This Thatch Platform Agreement is made between Thatch Health, Inc. ("Thatch" or "we") and the person or entity registering to use the services provided by Thatch ("you"). It applies to your access and use of products or services provided by Thatch or its partners. Thatch and you are each referred to as a "Party" and collectively as the "Parties" throughout. This Platform Agreement is effective when you submit to open your account with Thatch ("Effective Date") and remains in effect for the term specified below.
The Thatch Platform Terms ("Platform Terms") apply to your access and use of the products or services provided by Thatch or its partners. The Platform Terms incorporate additional agreements, terms, and policies, including the Privacy Policy ("Privacy Policy"), the Consumer Deposit Account Agreement and Debit Cardholder Agreement and any other agreements between you and financial partners (collectively, the "Financial Partner Agreements"), and the Acceptable Use Policy ("Acceptable Use Policy"). The Platform Terms are incorporated into the Member Agreement, Employer Agreement, and Partner Agreement (each, a "User Agreement"). Any breach of these Platform Terms constitutes a breach of a User Agreement. Thatch and you are each referred to as a "Party" and collectively as "Parties" throughout. The Parties agree to the following:
1. Overview
User Agreements govern use of online services provided through Thatch and its affiliates, third-party administration of Healthcare Payments Accounts such as Individual Coverage Health Reimbursement Arrangements (ICHRAs), access and use of a marketplace for Individual Plans, and the platform for Brokers and benefits consultants to support Employers and Members using Thatch’s Services. Third-party administration services are provided by Thatch Health Administration Technologies LLC. Insurance brokering services are provided by Thatch Health Insurance Services LLC.
2. Definitions
"ACA" means the Patient Protection and Affordable Care Act of 2010.
"Advance" means any payment made by Thatch or its affiliates on behalf of an Employer, Member, or Partner before receiving corresponding funds from that party.
"Applicable Rules" mean any federal or state laws, regulations, orders, or rules including those promulgated by the Internal Revenue Service (IRS), the Department of Health and Human Services (HHS), the Centers for Medicare & Medicaid Services (CMS), and the Department of Labor (DOL) that govern the use of Healthcare Payments Accounts, the tax treatment of Qualified Medical Expenses, and healthcare benefits. Information regarding Applicable Rules may be found in both public sources and in Healthcare Notices.
"Authorized Person" means an individual designated by a user of a Thatch Account to act on behalf of that user in managing their Thatch Account.
"Brokerage" means a business that is licensed to transact insurance and that employs or contracts with individual Brokers. "Brokerage Affiliation" is a formal business relationship between a Broker and Brokerage wherein a Broker is authorized to transact insurance products and services under the Brokerage’s name and Carrier appointment agreements.
"Broker" means a person or entity that advises or arranges the purchase of an Insurance Plan on behalf of a Member and holds an insurance broker license in at least one state.
"Broker Services" means evaluating Members' insurance needs and recommending insurance policies, assisting Members with applications and enrollment processes to purchase insurance policies, communicating with Carriers on behalf of Members, and engaging in any other licensed or regulated activities commonly performed by professional Brokers.
"Cafeteria Plan" means a written plan maintained by an Employer that meets the requirements of Section 125 of the Internal Revenue Code.
"Carrier" means the insurance company that offers or maintains Insurance Plans. Without limiting the foregoing but for clarification, Thatch is not a Carrier and does not control Carriers’ actions or inaction with respect to Insurance Plans.
"COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985.
"Commission" means amounts earned by Brokers from Carriers for selling Insurance Plans or assisting individuals enrolling in Insurance Plans.
"Content" means any data, images, videos, or other informational media provided through the Services.
"Credentials" means usernames, passwords, or other identifiers used to authenticate yourself when using a Thatch Account.
"Dependent" means a spouse, domestic partner, child, qualified relative, or other individual that qualifies as a dependent under the applicable Healthcare Payments Accounts.
"Employee" means any employee of the Employer, regardless of whether they create a Healthcare Payment Account on Thatch.
"Employer" means an employer that sponsors health benefits using Thatch. An "Employer Account" is a Thatch Account used by an Employer offering Healthcare Payments Accounts to Members and managing reimbursements for healthcare premiums and other Qualified Medical Expenses.
"ERISA" is the Employee Retirement Income Security Act of 1974.
"Exchange" means a state or federally facilitated health insurance marketplace.
"Fees" means any platform, transactional costs, and expenses that you incur through use of your Thatch Account and services provided under the Platform Terms or your User Agreement.
"Financial Account" means the bank or other financial account used for funding payment of Fees and other costs or for receiving refunds and other payouts. For Employers, this includes accounts used to fund Healthcare Payments Accounts for Members; for Members, this includes accounts used to cover costs or expenses for transactions not coverable by funds in Healthcare Payments Accounts, where available; and for Partners, this includes accounts for receiving payments earned on Thatch.
"Individual Plan" is an Insurance Plan purchased by an individual or family and not through an Employer. Individual Plans may be purchased through an Exchange, through Thatch, or directly from a Carrier.
"Insurance Plan" is a health, dental, or vision plan offered by a Carrier that includes but is not limited to point of service (POS) or high deductible health plans (HDHP), and plans offered by exclusive provider organizations (EPO), health maintenance organizations (HMO), or preferred provider organizations (PPO).
"Healthcare Contribution Amounts" are amounts which Employers agree to contribute to Healthcare Payment Accounts for the benefit of Members.
"Healthcare Notices" are documents furnished to Members in their Thatch Account dashboards or by email that define eligibility, contribution, spending, or reimbursement limits applicable under specific Healthcare Payments Accounts.
"Healthcare Payments Accounts" are Individual Coverage Health Reimbursement Arrangements (ICHRAs), health savings accounts (HSAs), and other benefit plans that allow Members and Dependents to pay for healthcare or Qualified Medical Expenses. For Employees offered ICHRAs, Healthcare Payments Accounts include a Cafeteria Plan. Healthcare Payments Accounts are not Insurance Plans but may be used by Members to pay for Insurance Plans where permitted. ICHRAs are employer-funded health benefit programs that reimburse or pay for insurance premiums and other Qualified Medical Expenses up to the Member’s Healthcare Contribution Amounts.
"Member" means an Employee that elects to participate in Healthcare Payments Accounts through Thatch. Dependents are not Members. A "Member Account" is a Thatch Account used by a Member for managing their Healthcare Payments Accounts, paying for Individual Plans, managing sources of payment, and managing personal and contact information.
"Partner" means a person or entity that helps Employers or Members manage their Thatch Accounts or their Healthcare Payments Accounts. Partners may be but are not necessarily Brokers. A "Partner Account" is a Thatch Account used by a Partner to manage aspects of Member Accounts and Employer Accounts.
"PCORI" means the Patient-Centered Outcomes Research Institute.
"Qualified Medical Expenses" are expenses eligible for tax-free treatment under the applicable Healthcare Payments Account as specified or modified by the IRS.
"Qualifying Life Event" means any life event that may allow Members to enroll in or modify their Individual Plan outside of standard annual enrollment periods. Qualifying Life Events can include loss of job-based health coverage, changing residence or marital status, having or adopting a child, or a death in the family.
"Referral Fees" are amounts earned by a Broker, Partner, or another affiliate of Thatch in exchange for referring Employers to use Thatch for benefits administration.
"Reserve" means funds provided by you to be held as a security interest against existing or potential commitments to Thatch or third parties including, as applicable, Carriers, Members, or Partners.
"Services" means Thatch Services, Third-Party Offerings, Healthcare Payments Account administration, the Thatch Marketplace, and other Thatch products or services whether accessed directly, programmatically, or through a third party. "Term Sheet" means any written agreement between Thatch and a third party (not including the User Agreements) that sets forth the commercial terms of their relationship, including but not limited to order forms with Employers, referral agreements with Partners or Brokerages, and any other documents that supplement or modify the Platform Terms or User Agreements.
"Thatch Account" means the online account created by an individual or entity to access and use Thatch's Services, which may be an Employer Account, Member Account, or Partner Account.
"Thatch Card" means a virtual or physical payment card issued by Thatch to Members to pay for healthcare premiums or Qualified Medical Expenses using Healthcare Payments Accounts.
"Thatch Marketplace" means a web page hosted by Thatch with Third-Party Offerings available for purchase by Members through our commercial partners.
"Thatch Services" means products or services developed by and provided through Thatch and expressly excludes all products or services developed by third parties including those that may be integral to the functioning of Thatch products (such as payment services provided by banking partners or insurance products provided by Carriers).
"Third-Party Offerings" are any products or services provided by parties other than Thatch including employee benefits providers, banking and payment services, payroll administrators, software platforms, Insurance Plans, or the Thatch Marketplace.
"Taxes" means any taxes, fees, or assessments imposed by any governmental authority in connection with your use of the Services, Healthcare Payments Accounts, or payments made through your Thatch Account.
"Thatch for Brokers" means the suite of products designed for Brokers, Partners, and other affiliates of Thatch that assist Employers with benefits administration using Thatch.
3. Opening and Managing a Thatch Account
A. Opening a Thatch Account
You must create a Thatch Account to access the Services. You can use your Thatch Account to view and manage personal and contact information; to maintain or update your Credentials; to connect Financial Accounts; and to use Services.
Thatch and its financial partners may request additional information to fulfill their legal requirements and may engage third-party service providers to verify this information. We may provide preliminary access to your Thatch Account before all information is validated and we approve your Thatch Account.
Thatch may contact you regarding your Thatch Account, Thatch Card payments, Insurance Plan enrollments, or other transactions. We may contact you using the phone number, email address, and physical address that you provide to Thatch. Any communications are subject to Section 12 (Electronic Signatures and Communications).
You must be at least 18 years old to consent to a User Agreement and open an account.
B. Managing a Thatch Account
You agree to keep all information in your Thatch Account current, including contact information and Financial Accounts. For Employers, this includes keeping your Employee roster current. For Members, this includes adding and removing Dependents, recording all address changes, and making healthcare elections during the enrollment windows communicated to you by Thatch or your Employer. You must make any changes to your Thatch Account information in a timely manner. You are responsible for any Fees, penalties, fines, or other amounts that third parties–including Carriers–assess as a result of your failure to keep your Thatch Account current.
Thatch will communicate important deadlines to you using either your Thatch Account or the contact information that you provide to Thatch in your Thatch Account. You agree to abide by those deadlines when signing up for or using your Healthcare Payments Accounts.
C. Keeping your Thatch Account Secure
You must keep your Credentials secure. Only you or those who are authorized to act on your behalf may access your Thatch Account. We may rely on any actions taken using your Credentials or by Authorized Persons. We may offer tools to help keep your Credentials and Thatch Account secure but it is up to you to take the steps that you believe are necessary to secure your Thatch Account, which may include using tools or systems not provided by Thatch (such as a password manager).
D. Healthcare Notices and Healthcare Payments Accounts
You must create a Thatch Account before an Employer offers or a Member utilizes Healthcare Payments Accounts. The terms, conditions, eligibility criteria, and Healthcare Contribution Amounts associated with Healthcare Payments Accounts are defined in these Platform Terms, and the applicable User Agreements and Healthcare Notices. Employers must review and approve their Healthcare Notices before offering Healthcare Payments Accounts to Members. Members must review and accept their Healthcare Notices before utilizing Healthcare Payments Accounts. Employers and Members will each comply with the terms of their Healthcare Notices with respect to their Healthcare Payments Accounts.
Healthcare Payments Accounts are designed to enable tax-free spending on healthcare or other Qualified Medical Expenses consistent with Thatch’s Services, and use of funds not supported by the Healthcare Notices is prohibited. You are responsible for all penalties, fines, or other amounts incurred that result from using funds or your Thatch Account in any manner inconsistent with the Healthcare Notices.
4. Third-Party Offerings
You may access or use Third-Party Offerings through your Thatch Account (including insurance policies and purchases made through the Thatch Marketplace), but Thatch does not control Third-Party Offerings and is not responsible for any loss or damage that may arise from your use of any Third-Party Offerings. Your use of any Third-Party Offerings is at your own risk and subject to any terms, conditions, or policies (including any privacy policies) applicable to such Third-Party Offerings and Content, Services, and integrations.
5. Payment and Taxes
A. Fees
Fees for use of Thatch Accounts are specified on our pricing page, which may be updated upon 30 days' notice through publication on the pricing page or in your Thatch Account dashboard unless otherwise agreed upon in writing between you and Thatch.
Thatch does not control charges, pricing, or fees set by Partners or for Third-Party Offerings.
B. Debit Authorization
You authorize Thatch to debit from Financial Accounts all amounts owed or committed under the Platform Terms, Healthcare Notices, User Agreements, and any other agreement between you and Thatch. Such debits may include (a) Healthcare Contribution Amounts, (b) amounts owed to Employers, Members, or Partners, (c) amounts paid on Members’ behalves to third parties such as Carriers or Partners, (d) Fees, (e) Taxes, and (f) amounts for Advances or Reserves. Where debits from Financial Accounts are unsuccessful for any reason, including insufficient funds, we may attempt to re-debit Financial Accounts for amounts up to the full amount owed or committed.
For Automated Clearinghouse (ACH) direct debits from a US bank account, you also acknowledge that: (g) the Authorized Person is authorized to permit Thatch to initiate debits from Financial Accounts and (h) Thatch is authorized to debit from all amounts owed or committed under the Platform Terms, Healthcare Notices, and User Agreements from Financial Accounts.
This debit authorization from your Financial Accounts will remain in full force and effect until all amounts owed or committed under the Platform Terms, User Agreements, and Healthcare Notices are paid in full. You waive all rights to revoke this authorization to the fullest extent permitted by law, even where your agreement with your financial institution or the payment network rules (including the NACHA rules) may provide you the right to do so.
C. Advances and Reserves
Thatch may make Advances to third parties on your behalf where funds committed or owed by you are not immediately available. The terms of the Advance depends on the type of the related Thatch Account. Advances may include but are not limited to payments to Carriers on behalf of Members and reimbursements to Members on behalf of Employers. Any Advances made by Thatch are immediately due and payable by you and may be collected from Financial Accounts. The foregoing does not limit your responsibility for payment for Advances or any other commitments.
Thatch may require that you provide a Reserve as a condition of use or continued use of Services. If required, we will determine and communicate the amount of the Reserve in advance of debiting your Financial Account. Amounts held in a Reserve may be used to satisfy any of your financial obligations under the Platform Terms, User Agreements, or Healthcare Notices.
D. Taxes
Thatch may provide general information related to the tax implications of Healthcare Payments Accounts but Thatch does not provide tax or legal advice. You are solely responsible for seeking appropriate advice from tax professionals who understand your circumstances and for payment of Taxes. Fees owed to Thatch are exclusive of Taxes and will not constitute any portion of Taxes you may owe.
6. Thatch Marketplace
Members may have access to a Thatch Marketplace where they can shop for products and services, which are Third-Party Offerings. Third-Party Offerings discoverable on Thatch Marketplace may be purchased directly through the Thatch Marketplace, through other merchants’ websites, or through third-party websites. Thatch does not control and is not responsible for the content on merchants' websites; and Thatch is not responsible for your purchase, use or misuse, or errors or failures of Third-Party Offerings.
THATCH DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO YOUR USE OF THIRD-PARTY OFFERINGS PURCHASED THROUGH THE THATCH MARKETPLACE.
We do not recommend or require specific Third-Party Offerings but may make discounts or other benefits available through the Thatch Marketplace. Thatch may receive a fee from merchants when purchases are initiated on the Thatch Marketplace. Purchases, fulfillments, returns, and refunds of any products or services made through the Marketplace are managed exclusively by the merchants.
7. Support Services
A. Support for Your Thatch Account
Thatch provides assistance to questions that you pose to us regarding your Thatch Account or Services ("Support"). Support may be computer-assisted or -generated. You can contact us at any time at support@thatch.ai or through any other tools that we make available to you in your Thatch Account.
While Thatch may provide limited assistance in navigating insurance questions or your relationship with Carriers, we do not guarantee and fully disclaim all responsibility for outcomes based on this assistance. Members are solely responsible for the selection of Insurance Plans, payments to and disputes with Carriers, questions of specific coverage made by Carriers, decisions related to payment of medical expenses, and the tax consequences of their healthcare elections.
B. Thatch Does Not Provide Medical Advice
Thatch does not offer medical advice or diagnoses, or engage in the practice of medicine, and Services are not a substitute for professional medical advice, diagnosis, or treatment. Only medical professionals can determine the right course of treatment and advise what is safe, appropriate, and effective based on a person's needs. Members are solely responsible for engaging medical professionals as appropriate for themselves and for their medical decisions or actions, including choices to elect or waive treatment.
C. Emergency Services
Services provided by Thatch are not a substitute for emergency care. If you have a medical or mental health emergency, are contemplating suicide or taking actions that may cause harm to you or others, you should seek immediate emergency treatment at the nearest emergency room or dial 911.
8. Closing Your Thatch Account
When and how to close your Thatch Account will depend on the type of Thatch Account you maintain with details included in your specific User Agreement. When you close your Thatch Account you are still responsible for all amounts owed under the Platform Terms, User Agreements and your Healthcare Notices, which may be debited from your Financial Account or collected in any manner specified by another agreement between you and Thatch.
9. Privacy and Use of Data
Thatch uses data submitted to us to provide Services to you. Our use of personally identifiable information ("PII") is subject to the Privacy Policy. PII may include protected health information ("PHI") and we comply with the Health Insurance Portability and Accountability Act ("HIPAA") as applicable to us. Depending on the type of Thatch Account that you have, Thatch may require you to enter a Business Associate Agreement with Thatch in order to access PHI. We do not use or disclose PHI to third parties except as directed or as permitted or required by law. We encourage you to take appropriate steps to prevent the unauthorized use or disclosure of PHI, including by ensuring that PII is properly stored and secured, and educating Members on proper handling of their PII.
PII may be shared with your Broker to identify and purchase Insurance Plans on your behalf, manage changes to your Plans, and otherwise provide services to you. Any use or handling of PII by Brokers is subject to their respective privacy policies.
We may also use information provided or processed on an anonymized or aggregated basis to provide and improve our Services, analyze performance, and produce reporting related to use Services and Content.
After your Thatch Account is closed, Thatch may retain limited information about your account that may include PII or PHI for compliance and tax reporting purposes. The Privacy Policy and Applicable Rules apply to any PII we retain even after your Thatch Account is closed.
10. Intellectual Property
Thatch owns and retains all rights to its intellectual property including patents, copyrights, trade or service marks, and trade secrets that may be included in or provided as part of Services and Content. You may only use Thatch's intellectual property in the context of using Services and Content as permitted by the Platform Terms. Other use is prohibited and no right of use or license to use Thatch intellectual property for other purposes is provided under the Platform Terms.
11. Term and Termination
A. Term
The User Agreements will remain in effect from the Effective Date until they are terminated by you or us as provided in this section.
B. Termination
Unless the Parties agree to a notice or termination period in a separate agreement, amendment, or Term Sheet signed by both Parties, you may terminate your User Agreement at any time by closing your Thatch Account, settling any outstanding financial obligations, and ceasing to use Services; provided, however, that Healthcare Contribution Amounts, commitments made in Healthcare Notices, and other other terms in the User Agreements may survive the termination of the User Agreement or closing of your Thatch Account.
We may terminate your User Agreement upon 90 days' notice to you except where required to terminate sooner by law or legal order. In addition, either you or we may terminate your User Agreement if the other Party has breached the User Agreement by providing notice of breach, and such notice will be effective 15 days after such notice is received if the breach is curable or immediately upon receipt if the breach is not curable.
The following sections, subsections, and provisions of the Platform Terms will remain effective even after termination of the User Agreement: 5 (Payments and Taxes), 6 (Thatch Marketplace), 7 (Support Services), 8 (Closing Your Thatch Account), 9 (Privacy and Use of Data), 10 (Intellectual Property), 11.B (Termination), 12 (Electronic Signatures and Communications), 13 (Dispute Resolution), 14 (Warranties, Disclaimer, Limits on Our Liability, Indemnity), 15 (Notices), 16 (Additional Legal Terms), and any provisions or conditions that must survive to fulfill their essential purpose.
12. Electronic Signatures and Communications
A. Electronic Signatures
You agree to use electronic signatures to consent to agreements or amendments; to approve purchases, billing, or debiting Financial Accounts or Reserves; to receive, accept, or waive Healthcare Notices or adopt Healthcare Payments Accounts related to Services; to receive tax forms and other reporting documentation related to the Services; and for other transactional purposes related to these Platform Terms or the Services.
You acknowledge that electronic signatures are subject to the E-SIGN Act.
B. Communications regarding your Account, Email and Text Messages
We may communicate with you through your Thatch Account dashboard, email, phone, text or SMS, video conference, or physical mail.
Where a phone number is provided, you consent to receive communications from us via text, SMS, or voice call, including communications through the use of automated phone dialing systems, to each phone number you provide to us. For Employer Accounts, this includes the phone numbers of Authorized Persons. You may add or change the phone numbers provided, but you authorize and consent to receive communications on each phone number you provide. You agree to indemnify and hold Thatch harmless from and against all claims, liabilities, damages, losses, and expenses (including attorneys' fees) that arise from or are in any way related to your breach of this subsection.
You can stop receiving text or SMS messages by texting "STOP" to us, and we will respond to confirm that you have been unsubscribed. After this, you will no longer receive text or SMS messages from us, which may impact your ability to use the Services. If you are experiencing issues with the messaging program, you can get help directly at support@thatch.ai. We are not liable for delayed or undelivered messages. Message and data rates may apply for any messages sent to you from us and to us from you. Messaging frequency may vary. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
Thatch may offer the option to use SMS for two factor authentication as an additional layer of security for your account.
13. Dispute Resolution
A. Disputes
In the event of a dispute, claim, or controversy between you and Thatch arising out of these Platform Terms, the User Agreements, or the relationship between You and Thatch ("Dispute"), the Parties will first attempt in good faith to informally resolve the Dispute. The Party initiating the Dispute must provide a written statement specifying their name, address, and contact information; the facts giving rise to the Dispute; and a proposed solution in the manner provided in Section 15 (Notices). You and Thatch will attempt to resolve any Dispute through informal good faith negotiation. After 45 days, if the Dispute is not resolved, you or we can commence arbitration. The arbitrator will decide whether this subsection is violated and may enjoin the filing or prosecution of arbitrations. Unless prohibited by applicable law, the arbitrator will not administer any arbitration unless the requirements of this subsection have been met.
B. Arbitration
You and Thatch agree that any Dispute will be resolved to the fullest extent permitted by applicable law through binding arbitration as described below. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (including but not limited to claims arising under ERISA), even if the Dispute arises after the termination of these Platform Terms or the User Agreements. You and Thatch agree that for the purposes of the Dispute, Thatch's officers, directors, employees, and independent contractors ("Thatch Personnel") are third-party beneficiaries of this section. Further, if you are a Member or Dependent, you agree that for purposes of the Dispute, the Employer is a third-party beneficiary of this section.
The negotiations mentioned in the previous subsection are a precondition of filing an arbitration and, where such negotiations fail to resolve the Dispute, it will be finally decided through arbitration before a single arbitrator. Arbitration will apply the Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. ("JAMS") and, except as provided for below, will take place in San Francisco, California.
Notwithstanding the foregoing, nothing in this section will be construed or interpreted as prohibiting or precluding the filing of claims in court which cannot be waived by agreement by the Parties, but only to the extent precluded by applicable law.
Arbitration for Employers, Partners. IF YOU ARE AN EMPLOYER OR PARTNER, YOU AND THATCH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Disputes will be resolved before the JAMS arbitrator whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. The arbitrator will decide all issues pertaining to arbitrability, including their own jurisdictional validity and enforceability of the Platform Terms, subject to the powers granted under the applicable JAMS rules. Any court with jurisdiction over the Parties may enforce the arbitrator's award.
Arbitration Opt-Out for Members. If you are a Member, you have the right to opt out of the provisions of this section by sending written notice of your decision to opt out to us within 30 days of the Effective Date as provided in Section 15. Notices must be sent in the manner described in Section 15. You must include your name and residence address, the email address and telephone number associated with your account, and a clear statement that you want to opt out of this arbitration provision. IF YOU DO NOT OPT OUT, YOU AND THATCH ARE WAIVING ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY.
C. Arbitration Rules
Arbitration is subject to the JAMS Comprehensive Arbitration Rules and Procedures ("JAMS Rules") in effect at the time the Dispute is filed. Either Party may request a telephonic or in-person hearing by following the JAMS Rules; provided, however, that any Dispute involving $10,000 or less will be conducted as a telephonic hearing unless the arbitrator finds good cause to hold an in-person hearing. The arbitrator may award the same damages to you individually as a court could, subject to the limitations of liability contained in the Platform Terms. The arbitrator may award declaratory or injunctive relief only to you or Thatch individually, and only to the extent required to satisfy the Dispute.
D. Costs of Arbitration
Whoever files the arbitration will pay the initial filing fee provided that if you file you may request a fee waiver under the JAMS Rules. Each Party will bear the expense of its own attorneys, experts, and witnesses, and other expenses, regardless of which Party prevails. However, this does not limit the recovery of expenses (including attorney's fees) from another Party if the arbitrator so determines when applying applicable law.
E. Discovery
The arbitrator will have the authority to resolve all issues concerning discovery and will have the authority to issue subpoenas for the appearance of witnesses or the production of documents pursuant to applicable law. Each Party will be limited to the exchange of documents provided for in the JAMS Rules and a maximum of two seven-hour depositions of witnesses in accordance with the procedures set forth in Rule 30 of the Federal Rules of Civil Procedure. In addition, each party will be entitled to conduct a maximum of one seven-hour deposition of expert witnesses designated by the other party. Notwithstanding the foregoing limitations, the arbitrator will have the authority to allow for additional discovery upon a Party’s request, the reasonable need for the requested information, and the burdensomeness of the request on the opposing Party and witnesses.
F. Waiver of Class, Collective, Representation Actions
Except as otherwise required by law, the Parties expressly intend and agree that: (a) class action, representative action, and collective action procedures will neither be asserted nor apply in any arbitration conducted pursuant to this section; (b) each Party will not assert and hereby waives its right to pursue or participate in class, representative, or collective action claims against the other in arbitration or any other forum; and (c) the Parties will only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person, to the greatest extent permitted under applicable law.
Should a court determine that this prohibition on class, collective, representative, joint, or group actions is invalid for any reason, the Parties hereby waive any right to arbitration of the class, collective, representative, joint, or group action at issue and instead agree and stipulate that such claims will be heard only by a judge and not an arbitrator or jury, to the maximum extent permitted by law. Additionally, the Parties agree that if a party brings an action that includes both claims subject to arbitration under this section and claims that by law cannot be arbitrated, all claims that by law cannot be arbitrated will be stayed until the claims subject to arbitration are fully arbitrated. The Parties further agree that in such a situation, the arbitrator’s decision on the claims subject to arbitration, including any determinations as to disputed factual or legal issues, will be dispositive and entitled to full force and effect in any separate lawsuit on claims that by law are not subject to arbitration.
G. One-Year Filing Period
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ANY DISPUTE MUST BE FILED WITHIN ONE YEAR FROM THE EARLIEST DATE WHEN THE EVENTS GIVING RISE TO THE DISPUTE FIRST OCCUR. Claims not submitted within one year are permanently barred. This period may be extended only where both Parties agree in writing. No statutes or provisions of law that would toll or otherwise affect the time during which a Party may bring a claim will operate to extend the period limited in this section. Any such statutes and provisions are hereby waived to the fullest extent permissible under applicable law.
H. Infringement
Notwithstanding the foregoing obligation to arbitrate disputes, each Party will also have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
I. Exclusive Venue
Where you opt-out or where this arbitration agreement permits either you or Thatch to litigate any dispute arising out of or relating to the subject matter of these Terms in court, you and we agree that any judicial proceeding will be brought in the state or federal courts located in San Francisco County, California.
J. Enforcing Award
Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either Party may bring an action in court to compel arbitration under this section and to confirm, vacate or enforce an arbitration award. Each Party will bear its own attorney fees and costs and other expenses of such action.
K. Severability of this Section
If any provision of this section is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision will be severed and such adjudication will not affect the validity of the remainder of this section. For the avoidance of doubt, to the extent that any portion of the waivers contained in this section is determined to be invalid or unenforceable by a court of competent jurisdiction, the Parties agree that the valid portion of the waiver will be enforced in arbitration.
14. Warranties, Disclaimer, Limits on Our Liability, Indemnity
A. Limited Warranties
Each Party warrants that it has all rights and authority to enter into the User Agreement and perform its respective obligations.
Thatch warrants that it will provide Thatch Services in a manner consistent with documentation on our support pages and will administer benefits consistent with Healthcare Notices.
You warrant that (a) all information and certifications you provide to us are accurate and current, (b) that you are authorized, as applicable, to provide access to financial accounts or records, (c) all requisite tax filings or maintenance of tax status required to access your Thatch Accounts are current, and (d) you have and will only provide access to Credentials to those persons authorized to access your Thatch Account.
B. General Disclaimer of Warranties
Except as provided in Section 14.A, Thatch and its affiliated entities, and each of their respective officers, directors, employees, consultants, representatives, and agents, and each of their respective successors and assigns (Thatch and all such parties together, the "Thatch Parties") make no representations and disclaim all warranties concerning the Services or Content.
The Thatch Parties are not responsible to you or liable for the accuracy or ownership of any Third-Party Offerings or any claims, actions, suits, procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your use of Third-Party Offerings. Thatch Parties make no representations, warranties, suggestions, or recommendations regarding Insurance Plans, insurance carriers, or healthcare-related providers, products, or services offered or purchased through or in connection with the Services or discussed in connection with Support.
EXCEPT AS PROVIDED IN SECTION 14.A, THE SERVICES AND CONTENT ARE PROVIDED BY THE THATCH PARTIES ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
C. Carrier Disclaimer
Without limiting the scope or generality of Section 14.B, Thatch does not warrant and fully disclaims all responsibility or liability for delays or errors made, actions taken, or inactions not taken by Carriers, Partners, and Brokers with respect to Insurance Plans. This includes a Carrier’s, Partner’s, or Broker’s failure to place or bind a plan correctly or on time, maintain an enrollment, or bill promptly or the correct amounts. This disclaimer includes all direct and indirect consequences of such Carrier’s actions.
D. Limits on Our Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) WILL ANY THATCH PARTY BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; (B) ANY SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; (C) DISPUTES BETWEEN YOU OR MEMBERS AND INSURANCE CARRIERS, REGARDLESS OF THE CAUSE OF THE DISPUTE, INCLUDING BUT NOT LIMITED TO CARRIER’S FAILURE TO PLACE A PLAN, ENROLL OR MAINTAIN A MEMBER’S ENROLLMENT, OR BIND PAYMENT; AND (D) ANY MATTER BEYOND OUR REASONABLE CONTROL.
E. Indemnification
You agree to indemnify and hold Thatch harmless from and against all third-party claims, suits, or actions made or brought against Thatch, and any liabilities, damages, losses and expenses (including attorneys' fees), that arise from or relate to (a) your use of Third-Party Offerings, (b) actions taken on your Thatch Account by you or others on your behalf using your Credentials, (c) direct and indirect costs associated with collecting amounts owed to us including for Advances or Reserves, or (d) your violation of the User Agreement. In the event of such a claim, suit, or action ("Claim"), we will provide Notice of the Claim to the contact information we have for your Thatch Account first, provided that our failure to deliver such notice does not eliminate or reduce your indemnification obligations hereunder.
15. Notices
Any notice, demand, waiver, and other communications regarding the User Agreement ("Notice") must be in writing. We may deliver Notices electronically or to the address you provided that is associated with your Thatch Account. Notices sent to Thatch must be sent to Thatch Health, Inc., 703 Market St., 16th Floor, San Francisco, CA 94103 with a copy sent to notices@thatch.ai. Notice is effective only when received and is subject to all the requirements of this section.
16. Additional Legal Terms
A. Amendment and Modification
We may revise or update the Platform Terms, User Agreement, Privacy Policy, Financial Agreements, or Acceptable Use Policy at our discretion by posting an update to our website. Continuing to access the Services after we update our website means that you have consented. You must stop using the Services if you do not consent.
Any delay in or failure to exercise rights or remedies arising from the User Agreement does not constitute waiver of those rights. Likewise, any exercise or partial exercise of such right or remedy does not preclude future exercises.
B. Assignment and Delegation
Neither Party may assign its rights or delegate its obligations under the User Agreement without the prior written consent of the other Party; provided, however, that Thatch may assign its rights and delegate its obligations as part of a sale of all or substantially all its business. Except as permitted above, any purported assignment or delegation is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations hereunder. This User Agreement binds and inures to the benefit of the Parties and their respective permitted successors and assigns.
C. Severability
If a provision of the User Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of the User Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto will negotiate in good faith to modify the User Agreement to reflect the original intent of the Parties as closely as possible.
D. Interpretation
In the event of a conflict between the Partner Terms and a User Agreement, the User Agreement will control. In the event of a conflict between a Term Sheet and the Partner Terms or a Term Sheet and a User Agreement, the Term Sheet will control. Any agreement will be construed mutually where neither Party is considered the drafter.
Section, subsection, addenda, or exhibit titles are provided for convenience only and are not meant to be interpreted. The terms "section" and "subsection" refer to the enclosing numerical (1, 2, 3, etc.) and alphabetic (A, B, C, etc.) headings, respectively. For example, used in this paragraph, this section refers to all of 16 (Additional Legal Terms) and this subsection refers to 16.D (Interpretation).
Defined terms may be used in singular or plural forms, such as Service or Services. The phrases "for example," "including," or "such as" will not be read to limit the general statements provided but are provided as examples. Use of "or" is not limiting and may mean either one or the other or all options.
E. Disputes and Governing Law
Subject to Section 13 (Dispute Resolution), all Disputes arising out of or related to the User Agreement will be instituted exclusively in the federal and state courts located in San Francisco County, California and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
The User Agreement is governed by and construed in accordance with the laws of the State of California. No effect will be given to a choice or conflict of law provision or rule that requires or permits the application of the laws of any jurisdiction other than those of the State of California.
F. Equitable Relief
You and we agree that injunctive relief provides the best remedy if either Party breaches Subsection 13.B (Arbitration) or you breach Section 10 (Intellectual Property) because (a) it would be difficult to determine the damages resulting from such breach and (b) any such breach may cause irreparable harm. Each Party waives any opposition to such injunctive relief or requirements that the injured Party prove actual damage or post a bond or other security. Such injunctive remedies are in addition to other remedies that may be available at law, in equity, or otherwise. This subsection does not limit either party's rights to injunctive relief related to breaches not listed here.
H. Force Majeure
Except for payment obligations owed by you, neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
