eHealthInsurance Services, Inc.
Effective Date:
10/03/03
(replaces version dated 12/19/02)
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
http://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, “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
Small Business Group Plan |
US $40.00
|
|
eHealthInsurance
Student Plan |
US $20.00
|
|
Non-Insurance
Products |
Fee for
Submitted Application |
|
eHealth Health
Savings Card* |
US
$20.00 |
|
eHealth Dental
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 http://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.