eHealthInsurance Services, Inc.
Effective Date: 12/19/02
(replaces version dated 10/25/02)
Read this
carefully before submitting the application (the "Application") for
participation in the eHealthInsurance Affiliate Network Program (the
"Program"). This is a binding agreement (the "Agreement")
between the individual or entity submitting the Application ("You"
and "Your") and eHealthInsurance Services, Inc. ("eHealthInsurance").
By submitting the Application, You hereby ACCEPT AND AGREE to all of the terms
and conditions set forth in this Agreement.
1. Application Process. By submitting the Application, You are
expressing Your desire to participate in the Program through which You may
promote certain eHealthInsurance services and are compensated for the number of
qualified individuals that use such services as a direct result of Your
promotion. As part of the Application You must submit the principal address of
Your website (the "Website") upon which You desire to place
the eHealthInsurance Promos (as defined in Section 2). Additionally, You
represent and warrant that: (i) the information submitted in the Application is
truthful and accurate; (ii) the person submitting the Application is at least
18 years old; (iii) in the event You are an entity, the person submitting the
Application has the full right, power and authority to enter into this
Agreement on behalf of such entity; and (iv) the execution of this Agreement by
You, and the performance by You of Your obligations and duties hereunder, do
not and will not violate any agreement to which You are a party or by which You
are otherwise bound. You acknowledge that eHealthInsurance makes no
representations, warranties or agreements related to the subject matter hereof
that are not expressly provided for in this Agreement. eHealthInsurance will
evaluate the Application and will notify You of eHealthInsurance's acceptance
or rejection of the Application in a timely manner. eHealthInsurance may reject
the Application if the Website is deemed in eHealthInsurance's sole discretion
to be unsuitable for the Program.
2. Use of eHealthInsurance Promos. In the event Your
Application is accepted by eHealthInsurance, You may use (to the extent
provided in Section 4 below) the electronic graphic artwork and corresponding
links (the "Links") to the eHealthInsurance Services, Inc.
online service (the "eHealthInsurance Service") including the
special promotion identifier and all HTML thereto (the "eHealthInsurance
Promos") available at http://ehi.reporting.net
(the "Reporting Site") as necessary to participate in the
Program. eHealthInsurance will provide the HTML for such Links at the Reporting
Site, including a special promotion identifier that will make possible tracking
and reporting of all Submitted Applications (as defined in Section 5) acquired
through Your Website. It is Your responsibility to integrate the
eHealthInsurance Promos into Your Website properly in accordance with the
instructions available at the Reporting Site, and eHealthInsurance shall not be
liable to You with respect to Your failure properly to integrate the
eHealthInsurance Promos into Your Website. You agree not to modify any
eHealthInsurance Promos in any way without the prior written permission of
eHealthInsurance. You may only display the eHealthInsurance Promos on Your
Website, and if You have websites other than the Website, You must submit an
Application and accept and agree to the terms of this Agreement for each such
website to display the eHealthInsurance Promos on such website. Without
limiting the foregoing, You shall not promote or otherwise announce the
availability of the eHealthInsurance Promos anywhere other than within Your
Website, including but not limited to using the eHealthInsurance Promos in
e-mail.
3. Your Website. You are solely responsible for, and
eHealthInsurance hereby disclaims all liability for, the development, operation
and maintenance of, and all costs associated with, Your Website, any content
thereon and any equipment therefor.
4. Limited License to Use eHealthInsurance Promos. eHealthInsurance
hereby grants to You a nonexclusive, revocable license to display on Your
Website the eHealthInsurance Promos solely as necessary for, and for the
purpose of, promoting the services associated with the eHealthInsurance Promos
as set forth at the Reporting Site and identifying You as a participant in the
Program. To the extent that eHealthInsurance Promos contain eHealthInsurance's
trademarks, service marks or trade names, You shall not use such marks in a
manner that might be deemed to create a unitary composite mark. You also agree
not to use the eHealthInsurance Promos in a manner that is, or otherwise
include materials on Your Website that are, disparaging of eHealthInsurance or
any third party. eHealthInsurance reserves all proprietary rights in and to the
eHealthInsurance Promos not expressly granted herein. You agree that this
license can be revoked at any time for any or no reason upon notice by
eHealthInsurance to You (regardless of termination of this Agreement) and You
agree upon receipt of such notice immediately to cease using all
eHealthInsurance Promos.
5. Payments
5.1 Marketing Fees. On a monthly basis,
within thirty (30) days after the end of each calendar month, eHealthInsurance
agrees to pay You a marketing fee (the "Marketing Fee")
described below for each unique customer ("Customer") who,
after having used the eHealthInsurance Links on Your Website, " Submits"
an application on the www.eHealthInsurance.com
website (a " Submitted Application").
" Submits" means, for all
products except eHealthInsurance Small Business Group Plans, a Customer that
(i) properly completes an online application, and (ii) clicks "submit"
or a similar button required to submit the application online.?For eHealthInsurance Small Business Group
Plans, ?b>Fully
Submits?means a Customer that (x) properly completes an online
application, (y) manually or electronically signs the completed application,
and (z) within thirty (30) days of the online submission, returns all forms
fully executed to eHealthInsurance accompanied by the first month's payment.
The Marketing Fee for the following type(s) of
products is as follows:
|
Insurance Products |
Fee for Submitted Application |
|
eHealthInsurance Stand Alone Dental Plan |
US $10.00 |
|
eHealthInsurance Short-Term Medical Plan |
US $10.00 |
|
eHealthInsurance Individual & Family Plan |
US $25.00 |
|
eHealthInsurance Medicare Supplement Plan |
US $20.00 |
|
eHealthInsurance Small Business Group Plan |
US $40.00? |
|
eHealthInsurance Short-Term Travel Plan |
US $ 4.00 |
|
eHealthInsurance Long-Term Travel Plan |
US $ 7.00 |
|
eHealthInsurance Hospital Plan |
US $15.00 |
|
eHealthInsurance Student Plan |
US $20.00 |
|
Non-Insurance Products |
Fee for Submitted Application |
|
eHealth Medical Savings Card* |
US $25.00 |
|
eHealth Health Savings Card* |
US $20.00 |
|
eHealth Dental Savings Card* |
US $15.00 |
|
eHealth Pharmacy Savings Card* |
US $15.00 |
*The Marketing Fee for individual and family eHealth memberships
is the same
5.2 Payment Policy. You acknowledge that
eHealthInsurance performs all actions, services and processing of insurance
applications offered through the www.eHealthInsurance.com
website and all other matters relating thereto, including but not limited to
(i) the solicitation of insurance policies, (ii) the processing of insurance
binders and other insurance related documentation, (iii) the collection of
insurance premium payments, and (iv) all other insurance agent functions and
activities (collectively, the "Insurance Activities"). The
parties intend that the compensation payable by eHealthInsurance to You under
this Agreement shall not constitute an insurance commission, and the parties
agree that You are not, by providing the Links, engaged in any Insurance
Activities, and eHealthInsurance shall not pay any Marketing Fee to You based
upon the condition that a Customer purchase an insurance policy through
eHealthInsurance. If eHealthInsurance determines that this compensation method
is not in compliance with applicable federal, state or other laws and
regulations, eHealthInsurance will determine an alternative compensation method
in its reasonable discretion.
eHealthInsurance, in its sole discretion, may choose to offer You a higher or
lower Marketing Fee for a particular period of time or for particular types of
services offered by eHealthInsurance. eHealthInsurance will either provide You
notice of such new Marketing Fee to the e-mail address in Your Application or
will post notice of such new Marketing Fee on the Reporting Site. You
acknowledge that eHealthInsurance may offer a Marketing Fee to other
participants in the Program that is higher than the Marketing Fee You receive.
eHealthInsurance reserves the right to engage a third party entity to process
and pay any Marketing Fees earned pursuant to this Agreement.
6. Reporting. Through the Reporting Site, eHealthInsurance shall
provide You with monthly reports setting forth the number of impressions,
clickthroughs and Submitted Applications generated by the Links on Your Website
during the previous month. eHealthInsurance shall also provide monthly reports
detailing the monthly volume bonuses that are due to You. The form, content and
timing of the foregoing reports may be modified from time to time in
eHealthInsurance's sole discretion.
eHealthInsurance
may in its sole discretion permit You to use the "Flextrack"
technology to transmit to eHealthInsurance or its agent certain data selected
by You (the "Data") relating to use of the Links on Your
Website that will permit additional reporting through the Reporting Site (e.g.,
if the Data is a preference, sorting Submitted Applications by such
preference). In the event eHealthInsurance permits transmission of such Data,
You represent, warrant and agree that the Data cannot and shall not be used to
identify persons or entities: (i) that interact with the Links on Your Website,
(ii) that use the eHealthInsurance Service, or (iii) that purchase health
insurance products through the eHealthInsurance website.
You will not
receive and/or have access to any personally identifiable consumer information
that may be collected through the Program.
7. Modification of This Agreement. eHealthInsurance may
modify any terms and conditions in this Agreement, including any amounts
payable as Fees under Section 5, at any time in its sole discretion by posting
a notice or a new Agreement on the Reporting Site, but such new Agreement shall
be effective no sooner than five (5) days after such notice or new Agreement is
posted on the Reporting Site. YOUR SOLE REMEDY AND RECOURSE IN THE EVENT ANY
SUCH MODIFICATION IS UNACCEPTABLE TO YOU IS TO TERMINATE THIS AGREEMENT,
PROVIDED THAT EHEALTHINSURANCE SHALL PAY TO YOU ALL FEES DUE TO YOU PRIOR TO
YOUR TERMINATION IN ACCORDANCE WITH SECTION 12.1. Notwithstanding the five (5)
day notice period for termination provided in Section 10, such termination by
You in the event of a modification shall be effective immediately upon receipt
by eHealthInsurance of notice thereof. Your continued participation in the
Program after such five (5) day period has passed shall constitute acceptance
of the modifications.
8. Prohibited Conduct. You may not engage in any inappropriate,
misleading, deceptive or unlawful conduct ("Prohibited Conduct") in
connection with the Program or this Agreement. "Prohibited Conduct"
shall be determined by eHealthInsurance in its reasonable discretion and
includes, but is not limited to, the following:
8.1 Inappropriate
Content. You may not transmit or place any eHealthInsurance Promos on a
website that contains, or links to a website or other destination that
contains, content that is sexual, offensive, deceptive or illegal in nature or
that in any way promotes or encourages hatred, violence, discrimination or
illegal activities.
8.2 Misleading Consumers. You may not use
fraudulent, deceptive, or misleading means to generate visitors or Submitted
Applications on the eHealthInsurance website, or enlist or encourage any third
party to do so on Your behalf.
8.3 eHealth PPS Savings Card is Not
Insurance. eHealth PPSavings products are not insurance and may mot
be promoted as insurance or in a manner likely to confuse them with insurance.
8.4 Intellectual Property
Rights.
The content and materials that You publish and/or display on Your Website,
URL's, metatags, search engine ranking devices or otherwise may not infringe
upon or violate any patent, copyright, trademark, trade secret or other
proprietary right of a third party. Further, Your Website shall not, in any
way, copy or resemble the look and feel of, or create the impression that it is
part of the eHealthInsurance Service.
8.5 Unsolicited E-Mail. You agree that You
will not send unsolicited, commercial e-mail (i.e., "spam") to any
persons or entities ("Recipients") absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business
Relationship" will mean that the Recipient has voluntarily either (i)
engaged in a transaction with You other than through an eHealthInsurance Promo
or Link provided on Your Website; or (ii)?
requested or expressly consented to receiving Emails from You. Any commercial
e-mail or other online communications that are otherwise permitted hereunder
shall include a prominent and easy means for the Recipient to
"opt-out" of receiving any future commercial communications from You.
9. Press Releases; Publicity. You may not announce Your use of the
eHealthInsurance Promos on Your Website unless You first receive
eHealthInsurance's prior written approval of such announcement.
eHealthInsurance may announce Your use of the eHealthInsurance Promos on Your
Website in its sole discretion.
10. Term and Termination. This Agreement shall be effective on the date
eHealthInsurance accepts the Application and shall continue until either party
terminates this Agreement as set forth herein (the "Term"). Either
party may terminate this Agreement at any time for any or no reason upon five
(5) days notice. eHealthInsurance shall notify You of such termination by
sending You an e-mail on the e-mail address set forth on Your Application, or
by posting a notice on the Reporting Site. You shall notify eHealthInsurance of
such termination by sending an e-mail to affiliates@ehealthinsurance.com.
Notwithstanding the foregoing, eHealthInsurance may terminate this Agreement
immediately if You breach this Agreement or if Your Website is deemed in
eHealthInsurance's sole discretion to be unsuitable for the Program.
11. Limitation of Liability; Disclaimer; Indemnification.
11.1 Liability. UNDER NO CIRCUMSTANCES
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THIS
AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT
YOU SHALL REMAIN LIABLE TO EHEALTHINSURANCE TO THE EXTENT ANY DISCLAIMED
DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION
PURSUANT TO SECTION 11.3. IN NO EVENT SHALL THE LIABILITY OF EHEALTHINSURANCE
IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES EXCEED THE AMOUNT PAID OR PAYABLE
BY EHEALTHINSURANCE TO YOU UNDER THIS AGREEMENT.
11.2 No Additional
Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
ADDITIONALLY, ALL OF EHEALTHINSURANCE'S AND ITS PARTNERS' WEBSITES, THE
EHEALTHINSURANCE PROMOS, THE PROPRIETARY SOFTWARE USED TO CONNECT TO AND USE
THE EHEALTHINSURANCE SERVICE ("EHEALTHINSURANCE SOFTWARE"),
AND THE EHEALTHINSURANCE SERVICE (COLLECTIVELY, "SUBJECT MATTER")
ARE PROVIDED "AS IS" AND "AS AVAILABLE."
11.3 Indemnification. You agree to defend,
indemnify and hold harmless eHealthInsurance, its subsidiaries and affiliates,
and their respective officers, directors, agents, distributors, franchisees and
employees against any loss, damage, expense, or cost, including reasonable
attorneys fees (including allocated costs for in-house legal services) arising
out of any claim, demand, action, suit, investigation, arbitration or other
proceeding by a third party ("Liabilities") based on (i) Your
material breach of any covenant, duty, representation, or warranty of this
Agreement, and (ii) materials contained on Your Website (including any
allegation that such materials infringe a third party's proprietary rights).
12. Miscellaneous.
12.1 Survival. Sections 11, 12.1,
12.2 , 12.3 and 12.5 shall survive the expiration or termination of this
Agreement. Additionally, provided that this Agreement is not terminated as a
result of Prohibited Conduct by You or otherwise as a result of Your breach of
this Agreement, the payment obligations set forth in Section 5 shall survive to
the extent that eHealthInsurance owes You Fees earned prior to the date of
termination.
12.2 Applicable Law;
Jurisdiction. This Agreement will be interpreted, construed, enforced, and
governed by the laws of the United States and the State of California. Any
action relating to this Agreement shall exclusively be brought in the federal
or state courts located in San Jose, California, and You irrevocably consent to
the jurisdiction of such courts.
12.3 No Waiver. The failure of either
party to insist upon or enforce strict performance by the other party of any
provision of this Agreement or to exercise any right under this Agreement will
not be construed as a waiver or relinquishment to any extent of such party's
right to assert or rely upon any such provision or right in that or any other
instance.
12.4 Assignment. You shall not assign
this Agreement or any right, interest or benefit under this Agreement without
the prior written consent of eHealthInsurance. Subject to this restriction,
this Agreement will be binding on, inure to the benefit of, and enforceable
against the parties and their respective successors and assigns. eHealthInsurance's
failure to enforce Your strict performance of any provision of this Agreement
will not constitute a waiver of eHealthInsurance's right to subsequently
enforce such a provision or any other provision of this Agreement.
12.5 Injunctive Relief;
Remedies. You acknowledge a violation of this Agreement could cause
irreparable harm to eHealthInsurance for which monetary damages may be
difficult to ascertain or an inadequate remedy. You therefore agree that
eHealthInsurance will have the right, in addition to its other rights and
remedies, to seek and obtain injunctive relief for any violation of this
Agreement. Except where otherwise specified, the rights and remedies granted to
a party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the party may possess at law or in
equity.
12.6 Acknowledgment. You acknowledge that
You have read this Agreement and agreed to all the terms and conditions. You
understand that eHealthInsurance may at any time (directly or indirectly)
solicit customer referrals on terms that may differ from those contained in
this Agreement, and eHealthInsurance and its affiliates and subsidiaries may
operate websites that compete with Your Website
Copyright © eHealthInsurance
Services, Inc.