Terms and Conditions of Use Agreement

Welcome to the HMSA Benefitfocus eEnrollment Web Site, provided by the Hawaii Medical Service Association ("HMSA") in association with its licensor, Benefitfocus.com, Inc. (“Benefitfocus”). To use the services offered by HMSA through this Web Site (the “Services”), a participating employer must agree to be bound by all of the terms of this Terms and Conditions of Use Agreement (this "Agreement"). By typing your Login ID and Password and pushing the “Log In” button below, thereby accessing the Web Site, (1) you warrant that you are an officer or agent the participating employer designated below (“Employer” or “Client”) and are authorized to enter into this Agreement on behalf of Employer; (2) Employer agrees to conduct transactions by electronic means with HMSA, and to the use of electronic records as contained on the Web Site; and (3) Employer agrees to be bound by all the terms of this Agreement. You understand and agree that typing your Login ID and Password and pushing the “Log In” button below constitutes your signature on an electronic record for all purposes accepting the Terms and Conditions of Use Agreement, and shall have the same force and effect as if you had affixed your signature on a paper copy of the Terms and Conditions of Use Agreement.

Some of the Services allow Employer to submit information to HMSA as an electronic record, and to verify that information by using your Login ID and Password to submit such information. You understand and agree that using your Login ID and Password to submit such forms constitutes your electronic signature on an electronic record for all purposes and shall have the same force and effect as if you had affixed your signature on a paper copy of the electronic record. You are responsible for the use of your Login ID and Password, and agree that any use of your Login ID and Password shall constitute your electronic signature on the electronic record so submitted, and that any such use by any other person shall be considered the signature of your authorized agent and shall fully bind you and Employer. You further agree that you will immediately change your password and notify HMSA in writing or by electronic mail of any unauthorized use of your Login ID or Password.

HMSA may, from time to time, change the terms of this Terms and Conditions of Use Agreement. When the terms are changed, HMSA will notify Employer by e-mail or online postings and give Employer an opportunity to agree to such changed terms or terminate use of the Services. You agree that if Employer does not provide notice of termination within thirty (30) calendar days Employer will be bound by such changes. The most current version of this Agreement can be accessed at any time by selecting the Terms of Use link on the bottom of any page in the system.

HMSA Benefitfocus eEnrollment Web Site

Notwithstanding anything herein to the contrary, this Agreement will terminate immediately if Employer is terminated from or terminates its participation in HMSA's employer group plans. Subject to the terms contained herein, HMSA hereby grants you, as an officer or agent of Employer, a limited right to access and use the Services on behalf of Employer. You agree that you and Employer shall use, disclose, and maintain the Services and Confidential Information (as defined below) only in accordance with a) the terms of this Agreement, b) applicable law, c) professional and ethical standards and requirements, and d) the rules, policies and procedures established by HMSA for use of the Services.By using the Services, you represent and warrant that all information provided to HMSA in connection with this Agreement, including in the process of registration for the Services, is true, accurate and complete, and that you are authorized by Employer to utilize the Services on behalf of Employer. Employer is responsible for installing and maintaining all equipment and systems necessary to access the Services and for paying all charges related thereto.

ACCEPTABLE USE

You and Employer shall not post, transmit or store (a) a message or information under a false name; (b) information that is unlawful, libelous, defamatory, obscene, fraudulent, predatory of minors, harassing, threatening or hateful to any person; or (c) information that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others. You and Employer shall not attempt to disrupt the operation of the Services through use of methods such as viruses, Trojan horses, worms, time bombs, denial of service attacks, flooding or spamming. You and Employer shall not use the Services in any manner that could damage, disable or impair the services or networks of HMSA and its licensors and suppliers. You and Employer shall not attempt to gain unauthorized access to any user accounts or computer systems or networks, through hacking, password mining or any other means. You and Employer shall not use any robot, scraper or other means to access the Services for any purpose.

OPERATION AND RECORD RETENTION

HMSA reserves complete and sole discretion with respect to the operation of the Services. HMSA may, among other things withdraw, suspend or discontinue any functionality or feature of the Services. HMSA reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Services pursuant to their respective internal record retention and/or destruction policies as such policies may be amended. You will have the ability to save or print records you generate from use of the Services at the time of providing those services.

HMSA and its licensors and suppliers shall be entitled to utilize, transfer, or disclose for internal business purposes related to the delivery of the Services aggregated information which has been generated by use of the Services, including, but not limited to, summary statistics, which have been de-identified such that the information does not identify an individual and cannot be used to identify an individual for any purpose.

NON-DISCLOSURE AND CONFIDENTIALITY

In using the Services, you and Employer will have access to confidential information of HMSA and its licensors and suppliers ("Confidential Information") that may include, but is not limited to, software, codes, technology, logic, techniques, formats, tools, designs, concepts, methods, processes, ideas, functional specifications, technical materials and information, and related documentation.

You and Employer agree to maintain and safeguard vigilantly the privacy and security of all Confidential Information with security measures and controls that may be required from time to time by HMSA and its licensors and suppliers. Employer shall implement and maintain appropriate administrative, physical, technical, and procedural safeguards to protect the confidentiality, integrity, and availability of all Confidential Information, to protect against reasonably anticipated threats or hazards, and to prevent use or disclosure of Confidential Information accessed through the Services other than as permitted by this Agreement or required by law. Such safeguards shall comply with all applicable federal, state, and local requirements and with security measures and controls that may be required from time to time by HMSA and its licensors and suppliers.

Without limiting the foregoing, you and Employer agree to undertake all necessary measures to ensure the privacy and security of all Confidential Information including without limitation: (i) to use the Services and the Confidential Information only as needed to perform your responsibilities on behalf of Employer; (ii) not to access, use or disclose any Confidential Information that you have no legitimate authorization to access, use or disclose; (iii) to restrict physical and system access to the equipment which contains Confidential Information or which gives access to the Services (such as by diligently locking and monitoring office premises and requiring password verification to gain access to desktop computers);(iv) implementing procedures to ensure no computer or terminal with live access to the Services is left unattended at any time; and (v) implementing all policies and procedures required by HMSA and its licensors and suppliers.

You and Employer shall immediately notify HMSA in writing, and cooperate fully with HMSA in the event you discover or suspect: (a) any unauthorized use of or access to the Services; (b) any inappropriate use or disclosure of Confidential information obtained through use of the Services; or (c) the recognition or introduction of any virus, worms, Trojan horses and other destructive items.

TERMINATION

Employer or HMSA may suspend or terminate your access and/or Employer’s access to the Services at any time, for any reason or for no reason at all. HMSA has the right, but not the obligation, to refuse to provide access to the Services to any person, agency or organization, or to prohibit any person, agency or organization from using the Services, at any time, for any reason or for no reason at all. HMSA reserves the right to change, suspend, or discontinue all or part of the Services, temporarily or permanently, without prior notice. You and Employer acknowledge and agree that all obligations relating to Confidential Information under this Agreement, and the provisions of this paragraph, shall continue after termination of this Agreement and termination of access rights hereunder.

VIOLATION OF THIS AGREEMENT

You and Employer acknowledge that access to the Services shall be immediately suspended and this Agreement shall be terminated if you or Employer violate any provision of this Agreement. You and Employer acknowledge and agree that a violation of this Agreement may result in irreparable injury that will entitle HMSA to obtain a court order prohibiting you and Employer from using the Services or any Confidential Information.

INTELLECTUAL PROPERTY

The Services comprise services, materials and technology from HMSA and various licensors and suppliers to HMSA, including without limitation services, materials and technology. All of the materials and technology available on or through the Services is the property of HMSA and/or its licensors and suppliers and is protected by copyright, trademark, patent, trade secret and other intellectual property law. HMSA gives you and Employer permission to display, download, store and print content obtained from the Services only for Employer’s use of the Services. You and Employer agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate the materials or technology comprising the Services to anyone, including but not limited to others in Employer’s organization who do not have a need to know. Any copy made of information or materials obtained through the Services must include the copyright and other proprietary notices.

HMSA's registered trademarks and all other HMSA trade and service names are trademarks of HMSA. Nothing contained in the Services should be construed as granting any license or right to use any trademark, copyright, or other intellectual property displayed on this site without the express written permission of HMSA or such third-party that may own the trademark or property.

LINKS

Areas of the Services may contain links to other web sites. When you click on any of these links, you are entering another web site for which HMSA has no responsibility or control. The inclusion of any link does not imply affiliation, endorsement or adoption by HMSA of the linked site or any medical or other information contained therein. HMSA encourages you to read the terms and conditions, data-gathering practices and privacy policies of all linked sites as they may materially differ from the Agreement. You and Employer agree that neither HMSA nor its licensors and suppliers shall be responsible for any loss or damage of any sort incurred as a result of any such links or as the result of the presence of such links on this site. It is up to you and Employer to take precautions to ensure that whatever linked material you select is free of items such as viruses, worms, Trojan horses and other destructive items.

LEGAL NOTICES

DISCLAIMERS

ACCESS TO THE SERVICES AND THE INFORMATION CONTAINED THEREIN IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HMSA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

WITHOUT LIMITING THE FOREGOING, NEITHER HMSA NOR ANY OF ITS LICENSORS AND SUPPLIERS WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES HMSA OR ANY OF ITS LICENSORS AND SUPPLIERS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES OR ANY OF THE INFORMATION CONTAINED THEREIN. EMPLOYER EXPRESSLY AGREES THAT EMPLOYER’S USE OF THE SERVICES AND EMPLOYER’S RELIANCE UPON ANY OF ITS CONTENTS IS AT EMPLOYER’S SOLE RISK.

EMPLOYER SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ANY DAMAGE TO THE SERVICES OR ANY COMPUTER SYSTEM, ANY LOSS OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION ON THE SERVICES CAUSED BY YOU OR ANY PERSON AUTHORIZED BY YOU OR EMPLOYER. EMPLOYER AGREES TO BE SOLELY RESONSIBLE FOR ALL USE OF THE SERVICES OCCURING THROUGH THE USE OF YOUR LOGIN ID AND PASSWORD. HMSA AND ITS LICENSORS AND SUPPLIERS CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SERVICES, OR MISUSE OF YOUR LOGIN ID AND PASSWORD.

LIMITATIONS OF LIABILITY

IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR ANY OF ITS CONTENT, EMPLOYER AGREES THAT EMPLOYER’S SOLE REMEDY IS TO CEASE USING THE SERVICES. UNDER NO CIRCUMSTANCES SHALL HMSA AND/OR ITS LICENSORS AND SUPPLIERS BE LIABLE IN ANY WAY FOR EMPLOYER’S USE OF SERVICES OR ANY OF ITS CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, ANY INFRINGEMENT BY ANY CONTENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT.

UNDER NO CIRCUMSTANCES SHALL HMSA AND/OR ITS LICENSORS AND SUPPLIERS BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH EMPLOYER’S USE OF THE SERVICES, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF HMSA AND/OR ITS LICENSORS AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU AND EMPLOYER HEREBY RELEASE AND HOLD HARMLESS HMSA AND ITS LICENSORS AND SUPPLIERS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH EMPLOYER’S USE OF THE SERVICES. YOU AND EMPLOYER WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE.

ELECTRONIC CONTRACTING AND NOTICES

Employer agrees that HMSA may send to Employer in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, "Notices"). HMSA can send Employer electronic Notices (1) to the e-mail address that you provided to us during registration, or (2) by posting the Notice on the applicable service or otherwise through the site. The delivery of any Notice from HMSA is effective when sent by HMSA, regardless of whether Employer reads the Notice when Employer receives it or whether Employer actually receives the delivery.

Additionally, Employer may receive periodic electronic mailings with information on services, new products, and general information HMSA feels might be of interest to Employer. If Employer does not wish to receive such information from HMSA, Employer may "opt-out" or "unsubscribe" from receiving such information by following the unsubscribe information in the email or by contacting HMSA at webmaster@hmsa.com

MISCELLANEOUS

Employer expressly acknowledge that HMSA is an independent plan operating under a license with the Blue Cross and Blue Shield Association, an association of independent Blue Cross and Blue Shield Plans (the "Association"), permitting HMSA to use the Blue Cross and Blue Shield Service Mark in the State of Hawaii, and that HMSA is not contracting as the agent of the Association.

This Agreement shall be governed by the laws of State of Hawaii without regard to its rules on conflicts or choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Employer agrees that all disputes arising out of or related to this Agreement, or their breach, shall be settled by arbitration. To request arbitration, Employer must submit a written request to HMSA's Legal Services in Honolulu, Hawaii within sixty (60) calendar days of when Employer becomes or should have become aware of the events leading to the dispute. The arbitration shall be conducted by an independent arbitration service mutually selected by Employer and HMSA. The arbitration shall be conducted in Honolulu, Hawaii, except that if Employer’s office is on a neighbor island, Employer may participate in the arbitration by telephone. If Employer and HMSA are unable to agree upon an arbitration service within thirty (30) calendar days of HMSA's receipt of Employer’s request for arbitration, Dispute Prevention and Resolution, Inc. ("DPR") will conduct the arbitration. If the parties are unable to agree upon an arbitrator within thirty (30) calendar days following the submission of the claim to the arbitration service, HMSA and Employer shall select an arbitrator in accordance with the arbitration service's arbitrator selection procedures. The arbitration will be conducted pursuant to the Federal Arbitration Act, 9 U.S.C. 1 et seq. and the arbitration services' arbitration rules applicable to the Federal Arbitration Act, or pursuant to such other arbitration rules as to which the arbitrator, HMSA, and Employer may mutually agree. The arbitrator may hear and determine motions for summary judgment under the same standards applicable under Rule 56 of the Federal Rules of Civil Procedure. Each party shall pay its own attorney and witness fees, provided that the arbitrator may award attorney fees and costs to a prevailing party related to any claim or contention of a nonprevailing party that the arbitrator determines was frivolous or wholly without merit. Fees and costs of the arbitrator and the arbitration service may be awarded by the arbitrator as the arbitrator determines is appropriate. If no award is made, fees and costs of the arbitrator and the arbitration service shall be shared equally by both parties. The decision of the arbitrator shall be final and binding on Employer and HMSA and judgment shall be entered thereon upon timely motion by Employer or HMSA to a court of competent jurisdiction. No other action may be brought in court in connection with this decision, except as provided under the Federal Arbitration Act. There shall be no consolidation of parties in the arbitration proceeding. Employer and HMSA agree to take appropriate precautions to protect the confidentiality of any personal health information related to the arbitration proceeding.

This Agreement constitutes the sole agreement between Employer and HMSA relating to Employer’s use and HMSA’s provision of the Services and the subject matter hereof, and no representations, statements or inducements, oral or written, not contained in this Agreement shall bind Employer or HMSA. Any of the terms of this Agreement which are determined to be invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable any of the remaining terms of this Agreement or affecting the validity or enforceability of the Agreement as a whole. Failure to insist on performance of any of the terms of this Agreement will not operate as a waiver of that or any subsequent default. No waiver by HMSA of any right under this Agreement will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. Employer may not assign, transfer or delegate Employer’s rights or obligations hereunder, in whole or in part. Any waivers must be made in writing and signed by an authorized representative of the party making the waiver. This Agreement shall be binding upon and inure to the benefit of each of the parties and the parties' respective successors and permitted assigns. Except as otherwise specifically provided herein, this Agreement may not be modified, supplemented, qualified, or interpreted except in writing signed by the parties.

A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

I understand and agree that the acts of typing my Login ID and Password below and pushing the “Log In” button below constitute my electronic signature on an electronic record for all purposes and shall have the same force and effect as if I had affixed my signature on a paper copy of this Agreement. I further represent and warrant that I am an officer or agent of Employer authorized to bind Employer by my electronic signature to this Agreement.