HeathSherpa Agent Platform Global Terms of Use

These Terms of Use shall apply to each individual agent (“User”) who accesses the Wellmark Inc Agent Platform (the “Platform”), whether through the User’s own account on the Platform, or through the account of an agency with which the User is affiliated. Please read these Terms of Use carefully. By accessing or using the Platform, you accept and agree to be bound and abide by these Terms of Use as well as any policies, addenda or other documents incorporated herein by reference. If you do not want to agree to these Terms of Use, you must not access or use the Platform.

1. LICENSE TO USE THE PLATFORM

Subject to these Terms of Use, Wellmark Inc (“Wellmark Inc”) grants to User a limited, non-exclusive, non-assignable, non-transferable license to access and use the Platform only for the permitted purposes expressly set forth herein. Any other commercial use or exploitation of the Platform or any content, code, information, data or other materials transmitted through the Platform is strictly prohibited. In no event shall User use any trademark, trade name, service mark, icon, logo or other indicator of Wellmark Inc without Wellmark Inc’s advance, express, written permission in each instance. All rights not expressly granted to User hereunder are reserved to Wellmark Inc.

2. CREATION AND USE OF ACCOUNT

In order to access or use the Platform, you will be required to establish an account and obtain a login name and password (“Account Credentials”). You authorize Wellmark Inc to process any account transactions initiated through the use of your Account Credentials and you accept responsibility for all activities that occur under your account. You are solely responsible for maintaining the confidentiality of your Account Credentials. You must immediately notify Wellmark Inc of any unauthorized use of your Account Credentials, and you are responsible for any unauthorized activities resulting from the compromise of your Account Credentials. In no event will Wellmark Inc be liable for the unauthorized use or misuse of your account or Account Credentials.

You are prohibited from violating or attempting to violate the security of the Platform, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Platform or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.

You agree not to share or disclose your Account Credentials to any third party. You agree that you are fully responsible for all activity occurring under your user ID. To the extent that you grant another party access to your account by sharing your Account Credentials, you will be responsible for any activities undertaken by such third party through the use of your account. User shall be responsible for any access to or use of the Platform by User or any person or entity using User’s Account Credentials, whether or not such access or use has been authorized by User, and whether or not such person or entity is an employee or broker of User.

You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Platform or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Platform. iFraming is strictly prohibited. You may deep link to a feature or content on the Site only with the prior written permission of both HealthSherpa and the Centers for Medicare & Medicaid Services ("CMS").

Violations of system or network security may result in civil or criminal liability. Wellmark Inc will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.

Wellmark Inc shall have the right, in its sole discretion, to deactivate a User’s account or reset a User’s Account Credentials if it reasonably determines that suspicious activity or misuse of the account has occurred.

3. ACCEPTABLE USE OF THE PLATFORM

User may use the Platform only for lawful purposes and in accordance with these Terms of Use. You agree to be bound by the applicable provisions of the Wellmark Inc Acceptable Use Policy, incorporated herein and made part of these Terms of Use by reference. You agree to conduct your business activities in a manner which complies with all applicable federal and state laws, conforms to the highest standards of business ethics, and maintains the good business reputation of Wellmark Inc and its other customers. In particular, and without limitation, you agree not to do any of the following:

• Violate any state or federal law relating to the marketing or sale of insurance policies;
• Submit an application for insurance on behalf of a consumer for whom you have not obtained appropriately documented consent. Wellmark Inc shall have the right to contact consumers to verify that they consented to an application submitted on their behalf through the Platform.
• Engage in false advertising or in any fraudulent or deceptive business practice;
• Violate the Telephone Consumer Protection Act (TCPA) by sending an auto-dialed, voice-recorded message, or SMS text to individuals who have not provided prior express written consent or are on the National Do Not Call Registry.
• Post, distribute, or otherwise make available or transmit any data, text, medium or computer file, telephonic conversations, chat or email exchanges that Wellmark Inc, in its sole discretion, deems to be: (a) defamatory, abusive, harassing, insulting or threatening; (b) bigoted, hateful, or offensive; (c) vulgar, obscene, or sexually explicit; or (d) encouraging of or advocating illegal activity or discussing illegal activities with the intent to commit them;
• Post, distribute, or otherwise make available or transmit any data, text, medium or computer file that (a) infringes any right of a third party under any domestic or international law, including but not limited to copyright, patent, trademark, trade secret or other proprietary right; or (b) violates any right of privacy or publicity of a third party in the absence of such third party's express permission to disseminate his or her personal information, voice or likeness;
• Post, distribute or otherwise make available or transmit any software or files that contain a virus or other harmful component;
• Impersonate any person or entity or misrepresent your identity or affiliation with another person or entity;
• Delete any legal notices or disclaimers, including but not limited to copyright and trademark symbols, or modify any marks which you do not own or have express permission to modify.
• Use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party’s use of the Platform.
• Use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform.
• Use any manual process to monitor or copy any of the material on the Platform or for any other unauthorized purpose without our prior written consent.
• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer or database connected to the Platform.
• Otherwise attempt to interfere with the proper working of the Platform.
• Behave in an inflammatory, hostile, belligerent, rude or disrespectful manner towards Wellmark Inc’s employees or any other individual through or in connection with the Platform.

Wellmark Inc shall have the right, in its sole discretion, to deactivate your account if it believes that you have done any of the above.

4. PERSONALLY IDENTIFIABLE INFORMATION

User shall ensure that any personally identifiable information (PII) collected or transmitted through the Platform by User was obtained with proper consent and authority. User shall implement appropriate safeguards to protect all PII in User’s possession and control or that resides in User’s account on the Platform and shall comply with all applicable federal and state law governing the use and disclosure of PII. User shall be responsible for any unauthorized use or disclosure of PII in User’s possession and control or that resides in User’s account on the Platform, except to the extent that such unauthorized use or disclosure of PII was directly caused by Wellmark Inc (and provided that User has otherwise obtained proper consent and authority to collect or transmit such PII through the Platform), and shall notify affected individuals of such unauthorized use or disclosure in accordance with applicable law at User’s sole cost and expense. User shall be solely responsible for unauthorized use or disclosure of PII resulting from a compromise of User’s Account Credentials. User shall indemnify, defend, and hold Wellmark Inc and its employees, agents, officers, and directors harmless from and against any claims, damages, fines, penalties, costs, expenses (including reasonable attorneys’ fees) or other liabilities arising out of or related to an unauthorized use or disclosure of PII resulting from (i) User’s Account Credentials, (ii) User’s failure to implement reasonable safeguards to protect the confidentiality of PII in User’s possession, and (iii) any other cause not directly attributable to Wellmark Inc.

5. HIPAA MUTUAL SUBCONTRACTOR BUSINESS ASSOCIATE AGREEMENT (“BAA”)

Both User and HealthSherpa provides services for or on behalf of health plans and other entities in the healthcare industry (“Covered Entities”) that may require them to create, receive, maintain, or transmit individually identifiable health information that is protected by federal and state law (“protected health information” or “PHI,” as further defined below), and thus meet the definition of “business associates” under HIPAA. Furthermore, User and HealthSherpa may each be considered a subcontractor business associate to the other depending on the services performed by each party for the other that involve the use or disclosure of PHI. Pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended by Subtitle D of the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (collectively, “HIPAA”) and its implementing regulations set forth at 45 C.F.R. Parts 160-164, including but not limited to, the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Health Information (the “Security Rule”), business associates must ensure that any subcontractors to whom they provide PHI obtained from, or created, received, maintained, or transmitted for or on behalf of Covered Entities, agree to the same restrictions and conditions that apply to business associate with respect to PHI. Therefore, to the extent that either User or HealthSherpa is acting as a business associate to the other, each party agrees to the following (“Business Associate” shall refer to both User and HealthSherpa, as applicable):

• Definitions:
  • “Breach” means the unauthorized acquisition, access, use, or disclosure of PHI not permitted by HIPAA which compromises the security, privacy, or integrity of PHI.
  • “Disclose” and “disclosure” mean, with respect to PHI, to release, transfer, provide access to, or divulge in any manner outside Business Associate’s internal operations.
  • “Electronic protected health information” or “Electronic PHI” means protected health information that is transmitted by electronic media (as defined by the Privacy Rule and Security Rule) or is maintained in electronic media. Electronic PHI may be transmitted and maintained on devices such as cell phones, PDAs, text pagers, and USB static discs.
  • "Protected health information" or "PHI" means information, including demographic information, that (i) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the payment for the provision of health care to an individual; (ii) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (iii) is created, received, maintained, or transmitted by Business Associate or a Covered Entity. PHI includes, without limitation, Electronic PHI.
  • "Secretary" means the Secretary of the U. S. Department of Health and Human Services or their designee.
  • "Services" means those activities, functions, or services that Business Associate provides for, or on behalf of the other party.
  • "Unsecured PHI" means PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through use of a technology or methodology specified in guidance by the Secretary.
  • “Use” or “uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination, or analysis of such PHI within Business Associate’s internal operations.
  • Terms used, but not otherwise defined in this BAA shall have the same meaning as those terms are given in HIPAA.
• Assurances by Business Associate Regarding PHI. Business Associate warrants that it shall comply with all provisions of the Privacy Rule and Security Rule that apply to it.
• Permitted Uses and Disclosures of PHI. Except as otherwise specified herein, Business Associate may use and disclose PHI as necessary to perform the Services for or on behalf of the other party, provided that such use or disclosure would not violate the Privacy Rule or Security Rule if done by the other party or a Covered Entity. Business Associate shall use the minimum amount of PHI necessary to perform the Services. Business Associate agrees to:
  • Not use or disclose PHI other than as permitted or required by this BAA, or as required by law.
  • Implement appropriate administrative, physical and technical safeguards to prevent unauthorized use or disclosure of PHI, and comply with the Security Rule with respect to Electronic PHI to prevent use or disclosure of Electronic PHI other than as provided for by this BAA.
  • Promptly report to the other party any use or disclosure of PHI not provided for by this BAA of which it becomes aware, including Breaches of Unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware. An unauthorized use or disclosure shall be treated as discovered by Business Associate as of the first day on which such use or disclosure is known to Business Associate, or by exercising reasonable diligence, should have been known to Business Associate. Business Associate further agrees to fully cooperate in good faith with and to assist the other party in complying with the requirements of HIPAA with respect to an unauthorized use or disclosure of PHI.
  • Mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI, including Unsecured PHI, by Business Associate in violation of the requirements of this BAA or HIPAA.
  • In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to PHI.
  • Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA.
  • If Business Associate carries out any of a Covered Entity’s obligations under the Privacy Rule pursuant to this BAA, Business Associate shall comply with requirements of the Privacy Rule that would be applicable to the Covered Entity in the performance of such obligations.
  • Absent prior written approval from the other party, Business Associate shall not transfer PHI to any person or entity located outside the United States, including Business Associate’s employees, agents, representatives or subcontractors. A transfer outside the United States occurs if Business Associate or its employees, agents, representatives or subcontractors physically located outside the United States are able to access, use, or disclose PHI maintained in the United States.
• Treatment of PHI Upon Termination. Upon termination of the parties’ relationship, if it is infeasible to return or destroy PHI shared pursuant to these Terms of Use, Business Associate shall extend the protections of this BAA to such PHI and limit any further uses of such PHI to those purposes that make the return or destruction of the PHI infeasible. The obligations of this section shall survive termination of these Terms of Use and BAA.
• Use of PHI for Business Associate’s Operations. Business Associate may use and/or disclose PHI to the extent necessary for Business Associate’s proper management and administration, or to carry out Business Associate’s legal responsibilities if:
  • The disclosure is required by law, or;
  • Business Associate obtains reasonable assurances from any person or organization to which Business Associate shall disclose such PHI that such person or organization shall (i) hold such PHI in confidence and use or further disclose it only for the purpose for which Business Associate disclosed it to the person or organization, or as required by law; and (ii) notify Business Associate of any occurrence which the person or organization becomes aware of in which there was a privacy or security incident and/or the confidentiality of such PHI was breached.

6. USER COMPLIANCE WITH APPLICABLE LAW

User agrees to remain in compliance with all applicable federal and state laws including, but not limited to the following:

• Federal and state laws governing the sale and marketing of insurance policies, including those governing licensure and appointment of insurance agents;
• Federal and state laws governing PII, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Gramm-Leach-Bliley Act (GLBA), if applicable;
• The Telephone Consumer Protection Act (TCPA);
• The Patient Protection and Affordable Care Act (PPACA).

7. DELEGATED AND DOWNSTREAM ENTITIES

Pursuant to these Terms of Use User may provide certain administrative services for the benefit of, HealthSherpa, Qualified Health Plan (“QHP”) issuers, and individuals enrolled in QHPs through the federally-facilitated exchange and therefore acts as a downstream entity or delegated entity (as those terms are defined in 45 C.F.R. § 156.20) to such QHP issuers. As a downstream or delegated entity User will: (i) Comply with all applicable laws and regulations, including but not limited to the Patient Protection and Affordable Care Act of 2010, Pub. L. No.11-148, as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. No. 111-152) (collectively, the “ACA”); applicable provisions of 45 C.F.R. Parts 155 and 156 (the “ACA Regulations”); and applicable subregulatory guidance issued by CMS; (ii) will grant access to its books, contracts, computers, or other electronic systems relating to User’s compliance with the ACA and the ACA Regulations to HealthSherpa, CMS, and/or the U.S. Department of Health and Human Services (or their designees) for the duration of the period in which User uses the Platform and for ten (10) years thereafter; and (iii) comply with all relevant provisions of the Enhanced Direct Enrollment Agreement currently in effect between CMS and HealthSherpa and/or one or more of its QHP issuer customers. User agrees that they shall require its subcontractors, vendors, or other individuals or entities providing administrative services to User related to User’s activities through the Platform to be in compliance with the requirements set forth in this section.

8. CONSUMER CONSENT

User agrees that they will obtain each consumer’s lawful and appropriately documented consent to the submission of a health insurance application on their behalf in compliance with 45 C.F.R. § 155.220(j)(2)(iii). The documentation of consent must include the following elements: (i) a clear statement that the consumer is consenting to allow User to assist with the consumer’s enrollment and/or application for advance payment of the premium tax credit and cost-sharing reductions for QHPs; (ii) a description of the scope, purpose, and duration of the consent; (iii) the date consent was given; (iv) the name of the consumer or their authorized representative; (v) the name of User as the agent being granted consent; and (vi) a description of the process through which the consumer or their authorized representative may rescind the consent. User shall appropriately secure and maintain such documented consent for each application submitted through the Platform for ten (10) years after such submission. User hereby gives HealthSherpa permission to access any consent documentation uploaded by User to the Platform and to share such documentation with insurance carriers and governmental authorities (including but not limited to CMS and state departments of insurance) in connection with fraud prevention initiatives.

9. USAGE MONITORING AND AUDITING

So that information provided through Wellmark Inc’s website and HealthCare.gov remains accurate and available to you and all other visitors, we monitor network traffic to identify unauthorized attempts to upload or change information or otherwise cause damage to the websites. Use of HealthCare.gov constitutes consent to such monitoring and auditing. Unauthorized attempts to upload information and/or change information on these websites are strictly prohibited and are subject to prosecution under the Computer Fraud and Abuse Act of 1986 and Title 18 U.S.C. Sec.1001 and 1030.

10. ACCURATE INFORMATION

You agree to provide certain true, current, complete and accurate information about you as required by law, and to maintain and update such information as needed to keep it current, complete and accurate. You agree that, to the best of your knowledge, all information you submit through the Platform and to Healthcare.gov is accurate and complete.

You are solely responsible for the credit card or bank account information you provide to Wellmark Inc and must promptly inform Wellmark Inc of any changes thereto (e.g., change of expiration date or account number). We are neither responsible for any consequences resulting from your failure to provide notice nor for your providing outdated, incomplete or inaccurate information.

11. INTELLECTUAL PROPERTY

The Platform and its entire contents, features and functionality, including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof (collectively, “Content”), are owned by Wellmark Inc, Healthcare.gov, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Use permit you a limited license to access and use the Platform for the permitted purposes set forth herein. You may not reproduce, republish, reverse-engineer, copy, upload, download, display, modify, interfere with, circumvent, license, transmit, or distribute any feature of the Platform, including materials retrieved from the Platform, any security or access control mechanism, or the underlying code in any form or by any means or for any commercial or other purpose not expressly authorized under these Terms of Use. Nothing herein is meant to transfer any right or license to the underlying code of the Platform.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Platform in violation of these Terms of Use, your right to use the Platform will cease and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Platform or any content on the Platform is transferred to you, and all rights not expressly granted to you herein are reserved by Wellmark Inc. Any use of the Platform not expressly permitted by these Terms of Use is a violation of these Terms of Use and may violate copyright, trademark, and other laws.

If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant Wellmark Inc an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform and create other products and services.

12. TRADEMARKS

Wellmark Inc’s name, logo, and all related names, logos, product and service names, designs and slogans are trademarks of Wellmark Inc. You must not use such marks without the prior written permission of Wellmark Inc. All other names, logos, product and service names, designs and slogans on the Platform are the trademarks of their respective owners. User is not permitted to use the name “Wellmark Inc” in their business name, nor imply any affiliation with or endorsement by HealthSherpa on their website or in any of their business and promotional materials, whether hard copy, electronic, or on online platforms including but not limited to YouTube, Facebook, etc.

13. USER REPRESENTATIONS AND WARRANTIES

User represents, warrants and covenants that:

• User will use the Platform only for lawful purposes and in strict conformance with these Terms of Use.
• All information submitted through the Platform by User is accurate and complete.
• User is duly licensed in each jurisdiction in which User engages or transacts the business of insurance and will maintain such licensure in good standing.
• User has obtained the appropriate consents necessary to collect and maintain all PII that User transmits through the Platform.
• User has obtained appropriately documented consent from all consumers on whose behalf User submits an application for insurance through the Platform.
• User has appropriate safeguards in place to protect the confidentiality of all PII in User’s possession or control.
• User shall remain in compliance with all applicable federal and state laws.

14. ACCURACY OF CONTENT AND QUOTES

Although Wellmark Inc attempts to ensure the integrity and accuracy of the Platform, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Platform and Content thereon. It is possible that the Platform could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Platform by third parties. In the event that an inaccuracy arises, please inform Wellmark Inc so that it can be corrected. Wellmark Inc reserves the right to unilaterally correct any inaccuracies on the Platform without notice. Information contained on the Platform may be changed or updated without notice. Additionally, Wellmark Inc shall have no responsibility or liability for information or Content posted to the Platform from any non-Wellmark Inc affiliated third party.

Wellmark Inc's quotes are based on the information consumers provide on our detailed questionnaires. However, these quotes could change based on additional or contradictory information that emerges during the final insurance underwriting process. Additionally, in the event a quote shows an incorrect price due to typographical error or error in pricing information received from our carriers, the correct quotation based on our carriers’ filed rates shall control.

Product information and descriptions contained on the Platform are not intended to be complete descriptions of all applicable terms, exclusions and conditions, but are provided solely for informational purposes. Please refer to the actual policy for complete details of coverage under a specific policy.

15. NO MEDICAL ADVICE

The content of the Platform, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment or recommendations of any kind. You should always seek the advice of your qualified healthcare professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. Wellmark Inc does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be included on the Platform. Reliance on any information appearing on the Platform, whether provided by Wellmark Inc, its content providers, insurance companies, its clients, visitors to the Platform or others, is solely at your own risk.

16. PLATFORM AVAILABILITY

You acknowledge that the Internet is neither owned nor controlled by any one entity. As a result, Wellmark Inc cannot guarantee that any given User shall be able to access Wellmark Inc's server at any given time. Wellmark Inc represents that it shall make commercially reasonable efforts to ensure that its server is available as widely as possible and with as little service interruption as possible. Wellmark Inc shall not be liable for any damages arising out of the unavailability of the Platform.

17. PLATFORM SECURITY

Wellmark Inc has security measures in place that seek to mitigate risk and use commercially reasonable procedures and technologies to help protect the confidentiality of any PII collected through the Platform, in accordance with CMS requirements. However, no website can be absolutely protected against intentional or malicious intrusion attempts despite our precautions. Furthermore, Wellmark Inc does not control the devices, computers, or network through which you access the Platform or over which you may choose to send PII or payment information to the Platform, and therefore cannot prevent potential interceptions or compromises to your information while in transit to the Platform. Wellmark Inc makes no guarantee to User as to the security, integrity, or confidentiality of any information transmitted to or from the Platform. Wellmark Inc is committed to safeguarding your information to the best of its ability but cannot guarantee the security of electronic communications or transmissions made over the Internet.

Wellmark Inc makes no representations whatsoever about any other website that you may access through the Platform. When you access a non-Wellmark Inc website, please understand that it is independent from Wellmark Inc, and that Wellmark Inc has no control over the content on that website. In addition, a link to a non- Wellmark Inc website does not mean that Wellmark Inc endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party websites linked to the Platform, you do this entirely at your own risk.

18. DISCLAIMER OF WARRANTIES

THE PLATFORM, INCLUDING WITHOUT LIMITATION, ALL CONTENT, FUNCTION, MATERIALS AND SERVICES PROVIDED THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE.” HEALTHSHERPA MAKES NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEALTHSHERPA HEREBY DISCLAIMS ALL SUCH WARRANTIES WITH RESPECT TO THE PLATFORM, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, AND ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION. HEALTHSHERPA DOES NOT WARRANT OR REPRESENT THAT ANY MATERIAL ON THE PLATFORM IS ACCURATE, COMPLETE, CURRENT, RELIABLE, OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. HEALTHSHERPA MAKES NO WARRANTY THAT THE PLATFORM WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO INFORMATION OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE PLATFORM, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE PLATFORM. YOU AGREE THAT YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK.

WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND FACILITATED BY AND THROUGH HEALTHSHERPA ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.

19. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HEALTHSHERPA OR ITS REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH (A) YOUR USE OF THE PLATFORM; (B) YOUR INABILITY TO USE OR ACCESS THE PLATFORM; (C) UNAUTHORIZED USE OF YOUR ACCOUNT CREDENTIALS; (D) ANY INFORMATION, CONTENT OR FUNCTIONALITY OFFERED THROUGH THE PLATFORM; (E) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE PLATFORM; (F) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, DEFICIENCIES OR OTHER INACCURACIES IN THE PLATFORM; (G) ANY UNAUTHORIZED ACCESS TO, USE, DISCLOSURE OR ALTERATION OF, YOUR TRANSMISSIONS OF DATA INCLUDING, WITHOUT LIMITATION, PERSONALLY IDENTIFIABLE INFORMATION; (H) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (I) ANY EVENT BEYOND HEALTHSHERPA’S REASONABLE CONTROL. TO THE EXTENT ANY OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, HEALTHSHERPA’S MAXIMUM AGGREGATE LIABILITY IN RELATION TO ANY EVENT OR SERIES OF RELATED EVENTS WILL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL HEALTHSHERPA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF HEALTHSHERPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, HEALTHSHERPA'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES.

20. INDEMNIFICATION BY USER

You agree to release, indemnify, defend and hold Wellmark Inc and its agents, employees, officers, directors, shareholders, contractors, affiliates and assigns harmless from all claims, damages, fines, penalties, costs, expenses (including reasonable attorneys' fees), or any other liabilities relating to or arising out of (a) the breach of your representations, warranties and obligations under these Terms of Use; (b) use of the Platform other than as permitted by these Terms of Use by you or anyone using your Account Credentials, whether authorized by you or not; (c) infringement of any intellectual property or other proprietary right of any third party by you; (d) violation of Wellmark Inc's Acceptable Use Policy or other operating rules or policies communicated to you by Wellmark Inc; (e) any information or data you supplied to Wellmark Inc; or (f) unauthorized access, use or disclosure of PII in your possession or control except to the extent directly caused by Wellmark Inc. The obligations set forth in this Section will survive any termination of User’s account or these Terms of Use.

21. SUSPENSION

Wellmark Inc may, in its sole discretion, suspend or terminate your account at any time, for any reason or no reason, with or without notice. You may terminate your account at any time by contacting us at agent_support@healthsherpa.com.

Wellmark Inc reserves the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, upon reasonable notice to you. Wellmark Inc will have no liability for any change to the Platform or any suspension or termination of your access to or use of the Platform.

22. EFFECT OF ACCOUNT TERMINATION

In the event you wish to terminate your account, it is your sole responsibility to export your own client data prior to termination. If your account is terminated by Wellmark Inc due to behavior described in Section 3 above or a violation of Wellmark Inc’s Acceptable Use Policy, you will not have an opportunity to export client data from your account prior to it being deactivated.

23. AUTHORITY TO MODIFY PLATFORM AND SERVICES

Wellmark Inc may upgrade, modify, change or enhance the Platform and convert User to a new version of the Platform or revise these Terms of Use at any time in its sole discretion, with or without notice. Any such revision or change will be binding after posting of the revised Terms of Use or change to the Platform on Wellmark Inc’s website, or upon notification to you by e-mail. By continuing to use the Platform after any revision to these Terms of Use or change in the Platform, you agree to abide by and be bound by any such revisions or changes. If you do not agree to such revisions or changes, you may cancel your account by sending Wellmark Inc a notice, as set forth herein, stating that you would like to cancel your account. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site.

24. ELIGIBILITY TO USE THE PLATFORM

The Platform is intended only for users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By agreeing to these Terms of Use, you represent and warrant that: (a) you are at least 18 years old and reside in the United States or its territories; and (b) your use of the Platform complies with any and all applicable laws and regulations and you will use the Platform only as set forth in these Terms of Use. If you do not meet these eligibility requirements, you must not access or use the Platform.

25. HEALTHSHERPA’S USE OF DATA YOU PROVIDE THROUGH THE PLATFORM

Wellmark Inc may use information you provide through your account (such as your name, National Producer Number, carrier appointment settings, etc.) to display advertisements from select partners within your account on the Agent Platform for which Wellmark Inc may receive compensation. In the event your account is terminated due to any violation of use detailed in Section 3, Wellmark Inc reserves the right to share your name, National Producer Number, and the fact that your account was terminated with any insurance carriers with whom you have indicated that you are appointed and with any insurance regulators with jurisdiction over your license(s). Wellmark Inc may also use and disclose to third parties de-identified, aggregated data from the Platform for reports, metrics, media releases, and any other uses permissible by law. In addition, if you submit enrollments for Medicare products through HealthSherpa’s platform, HealthSherpa may collect your National Producer Number or carrier specific writing numbers in order to verify your “ready to sell” status for such Medicare products.

26. AGENT REFERRALS

You may enroll clients in health plans offered by insurance carriers with whom you’ve chosen to refer through the Agent Platform under Wellmark Inc's Referrals Program. Wellmark Inc will be the agent of record for such health plan, but you will continue to have access to your client's enrollment information through the Agent Platform to provide servicing and renewal assistance unless the client requests that Wellmark Inc revoke your access to such information. Wellmark Inc may compensate User for such referrals if permitted under applicable state and federal laws. Wellmark Inc will conduct a series of checks on each application to determine which applications are eligible for a referral fee and to ensure that applications do not contain indicators of potential fraud. Such checks may include, but are not limited to the following: (i) Duplication checks, in which Wellmark Inc will check the federal exchange ID and client identity to determine whether a referral fee has already been paid for that application; (ii) checks for canceled or terminated policies, in which Wellmark Inc will ensure that the policy is found on the federally-facilitated marketplace; (iii) agent of record checks, in which Wellmark Inc will ensure that it is the agent of record on the policy; (iv) checks for applications that do not contain the primary applicant’s social security number; (v) checks for applications that contain a duplicate email address; and (vi) checks for applications with a $0 premium. Wellmark Inc will also routinely monitor the referral activity of referring agents to detect potentially fraudulent practices. Such checks may include, but are not limited to the following: (i) Percentage of applications with no social security number for the primary applicant; (ii) percentage of applications with no email address, or a duplicate email address; (iii) percentage of applications with a $0 premium; (iv) signs of automation; and (v) significant change in the volume of referral activity. Prior to submitting a referral application, you must inform the consumer that their application will be submitted as a referral to Wellmark Inc and obtain the consumer’s lawful and appropriately documented consent to the submission of a referral application on their behalf in compliance with 45 C.F.R. §155.220(j)(2)(iii). Wellmark Inc may reach out to the individual who is the primary applicant on an application in order to verify that they consented to User’s submission of the application on their behalf and that they understand their coverage. Wellmark Inc shall have the right, in its sole discretion, to withhold any payment due to User until such issues are resolved. User may be required to enter into a joint marketing agreement or other agreement that sets forth the specific terms that govern participation in the referral program, which in the event of a conflict with these Terms of Use will prevail. Users who have a “refer only” account on the Platform are prohibited from advising consumers regarding health plan selection and enrollment through the Platform.

27. GENERAL TERMS

• Entire Agreement. These Terms of Use, together with our Acceptable Use Policy, any addenda attached hereto, constitute the entire agreement between you and Wellmark Inc relating to your use of the Platform, and supersede any previous agreements, understandings, representations and warranties (both oral and written) with respect to your use of the Platform.
• Authority to be Bound. If you are an entity, organization, or company, the individual accepting these Terms of Use on your behalf represents and warrants that he or she has authority to bind you to these Terms of Use and you agree to be bound by these Terms of Use.
• Assignment. You may not assign or transfer these Terms of Use or your rights under these Terms of Use, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms of Use at any time without notice or consent.
• No Waiver. The failure to require performance of any provision of these Terms of Use will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms of Use, or any provision of these Terms of Use, be a waiver of any subsequent breach or default or a waiver of the provision itself.
• Use of Headings. Use of section headers in these Terms of Use is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms of Use the use of the word “including” means "including but not limited to."
• Severability. If any part of these Terms of Use is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
• Notices. Except as expressly provided otherwise herein, all notices to Wellmark Inc shall be in writing (either paper or electronic format) and delivered either via email to agent_support@healthsherpa.com, or via postal mail to Wellmark Inc, Inc., ATTN: Customer Service, 1215 19th Street, 2nd Floor, Sacramento, CA, 95811. All notices to you shall be delivered to your mailing address or e-mail address as provided in your account information (as updated by you pursuant to these Terms of Use). You authorize us to contact you as our customer via telephone, at the number provided by you in your account information, e-mail or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails, and other notices describing changes, upgrades, new products and services or other relevant matters.
• Dispute Resolution and Arbitration. You agree that disputes arising under these Terms of Use will be resolved by binding, individual arbitration, and by accepting these Terms of Use, you and Wellmark Inc are each waiving the right to a trial by jury or to participate in any class action or representative proceeding. Your rights will be determined by a neutral arbitrator instead of a judge or jury. Any arbitration between you and Wellmark Inc will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”). Notwithstanding the foregoing, nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) pursue an enforcement action through the applicable federal, state, or local governmental agency if that right of action is available; (b) seek injunctive relief in a court of law in aid of arbitration; or (c) to file suit in a court of law to address an intellectual property infringement claim.
• Governing Law. These Terms of Use are governed by the laws of the State of California without regard to conflicts of law principles. You and Wellmark Inc agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Sacramento County, California for resolution of any lawsuit or court proceeding permitted under these Terms of Use.
• Exclusion of Third-Party Rights. Except as otherwise set forth in these Terms of Use, these Terms of Use are for the benefit of you and Wellmark Inc and are not intended to benefit any third party or be enforceable by any third party. The exercise of our and your rights in relation to these Terms of Use is not subject to the consent of any third party.
• Privacy Policy. Please read our Privacy Notice for information relating to our collection, use, storage, and disclosure of personal information and payment information. The Privacy Notice is incorporated by this reference into, and made a part of, these Terms of Use.
• Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may communicate to you (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms of Use.
• Consent to Electronic Communications. By providing us with your contact information, you agree to receive communications, including via e-mail, voice calls, and text messages from or on behalf of Wellmark Inc at the email address or telephone number you provided, even if that number is on a national or state “Do Not Call Registry.” These calls will be for purposes related to your use of the Platform or our other services, such as to provide you with help or information on using the Platform. Standard text messaging and telephone minute charges applied by your cell phone carrier may apply. Wellmark Inc may, without further notice or warning and in our discretion, monitor and/or record telephone conversations for our business purposes, such as quality assurance and training purposes and to protect our rights and the rights of others. IF YOU WISH TO OPT OUT OF MARKETING EMAILS, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF TEXTS, YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. You understand that you may continue to receive communications while we process your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.