFFILIATE IN CONNECTION WITH AFFILIATE’S PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF AFFILIATE’S PARTICIPATION IN THE PROGRAM. NOTHING IN THIS SECTION 7 WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
    • Limitations of Liability. THE PROGRAM, THE PLATFORM, THE WEBSITE, ANY PRODUCTS AND SERVICES OFFERED ON THE WEBSITE, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, THE PRODUCT ADVERTISING API, DATA FEED, PRODUCT ADVERTISING CONTENT, XBENEFITS’S AND XBENEFITS’S AFFILIATES’ DOMAIN NAMES, TRADEMARKS AND LOGOS (INCLUDING THE XBENEFITS MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR XBENEFITS’S AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER WE NOR ANY OF XBENEFITS’S AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. WE AND XBENEFITS’S AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF XBENEFITS’S AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF XBENEFITS’S AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, AFFILIATE’S SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY AFFILIATE FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE SERVICE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF XBENEFITS’S AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY AFFILIATE IN CONNECTION WITH AFFILIATE’S PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF AFFILIATE’S PARTICIPATION IN THE PROGRAM. NOTHING IN THIS SECTION 9 WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

      EACH PARTY’S TOTAL LIABILITY FOR DAMAGES ARISING UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE LOWER OF (I) TEN THOUSAND DOLLARS ($10,000), OR (II) THE AMOUNTS PAID OR PAYABLE TO AFFILIATE AS FEES HEREUNDER FOR THE EVENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

      NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT WILL NOT APPLY TO CLAIMS, DAMAGES AND OTHER LOSSES ARISING IN CONNECTION WITH (I) THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS; (II) GROSS NEGLIGENCE; OR (III) WILLFUL MISCONDUCT.

    • Indemnification. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, XBENEFITS WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF AFFILIATE’S SITE OR PROMOTIONS (INCLUDING AFFILIATE’S USE OF ANY SERVICES) OR AFFILIATE’S VIOLATION OF THIS AGREEMENT, AND AFFILIATE AGREES TO DEFEND, INDEMNIFY, AND HOLD XBENEFITS, XBENEFITS’S AFFILIATES, LICENSORS, VENDORS, AND XBENEFITS’S AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) AFFILIATE’S SITE, PROMOTIONS, OR ANY MATERIALS THAT APPEAR ON AFFILIATE’S SITE OR PROMOTIONS, INCLUDING THE COMBINATION OF AFFILIATE’S SITE OR PROMOTIONS, OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF AFFILIATE’S SITE, PROMOTIONS, OR ANY MATERIALS THAT APPEAR ON OR WITHIN AFFILIATE’S SITE OR PROMOTIONS, (C) AFFILIATE’S USE OF ANY SERVICES, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW, (D) AFFILIATE’S VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT (INCLUDING ANY XBENEFITS POLICY), (E) AFFILIATE’S TAXES AND DUTIES OR THE COLLECTION, PAYMENT, OR FAILURE TO COLLECT OR PAY AFFILIATE’S TAXES OR DUTIES, OR THE FAILURE TO MEET TAX REGISTRATION OBLIGATIONS OR DUTIES, OR (F) AFFILIATE’S OR AFFILIATE’S EMPLOYEES’ OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT. FICASAE OR XBENEFITS’S NOMINEE MAY TAKE LEGAL ACTION AND PERFORM ANY PROCEDURAL ACT ON BEHALF OF ANY XBENEFITS PARTY, INCLUDING THROUGH SPECIAL MANDATE, TO EXERCISE OR DEFEND A LEGAL CLAIM OR FOR THE PROTECTION OF RIGHTS, INCLUDING FOR THE PURPOSE OF ENFORCING THIS SECTION.
    • Trade Secret and/or Confidential Information. Affiliate agrees to carefully guard the Trade Secrets (as defined below) and Confidential Information (as defined below) of XBENEFITS, and Affiliate will not, during the term of this Agreement or at any other time thereafter, use, reveal, report, publish, transfer or otherwise disclose to anyone, directly or indirectly, nor use for the benefit of himself or third parties, any of XBENEFITS’s Trade Secrets or Confidential Information without the written consent of XBENEFITS. Affiliate may only use said Trade Secrets and Confidential Information within the scope of Affiliate’s Sites, Promotions, or other duties of Affiliate under this Agreement. Affiliate further agrees to abide by any of the XBENEFITS policies regarding the protection of its Trade Secrets and Confidential Information (also referred to as “Proprietary Information”).
      • “Trade Secrets” means (a) information, including but not limited to a formula, pattern, compilation, program, device, method, technique or process, whether stored electronically or written, that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; (ii) is the subject of efforts by XBENEFITS that are reasonable under the circumstances to maintain its secrecy; and (b) any other information deemed a Trade Secret under and pursuant to (i) The Indiana Uniform Trade Secrets Act (I.C. § 24-2-3-1 et seq.) or other applicable trade secrets law or (ii) applicable common law. Trade Secrets may include items of Confidential Information, XBENEFITS Property, and vice versa.
      • “Confidential Information” means any knowledge or information, written or oral, which related in any manner to the business or the products of XBENEFITS, its affiliates, its customers, or its clients, agents, contacts, including without limitation: referral source contact information, knowledge or information related to development ideas, products, processes, services, research, business plans, concepts, ideas, trade secrets, technical data, designs, financial information, budgets, projections, marketing strategies, employee or potential employee files, employee or potential employee information, customers, customer lists, customer files, contacts, contact lists, contact files, XBENEFITS promotional and sales literature and exhibits, licensees, suppliers, sponsors, potential customers, pricing and licensing data; knowledge or information concerning XBENEFITS’s and its affiliates’ negotiations with other entities and the existence and terms of relationships with such other entities; and knowledge or information obtained from other entities, which knowledge or information XBENEFITS or its affiliates may be under a contractual or other obligation to keep confidential; provided however, that the term shall not include knowledge or information which becomes publicly available through no breach of this Agreement by Affiliate or through no breach by other parties having access to such knowledge or information who have confidentiality obligations to XBENEFITS or its affiliates.
    • Non-Circumvention. For a period of twelve (12) months after termination or expiration of this Agreement, Affiliate will not attempt to do business with, or otherwise solicit any Vendors or other business contacts found or otherwise referred by XBENEFITS, individually or through the Platform, to Affiliate as it relates to the Services for the purpose of circumventing, the result of which shall be to prevent XBENEFITS from realizing or recognizing a taxes, profit, fees, or otherwise, without the specific written approval of the XBENEFITS. If such circumvention shall occur XBENEFITS shall be entitled to any marketing fees due pursuant to this Agreement or relating to such transaction.
    • Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
    • Governing Law and Forum. This Agreement shall be governed by the laws of the State of Indiana without regard to its choice of law rules. The venue for any dispute arising out of, or in any way relating to, this Agreement or any of the terms surrounding this sale shall be in a state court located in Howard County, Indiana, or the federal district court responsible for Howard County, Indiana. EACH PARTY HEREBY UNCONDITIONALLY WAIVES AND RELINQUISHES THEIR RIGHT TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION, OF WHATEVER NATURE, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN. EACH PARTY ACKNOWLEDGES THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, THAT THEY HAVE HAD AN OPPORTUNITY TO CONSULT WITH INDEPENDENT LEGAL COUNSEL, AND THAT THIS JURY WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY AND INTENTIONALLY.  THIS PROVISION IS FREELY ENTERED INTO WITHOUT DURESS OR HAVING BEEN INDUCED BY FRAUD OR MISTAKE OR UNEQUAL BARGAINING POSITIONS. EACH PARTY UNDERSTANDS THE EFFECT OF THIS JURY WAIVER PROVISION AND HAS HAD THE RIGHT TO NEGOTIATE THE TERMS OF THIS PROVISION.
    • No Presumptions Against Any Party. Neither this Agreement nor any provision in this Agreement shall be construed for or against any Party because this Agreement as a whole, or any provision thereof, was requested or drafted by such Party. Neither this Agreement nor any provision in this Agreement nor evidence of any negotiations in connection with it or them shall be offered or received in evidence or used in any way in any action or proceeding between the Parties except to enforce the terms and provisions hereof.
    • Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument.
    • Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, assigns, Affiliates, agents, shareholders, managers, members, officers, directors and attorneys, as applicable, to the extent permitted by law.
    • Modification. XBENEFITS reserves the right to modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion by posting a change notice, revised Agreement, or revised XBENEFITS Policy on the Website, Platform, or by sending notice of such modification to Affiliate by email to the primary email address then-currently associated with Affiliate’s. The effective date of such change will be the date specified, which will be no less than two (2) business days from the date the notice is provided. AFFILIATE’S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH CHANGE WILL CONSTITUTE AFFILIATE’S ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.

 

 

BY APPLYING FOR THE XBENEFITS PROGRAM AND CLICKING ON THE “ACCEPT” ICON BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS OF THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT.

Privacy Policy

Effective Date: April 9th, 2024

XBENEFITS, LLC and its affiliates (collectively, “XBENEFITS”) are committed to respecting and protecting your privacy by developing and deploying technology intended to give you a powerful and safe online experience. We want you to use our Website and the XBENEFITS services (the “Services”) with the knowledge that any Personal Information (as defined in Section 1(A)) you give us is held in accordance with the law. We have written this Privacy Statement to tell you:

What Personal Information we collect about you when you use the XBENEFITS Website (as defined below);

  • Whom we may share your Personal Information with;
  • The legal basis for using your Personal Information;
  • How we store your Personal Information and how long we retain it;
  • Your rights relating to your Personal Information; and
  • How we protect your Personal Information.

The “XBENEFITS Website” (www.XBENEFITS.com) is provided to convey information to you about the Services. The XBENEFITS Website contains things such as literature, demos, and company information. From the XBENEFITS Website, you can choose to allow XBENEFITS to communicate with you regarding your interests.

PLEASE NOTE THAT XBENEFITS PROVIDES MARKETING SERVICES TO ITS VENDORS OR AFFILIATES (EACH, A “PARTNER”). AS PART OF THE SERVICES, ALL INFORMATION UPLOADED BY A XBENEFITS PARTNER IS PROVIDED BY THAT PARTNER AND XBENEFITS ONLY PROCESSES SUCH INFORMATION IN ACCORDANCE WITH ITS AGREEMENT WITH THAT PARTNER AND THE REQUIREMENTS OF APPLICABLE LAW. XBENEFITS CANNOT REMOVE OR UPDATE YOUR PERSONAL INFORMATION STORED WITH A PARTNER.

IF YOU ARE AN INDIVIDUAL WHO HAS PROVIDED INFORMATION TO A PARTNER THROUGH ONE OF XBENEFITS’S PARTNERS OR HAVE APPLIED DIRECTLY THROUGH XBENEFITS, THIS PRIVACY POLICY APPLIES TO YOU, BUT ONLY AS IT PERTAINS TO PERSONAL INFORMATION STORED OR COLLECTED BY XBENEFITS.

  1. Personal Information. We Collect About You When You Use the XBENEFITS Website:

When you use the XBENEFITS Website, XBENEFITS may collect the following:

  1. Personal Information. You Share with XBENEFITS. “Personal Information” is information relating to an identified or identifiable person, such as your name and email address, telephone number, organization name, username and login information, and billing details such as bank details or credit card information, and it is collected when you:

 

  • Fill out an inquiry form on the XBENEFITS Website;
  • Request our newsletter;
  • Ask for a brochure or other information;
  • Contact us by mail, email, or phone;
  • Purchase Services from us; or
  • Access and use the Services.

 

  1.  Automatically-Collected Information. We may gather certain information from you when you visit the XBENEFITS Website, such as:

 

  • Log and device data, e.g., your IP address, operating system, browser information, and device name;
  • Location information, including your business address;
  • The URL that referred you to the XBENEFITS Website;
  • The number of times you visited the XBENEFITS Website; and
  • The pages that you visit on the XBENEFITS Website.

 

  1. Information from Tracking Technologies. XBENEFITS uses cookies and other tracking technologies to make the XBENEFITS Website function and to improve our users’ browsing experiences. You can learn more about our cookies and your cookie choices here.

 

  1. Personal Information. We Collect from Other Sources. XBENEFITS may work with other organizations such as internet search engines, marketing organizations, and cookie providers who may provide us with Personal Information about you.

 

  1. Personal Information We May Obtain From Third Parties:

Links to Other Sites. The XBENEFITS Website contains links to other sites that are not owned or controlled by XBENEFITS. Please be aware that if you click on one of these links or sites that is not controlled by XBENEFITS, you may be subject to privacy policies of the owner of that site. XBENEFITS is not responsible for the privacy practices of other companies or Website.

Social Media Widgets. The XBENEFITS Website includes social media features, similar to the Facebook “like” button and widgets, such as the “share this” button or interactive mini-programs that run on the XBENEFITS Website. These features may collect your IP address, which page you are visiting on the XBENEFITS Website, and may set a cookie to enable the feature to function properly. Social media features and widgets are either hosted by a third party or hosted directly on the XBENEFITS Website. Your interactions with these features are governed by the privacy policy of the companies providing them.

Single Sign-On. You share information about your activities on the XBENEFITS Website using sign-in services such as Facebook Connect or an open ID provider. These services will authenticate your identity and provide you the option to share certain Personal Information with us such as your name and email address to pre-populate our sign-up form.

 

  1. Whom We May Share Your Personal Information With:

Sharing your Personal Information with Other Third Parties. XBENEFITS may share Personal Information about you with certain third parties to:

  1. Send you emails or other communications, including Services-related notices and marketing content (subject to your rights to opt out of certain communications);
  2. Our business partners, suppliers, vendors and sub-contractors in connection with the provision of the Services;
  3. Our website providers who keep the XBENEFITS Website up and running;
  4. Analytics and search engine providers who analyze information regarding use of the XBENEFITS Website;
  5. Enforce the XBENEFITS Terms of Service (XBENEFITS.com/terms), prevent fraud, or respond to security issues;
  6. If we are required by law and/or to enforce or apply our Terms of Service or service agreements. This includes lawful requests by public or legal authorities, including to meet national security or law enforcement requirements in matters related to how your Personal Information is used and maintained, and exchanging information with other organizations for the purposes of fraud protection and credit risk reduction; and
  7. In the event XBENEFITS goes through a business transition, such as a merger, acquisition by another company, sale of all or a portion of its assets, or bankruptcy. You will be notified via a prominent notice on the XBENEFITS Website for 30 days of any such change in ownership or control of your Personal Information.

It is important for you to know ways that XBENEFITS does NOT use or share personal information. Specifically:

  • XBENEFITS does not publicly disclose financial or payment information.
  • XBENEFITS does not publicly disclose authentication information.
  • XBENEFITS prohibits the collection and use of your general web browsing activity.
  • XBENEFITS only gathers information about your visits to the XBENEFITS Website for the purposes described earlier on this page.

Where XBENEFITS is permitted by applicable Data Protection Legislation or applicable Data Protection Agreements to use Personal Data for its internal business purposes in an aggregated and de-identified manner, XBENEFITS agrees to take reasonable measures designed to ensure that the Personal Data cannot be associated with an individual (or, household, where applicable), publicly commits to maintain and use the information in de-identified form only and make no attempt to re-identify the information except where necessary to test its de-identification processes, and contractually obligates any authorized recipients to comply with these obligations.

  1. The Legal Basis for Using Your Personal Information:

The law only allows us to use your Personal Information in certain limited circumstances, which we have listed below:

  1. Where you consent to XBENEFITS using your Personal Information. For example, when you submit information to us on the XBENEFITS Website (e.g., by requesting a demo or information related to the Services), we will process that information to comply with your request for further information. This may include sharing your Personal Information with one of our trusted partners to help facilitate responding to your request. Trusted partners may include trainers, resellers, and implementation or integration specialists.

 

  1. To perform under the contract we have with you. Examples of how we may use your Personal Information to comply with a contract that we have entered into with you are:

 

  • To provide the Services you have requested.
  • To administer the Services, process your payment, and provide you with other requested services.

 

  1. Where it is related to XBENEFITS’ legitimate interests. We consider that we have a legitimate interest in providing you with marketing information about XBENEFITS products and services similar to those that you have subscribed to or inquired about. We will give you the option to opt-out of receiving further communications at the time that you give us your Personal Information and every time we send you a marketing email or letter.

 

  1. Where we need to comply with a legal obligation. Examples of how we may use your Personal Information to fulfill a legal obligation are:

 

  • To keep records for tax purposes.
  • To comply with requests from local, state, or federal governments or law enforcement officials.
  • To comply with any judicial, administrative, or similar proceeding or order, such as a subpoena.
  • To investigate suspected fraud, harassment, physical threats, or other violations of any law, rule or regulation, this Privacy Statement, or the rights of third parties or to investigate any suspected conduct which we deem improper.

 

  1. How We Store and Protect Your Personal Information:

Storage of Personal Information. We are committed to ensuring that we have appropriate technical, administrative, organizational, and physical safeguards in place to ensure that your Personal Information is protected against loss or misuse. All Personal Information you provide to us is stored on XBENEFITS’ secure servers or on secure servers operated by reputable third-party vendors. XBENEFITS encrypts all data transmissions using modern cryptography methods such as HTTPS with current TLS security protocols.  By using the XBENEFITS Website, you authorize XBENEFITS to transfer, store, and process your Personal Information in the United States or any other country in which XBENEFITS or its affiliates and subcontractors maintain facilities or operations.

Retention of information. We only hold your Personal Information for as long as necessary for the purposes for which we collected your information.

  1.  Your Rights in and to Your Personal Information:

Identifying the Controller and Processor of Personal Information. XBENEFITS is the controller of your Personal Information. XBENEFITS has different vendors around the world that provide the assist XBENEFITS with its Services. As noted above, XBENEFITS is a service provider and processor for its Partners, and it may process Partner data at the direction of its Partners. To the extent that you have questions about a specific Partner’s privacy practices, please review that Partner’s privacy policy.

Accessing Personal Information. You have the right to access the Personal Information about you that we control. If you wish to receive a copy of that Personal Information, please contact support@XBENEFITS.com or write to us at our postal address listed below.

Revoking Consent and Restricting Processing of your Personal Information. In those circumstances where we process your Personal Information through your consent, you have the right to revoke that consent at any time. Additionally, in certain circumstances, you may request that we temporarily or permanently stop processing some or all of your Personal Information. To learn more about or exercise these rights, you may contact XBENEFITS at support@XBENEFITS.com.

Changing or Deleting your Personal Information. You can ask XBENEFITS at any time to change, amend, or delete the Personal Information that we hold about you or ask us not to contact you with any further marketing information. You can also ask us to restrict the information that we process about you. You can request that we change, amend, or delete your information or restrict our use of such information by emailing us at support@XBENEFITS.com.

Opting Out of Direct Marketing. You have the right to opt out of direct marketing communications from us. To exercise this right, you may contact XBENEFITS at support@XBENEFITS.com. You may also opt out of marketing communications using the link provided in any marketing email from XBENEFITS. If you do not opt out of receiving mailings, XBENEFITS will communicate with you (generally by email or the XBENEFITS support website) to provide support, request feedback, provide marketing and service information, request marketing input, and provide special offers and incentives related to XBENEFITS. Please note that if you opt out of marketing communications, you may still receive Service-related communications unrelated to marketing, such as transaction confirmations and responses to requests.

Blogs and Forums. The XBENEFITS Website offers publicly accessible blogs or community forums. You should be aware that any information you provide in these areas may be read, collected, and used by others who access the XBENEFITS Website. We are not responsible for any Personal Information you choose to submit in these forums or other community sites. We display personal testimonials of satisfied Partners on the XBENEFITS Website in addition to other endorsements. With your prior consent, we may post your testimonial along with your name. If you wish to update or delete your testimonial, you can contact us at support@XBENEFITS.com.

Rights of California Users. California law provides California residents with additional rights. For more information about these rights and how to exercise them, please see our California Privacy Notice.

Right to Prevent Automated Decision Making. You have a right to ask us to stop any automated decision making. We do not intentionally carry out such activities, but if you do have any questions or concerns, we would be happy to discuss them with you and you can contact us at support@XBENEFITS.com.

Transferring Personal Information. In certain circumstances, you have the right to request that your Personal Information is transferred by us to another organization (this is called “data portability”). Please contact us at support@XBENEFITS.com with the details of your request.

Contact your Local Supervisory Authority. At all times, you are free to contact and/or lodge a complaint with your local supervisory authority regarding the privacy concerns that you may have.

Binding Arbitration. There is the possibility, under certain conditions, for you to invoke binding arbitration for an incident involving your Personal Information.

Liability in Cases of Onward Transfers. XBENEFITS has liability in cases of onward transfers of Personal Information to third parties.

If you have questions or concerns about how your Personally Identifiable Information may be used by XBENEFITS, you may contact our Compliance Department by sending an email to support@XBENEFITS.com.

XBENEFITS has further committed to cooperate with the EU data protection authorities (DPAs) with regard to unresolved complaints concerning human resources data transferred from the EU in the context of the employment relationship. If you do not receive timely acknowledgment of your complaint from XBENEFITS, or if we have not addressed your complaint to your satisfaction, please contact the EU DPAs for more information or to file a complaint. The services of the EU DPAs are provided at no cost to you.

If you have questions or concerns about how your Personally Identifiable Information may be used by XBENEFITS, you may contact our Compliance Department by sending an email to support@XBENEFITS.com. 

European Union Model Clauses. XBENEFITS offers European Union Model Clauses, also known as Standard Contractual Clauses, to meet the adequacy and security requirements for our Partners that operate in the European Union, and other international transfers of Partner data. A copy of our standard data processing addendum, incorporating Model Clauses, is available by emailing support@XBENEFITS.com.

 

U.S. Government Oversight. XBENEFITS is subject to the investigatory and enforcement powers of the Federal Trade Commission (FTC) or any other U.S. authorized statutory body.

8. Miscellaneous:

Changes to this Privacy Statement

‍We reserve the right to modify this Privacy Statement at any time, so please review it frequently. If XBENEFITS decides to change our privacy practices, we will post those changes to this Privacy Statement on the XBENEFITS Website and any other places we deem appropriate so that you are aware of the changes. Your continued use of this Site following the posting of changes constitutes your acceptance of such changes. If you have any questions or comments about this Privacy Statement, our email address is support@XBENEFITS.com.

Children’s Personal Information

‍XBENEFITS does not knowingly receive, maintain, user, or transfer the Personal Information of any person under the age of 18. XBENEFITS’s Services and the XBENEFITS Website are not directed to children, and if you are aware of any child who has provided XBENEFITS his or her Personal Information we ask you please let us know by emailing support@XBENEFITS.com.

Questions about this Privacy Policy should be directed to:

Email: support@XBENEFITS.com

 

Mail: XBENEFITS, LLC

700 East Firmin Street 

Kokomo, IN, 46902‍

 

‍

Last updated: February 14th, 2024

 

4854-5146-8449, v. 1

 

 

XBENEFITS Privacy Policy for California Residents

This Privacy Notice for California Residents (“California Privacy Notice”) supplements the information contained in the general Privacy Policy of XBENEFITS, LLC (“XBENEFITS,” “we,” or “us”), which is incorporated in California Privacy Notice by this reference. This California Privacy Notice applies solely to those who reside in the State of California (“consumers” or “you”), including visitors to www.XBENEFITS.com. or any other of our websites that link to this California Privacy Notice (collectively, the “Site”). We adopt this California Privacy Notice to comply with the California Consumer Privacy Act of 2018 (“CCPA”) and any terms defined in the CCPA have the same meaning when used in this California Privacy Notice.

Please note that this California Privacy Notice is limited to the information that XBENEFITS may collect in its marketing activities and through its website. While XBENEFITS may collect certain additional personal information in its role as an employer, service provider, or contracting party, that information goes beyond the scope of this California Privacy Notice.

1. Information We Collect

We collect information that identifies, relates to, describes, references, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household (“Personal Information”). In particular, we collect, and within the last 12 months we have collected, the following categories of Personal Information from the sources and for the business or commercial purposes described below:

For clarity, Personal Information does not include: publicly available information from government records, deidentified or aggregated consumer information, or information excluded from the CCPA’s scope.

In addition to the business or commercial purposes for collection described above, we have in the preceding 12 months collected all categories of Personal Information described above for the following purposes:

  • To process your requests and transactions and to prevent transactional fraud.
  • To provide you with support and to respond to your inquiries, including to investigate and address your concerns and monitor and improve our responses.
  • For testing, research, analysis, and product development, including to develop and improve this Site and our products and services.
  • To provide, support, personalize, and develop this Site and our products and services.
  • To help maintain the safety, security, and integrity of this Site and our products, services, databases, other technology assets, and business.
  • To deliver content and product and service offerings relevant to your interests, including targeted offers and ads through this Site, third-party sites, and via email or text message (with your consent, where required by law).

We may also use or disclose the Personal Information we collect for one or more of the following purposes:

  • To respond to law enforcement requests and as required by applicable law, court order, or governmental regulations.
  • As described to you when collecting your Personal Information or as otherwise set forth in the CCPA.
  • To evaluate or conduct a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of XBENEFITS’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which Personal Information held by XBENEFITS about the users of this Site is among the assets transferred.

We will not collect additional categories of Personal Information or use the Personal Information we collected for materially different, unrelated, or incompatible purposes without providing you notice.

2. Disclosures of Personal Information for a Business Purpose

We share your Personal Information for a business purpose to the following categories of third parties:

  • Service providers.
  • Affiliates.
  • Advertising networks.
  • Data analytics providers.

In the preceding 12 months, we have disclosed to these third parties the following categories of Personal Information for a business purpose:

  • Identity Data.
  • Customer Records Data.
  • Commercial Data.
  • Internet Use Data.

3. Your Rights and Choices

The CCPA provides you, as California residents, with specific rights regarding your Personal Information. This section describes your CCPA rights and explains how to exercise those rights.

Access to Specific Information and Data Portability Rights

‍You have the right to request that we disclose certain information to you about our collection and use of your Personal Information over the past 12 months. Once we receive and confirm your verifiable consumer request (see Exercising Access, Data Portability, and Deletion Rights), we will disclose to you:

  • The categories of Personal Information we collected about you.
  • The categories of sources for the Personal Information we collected about you.
  • Our business or commercial purpose for collecting that Personal Information.
  • The categories of third parties with whom we share that Personal Information.
  • The specific pieces of Personal Information we collected about you (also called a data portability request).
  • If we disclosed for a business purpose, a list identifying the Personal Information categories that each category of recipient obtained.

Deletion Rights

‍You have the right to request that we delete any of your Personal Information that we collected from you and retained, subject to certain exceptions. Once we receive and confirm your verifiable consumer request (see Exercising Access, Data Portability, and Deletion Rights), we will delete (and direct our service providers to delete) your Personal Information from our records, unless an exception applies.

Right to Prevent Sale of Personal Information

‍To request XBENEFITS not to “sell” your Personal Information, please submit the form found here. Please note, some transfers of your Personal Information may not be considered “sales” and certain exemptions may apply under the CCPA. Your selection does not affect other sharing of your information, as outlined in our Privacy Policy.

Exercising Access, Data Portability, Do Not Sell, and Deletion Rights

 

‍To exercise the access, data portability, and deletion rights described above, please submit a verifiable consumer request to us by either:

 

XBENEFITS, LLC

700 East Firmin Street Suite 99

Kokomo, IN, 46902‍

Attn: Compliance Department

 

Only you, or someone legally authorized to act on your behalf, may make a verifiable consumer request related to your Personal Information. You may also make a verifiable consumer request on behalf of your minor child.

You may only make a verifiable consumer request for access or data portability twice within a 12-month period. The verifiable consumer request must:

  • Provide sufficient information that allows us to reasonably verify you are the person about whom we collected Personal Information or an authorized representative.
  • Describe your request with sufficient detail that allows us to properly understand, evaluate, and respond to it.

We cannot respond to your request or provide you with Personal Information if we cannot verify your identity or authority to make the request and confirm the personal information relates to you.

Making a verifiable consumer request does not require you to create an account with us, but we may require authentication of the consumer that is reasonable in light of the nature of the Personal Information requested.

We will only use Personal Information provided in a verifiable consumer request to verify the requestor’s identity or authority to make the request.

Response Timing and Format

‍We endeavor to respond to a verifiable consumer request within 45 days of its receipt. If we require more time (for a maximum total of 90 days), we will inform you of the reason and extension period in writing.

We will deliver our written response by mail or electronically, at your option.

Any disclosures we provide will only cover the 12-month period preceding the receipt of a verifiable consumer request. The response we provide will also explain the reasons we cannot comply with a request, if applicable. For data portability requests, we will select a format to provide your Personal Information that is readily useable and should allow you to transmit the information from one entity to another entity without hindrance.

We do not charge a fee to process or respond to your verifiable consumer request unless the request is excessive, repetitive, or manifestly unfounded. If we determine that the request warrants a fee, we will tell you why we made that decision and provide you with a cost estimate before completing your request. Alternatively, we may decline to respond to the request and notify you of our reason for doing so.

Non-Discrimination

‍We will not discriminate against you for exercising any of your CCPA rights. However, we may offer you certain financial incentives permitted by the CCPA that can result in different prices, rates, levels, or quality of goods or services. Any CCPA-permitted financial incentive we offer will reasonably relate to your personal information’s value and contain written terms that describe the program’s material aspects. Participation in a financial incentive program requires your prior opt-in consent, which you may revoke at any time.

4. Changes to this Privacy Notice

XBENEFITS reserves the right to update or change this California Privacy Notice at any time. When we make changes to this California Privacy Notice, we will post the updated notice on this Site and update the date on which California Privacy Notice was last updated. The date this California Privacy Notice was last updated is at the bottom of this page. You are responsible for periodically reviewing this Site and this California Privacy Notice to check for any updates or changes. Your continued use of this Site following the posting of changes constitutes your acceptance of such changes.

Contact Us

XBENEFITS’ General Privacy Statement: You can view XBENEFITS’ General Privacy Statement here: https://www.XBENEFITS.com/privacypolicy

If you have any questions or comments about this California Privacy Notice or our privacy practices, your choices and rights regarding use of your Personal Information, or wish to exercise your rights under California law, please contact us at:

Email: support@XBENEFITS.com.

Mail:

XBENEFITS, LLC

700 East Firmin Street Suite 99

Kokomo, IN, 46902‍

Attn: Compliance Department

Last updated: January 30, 2024

4886-6463-2993, v. 1

TERMS OF SERVICE

Effective Date: April 9th, 2024

  1. IF YOU ARE AN AFFILIATE OR VENDOR (AS DEFINED IN THE APPLICABLE AGREEMENT) THAT HAS EXECUTED AN ASSOCIATE AFFILIATE AGREEMENT OR A VENDOR AGREEMENT WITH XBENEFITS LLC THAT IS CURRENTLY IN EFFECT, THESE EXTERNAL USER TERMS OF SERVICE DO NOT APPLY TO YOU.

IF YOU ARE A POTENTIAL CUSTOMER, AFFILIATE, VENDOR, OR OTHER INDIVIDUAL WHO HAS SUPPLIED INFORMATION THROUGH ONE OF XBENEFITS’S AFFILIATES OR VENDORS, THESE EXTERNAL USER TERMS OF SERVICE DO NOT APPLY TO YOU.

  1. This External User Terms of Service (these “Terms of Service”) states the terms upon which one or more XBENEFITS services (collectively, the “Service”), offered by XBENEFITS, LLC or one or more of its affiliates, is provided to a user (“External User” or “You”) accessing or using the Service at the invitation of a XBENEFITS Affiliate or Vendor (as defined below). An External User is a person outside the Affiliate’s organization who is given rights by the Affiliate to access some or all of the Affiliate’s Service repository.

References to “Affiliate” means an organization party to a then-current XBENEFITS Affiliate Associate Agreement or Vendor Agreement to use the Service on a fee-paying commercial basis. External User is not a third-party beneficiary of any agreement between XBENEFITS and an Affiliate. As a condition of using the Service, You acknowledge and agree all data, documents, and information in the Service (“Affiliate Data”) will be treated by XBENEFITS as if it belongs to, and is controlled by, the Affiliate. The Affiliate is solely responsible to inform You of its policies regarding handling of Affiliate Data, including obtaining consent necessary for using, transferring, and processing Affiliate Data in accordance with applicable laws.

XBENEFITS reserves the right at any time to modify these Terms of Service and to impose new or additional terms or conditions on the use of the Service by an External User. You will be notified of modified Terms of Service through Your user account.

  1. External Users must accept these Terms of Service in order to use the Service. You acknowledge that Your electronic submissions constitute Your agreement and intent to be bound by these terms.
  1. User Registration Details

In consideration of Your use of the Service, You agree to provide accurate, and complete registration information, and to maintain and promptly update such information to keep it current, and complete. You must be at least 18 years of age to accept these Terms of Service and to use the Service.

  1. Use of the Service

XBENEFITS’s duties are owed to Affiliate or Vendor.  XBENEFITS does not charge a fee to External Users and XBENEFITS disclaims any and all liability to External User. Except for any duty owed by the Affiliate to any External User, use of the Service is at External User’s sole risk.  XBENEFITS reserves the right to modify the Service, in whole or part, in its sole discretion and without notice to External User. Your account is to be used solely by You. Use of an account by more than one person violates these Terms of Service.

  1. External User shall:
    1. Maintain the confidentiality of Your password and account and monitor activity conducted through Your account.
    2. Use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service.
    3. Notify Affiliate and XBENEFITS immediately of any unauthorized use of Your account or any breach of security.
    4. Comply with these Terms of Service, applicable law and government regulations, including export control, data privacy, and intellectual property laws, and terms of use applicable to third-party products You may access in connection with Your use of the Service.
    5. Ensure Affiliate Data is lawfully uploaded to the Service and does not violate any third-party’s rights, including copyright, trademark, or other. intellectual property rights.
    6. Provide, configure and maintain all hardware and user-side software necessary to use and access the Service and Internet access, and ensure the foregoing provide sufficient capacity, performance and connectivity and meet the service levels recommended by XBENEFITS.
    7. Maintain appropriate security, and protection of the devices accessing the Service.
    1. Use the Service only for the internal business purposes of the Affiliate that invited You to access the Service.
    2. Except as permitted by applicable laws that cannot be waived, not (i) share login credentials for the Service with any other person; (ii) transfer, copy, modify, sublicense, distribute, rent, lease, sell, convey, translate, disassemble, disable, hack, reverse engineer, decompile, frame, mirror, resell, disrupt or interfere the Service, features, functions, or performance thereof, or data or information contained therein; (iii) create derivative works from, build a product using ideas, features, functions, or graphics similar to the Service, or otherwise use the Service to compete with  XBENEFITS in any way; (iv) use the Service in any way that breaches the rights of any third party or violates any Law, including export control and data privacy laws; or (v) use the Service to store or transmit unlawful content.

External User agrees that XBENEFITS may access or disclose information about You or Your use of the Service to: (a) provide the Service, including to provide support to an Affiliate; (b) as required by applicable law; and (c) protect the rights, property or security of XBENEFITS, its users, or a third-party.

  1. Termination of the Service

External User’s access and use of the Service may be terminated by XBENEFITS and/or by the Affiliate at any time and without notice.  XBENEFITS does not owe any obligation to You with respect to any Affiliate Data You may have uploaded or otherwise transmitted to the Service.

  1. Intellectual Property and License Rights

The Service uses proprietary and confidential information that is protected by United States and international copyright, trademark, patent, trade secret and/or other intellectual property or proprietary rights laws.  XBENEFITS or its licensors are the sole and exclusive owners of all intellectual property (including trademarks) in the Service, and You neither have nor acquire any ownership interest, license, lease, or right to the Service except as provided herein.

  1. No Warranty

ALL SERVICES, INCLUDING ANY PRODUCTS, SOFTWARE OR SERVICES PROVIDED BY THIRD PARTIES, ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND.  XBENEFITS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, XBENEFITS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE THEREOF WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES. YOU ACKNOWLEDGE THE SERVICES MIGHT BE SUBJECT TO OCCASIONAL DELAYS, INTERRUPTIONS, AND OTHER ISSUES INHERENT TO INTERNET SERVICES, AND THAT THE SERVICES MAY CONTAIN DEFECTS AND/OR MAY NOT OPERATE UNINTERRUPTED OR ERROR FREE.

  1. Limitation of Liability

IN NO EVENT SHALL  XBENEFITS, ITS AFFILIATES, DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS, EMPLOYEES, AND/OR AGENTS BE LIABLE UNDER THESE TERMS OF USE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR BREACH OF CONTRACT OR WARRANTY, OR FOR NEGLIGENCE OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF  XBENEFITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  XBENEFITS’S MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS RELATED TO OR ARISING OUT OF THESE TERMS OF USE, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, OR ANOTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED $100 U.S. DOLLARS IN THE AGGREGATE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. MULTIPLE CLAIMS SHALL NOT INCREASE ANY OF THE LIMITATIONS SET FORTH IN THIS SECTION.

The limitations in this section shall apply to the maximum extent permitted by law.

  1. Governing Law

The Terms of Service and any dispute arising out of or relating hereto will be governed by the same governing law as the Affiliate Associate Agreement, without regard to conflict of law or the United Nations Convention on the International Sale of Goods. Exclusive jurisdiction over any dispute arising out of these Terms of Service will rest in the same courts identified in the Affiliate Associate Agreement. In any action or proceeding to enforce rights under the Terms of Service, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees. If You want to know the governing law provisions of the Affiliate Associate Agreement, please direct Your question to the Affiliate or to XBENEFITS using the details at the end of this document.

  1. Miscellaneous
    1. Any notices sent to You pursuant to these Terms of Service will be sent to the email address associated with Your account.
    2. You may not assign or transfer Your rights or obligations under these Terms of Service to any party.  XBENEFITS may assign these Terms of Service in their entirety and without Your consent to an affiliate of XBENEFITS in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of XBENEFITS’s stock or assets.
    3. If any provision in these Terms of Service is held invalid or unenforceable for any reason, the remaining provisions shall continue in full force and effect.
    4.  XBENEFITS’s failure to enforce any provision in these Terms of Service shall not be construed as a waiver of that provision.
    5. You agree in the event of Your use of the Service in violation of these Terms of Service, or the threat of either of the foregoing, XBENEFITS shall be entitled to injunctive relief.
    6. The Terms of Service, including any terms incorporated by reference into the Terms of Service, constitute the entire agreement between You and XBENEFITS and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
    7.  XBENEFITS reserves the right to modify the Services, these Terms of Service, and its privacy policy at its sole discretion and without notice to You. Your continued use of the Services after the effective date of any such modification will constitute Your acceptance thereof.
    8. Sections 2, 4, 6, 7, 8, 10 of these Terms of Service will survive any termination or expiration of the Terms of Service.
    9. For all purposes of these Terms of Service, the word “including” and related terms mean inclusion without limitation and do not limit the generality of the statements they qualify, and the word “or” is not exclusive and shall have the meaning commonly ascribed to the term “and/or.”

Questions about these Terms of Service should be directed to:
‍Email: support@XBENEFITS.com

 

Mail:

 

XBENEFITS, LLC

700 East Firmin Street Suite 99

Kokomo, IN, 46902‍

 

Last updated: January 30, 2024

 

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