RTW Center General Terms & Conditions

These RTW Center Terms & Conditions (these “Ts&Cs”) are incorporated by reference into the RTW Center Order Form (the “Order Form”) by and between Sequoia Benefits and Insurance Services, LLC, d/b/a Sequoia, a California limited liability company (“Sequoia”), and the Client identified in such Order Form. All capitalized terms used in these Ts&Cs and not otherwise defined herein shall have the meanings ascribed to such terms as set forth in the Agreement. As used herein, the “Agreement” shall refer to the Order Form, these Ts&Cs and any other Incorporated Agreements identified in the Order Form.

1. Use of Services and Documentation.
   1. Services. Sequoia shall provide to Client the Services selected in the Order Form. The Services include access to third-party products or services (“Third-Party Products”) from SixFifty LLC and other third-party vendors as determined from time to time by Sequoia (“Third-Party Vendor”) made available through the Services. Client may be required to enter into terms of service directly from a Third-Party Vendor, and in such cases Sequoia shall not be deemed to be the supplier of such Third-Party Products to the Client (and such Third-Party Products shall not be considered part of the “Services” under the Agreement), except with respect to the payment of fees for the Services and as otherwise expressly provided in these Ts&Cs. Sequoia is not providing legal, tax, medical, facilities or accounting services and is not taking on any fiduciary duties or obligations to Client except as expressly provided for in the Agreement.
   2. Client Data. Client hereby grants Sequoia a worldwide, non-¬exclusive, royalty-¬free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit data and other content provided by Client or its employees (“Employees”) to Sequoia pursuant to the Agreement (“Client Data”) in connection with providing the Services and/or access to Sequoia mobile application or other products to Client. Client shall provide Sequoia with such information regarding information as Sequoia may reasonably require to provide the Services.
   3. Access and Use. Subject to and conditioned on Client’s payment of Fees and compliance with all of the terms and conditions of the Agreement, Sequoia hereby grants Client a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Employees in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Sequoia shall provide to Client the necessary passwords and network links to allow Client to access the Services.
   4. Documentation License. Subject to the terms and conditions contained in the Agreement, Sequoia hereby grants to Client a non-exclusive, non-sublicensable, non-transferable license to use Sequoia’s user manuals, handbooks, templates and/or guides made available through the Services to Client (the “Documentation”) during the Term solely for Client’s internal business purposes in connection with its use of the Services.
   5. Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in the Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Employee to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
   6. Client Responsibilities. Client agrees that it shall have sole responsibility and liability for (i) providing all notices and acquiring any and all authorization necessary for the collection, use, and disclosure of Client Data as contemplated by the Agreement; (ii) the completeness and accuracy of Client Data and other materials provided to Sequoia by Client pursuant to the Agreement; (iii) timely providing information as requested by Sequoia in order to provide the requested Services; and (iv) ensuring that Client Data does not infringe, violate or misappropriate any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights or proprietary rights of any third party and has been collected and disclosed to Sequoia in compliance with data protection, privacy, cybersecurity, employment laws and regulations, and other applicable legislation. Client will abstain from disclosing any Client Data that may not be provided to Sequoia under applicable law. Client is responsible for all uses of the Services, Third-Party Products and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement.
   7. Non-U.S. Based Employees. In the event Client wishes to use the Services with respect to any non-U.S. Based Employee, then any such use shall be allowed only if Client has acknowledged in the Order Form that the Data Processing Addendum has been incorporated by reference into the Agreement with Sequoia. In such case, Client shall provide Sequoia with such information regarding non-U.S. based Employees as Sequoia may reasonably require to provide the Services. Such information shall be deemed to be Client Data for purposes of the Agreement.
   8. Reservation of Rights. Sequoia reserves all rights not expressly granted to Client in the Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to Sequoia intellectual property.

2. Term.
   1. Subject to Sequoia’s agreement to continue providing Services to Client, the Initial Term set forth in the Order Form will automatically renew as to Client for additional, successive one-year terms (“Renewal Term(s),” and the Initial Term and Renewal Term referred to herein as “Term”), subject to continued availability of Third-Party Products from Third-Party Vendors unless Client provides written termination notice to the other not less than ninety (90) days prior to expiration of the Initial Term or subsequent Renewal Terms (the “Renewal Deadline”).
   2. Notwithstanding anything to the contrary in the Agreement, Sequoia may terminate the Agreement upon five (5) business days written notice if: (i) Client, or any Employee, is using the Service for fraudulent or illegal activities; (ii) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (iii) Sequoia’s provision of the Services to Client or any Employee is prohibited by applicable law (any such suspension described herein, an “Early Termination”). Sequoia shall use commercially reasonable efforts to provide written notice of any Early Termination to Client. Sequoia will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Employee may incur as a result of an Early Termination.
   3. In addition to the foregoing, either party may terminate the Agreement upon thirty (30) days written notice of a material breach of the Agreement by the other party if such breach is not cured within the thirty (30) day notice period. Notwithstanding the foregoing, Sequoia may terminate the Agreement without further notice if Client is more than ten (10) days past due on any amount payable pursuant to the Agreement.
   4. Notwithstanding anything contained herein to the contrary, (i) in the event Client ceases to be a client of Sequoia’s benefits consulting services (“Benefits Services”) for any reason (“Benefits Termination”), Sequoia may in its sole discretion terminate the Agreement on the last day of the calendar month in which the Benefits Termination occurred and (ii) in the event Client ceases to be a client of Sequoia One PEO, LLC services (“PEO Services“) for any reason (“PEO Termination“), Sequoia may in its sole discretion terminate the Agreement on the effective date of the PEO Termination.

3. Fees and Compensation.
   
   1. Client agrees to pay or provide for the compensation of Sequoia for Services and Third-Party Products during the term of the Agreement as set forth in the Order Form. If the Services Effective Date falls on a date other than the first day of the month, the PEPM Fees for such partial month shall be prorated. The number of Employees for purposes of the PEPM Fee calculation for such partial month will be based on such number as reflected in Sequoia’s systems as of the Services Effective Date and the PEPM Fee calculation for each subsequent month will be based on the number of Employees as of the first day of each month. If the Services Effective Date falls on the first day of the month, the PEPM Fees will be based on the number of Employees as of the first day of each month.
   2. Unless otherwise indicated in the Order Form, all amounts due shall be payable to Sequoia on the second day of each month. The PEPM Fee shall begin in the first month of the Term. The Implementation Fee and any applicable Global Support Fees shall be due and payable in the first month of the Term. Any additional Global Support Fees shall be due and payable in the month in which Additional Countries are added as set forth in the Order Form. Notwithstanding the foregoing, any payment due date set forth in a separate communication to Client, including, without limitation, in any invoice and/or notification provided as a result of consolidated billing services provided by Sequoia, shall prevail, and the full amount invoiced will be due and payable on the date indicated in such communication. Any amount not paid by Client when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest permissible rate under applicable law, whichever is less, until paid in full. Client shall provide Sequoia with such information as may be required for Sequoia to be able to invoice and/or process payments in connection with the Services and Third-Party Products. For the avoidance of doubt, all amounts paid by Client pursuant to the Agreement are irrevocable, non-refundable, and non-creditable.
   3. After the Initial Term, Sequoia may increase any fees indicated herein for any subsequent Renewal Term, provided that Sequoia provides Client with notice of such price increase at least thirty (30) days prior to the Renewal Deadline.
   4. In the event of any termination of the Agreement before the end of the then current Term, Client shall pay to Sequoia a termination fee equal to the PEPM Fee reflected in the Order Form multiplied by the number of Employees effective as of the first day of the month in which the termination occurred multiplied by the number of months remaining in the then current Term. This Section 3(d) shall not apply if Client terminates the Agreement as a result of Sequoia’s material breach of the Agreement in accordance with Section 2.

4. Taxes: All Fees and other amounts payable by Client under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all sales, use, excise, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Sequoia’s income. Without limiting the foregoing, the parties jointly assume that the payments agreed upon in the Agreement shall not be subject to any value added taxes (“VAT”). Should any competent tax authority require VAT to be paid on any of these amounts, then Client shall pay such additional VAT amounts as are to be made under applicable tax laws.

5. Confidentiality
   1. Definition. Each party agrees that the business, technical and financial information, including without limitation, use and access to data bases and websites, plan descriptions and materials, Sequoia’s methods of providing Services, Client Data, as defined below, either party’s software, source code, inventions, algorithms, know¬how and ideas and the terms and conditions of the Agreement, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Sequoia’s Confidential Information includes both (i) general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services, and (ii) anonymized compilations and analyses of Client Data that may or may not be combined with data from other clients and evaluations, benchmarking tests, studies, analyses and other work product from the foregoing (i) and (ii). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
   2. Confidentiality. Except for the specific rights granted by the Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information of a similar nature, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of the Agreement and (b) have been apprised of and have agreed in writing to restrictions at least as protective of the disclosing party’s Confidential Information as the Agreement. Each party shall be responsible for any breach of this Section 5.b by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of the Agreement without the prior written consent of the other party; provided that either party may provide a copy of the Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
   3. Return of Confidential Information. Except as expressly allowed herein, promptly after any termination of the Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, Sequoia may retain a copy of Client’s Confidential Information in order to comply with applicable law and document retention policies.
   4. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
   5. BAA. The parties acknowledge that any Confidential Information that is subject to any Business Associate Agreement (“BAA”) between the parties shall be governed by the BAA.

6. Limited Warranty and Disclaimers.
   1. General. Each party represents and warrants that (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into the Agreement and to perform its obligations hereunder, (b) the Agreement is legally binding upon it and enforceable in accordance with its terms, and (c) the execution, delivery and performance of the Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
   2. Client. Client represents and warrants to Sequoia that Client owns all rights, title and interest in and to the Client Data, or that Client has obtained all necessary consents and otherwise secured all rights in the Client Data as may be required by law to permit the access, use and distribution thereof as contemplated by the Agreement.
   3. Sequoia. Sequoia represents and warrants to Client that the Services will be provided in a professional and workmanlike manner in accordance with general industry standards. Any warranty claim under this Section 8.c must be made in writing within ninety (90) days after performance of the nonconforming Services.
   4. EXCEPT AS OTHERWISE PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PLATFORM AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON¬INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-¬FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

7. Indemnification
   1. Each party (“Indemnifying Party”) agrees to defend the other party (the “Indemnified Party”) against any claim, demand, suit or proceeding made or brought against the Indemnified Party by a third party alleging either (i) Client’s use of the Services in accordance with the terms of the Agreement infringes or misappropriates the intellectual property rights of a third party (“Services Infringement Claim”), in which case Client is the Indemnified Party or (ii) a violation of Section 1(e) or 1(f) has occurred (“Client Use Claim”), in which case Sequoia is the Indemnified Party. As used in this Section 9, Services Infringement Claims and Client Use Claims are referred to collectively as “Claim Subject”.
   2. Subject to the terms herein, Indemnifying Party shall indemnify Indemnified Party for settlement amounts or third-party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Claim Subject is or, in Indemnifying Party’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Indemnifying Party may, at its option (1) obtain for Indemnified Party the right to continue using the Claim Subject or (2) replace or modify the Claim Subject so that such Claim Subject becomes non-¬infringing without substantially compromising their principal functions. If (1) and (2) are not reasonably available to Indemnifying Party, then Indemnifying Party may (3) terminate the Agreement upon written notice to the Indemnified Party. The foregoing states the entire liability of Indemnifying Party, and Indemnified Party’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights in connection with the Claim Subject, any part thereof or its use or operation. Indemnifying Party shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Claim Subject not strictly in accordance with the Agreement, or (ii) Indemnified Party’s continuing use of the Claim Subject after being provided modifications that would have avoided the alleged infringement. THIS SECTION 7.b SETS FORTH INDEMNIFYING PARTY’S SOLE LIABILITY AND INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
   3. Any claim for indemnification hereunder requires that (a) the Indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the Indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The Indemnifying party shall not make any settlement that requires a materially adverse act or admission by the Indemnified party without the Indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The Indemnifying party shall not be liable for any settlement made without its prior written consent.

8. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THE AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID AND PAYABLE BY CLIENT TO SEQUOIA PURSUANT TO THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN SUBSECTION (C) SHALL NOT APPLY FOR ANY BREACH OF SECTION 3 (FEES AND COMPENSATION). THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THE AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

9. Miscellaneous.
   1. All notices, demands, requests and other communications under the Agreement shall be in writing and shall be deemed properly served when personally served, delivered by electronic mail or forty-eight (48) hours after deposit in the United States Mail, registered or certified, return receipt requested, postage prepaid. Notices sent by United States Mail shall be addressed to the parties at their principal business offices.
   2. The Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, representations and understandings of the parties, and the Agreement shall apply to any Services previously provided by Sequoia under a prior agreement. No supplement, modification, or amendment of the Agreement shall be valid unless executed in writing by all parties. No waiver of any of the provisions of the Agreement shall be deemed a waiver of any other provision. In the event Client terminates services with Sequoia but contracts for new or additional services, any previously agreed to Terms and Conditions and/or Business Associate Agreement will survive termination and apply to any newly agreed upon services. In case of any inconsistency between the terms of the Order Form and these Ts & Cs, the Order Form shall govern.
   3. The Agreement shall be determined to be a contract made within the State of California and for all purposes shall be governed and construed under and in accordance with the laws of the State of California notwithstanding choice of law principles.
   4. The parties will attempt in good faith promptly by negotiations to resolve any dispute or controversy arising out of or relating to the Agreement. In the event the parties are unable to settle such controversy amicably through negotiations, the dispute will be submitted to binding arbitration before the American Arbitration Association before a single arbitrator in accordance with the Rules of the American Arbitration Association provided that: (i) the prevailing party, as determined by the arbitrator, shall be entitled to an award from the losing party for the prevailing party’s attorney’s fees and costs; (ii) discovery may be conducted pursuant to California Code of Civil Procedure Paragraph 1283.05; (iii) the arbitrator’s judgment will be final and binding upon the parties, except that it may be challenged on the grounds of fraud or gross misconduct; and (iv) the arbitration will be held in San Mateo County, California. Judgment upon any decision in arbitration may be entered in any court of competent jurisdiction.
   5. The Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors, agents and assigns.