1. Acceptance of Terms.
1.1 Koi Healthcare, Inc. and its affiliates (collectively, “Koi Healthcare”) provides its Service (as defined below) to you through web sites under the control of Koi Healthcare (including, without limitation, the site located at https://www.koihealthcare.com) (collectively, the “Site”), subject to these Terms of Service (these “TOS”). By accepting these TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by these TOS. If you do not agree with these TOS, you must not accept these TOS and may not use the Service.
1.2 Koi Healthcare may change these TOS from time to time without prior notice. The revised terms and conditions will become effective upon posting and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to these TOS is not acceptable to you, your only remedy is to stop accessing and using the Service.
2. Description of Service.
The “Service” includes (a) the Site, (b) Koi Healthcare’s health insurance (specifically Medicare and Medicare Advantage) awareness information, and (c) all software (including the Software, as defined below), materials, portals, recommendations, job leads, data, reports, text, images, sounds, video, analytics and other content made available through any of the foregoing (collectively, “Content”). Any new features added to or augmenting the Service are also subject to these TOS.
3. General Conditions/Access and Use of the Service.
3.2 Any software that may be made available by Koi Healthcare in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of these TOS, Koi Healthcare hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service. You agree not to access the Service by any means other than through the interface that is provided by Koi Healthcare for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Koi Healthcare or any third party is granted to you in connection with the Service.
3.3 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “transmit(ing)”) in connection with or relating to the Service (“Your Content”). You hereby represent and warrant that Your Content transmitted by you with respect to the Service (a) is accurate, true, legal, decent, honest and complete (including, without limitation, with respect to your résumé, biographical data and employment information, if you are using the Service as a job seeker or career development seeker), and (b) is free of bugs, worms or viruses. You agree that Koi Healthcare may remove Your Content from the Service if it deems that you are in breach of the foregoing sentence or pursuant to other terms of this TOS. You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Koi Healthcare reserves the right to access your account in order to respond to your requests for technical support. By transmitting Your Content on or through the Service, you hereby do and shall grant Koi Healthcare a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. Koi Healthcare has the right, but not the obligation, to screen or monitor the Service, Content, or Your Content. You further agree that Koi Healthcare may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
3.4 You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks, (b) changes to conform and adapt to technical requirements of connecting networks or devices, (c) transmission to Koi Healthcare’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service, and (d) transmission to other third parties in connection with the provision to you of the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Koi Healthcare will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.5 If you are a health insurance seeker, you further agree to use your own judgment, caution, and common sense in managing information offered by or obtained through the Service and that you bear the sole risk of any reliance or use of any Content (including any recommended health care plans) provided through the Service.
3.6 The failure of Koi Healthcare to exercise or enforce any right or provision of these TOS shall not be a waiver of that right. You acknowledge that these TOS are a contract between you and Koi Healthcare, even though they are electronic and not physically signed by you and Koi Healthcare, and they govern your use of the Service and takes the place of any prior similar agreements between you and Koi Healthcare.
3.7 You acknowledge that a company client of Koi Healthcare may engage Koi Healthcare to assist the company client in finding potential leads to target their products and services to. If you are using the Service pursuant to (a) finding a health insurance plan or (b) researching health insurance information, Koi Healthcare may make available to the company client progress reports and other information that identify you and indicate the status of your use of the Service, the scope of your use of the Service, your milestone progress and status in job search, your customer satisfaction or other feedback relating to the Service, in each case individually or in an aggregated manner.
3.8 If you are using the Service pursuant to a Company Client Engagement, you acknowledge that the Service made available to you will in no event exceed the scope, duration or other limits of the Company Client Engagement pursuant to which you are granted access to the Service.
3.9 You agree that Koi Healthcare (a) may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that Content or any of Your Content will be retained by the Service and the maximum storage space that will be allotted on your behalf, (b) Koi Healthcare has no responsibility or liability for the deletion or failure to store any Content or any of Your Content maintained by or uploaded to the Service, and (c) may preserve Content and any of Your Content and may also disclose Content and Your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these TOS; (iii) respond to claims that any Content or any of Your Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Koi Healthcare, its users and the public. You further agree that Koi Healthcare may remove or disable any Content or any of Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or Your Content), or for no reason at all.
To the extent the Service or any portion thereof is made available for any fee (and is not otherwise paid by a company client of Koi Healthcare), you will be required to select a payment plan and provide Koi Healthcare information regarding your credit card or other payment instrument. You represent and warrant to Koi Healthcare that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Koi Healthcare the amount that is specified in the payment plan in accordance with the terms of such plan and these TOS. You hereby authorize Koi Healthcare to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Koi Healthcare know within sixty (60) days after the date that Koi Healthcare invoices you. Koi Healthcare reserves the right to change Koi Healthcare’s prices at any time. If Koi Healthcare does change its prices, Koi Healthcare will provide notice of the change on the Site or in an email to you, at Koi Healthcare’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. In the event you are using the Service pursuant to a Company Client Engagement, such company client will be charged for the specific Service package they have authorized Koi Healthcare to provide to you.
5. Representations and Warranties.
In connection with your use, you agree NOT to: violate any local, state, and federal rules, regulations and statutes of any jurisdiction, including, but not limited to, U.S. export laws and regulations, anti-discrimination, or equal opportunity employment laws; infringe any intellectual property and privacy rights, including, but not limited to, patent, copyright, trademark, or trade secrets, of any third party; upload, post, transmit, or store any material that is unlawful, offensive, defamatory, fraudulent, deceptive, misleading, harmful, threatening, harassing, obscene, or objectionable; breaches any of your contractual or confidentiality obligations; disrupts or interferes with the normal operations of the Service, such as posting or transmitting viruses, worms, scripts, macros or harmful code of any kind, continuous posting of repetitive materials, or posting abnormally large quantities of data; or which is not permitted by Koi Healthcare, including, but not limited to, any unauthorized advertising materials, unsolicited promotional materials, “junk mail,” “spam mail,” “chain letters,” pyramid schemes, franchises, distributorship, club membership, sales arrangement, or otherwise unacceptable materials; violate others’ privacy rights or personal rights by abusing the Service, including, but not limited to, harassing or “stalking” another person, sending unsolicited e-mails, and collecting other’s personal information; breach or attempt to breach any security measures of the Service; use any device, process, or mechanism to monitor, retrieve, search, or access, e.g., spider or robot, the Service without Koi Healthcare’s prior written consent; access or attempt to access any account or login of any third party listed on the Service; or post or submit any inaccurate, false, or incomplete information, such as your résumé, biographical data, or employment information; impersonate any person or entity; forge any header information in any electronic posting or mail; or misrepresent yourself, your affiliation with any third party, or your entity.
You have the right to terminate your account at any time in accordance with the procedures set forth on the Site or provided to you separately, where applicable. Koi Healthcare reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if Koi Healthcare believes that you have violated these TOS. Koi Healthcare shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Koi Healthcare will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Koi Healthcare. All of Your Content on the Service (if any) may be permanently deleted by Koi Healthcare upon any termination of your account in its sole discretion. If Koi Healthcare terminates your account without cause and you have signed up for a fee-bearing service if applicable (exclusive of a Company Client Engagement), Koi Healthcare will refund the pro-rated, unearned portion of any amount that you have prepaid to Koi Healthcare for such Service. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of these TOS.
THE SERVICE, INCLUDING THE SITE, CONTENT (INCLUDING, WITHOUT LIMITATION, JOB AND CAREER DEVLEOPMENT LEADS, RECOMMENDATIONS AND ANALYTICS) AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Koi Healthcare EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT KOI HEALTHCARE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM KOI HEALTHCARE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOU ARE A HEALTH INSURANCE SEEKER, KOI HEALTHCARE DOES NOT WARRANT OR GUARANTEE THAT ANY HEALTH INSURANCE LEADS OR OTHER INFORMATION WILL BE ACCURATE OR LEGITIMATE.
Under no circumstances will Koi Healthcare be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Koi Healthcare does not pre-screen content, but that Koi Healthcare and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
8. LIMITATION OF LIABILITY.
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL KOI HEALTHCARE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TOS.
8.2 Some states do not allow the disclaimer or exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations in Sections 7 (Disclaimers) and 8 (Limitation of Liability) may not apply to or be enforceable with respect to you. IN THESE STATES, KOI HEALTHCARE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF YOU ARE A USER FROM NEW JERSEY, SECTIONS 7 (DISCLAIMERS) AND 8 (LIMITATION OF LIABILITY) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER NEW JERSEY LAW. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER NEW JERSEY LAW, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION.
You shall defend, indemnify, and hold harmless Koi Healthcare from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of these TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Koi Healthcare shall provide notice to you of any such claim, suit or demand. Koi Healthcare reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Koi Healthcare’s defense of such matter. Notwithstanding the foregoing, you will have no obligation to indemnify, defend or hold harmless any Koi Healthcare from or against any claims, actions or demands to the extent resulting from any action or inaction of Koi Healthcare.
You may not assign these TOS without the prior written consent of Koi Healthcare, but Koi Healthcare may assign or transfer these TOS, in whole or in part, without restriction.
11. Governing Law.
These TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Koi Healthcare in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Koi Healthcare will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Koi Healthcare’s Copyright Agent at firstname.lastname@example.org (subject line: “DMCA Takedown Request”). You may also contact Koi Healthcare by mail at:
Koi Healthcare, Inc.
1147 Munich Terrace
Sunnyvale, CA 94089
Notice: To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, with enough detail that Koi Healthcare may find it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
13. 1. Apple-Enabled Software Applications.
Koi Healthcare offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these TOS, the following terms and conditions apply:
- Koi Healthcare and you acknowledge that these TOS are concluded between Koi Healthcare and you only, and not with Apple, and that as between Koi Healthcare and Apple, Koi Healthcare, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Koi Healthcare’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Koi Healthcare and you acknowledge that Koi Healthcare, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to:
- Koi Healthcare and you acknowledge that Koi Healthcare, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Koi Healthcare and Apple, Koi Healthcare, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that
(i)you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(ii)you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Koi Healthcare as follows:
Koi Healthcare, Inc.
1147 Munich Terrace
Sunnyvale, CA 94089
Koi Healthcare and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these TOS with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these TOS, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOS against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
– See more at:
14. Links to Other Sites.
The Service may contain links to third party web sites. These links are provided solely as a convenience to you and not as an endorsement by Koi Healthcare of the contents on such third-party web sites. Koi Healthcare is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third party web sites. If you decide to access linked third-party web sites, you do so at your own risk.
15. Mobile Devices.
If you use the Service through a mobile device, you agree that information about your use of the Service through your mobile device and carrier may be communicated to Koi Healthcare, including but not limited to your mobile carrier, your mobile device, or your physical location. In addition, use of the Service through a mobile device may cause data to be displayed on and through your mobile device. By accessing the Service using a mobile device, you represent that to the extent you import any of your Koi Healthcare data to your mobile device that you have authority to share the transferred data with your mobile carrier or other access provider. In the event you change or deactivate your mobile device/account, you must ensure that your account (and any related messages (as applicable)), are not accessed by another party (or sent to another party) and failure to do so is your responsibility. You acknowledge you are responsible for all charges and necessary permissions related to accessing the Service through your mobile device and provider. Therefore, you should check with your provider to find out the terms for these services for your specific mobile device. By using any downloadable application to enable your use of the Service, you are explicitly confirming your acceptance of the terms of the End User License Agreement associated with the application provided at download or installation, or as may be updated from time to time.
Effective June 27, 2019