ARTICLE 1. PREAMBLE

1.1 These terms and conditions (“T&Cs”) govern Customer’s acquisition of the Services from Castlight. All terms used herein and not otherwise defined shall be as defined in Article 13 below.

 

ARTICLE 2. SERVICES

2.1 During the term of each applicable Services Order Form, Castlight will provide Users with Services.

2.2 The specific Services to be provided and related terms and conditions shall be specified in writing (each such writing, a “Services Order Form”). Each Services Order Form shall: (a) be signed by an authorized representative of each party; (b) include the applicable term, the description of Services to be performed, the responsibilities of the parties, compensation and payment terms and any additional terms and conditions as applicable; and (c) be subject to all of the terms and conditions of the Agreement and the BAA.

2.3 Customer is required to obtain Customer Data from its Administrators as needed for the Castlight Service. Customer understands and agrees that it shall provide to Castlight all Plan information, necessary Customer data feeds (e.g. claims, accumulator, provider directory), open enrollment materials, and Administrator key contacts needed for the Castlight Service 

2.4 Customer agrees that its purchase of Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Castlight with respect to future functionality or features unless otherwise set forth in an applicable Services Order Form.

2.5 Customer shall use the Services solely for its internal business purposes, in compliance with applicable law, and shall not: (i) modify, copy or create derivative works based on the Services; (ii) reverse engineer the Services; (iii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein; (iv) send through or store Malicious Code in the Services; (v) send through or store infringing, inaccurate, or unlawful material in the Services; (vi) resell, sublicense, lease, time-share or otherwise make the Services available to any unauthorized third party; (vii) permit access to the Services by a competitor of Castlight; (viii) use the Services, or permit it to be used, for purposes of product evaluation or other comparative analysis intended for publication without Castlight’s prior written consent; or (ix) access the Services for the purpose of building a competitive product or service or copying its features or user interface.

ARTICLE 3. DEMO AND TEST ACCOUNT LICENSE

3.1 Upon issuance of a confirmation email by Castlight to Customer, Castlight may grant Customer and Customer’s agents a limited, non-exclusive, non-transferable, royalty-free license to use an account which may be: i) viewed solely by Customer’s authorized employee or agent (“Test Account”); or (ii) used by Customer’s authorized employee and agents to display to other Customer employees (“Demo Account”). Customer acknowledges that any and all Demo or Test Accounts are provided on an AS IS basis and may have limited functionality compared to the production site. Customer shall ensure that Customer’s employee or agent with access to a Test Account and/or Demo Account complies with confidentiality obligations as least as stringent as those contained herein and that Customer’s agent be legally permitted to access such information (for purposes of this Section 3, hereinafter “Approved Agent”).

  1. Actual Pricing Test Account. Where Customer purchases Castlight Services which include Care Guidance features (as further described in Services Description), Castlight may grant Customer access to a Test Account with actual pricing (“Actual Pricing Test Account”).   Customer acknowledges that the Actual Pricing Test Account contains actual pricing data and agrees to treat such information with greater protection. Specifically, if Customer’s TPA is a licensee of a Blue Cross and/or Blue Shield mark (“Blues TPA”), and Customer requests access to an Actual Pricing Test Account, Customer represents and warrants that: 1) if the person to whom Customer provides access to the Actual Pricing Test Account is an employee, that either: a) the employee viewing the Actual Pricing Test Account is a member of such Blues TPA, or b) Customer has received consent from such Blues TPA for such employee to view such Actual Pricing Test Account; and 2) if the person to whom Customer provides access to the Actual Pricing Test Account is an agent, such agent qualifies as an Approved Agent.

 

3.2 In the event that Castlight provides Customer access to a Demo Account or a Test Account, Customer shall, and shall ensure that its employees and Approved Agents, use such account(s) solely for Customer’s internal training and evaluation purposes and do not use such account(s) in any other manner. Customer shall not and shall ensure that its employees and Approved Agents who have been granted access to a Demo Account or Test Account do not:

  1. Display or provide to any other third party any material whatsoever from a Demo Account or Test Account;
  2. Use a Demo Account or a Test Account in connection with a production database instance;
  3. Make any alterations, changes, additions or other modifications to such Demo Accounts or Test Accounts;
  4. Reverse compile, disassemble, or otherwise reproduce the Demo Account or Test Account services under any circumstances; or
  5. Modify, network, rent, lease, loan, distribute or create derivative works of such Test or Demo Account.

 

3.3 Customer acknowledges that Castlight may, at any time, and in its sole discretion, modify, change, or remove data accessible through both Demo Accounts and Test Accounts, or terminate such license(s).

 

ARTICLE 4. TERM AND TERMINATION

4.1 Term. The term of these T&Cs (the “Term”) commences on the Effective Date of the MSA and continues until all Services Order Forms governed by these T&Cs have expired or been terminated.

 

4.2 Termination for Cause. Either party may terminate the Agreement: (a) upon thirty (30) days’ prior written notice for a material breach of the Agreement by the other party unless such material breach is cured within such thirty (30) day period; (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) Customer moves to an Administrator Castlight cannot support and Castlight has been given ninety (90) days’ written notice of Customer’s intent to switch to such unsupported Administrator and has paid Castlight all fees invoiced for the then-current Contract Year, provided Castlight has not been able to obtain an agreement with such new Administrator within such ninety (90) day period.

 

4.3 Effect of Expiration or Termination. Upon expiration or termination of the Agreement: (a) Castlight shall have no further obligation to perform the Services and shall cease performing the Services; (b) neither party shall be relieved from any obligation accrued up to and including the date of such expiration or termination nor deprived of any right or remedy otherwise available to it hereunder; (c) within thirty (30) days Customer will pay Castlight for all Services performed or then in process and for unpaid fees covering the remainder of the Term up to the effective date of termination.  Article 5 (including the Sections of any Services Order Form regarding payment obligations), Article 8, Article 9 (except that Customer will no longer have any on-going obligation under Article 9.3), Article 10 (except for Article 10.1), Article 12, Article 13 and those provisions of any Services Order Form that survive such expiration or termination as specified in such Services Order Form shall survive any termination or expiration of the Agreement.  In addition, upon termination or expiration of the Agreement, Castlight will, within one hundred twenty-five (125) days after written request by Customer, purge all Member Data received from the Customer from its production servers except to the extent a Member has requested that Castlight retain information related to such Member.  Additionally, Member Data that is stored on encrypted back-up medium and in secure production data centers shall be purged ninety (90) days after such Member Data is purged from the production servers.

 

ARTICLE 5. FEES, PAYMENT AND PAYMENT TERMS

5.1 Service Fees, Invoicing and Payment Terms. Castlight’s compensation and payment for the Services and the applicable invoicing shall be as set forth in the applicable Services Order Form. Except as otherwise set forth in an applicable Services Order Form, Castlight will invoice Customer in advance fees for the Services due for each Contract Year. Payment will be due thirty (30) days after Customer’s receipt of each invoice. If any charge owing by Customer (other than charges disputed in good faith) is thirty (30) days or more overdue, Castlight may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full. Additionally, all amounts not paid when due will accrue interest (without the requirement of a notice) at the lower of 1.5% per month or the highest rate permissible by law until the unpaid amounts are paid in full. Customer shall reimburse Castlight for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Castlight in the collection of undisputed overdue amounts. Except as otherwise provided in a Services Order Form or other document executed between the parties, all invoiced amounts are in U.S. dollars, all payments shall be made in U.S. dollars, and unless otherwise expressly provided for, purchases of Services hereunder are non-cancelable and all fees are non-refundable.

 

5.2 Third Party Fees. Fees that may be charged by an Administrator, a Data provider (or any entity with which such Data provider is affiliated), Providers, or other third parties in connection with the implementation of the Service and/or the integration of the Service with such parties (which may include but are not limited to costs for claims extracts and/or provider directory feeds to Castlight, eligibility file feeds, and time/materials payments to support Customer’s outsourced call center integration into Castlight) shall be the sole responsibility of Customer. Fees that Customer may be charged by third party vendors for marketing services, which may include but not be limited to fees for the production and shipment of additional marketing collateral, agency costs for additional marketing developed by Customer and costs for administering or fulfilling an incentive program, shall be the sole responsibility of Customer.

 

5.3 Taxes. Castlight’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, county, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. Customer is not obligated for taxes assessed for federal or state taxes on Castlight’s net income or franchise taxes. If Castlight has the legal obligation to pay or collect Taxes for which Customer is responsible under this Article 5.3, the appropriate amount shall be invoiced to and paid by Customer.

 

ARTICLE 6. REPRESENTATIONS AND WARRANTIES 

6.1 By Both Parties. Each party represents and warrants to the other party that: (a) it has all requisite power and authority to enter into the Agreement and to carry out its obligations hereunder; (b) by entering into the Agreement, including any Services Order Form, it does not and will not violate or constitute a breach of any of its contractual obligations with third parties; and (c) it will comply with all applicable laws.

 

6.2 By Castlight. Castlight represents and warrants to Customer that: (a) Castlight shall properly supervise all persons performing the Castlight Services and shall require that all such persons comply with the applicable terms of the Agreement, including any applicable Services Order Form; (b) Castlight shall use industry-standard or better security measures in the provision of the Castlight Services; (c) Castlight will perform the Castlight Services in a professional manner; and (d) the Castlight Services will perform in all material respects in conformance with the descriptions set forth in the applicable Services Order Form and described in the Services Description, subject to the terms and conditions thereof.

 

6.3 By Customer. Customer represents and warrants to Castlight that: (a) information Customer provides (or that is provided on Customer’s behalf to Castlight) or information Castlight has developed and Customer has approved for the purposes of describing Customer’s third party vendors shall be accurate and correct; and (b) Customer shall embed the Castlight registration flow into Customer’s benefits enrollment process.

 

6.4 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN ARTICLES 6.1, 6.2, AND 7, CASTLIGHT MAKES NO WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE SERVICES AND THE CASTLIGHT PLATFORM) AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, REGARDING SUCH SUBJECT MATTER, AND SHALL NOT BE LIABLE FOR ANY CONTENT GENERATED AND/OR UPLOADED BY USERS OF THE CASTLIGHT PLATFORM AND/OR SERVICES.

 

ARTICLE 7. UPTIME COMMITMENT AND USER SUPPORT SERVICE LEVELS.  

7.1 Castlight’s Uptime Commitment. Castlight warrants to Customer that each month Uptime shall constitute at least 99.9% of Available Time for the Castlight Service. “Uptime” shall mean all times when the Castlight Service is running and is available to be accessed by Customer Users as measured by the site monitoring software operated by Castlight (the “Monitoring Software”). “Available Time” shall mean the number of hours in any given month less the amount of Downtime related to events outside of Castlight’s control such as force majeure events, Standard Maintenance Windows, Emergency Maintenance Windows, Internet-wide disruptions, denial of service attacks, or attributable to Customer. “Downtime” shall mean all times in which the Castlight Service fails HTTP checks, content verification checks and a service check as measured by the Monitoring Software. “Standard Maintenance Window” consists of weekly maintenance hours between 10:00 p.m. to 2:00 a.m. Pacific Time every second and fourth Friday of each month or at such other time on Saturday or Sunday as may be scheduled from time to time with ten (10) days prior notice to Customer. “Emergency Maintenance Window” means emergency updates as result of vendor recommended patches to deal with high risk security threats as well as hardware replacement, which maintenance Castlight will use commercially reasonable efforts to perform maintenance during periods of low usage (such as evenings) and to promptly notify customers of emergency maintenance. If Customer submits a written request for a credit due to Castlight’s breach of the service level warranty set forth above (which must be confirmed by the Monitoring Software) for two (2) consecutive months, and such request is submitted within thirty (30) days of such breach, Castlight will issue a credit against the next invoice payable by Customer (and if no further invoices are due, Castlight will pay Customer the amount of the credit within thirty (30) days of the end of term of the applicable Services Order Form). Such credit will be equal to five percent (5%) of Customer’s service fees for both months at issue (which is equal to 0.8333% of the Annual Recurring Fee for the Castlight Service). This is Castlight’s entire obligation and liability and Customer’s sole and exclusive remedy with respect to Castlight’s Uptime warranty.

 

7.2 Castlight’s User Support Service Levels. For email inquiries received by Castlight in months in which there were at least five hundred (500) inquiries, ninety-eight percent (98%) of all email inquiries will be responded to within two (2) business day of receipt. If Castlight receives Customer’s written request by the last day of the calendar quarter for which the report covers, Castlight shall provide Customer a report detailing Castlight’s compliance with the User support service levels specified in this Article 7.2 by the second week of the calendar quarter following the receipt of the notice. Such report which will cover the activity for the prior calendar quarter. If such report shows service levels below those set forth in this Article 7.2, Castlight will issue a credit against the next invoice payable by Customer (and if no further invoices are due, Castlight will pay Customer the amount of the credit within thirty (30) days of the end of term of the applicable Services Order Form) equal to one percent (1%) of Customer’s service fees for the month(s) at issue. This remedy is Castlight’s entire obligation and liability and Customer’s sole and exclusive remedy for incompliance with the User support service levels.

 

ARTICLE 8. CONFIDENTIAL INFORMATION

The following information is “Confidential Information”: (i) as to both parties, the terms of the Agreement, and all information exchanged by the parties during the term of the Agreement, including any information that is marked or designated as “Confidential” or with like notice; (ii) as to the party disclosing the information, any information related to that party’s assets, liabilities, financial results, financing plans, business strategies, product development plans, operations, source code, technology, know-how, trade secrets, customers, vendors, contractors, suppliers and personnel, and all other information that a reasonable person would understand to be confidential; but excluding any information which is independently developed by the other party without reference to the other party’s Confidential Information as shown by such party’s written business records, or becomes generally available to the public other than through breach of the Agreement, or violation of law or other agreement. Each party agrees not to disclose the other party’s Confidential Information to any third party except to its affiliates, agents, consultants and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement and who are bound by written non-disclosure obligations at least as stringent as those stated in the Agreement; provided, however, that a party will not be liable for disclosure of the other party’s Confidential Information: (a) if it is required by law or regulation to be disclosed; and (b) the disclosing party gives advance written notice of the disclosure to the other party at the earliest possible time (if legally permissible), or the party discloses the information as part of a bona fide legal proceeding to enforce its rights under the Agreement. Each party agrees to use at least a reasonable degree of care to protect the other party’s Confidential Information. Each party further agrees not to use the other party’s Confidential Information except in connection with the performance of its obligations or exercise of its rights under the Agreement. Each party shall destroy the other party’s Confidential Information on completion of the Services. Each party shall be responsible for a breach of this Article by its agents, contractors or representatives.

 

ARTICLE 9. INTELLECTUAL PROPERTY AND DATA RIGHTS

9.1 Castlight Ownership. As between the parties, Castlight will exclusively own all right, title and interest in and to: (a) the Castlight Platform and the Services; (b) any improvements, enhancements, derivative works, modifications, additional modules or features to or for the Castlight Platform or the Services developed or created during the Term, whether created or developed solely or jointly by or for the parties or any User; (c) any data generated through the Castlight Platform or in connection with the Services (subject to Customer’s rights to the underlying Customer Data); and (d) all intellectual property rights in the foregoing. Castlight will also exclusively own all right, title and interest in and to any feedback, ideas, suggestions or information that Customer provides relating to the Services or the Castlight Platform, including all intellectual property rights therein, and Customer shall assign, and does hereby assign, any rights retained by it with respect to the foregoing.

 

9.2 Customer Ownership. As between the parties, Customer shall own all rights, title and interest in and to any and all Customer Data.

 

9.3 Access and Use of Data. Customer will provide, or direct its Administrators to provide, Data to Castlight for Castlight’s performance of the Services.  Castlight may access, reproduce, modify and prepare derivative works of, aggregate, analyze, cleanse, scrub, reverse engineer, distribute, display, present and otherwise use Data as reasonably necessary for the purposes of performing, improving and providing Services for all users.  To the extent Castlight creates and uses any modified version of Data or new data based on Data, Castlight agrees with respect to modified Data or new data created with reference thereto, the applicable Member shall have been de-identified in accordance with 45 CFR section 164.514, as applicable.  Customer shall, and shall use its best efforts to require its Administrators to, ensure that (i) all information that is provided to Castlight, including, but not limited to eligibility files, is authentic, accurate, reliable, complete and confidential and (ii) Castlight may use such information in accordance with the terms of the Agreement without violating or infringing any third party rights.  Customer’s security measures shall include, and Customer shall use its best efforts to require that its Administrators’ security measures include, but are not limited to: (a) maintaining, and requiring agents and subcontractors to maintain, administrative, technical and physical safeguards to protect the security, integrity and confidentiality of data provided to Castlight, including up-to-date anti-virus software; (b) not accessing or using the electronic systems of Castlight for any purpose that is illegal or unauthorized; (c) reporting to Castlight any material system, equipment or software malfunction, error, breakage or security breach that involves or may reasonably affect Castlight, whether detected or believed to be imminent; and (d) maintaining and enforcing security management policies and procedures and utilizing mechanisms and processes to prevent, detect, record, analyze, contain and resolve unauthorized access attempts and for periodically reviewing its processing infrastructure for potential security vulnerabilities.  In addition, Customer shall: (x) provide Castlight advance written notice prior to conducting any vulnerability, port, or any other type of security scan(s) that attempts to access the Castlight Platform, the Services, or any Castlight computers, network systems, operating systems, or software applications; (y) promptly provide Castlight the results of any such scans; and (z) maintain such results in accordance with the confidentiality provisions of this Agreement.  If during the Term of this Agreement, Customer terminates an Administrator and replaces it with a new Administrator, Customer shall use its best efforts to obtain consent from such terminated Administrator to continue use the past claims information generated by such terminated Administrator for the remaining duration of this Agreement.

 

ARTICLE 10. INSURANCE, INDEMNIFICATION AND LIMITATIONS OF LIABILITY

10.1 Insurance. Castlight shall obtain and maintain a policy or policies of liability insurance covering Castlight’s obligations under the Agreement. Such policy(ies) shall have a minimum coverage of $2,000,000.00 per occurrence and in the aggregate; $1,000,000.00 for workers’ compensation insurance; and $10,000,000.00 per claim and in aggregate for Errors and Omissions Liability Insurance.

 

10.2 Indemnity by Castlight. Castlight agrees to defend, indemnify and hold harmless Customer, its directors, officers, employees and agents against any third party claims, and any damages and costs (including court costs and reasonable attorneys’ fees) incurred by Customer in connection with such claims to the extent such claims arise from Castlight’s: (a) gross negligence or willful misconduct; (b) material violation of applicable laws; or (c) infringement of intellectual property rights related to the Castlight Services. The foregoing indemnity in (c) shall exclude infringement: (x) arising from combinations of the Castlight Platform or Services with hardware, software or other components not provided by Castlight, or (y) modification or servicing of the Castlight Platform or Service unless such modification or servicing was done by Castlight; or (z) any software, hardware or other component provided by a third party. In the event of (c), Castlight may, at its sole option and expense: (i) procure for Customer the right to continue using the Castlight Service under the terms of the Agreement; or (ii) replace or modify the Castlight Service so it is non-infringing. If the foregoing options are not reasonably practicable, Castlight may terminate the Agreement and refund to Customer all prepaid fees for the remainder of its Term after the date of termination. This Article 10.2 represents Castlight’s entire obligation and Customer’s exclusive remedy regarding any third party intellectual property claims.

 

10.3 Indemnity by Customer. Customer agrees to defend, indemnify and hold harmless Castlight, its directors, officers, employees and agents against any third party claims, and any damages and costs (including court costs and reasonable attorneys’ fees) incurred by Castlight in connection with such claims to the extent such claims arise from: (a) Customer’s gross negligence or willful misconduct; (b) Customer’s material violation of applicable laws; (c) Customer’s plan benefits, plan utilization review issues or plan benefit coverage issues; (d) Customer’s written request for Castlight to deviate from its standard authentication and/or validation process (including Customer’s validation of Users accessing the Castlight Service through single sign-on); (e) Customer’s third party vendors’ access to the Castlight Platform; or (f) if Customer elects to have single sign on, for any incorrect Data, authentication, or verification provided by Customer or its designate to Castlight.

 

10.4 Indemnification Process. The party seeking indemnity pursuant to Articles 10.2 or 10.3 shall: (a) promptly give written notice of the claim to the other party; (b) give the other party control of the defense and settlement of the claim (provided that the party seeking indemnity may participate in such defense at its own expense and that other party may not settle any claim in a manner that admits liability on behalf of party seeking indemnity); and (c) provide to the other party, at the other party’s expense, reasonable assistance in connection with the defense and settlement of the claim. The other party shall pay the party seeking indemnification any damages finally awarded against the responsible party, settlements agreed to in accordance with this Article 10 and reasonable costs and expenses (including reasonable legal fees) directly attributable to such claim.

 

10.5 Limitation of Liability. NEITHER CUSTOMER NOR CASTLIGHT SHALL BE LIABLE TO THE OTHER UNDER THE AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY AMOUNTS IN EXCESS OF AMOUNTS PAID OR PAYABLE BY CUSTOMER TO CASTLIGHT UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT OR ANY SERVICES ORDER FORM.

 

ARTICLE 11. CUSTOMER OBLIGATIONS

During the term of this Agreement, Customer hereby agrees that Castlight shall have the right, but not the obligation, to include Customer’s name as a customer who uses the Services on the Castlight website and in other materials promoting the Services.  Castlight will remove Customer’s name and logo from any such list within thirty (30) days after any termination of this Agreement or upon receipt of a written notice from Customer requesting such removal.  Customer shall use its best efforts to require that its Administrators, where applicable, provide consent for Castlight to display content pertaining to its Administrators within the Castlight Platform for the purposes of providing the Services as set forth herein.

 

ARTICLE 12. MISCELLANEOUS

12.1 Complete Agreement. The Agreement, including all exhibits and addenda hereto, sets forth the entire understanding of the parties with respect to the subject matter thereof and supersedes all prior and contemporaneous agreements, proposals, representations or understandings between them, written or oral, concerning such subject matter. No waiver or modification of any provision of the Agreement may be made unless by a written instrument duly executed by both parties. Any waiver or breach of any term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other term or condition.

 

12.2 Assignment. Neither Customer nor Castlight may assign the Agreement, or any rights, duties or obligations contained herein, to any other person, firm, corporation or other business entity without the prior written consent of the other party except that the Agreement may be assigned by either party to any of its parent, subsidiary or affiliate organizations or any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of its business assets. Any assignment in violation of this Article 12.2 shall be void and of no force or effect.

 

12.3 Notices. All notices and other communications required or permitted under the Agreement shall be in writing, served personally on, delivered by recognized overnight courier or mailed by certified or registered United States mail to, the party to be charged with receipt thereof at the address first listed in the MSA. Notices and other communications served by mail shall be deemed given hereunder seventy-two (72) hours after deposit of such notice or communication in the United States Post Office as certified or registered mail with postage prepaid and duly addressed to whom such notice or communication is to be given. All other notices shall be deemed given hereunder upon actual receipt. Any party may change said party’s address for purposes of this Article 12.3 by giving to the other party written notice of such change in the manner provided herein. Email notification shall be sufficient for the notification purposes herein. Customer shall address any email notices to Castlight to [email protected]

 

12.4 Invoicing Address. Castlight shall send all Customer invoices and notices to the address and email set forth on the applicable Services Order Form.

 

12.5 Severability. All Articles (or Sections, as applicable), clauses thereof and covenants contained in the Agreement are severable, and in the event any of them shall be held to be invalid by any court, the Agreement will remain in full force and effect, such Articles (or Sections, as applicable), clauses or covenants will be deemed stricken and the remaining provisions will not be affected or impaired and will be interpreted as if such invalid Articles (or Sections, as applicable), clauses or covenants were not contained herein.

 

12.6 Applicable Law and Waiver of Jury Trial. The Agreement is made and shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law. Each party waives any right to jury trial in connection with any dispute arising out of or concerning the Agreement.

 

12.7 Relationship of Customer and Castlight. The parties are independent contractors. The MSA does not create a partnership, joint venture, franchise, agency, fiduciary or employment relationship between the parties.

 

12.8 Relationship between PSPs and Castlight, Third Party Applications or Devices. PSPs and Castlight are independent contractors and Castlight’s integration of PSP Services into the Castlight Service does not create a partnership, joint venture, franchise, agency, fiduciary or employment relationship between Castlight and any PSP. Customer understands and acknowledges that in order to participate in the Castlight Service and Customer promotions and programs, Users may be required to acquire PSP Services, other third party mobile applications and/or devices. Castlight is not liable for the operation of the PSPs’ websites, the PSP Services, the accuracy of the information provided by the PSP(s) nor the use of third party mobile applications and/or devices.

 

12.9 Attorneys’ Fees. If any action at law or in equity is necessary to enforce the terms of the Agreement, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.

 

12.10 Force Majeure. Neither party shall be responsible or liable to the other party for nonperformance or delay in performance of any terms or conditions of the Agreement (except payment obligations) due to acts of God, acts of governments, wars, riots, strikes or other labor disputes, fire, flood, or other causes beyond the reasonable control of the nonperforming or delayed party and without the negligence of such party, provided, however, nonperformance or delay in excess of ninety (90) days shall constitute cause for termination of the Agreement by either party.

 

12.11 Headings. The headings of the Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation or construction of the Agreement.

 

12.12 Counterparts. The Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.

 

ARTICLE 13. DEFINITIONS

13.1 “Adult Dependent” means a person that is an adult (as defined by the applicable state law) who is (a) eligible to receive health care coverage through an Employee User and/or (b) eligible to participate in a wellness program through an Employee User, as identified by Castlight based on information provided by Customer to Castlight.

 

13.2 “Administrator(s)” means, collectively, Customer’s TPA, PBM, DBM, EAP, MBHO, and other Providers, as set forth in the applicable Services Order Form.

 

13.3 “Administrator Data” means data provided by Customer’s Administrators on behalf of the Customer such as, but not limited, to formulary data, provider directories, network data, national pre-authorization procedures, clinical policy bulletins and proprietary rate tables negotiated by its Administrators.

 

13.4 “BAA” means the Business Associate Agreement between Castlight and Customer.

13.5 “Castlight Platform” means Castlight’s proprietary technology platform and system (including without limitation software, algorithms and proprietary and technical information therein) for gathering, analyzing, modifying and making available to its users certain health and wellness-related data and related information, guidance and services.

 

13.6 “Castlight Service” means the wellness, healthcare and benefits navigation, and related services that Castlight provides using the Castlight Platform. The Castlight Service includes the services of Jiff, Inc., a wholly owned subsidiary of Castlight.

 

13.7 “Contract Year” has the meaning as set forth in the applicable Services Order Form.

 

13.8 “Customer Data” means data specific to Customer provided by or on behalf of Customer to Castlight, such as, but not limited to, Summary of Plan Design and medical and claims histories.

 

13.9 “Data” means the following categories of data: (i) Member Data; (ii) Customer Data; and (iii) Administrator Data.

 

13.10 “DBM” means Customer’s third party Dental Benefits Manager, if any, as set forth in the applicable Services Order Form.

 

13.11  “EAP” means Customer’s Employee Assistance Program provider, if any, as set forth in the applicable Services Order Form.

 

13.12 “Employee” means each Customer employee who is (a) eligible to receive health care coverage under the applicable rules of the Plan and/or (b) eligible to participate in a wellness program under the applicable rules of the Customer’s wellness program, as identified by Castlight based on information provided by Customer to Castlight.

 

13.13 “Malicious Code” means viruses, worms, timebombs, Trojan horses and/or any other harmful or malicious code, programs files, scripts, agents or files.

 

13.14 “MBHO” means Customer’s managed behavioral health organization, if any, as set forth in the applicable Services Order Form.

 

13.15 “Member” means Users and any other individuals eligible to receive health care coverage under the applicable rules of the Plan as identified by Castlight based on information provided by Customer to Castlight.

 

13.16 “Member Data” means demographic and other Member-specific information and data, whether or not such information or data is Protected Health Information (as defined in the BAA). Member Data includes, without limitation, each Employee User’s name, address, dependent information, claims histories, and explanations of benefits.

 

13.17 “Other Services” means any services provided through the Castlight Platform to Users as set forth in the applicable Services Order Form excluding the Castlight Service.

 

13.18 “PBM” means Customer’s third party Pharmacy Benefits Manager, if any, as set forth in the applicable Services Order Form.

 

13.19 “Plan” shall mean Customer’s health plan, as set forth in the applicable Services Order Form.

 

13.20 “Platform Service Provider” or “PSP” means a third party software-as-a-service provider that is integrated into the Castlight Service and provided to Users through the Castlight Platform (“PSP Services”). Third party services provided by PSPs constitute Other Services.

 

13.21 “Production Ready Date” has the meaning as set forth in the applicable Services Order Form.

 

13.22 “Providers” means certain third parties that provide services and/or data to Customer (such as employee benefits portals) and in connection with such provision of services to Customer, will be providing information to Castlight in connection with the Agreement.

 

13.23 “Services” means (a) the Castlight Service and (b) the Other Services.

 

13.24 “TPA” means Customer’s third party administrator of health services, including physician network management, if any, as set forth in the applicable Services Order Form.

 

13.25 “User(s)” means Employee(s) and Adult Dependent(s) who are designated in writing by Customer to Castlight as eligible to use the Service whether or not such individual does in fact use the Service.